Com. v. Tyree

• Decision Date: 08 January 2010
• Docket Number: SJC-10358.
• Citation: 919 N.E.2d 660,455 Mass. 676
• Parties: COMMONWEALTH v. Raymie TYREE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

919 N.E.2d 660

455 Mass. 676

COMMONWEALTH v. Raymie TYREE.

SJC-10358.

Supreme Judicial Court of Massachusetts.

Argued September 8, 2009.

Decided January 8, 2010.

Anne E. O'Reilly for the defendant.

Kimberly A. Rugo, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., SPINA, CORDY, BOTSFORD, & GANTS, JJ.

MARSHALL, C.J.

We granted the defendant's application for further appellate review to consider his claim that evidence obtained during a warrantless search of a condominium unit (unit) where he was residing should have been suppressed. The defendant also sought to suppress evidence taken from him (his shoes) at the police station after his warrantless arrest, as well as evidence obtained during two subsequent searches of the unit. A Superior Court judge denied the motion to suppress in its entirety, concluding that exigent circumstances had justified the initial warrantless entry and search and that a third search of the unit was undertaken with the consent of the owner. The motion judge made no specific rulings regarding a second search, but his denial of the motion rested on an implicit conclusion that the second search which was conducted pursuant to a warrant, was permissible.¹ The defendant was convicted on one indictment charging armed robbery while masked, G.L. c. 265, § 17,² and one indictment charging possession of a Class B substance, G.L. c. 94C, § 34. In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court affirmed. Commonwealth v. Tyree, 72 Mass.App.Ct. 1111, 891 N.E.2d 716 (2008).

For the reasons that follow, we conclude that, at the hearing on the defendant's motion to suppress, the Commonwealth failed to introduce evidence sufficient to satisfy its burden of showing that exigent circumstances justified the initial entry and search of the unit. Evidence obtained during that search, including the defendant's shoes seized at the police station after his arrest, should have been suppressed. We further conclude that evidence as to the armed robbery while masked conviction obtained during the second search was properly seized pursuant to a search warrant and supporting affidavit, and that evidence as to the drug conviction was properly admitted in evidence under the plain view doctrine. Finally, we conclude that the third search was proper because consent was given by the owner of the unit. Because we cannot conclude that the failure to suppress the evidence obtained pursuant to the initial warrantless entry and search was harmless beyond a reasonable doubt, we reverse the defendant's convictions and remand for a new trial.

1. Facts. We summarize the relevant facts from the motion judge's findings, which are supported by the record, supplemented as necessary with uncontested facts from the motion hearing.³ At about 9:15 P.M. on April 8, 2003, the manager of the Sun City Variety Store in Tyngsborough was robbed by two masked men. After responding to the scene of the robbery, the police obtained a description of the two armed assailants from the store manager. He informed the police that the assailants had taken money from him and from the store, and had fled in a white "box" van.

Tyngsborough Detective Sergeant Charles C. Chronopoulos was informed by another officer at the scene, Daniel Smith, that Raymie Tyree and Wayne Hoffman fit the store manager's description of the assailants.⁴ Officer Smith believed that the two lived at 103 Cardinal Lane. Based on this information, Officer Shaun Wagner was dispatched to 103 Cardinal Lane, a unit adjoining others within a townhouse condominium complex approximately two to three miles from the scene of the robbery. Officer Wagner noticed a white box van in the condominium complex's common parking lot, noted that the hood of the van was still warm to the touch despite the snowy weather, and relayed this information to Sergeant Chronopoulos. Sergeant Chronopoulos and other officers then drove to the condominium complex to join Officer Wagner.⁵

At some point, Sergeant Chronopoulos left the complex, returned to the scene of the robbery, and brought the store manager with him to the condominium complex. The manager told the police that the white box van in the parking lot "looked like" the one the robbers had used.⁶ Looking through the van's window, the manager said that a money band that was visible on the front passenger seat looked "similar" to the bands that had been on money taken by the assailants from the store. There is nothing in the record to suggest that anyone inspecting the van would have been visible from 103 Cardinal Lane.⁷

Sergeant Chronopoulos drove the manager back to the store and then returned to the condominium complex, joining five other officers.⁸ Two, including Sergeant Chronopoulos, were in plain clothes. The six officers then approached 103 Cardinal Lane. Three officers went to the area behind the unit, while Sergeant Chronopoulos and two others went to the front door. All had their guns drawn. There is no evidence that any lights, movements, or activity of any kind had been seen or heard by the police inside 103 Cardinal Lane at any time.

Shortly after 11 P.M., approximately one hour and forty-five minutes after the robbery, Sergeant Chronopoulos knocked on the front door. After two to three minutes, Sandra Markee, the owner of the unit, opened the door.⁹ Sergeant Chronopoulos identified himself as a Tyngsborough police officer and told Markee that the police were investigating an armed robbery. At the motion hearing, Sergeant Chronopoulos and Markee disputed the details of the ensuing conversation. The motion judge found that the officers told Markee they were looking for Tyree and Hoffman in connection with an armed robbery, that the officers "then entered Markee's condominium," and that Sergeant Chronopoulos "then directed Markee to open the sliding glass door in the living room area" so that three officers, who had gone around to the back of the unit, could enter.

Once all six officers were inside, Sergeant Chronopoulos and two other officers went to the basement, with their guns drawn. There they saw and smelled evidence of recent cocaine use. After hearing noises behind a bulkhead door the officers forced the door open and found the defendant, who was "wasted," "disoriented," and "drooling," and "appeared to be under the influence of drugs." Sergeant Chronopoulos also noticed that the shoes the defendant was wearing had soles similar to footprints Sergeant Chronopoulos had seen in the snow outside the Sun City Variety Store shortly after the robbery. The officers arrested the defendant for unlawful possession of narcotics and seized a "crack pipe" and what appeared to be narcotics.

After taking the defendant into custody and conducting a "sweep" of the unit for other individuals, Sergeant Chronopoulos left two officers inside the unit while he went to the Tyngsborough police station to secure search warrants for 103 Cardinal Lane and the white box van. At least one officer remained inside with Markee overnight until Sergeant Chronopoulos returned with other officers at 8:15 A.M. the following day, April 9, 2003, to execute the warrants.¹⁰ During this, the second search, the officers recovered drug paraphernalia,¹¹ a black winter jacket, and a black semiautomatic replica gun.¹² They also recovered a brown paper money band marked "500" from the right front passenger seat of the van.

Later that day, the police learned that the construction company for which Hoffman worked had reported a white box van as stolen. Hoffman went to the Tyngsborough police station that evening and denied stealing the van. The police did not arrest or charge Hoffman with a crime; they telephoned Markee and asked her to allow Hoffman to stay at 103 Cardinal Lane that night, "presumably in order to keep track of his whereabouts," as the motion judge found. The defendant remained in custody.

Two days later, on April 11, 2003, at about 1 P.M. Sergeant Chronopoulos obtained an arrest warrant for Hoffman. After being brought to the Tyngsborough police station, Hoffman told Sergeant Chronopoulos that guns and masks used in the robbery were in the ductwork in the basement's rafters at 103 Cardinal Lane, but "they would not be there for much longer."¹³ Sergeant Chronopoulos and three other officers immediately went to 103 Cardinal Lane, taking Hoffman with them. When Markee opened the door, Sergeant Chronopoulos told her he believed there were weapons in the basement and he wanted to search for them. He presented her with a consent to search form, which she signed. Now searching the unit for the third time, the police recovered a closed duffel bag from the ceiling area of the basement, opened the bag and found two masks and two replica handguns, one black and one silver.

2. Procedural background. We describe briefly the relevant proceedings in the Superior Court. The defendant moved to suppress the evidence obtained during each of the three searches, including his shoes.¹⁴ At the evidentiary hearing on his motion and in their initial written submissions, the parties' discussion of the initial warrantless entry and search on April 8 focused exclusively on whether Markee had consented to the search.¹⁵

After the hearing the motion judge issued an order, sua sponte, stating: "Although not raised by the parties at the motion hearing or in their Memoranda, the Court would ask both parties to brief the question of whether the entry and search by police of 103 Cardinal Lane on April 8, 2003, was justifiable on the basis of exigent circumstances and/or hot pursuit."¹⁶ After supplemental briefing, the motion judge issued findings of fact and rulings of law, concluding that Markee had not consented to the initial entry and search on April 8, but that, because of exigent circumstances, the officers' initial entry and search was justified. The motion judge further found that Markee had freely and...