Commonwealth v. Barrett

• Decision Date: 14 May 2020
• Docket Number: No. 18-P-1079,18-P-1079
• Citation: 148 N.E.3d 1217,97 Mass.App.Ct. 437
• Parties: COMMONWEALTH v. Frank BARRETT.
• Court: Appeals Court of Massachusetts

97 Mass.App.Ct. 437

148 N.E.3d 1217

COMMONWEALTH

v.Frank BARRETT.

No. 18-P-1079

Appeals Court of Massachusetts, Suffolk..

Argued October 2, 2019.

Decided May 14, 2020.

Dennis M. Toomey, Boston, for the defendant.

Julianne Campbell, Assistant District Attorney, for the Commonwealth.

Present: Milkey, Sullivan, & Ditkoff, JJ.

DITKOFF, J.

The defendant, Frank Barrett, appeals from his Superior Court convictions of unlawful distribution of heroin, G. L. c. 94C, § 32 (a ) ; possession of heroin with the intent to distribute, G. L. c. 94C, § 32 (a ) ; and unlawful possession of cocaine, G. L. c. 94C, § 32A (c ) ; and from the denial of his motion for a new trial. The Commonwealth argues that exigent circumstances permitted a police officer to answer a call made to the defendant's cell phone approximately one hour and fourteen minutes after the phone was seized. Because the Commonwealth failed to produce any evidence that it was impracticable to obtain a search warrant before the call was received, we are constrained to conclude that the search was not justified by exigent circumstances, and that the defendant's motion to suppress the call and the evidence derived from that call should have been allowed. Further concluding that the admission of this evidence was not harmless, we reverse.¹

1. Background. On April 23, 2009, at approximately 5 P.M. , a Boston police officer witnessed a man and a woman pacing back and forth on Townsend Street. Suspecting that they were drug users, he began surveillance. After several minutes, the officer saw another man arrive whom he later identified as the defendant. The defendant and the man walked together into a park while the woman remained on the corner. After about ten seconds, the man rejoined the woman, but the officer did not see where the defendant went. The officer followed the couple and found the man holding three bags of a substance that resembled heroin, preparing the heroin for intravenous use. The officer arrested the man and the woman.

At the police station, the man agreed to call the person who sold him the drugs from a police telephone. During the call, the officer heard the man state that he had another forty dollars and wished to purchase more heroin.² The man reported that the defendant agreed to meet him in Dudley Square.³ The officer did not record the phone number dialed by the man.

An hour later, the officer identified the defendant exiting a bus in Dudley Square. The police arrested the defendant at approximately 6:30 P.M. Police found five plastic bags of crack cocaine and eleven plastic bags of heroin, either on the defendant or in the transport wagon.

Booking began at 6:49 P.M. At booking, the police took from the defendant two cell phones, $1,537 in cash, and a Massachusetts identification in someone else's name.

At approximately 8:03 P.M. , while the officers were still doing their paperwork, one of the defendant's cell phones rang. The motion judge found that this occurred approximately one hour and fourteen minutes after booking began.⁴ Without a warrant, the officer answered the cell phone. The caller stated he wanted to purchase a forty. The officer arranged to meet the caller "in Dudley." Two officers went to Dudley and met the caller.

After returning to the station, the officer again answered the defendant's cell phone when it rang at approximately 9:30 P.M. This caller stated that "he was going to need some heroin for his people real soon." The officer did not describe following up on this call. There was no evidence presented at the suppression hearing regarding how long it would ordinarily take to obtain a search warrant under these circumstances.

The defendant moved to suppress the phone calls and the fruits derived therefrom. After an evidentiary hearing, a judge denied the motion, finding that the exigency exception to the search warrant requirement applied. The motion judge found that "[a] ten hour time frame would certainly be usually enough time to obtain a warrant. But a one hour or two hour time frame is not."

After a trial at which evidence of the phone calls and the fruits therefrom were admitted, a jury convicted the defendant of all charges. This appeal followed.

2. Motion to suppress the incoming phone calls. a. Legal standard. "When reviewing a motion to suppress, ‘we accept the judge's subsidiary findings of fact absent clear error,’ but ‘independently review the judge's ultimate findings and conclusions of law.’ " Commonwealth v. Jewett, 471 Mass. 624, 628, 31 N.E.3d 1079 (2015), quoting Commonwealth v. Tyree, 455 Mass. 676, 682, 919 N.E.2d 660 (2010). "The Fourth Amendment [to the United States Constitution] and art. 14 [of the Massachusetts Declaration of Rights] provide ‘that every person has the right to be secure against unreasonable searches and seizures’ of his or her possessions." Commonwealth v. White, 475 Mass. 583, 587-588, 59 N.E.3d 369 (2016), quoting Commonwealth v. Porter P., 456 Mass. 254, 260, 923 N.E.2d 36 (2010). "If the Commonwealth conducts a search or seizure without first obtaining a warrant, the search or seizure is ‘presumptively unreasonable’ and, therefore, presumptively unconstitutional."

White, supra at 588, 59 N.E.3d 369, quoting Commonwealth v. Craan, 469 Mass. 24, 28, 13 N.E.3d 569 (2014). A warrantless search "may be justified if the Commonwealth can demonstrate that the search or seizure ‘falls within a narrow class of permissible exceptions to the warrant requirement.’ " Commonwealth v. Tremblay, 480 Mass. 645, 662, 107 N.E.3d 1121 (2018), quoting White, supra. "One such exception to the warrant requirement is a search based on probable cause and exigent circumstances that make obtaining a warrant impracticable." Commonwealth v. Ferreira, 481 Mass. 641, 655, 119 N.E.3d 278 (2019).

Although police officers are authorized to seize a cell phone during a routine inventory search, their authority does not extend to manipulating the phone. See Commonwealth v. Alvarez, 480 Mass. 1017, 1018, 105 N.E.3d 237 (2018) ; Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 558-559, 32 N.E.3d 906 (2015). Answering a ringing phone constitutes a search. See Commonwealth v. DePina, 75 Mass. App. Ct. 842, 849, 917 N.E.2d 781 (2009). Thus, "the "Commonwealth bears ‘a heavy burden’ to show (1) that the search or seizure was supported by ‘probable cause,’ such that a warrant would have issued had one been sought,[ ] and (2) that there ‘exist[ed] ... exigent circumstances’ that made obtaining a warrant impracticable." White, 475 Mass. at 588, 59 N.E.3d 369, quoting Tyree, 455 Mass. at 684, 919 N.E.2d 660. We assume, without deciding, that there was probable cause to support the search, see DePina, supra at 847-848, 917 N.E.2d 781 (reasonable to infer that drug delivery service utilized cell phones), and move directly into the question of exigent circumstances.

b. Proof of exigent circumstances. "[T]he potential loss or destruction of evidence can constitute an exigent circumstance justifying a warrantless entry and search ... but only if the Commonwealth proves that the officers' belief was objectively reasonable and supported by specific information." Commonwealth v. Owens, 480 Mass. 1034, 1036, 109 N.E.3d 1066 (2018). We review whether exigent circumstances existed with "particular emphasis on whether police ‘consider[ed] how long it would take to obtain a warrant’ before acting ... and whether police engaged in an unjustified delay before seeking a warrant." Tyree, 455 Mass. at 690, 919 N.E.2d 660, quoting Commonwealth v. Pietrass, 392 Mass. 892, 899, 467 N.E.2d 1368 (1984). If the police face "a ‘ "now or never" situation[,]’ ... they may be able to rely on exigent circumstances to search the phone immediately." Riley v. California, 573 U.S. 373, 391, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), quoting Missouri v. McNeely, 569 U.S. 141, 153, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). Even when the passage of time inevitably affects the quality of the evidence, courts may not assume the presence of exigent circumstances. See McNeely, supra at 156, 133 S.Ct. 1552.

In McNeely, the United States Supreme Court rejected the proposition that "the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies ... nonconsensual blood testing in all drunk-driving cases." 569 U.S. at 145, 133 S.Ct. 1552. Even though research demonstrated that alcohol dissipates from the body over time, the Supreme Court determined that "[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances." Id. at 156, 133 S.Ct. 1552. Courts may not merely assume that there were exigent circumstances even with inherent temporal limitations.⁵

Similarly, in Tyree, there was no exigency where the evidence failed to support that the stolen money would imminently change hands, the defendants would flee, or that the defendants would destroy the clothes and masks used in the robbery. See 455 Mass. at 685-686, 919 N.E.2d 660. Thus, we may not find the presence of exigent circumstances if "the record is devoid of evidence that obtaining a warrant before the police [conducted a search] was impracticable." Id. at 690, 919 N.E.2d 660. Accord Commonwealth v. Street, 56 Mass. App. Ct. 301, 307, 777 N.E.2d 184 (2002), quoting Commonwealth v. Huffman, 385 Mass. 122, 125, 430 N.E.2d 1190 (1982) (no exigent circumstances found when "[t]he Commonwealth did not offer any evidence as to the time it would take to get a warrant, or indicate that it would be impractical to get one").

Despite the absence of any evidence at the suppression hearing regarding the practicality of obtaining a warrant, the motion judge found that one to two hours was not enough time to do so. Like the motion judge, we are cognizant that obtaining a search warrant in two hours in Suffolk County, especially after court hours, is likely unrealistic. Cf. Commonwealth v. Almonor, 482 Mass. 35, 68, ...