Commonwealth v. DeJesus

• Decision Date: 08 April 2003
• Parties: COMMONWEALTH v. JUAN DEJESUS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

439 Mass. 616

790 NE 2d 231

COMMONWEALTH v. JUAN DEJESUS.

Supreme Judicial Court of Massachusetts, Essex.

April 8, 2003.

June 24, 2003.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

James Janda, Assistant District Attorney (Gerald P. Shea, Assistant District Attorney, with him) for the Commonwealth.

Ivan Mercado (Alexandra Rengel with him) for the defendant.

GREANEY, J.

The Commonwealth appealed from an order entered in the Superior Court suppressing evidence seized by the police during a search of the defendant's apartment. The search was conducted pursuant to a warrant issued, in part, on a description of cocaine and drug paraphernalia observed by police officers during a prior warrantless "protective sweep" of the apartment following the defendant's arrest.¹ After an evidentiary hearing, the judge entered a memorandum of decision and order in which he ruled that the evidence must be suppressed because no exigent circumstances excused the officers' failure to obtain a search warrant prior to their initial entry into the defendant's apartment. A single justice of this court granted the Commonwealth leave to file an interlocutory appeal and transmitted the matter to the Appeals Court. See Mass. R. Crim. P. 15 (a)(2), as appearing in 422 Mass. 1501 (1996). A divided panel of the Appeals Court concluded that the judge had ruled correctly and affirmed the order allowing the motion to suppress. See Commonwealth v. DeJesus, 56 Mass. App. Ct. 523 (2002). We granted the Commonwealth's application for further appellate review and, for reasons that follow, we now reverse the order suppressing the Commonwealth's evidence.

1. We relate the facts as found by the judge, supplemented by uncontroverted evidence presented at the hearing. On March 29, 1999, the defendant was arrested in a parking lot after a sale of approximately 300 grams of cocaine to an undercover State police officer by one Rocky Graciano. During the sale, the defendant remained in the automobile in which the cocaine was delivered. Graciano, who had been the focus of an investigation by the State police narcotics unit for Essex County into drug activity in the Lawrence area, and one other individual were also arrested. After his arrest, Graciano agreed to cooperate with the police. He informed State Trooper Brian O'Neil that the defendant was his supplier and the defendant had delivered the cocaine used in the drug sale to Graciano at his (Graciano's) home at 5 Forest Street, Lawrence, that same day, on foot. Graciano further stated that he had been involved in numerous drug deals with the defendant, whom he knew lived on Lynch Street in Lawrence. Graciano accompanied several police officers to Lynch Street where he pointed out a light grey, three-story building that had a side entrance displaying the number 7. Graciano stated that he had in the past observed the defendant emerging from that entrance. The police officers ascertained that the entrance led to two apartments, one on the second floor and one on the third floor. Graciano never stated in which of the two apartments the defendant lived or whether anyone else lived with the defendant. In the course of a separate investigation, however, Trooper O'Neil had obtained information from a confidential informant that a third-floor apartment at 7 Lynch Street was a "stash location" for a drug operation and the residence of "two individuals involved in cocaine distribution."

Obtaining keys taken from the defendant at the time of his arrest, Trooper O'Neil and another officer then proceeded to 7 Lynch Street to determine, in his words, "if, in fact, those keys would access the ... door that [Graciano] had pointed out to me. I did that and those keys did, in fact unlock that door." He then went to the third-floor apartment, knocked loudly, and announced that it was the police. There was no response. Again using the keys taken from the defendant, Trooper O'Neil found that one key "did, in fact, fit and operate the lock[]." On gaining entry, the officers "yelled into the apartment that it was the police" and "checked the rooms" to see whether anyone was inside. In the process, they observed cocaine and cocaine packing equipment in plain view on the kitchen table. Finding the apartment unoccupied, the officers secured the apartment by locking the door. Leaving officers stationed outside, Trooper O'Neil returned to the drug task force office to prepare an application and supporting affidavit for a search warrant for the defendant's apartment.

In his supporting affidavit, Trooper O'Neil stated that "potential co-conspirators could be aware of the police detection of Graciano ... and [the defendant]." At the suppression hearing, Trooper O'Neil explained that between three and four hours had elapsed since the defendant's arrest and that, in the meantime, he had overheard a woman in Graciano's apartment telling an unknown telephone caller that Graciano had been arrested. Trooper O'Neil then reiterated his belief at the time that "any occupant of that apartment could be aware that [the defendant] was arrested and remove any evidence or cocaine from that apartment." The judge found this to be the only evidence offered by the Commonwealth explaining the officers' prior entry into the defendant's apartment. The judge determined that the circumstances presented no "compelling necessity for immediate action" and reasoned that "[a]n officer easily could have been stationed at the door to secure the apartment while Trooper O'Neil proceeded to obtain a search warrant." The judge in effect concluded that the initial entry by police into the defendant's apartment was unlawful and, accordingly, allowed the motion to suppress the evidence.

2. The first issue before us is whether the police officers' initial warrantless entry and subsequent search of the defendant's apartment for occupants was permissible. We conclude that it was not.

"The right of police officers to enter into a home, for whatever purpose, represents a serious governmental intrusion into one's privacy. It was just this sort of intrusion that the Fourth Amendment [to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights] was designed to circumscribe by the general requirement of a judicial determination of probable cause." Commonwealth v. Forde, 367 Mass. 798, 805 (1975). Federal and State case law delineates clear boundaries for permissible entry by police officers into a home in order to search or arrest. In the absence of a warrant, two conditions must be met in order for a nonconsensual entry to be valid: there must be probable cause² and there must be exigent circumstances. See Kirk v. Louisiana, 536 U.S. 635, 637-638 (2002); Coolidge v. New Hampshire, 403 U.S. 443, 478 (1971); Vale v. Louisiana, 399 U.S. 30, 34-35 (1970); Commonwealth v. Paniaqua, 413 Mass. 796, 798 (1992); Commonwealth v. Pietrass, 392 Mass. 892, 897 (1984). A reasonable belief as to the potential loss or destruction of evidence may create exigent circumstances permitting a warrantless search and seizure of evidence. See Commonwealth v. Ortiz, 435 Mass. 569, 572 (2002); Commonwealth v. Martino, 412 Mass. 267, 276 (1992). The Commonwealth concedes, however, that no such exigent circumstances were present in this case.³

The Commonwealth maintains that the police did not need exigent circumstances in order to enter the apartment pending the issuance of a warrant. The Commonwealth characterizes the officer's entry and protective sweep as "securing" the premises and argues that it was fully justified by the police officers' need to ensure that no one was inside who might remove or destroy evidence. In support of its position, the Commonwealth cites cases decided under both Federal and State search and seizure jurisprudence recognizing that "securing" a dwelling, on the basis of probable cause, in order to prevent the destruction or removal of evidence while a search warrant is being sought, is not by itself an unreasonable search. See Segura v. United States, 468 U.S. 796, 810 (1984); Commonwealth v. Blake, 413 Mass. 823, 829-830 (1992); Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990) (art. 14 permits police to secure area to be searched before warrant is procured so long as the search does not commence before issuance of warrant); Commonwealth v. Voris, 38 Mass. App. Ct. 377, 381-382 & n.3 (1995).

We have not had occasion to consider whether the authority to secure a dwelling allows police officers to enter a dwelling and conduct a limited search in order to ascertain whether the dwelling is unoccupied. We conclude that there is a fundamental difference between securing or controlling the perimeter of a dwelling from the outside and the entry and physical surveillance of a dwelling from the inside. We now hold that police officers who secure a dwelling while a warrant is being sought in order to prevent destruction or removal of evidence may not enter that dwelling, in the absence of specific information supporting an objectively reasonable belief that evidence will indeed be removed or destroyed unless preventative measures are taken.

We do not interpret Fourth Amendment doctrine to hold otherwise. In Segura v. United States, supra,

the United States Supreme Court affirmed the denial of a motion to suppress evidence seized pursuant to a warrant obtained after police officers entered a defendant's apartment and remained there overnight. Id. at 810 (opinion of Burger, C.J.), quoting Katz v. New York, 389 U.S. 347, 351 (1967) (reasoning that the apartment had been seized not searched and that "the Fourth Amendment protects people, not places"). The procedural and factual posture of the Segura case, however, differed significantly from this one. The Segura Court considered only the limited question whether the Fourth Amendment requires suppression of evidence not observed in plain view on the initial entry....