Commonwealth v. Jimenez

• Decision Date: 15 November 2001
• Docket Number: 00p651
• Parties: COMMONWEALTH vs. PEDRO POLANCO JIMENEZ. 00-Massachusetts Court of Appeals
• Court: Appeals Court of Massachusetts

COMMONWEALTH vs PEDRO POLANCO JIMENEZ

00-P-651

Massachusetts Court of Appeals

November 15, 2001

Present: Constitutional Law, Search and seizure. Search and Seizure, Warrant, Forcible entry by police, Probable cause, Affidavit. Probable Cause. Practice, Criminal, Findings by judge. Controlled Substances

Eric S. Brandt, Committee for Public Counsel Services, for the defendant.

Susanne G. Levsen Reardon, Assistant District Attorney, for the Commonwealth.

The defendant was convicted of trafficking in cocaine in an amount exceeding 200 grams (G. L. c. 94C, § 32E[b][4]), trafficking in heroin in an amount exceeding 200 grams (G. L. c. 94C, § 32E[c][4]), and two counts of possessing a controlled substance with intent to distribute within 1,000 feet of a school (G. L. c. 94C, § 32J). The defendant, prior to trial, moved to suppress drugs and drug paraphernalia seized from an apartment pursuant to a "no-knock" warrant. The motions were denied, and the evidence was introduced at the subsequent trial. The defendant appeals only with respect to the no-knock provision of the warrant, contending (1) that there was an insufficient showing to justify the granting by the magistrate of the no-knock provision; and (2) that, even were the no-knock provision properly included on the basis of the contents of the affidavit accompanying the application, the situation at the time of the warrant's execution was such that a no-knock entry was no longer permissible. We hold that a no-knock entry was not authorized under the principles set forth in Commonwealth v. Macias, 429 Mass. 698 (1999), and Commonwealth v. Hernandez, 49 Mass. App. Ct. 911 (2000), and that accordingly the items seized pursuant to this warrant should have been suppressed.

The requirement that the police "knock and announce" at the time of execution of a search warrant is a part of Massachusetts common law, Commonwealth v. Gomes, 408 Mass. 43, 45 (1990), and exists both to protect privacy interests and to minimize the potential for violence or property damage. Commonwealth v. Cundriff, 382 Mass. 137, 140-141 (1980), cert. denied, 451 U.S. 973 (1981). Certain circumstances, such as concern for the safety of the officers executing the warrant or fear that a substantial portion of the evidence sought may be destroyed or secreted, will justify relaxation of the knock and announce requirement by the magistrate issuing the warrant. Commonwealth v. Macias, 429 Mass. at 701, 703. However, there must be a showing in advance of obtaining the no-knock authorization that probable cause exists to believe that particular conditions which justify such authorization will be present at the time of the execution of the warrant. See id. at 701, which rejects the more lenient Federal standard of "reasonable suspicion," insisting instead on a showing of "probable cause." Furthermore, even an authorized no-knock entry may turn out to be unlawful if the situation actually encountered by the police is less exigent than what was anticipated. Commonwealth v. Benlien, 27 Mass. App. Ct. 834, 837 (1989). Thus, the police who execute the warrant must make a threshold reappraisal of the actual circumstances which they face on execution, since changed circumstances may render the previously obtained no-knock authorization no longer effective. Commonwealth v. Scalise, 387 Mass. 413, 421 (1982). The Commonwealth has the burden of showing both that a no-knock entry was properly authorized initially and that such entry was justified at the time of the warrant's execution. Richards v. Wisconsin, 520 U.S. 385, 394-396 (1997). Commonwealth v. Scalise, supra at 422 n.8.

In the present case, the Commonwealth attempted to demonstrate that the safety of the executing officers would be jeopardized; that the offenders might escape; and that evidence might be destroyed if the officers were required to announce their presence. The affidavit prepared in connection with the application for the search warrant addressed these issues by stating, in relevant part, that the suspects kept the location of the subject apartment unknown; that the street-level door was kept locked; that the apartment in question was on the third floor and that it would take the officers time to reach it once they had entered the building; that it was not possible to approach the building without being seen; that heroin and cocaine can easily be disposed of by flushing them down the toilet; and that it was common for drug dealers to have firearms. In denying the motion to suppress, the judge identified as "unique facts" supporting the...