Commonwealth v. Jimenez

• Decision Date: 12 December 2002
• Citation: 780 N.E.2d 2,438 Mass. 213
• Parties: COMMONWEALTH v. PEDRO POLANCO JIMENEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

780 N.E.2d 2

438 Mass. 213

COMMONWEALTH v. PEDRO POLANCO JIMENEZ.

Supreme Judicial Court of Massachusetts, Worcester.

September 5, 2002.

December 12, 2002.

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

Harry D. Quick, III, Assistant District Attorney, for the Commonwealth.

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

CORDY, J.

The defendant was convicted of trafficking in cocaine and heroin in amounts exceeding 200 grams, and of possessing controlled substances with intent to distribute in a school zone. G. L. c. 94C, §§ 32E (b) (4), (c) (4), and 32J. Prior to trial, he moved to suppress drugs and drug paraphernalia seized from an apartment pursuant to a search warrant containing a provision permitting the police to enter and search the apartment without first knocking, announcing their presence, and stating their purpose (the "no-knock provision"). The motion was denied and the evidence introduced at his subsequent trial. On appeal, the Appeals Court reversed the motion judge's denial of the motion to suppress, holding that the affidavit on which the warrant issued was inadequate to support the no-knock provision, and that even if the no-knock provision had been properly included in the warrant, it became ineffective when the search was executed because the exigencies claimed in the affidavit no longer existed. Commonwealth v. Jimenez, 53 Mass. App. Ct. 902 (2001). We granted the Commonwealth's application for further appellate review. Because we conclude that the circumstances justifying the inclusion of the no-knock provisions were not present at the time of the search, the motion should have been allowed, and the items seized suppressed.

1. Facts. We glean the following facts from the affidavit submitted in support of the warrant application and from the undisputed testimony adduced at the hearing on the motion to suppress.

On November 24, 1997, a search warrant with a no-knock provision was issued on the application of Sergeant Thomas Gaffney of the Worcester police department for an apartment occupying the third floor of a residence at 5 Eastern Avenue in Worcester, and for any persons who might be found on that premises. The property sought included heroin, drug distribution paraphernalia, financial records, money, and documents pertaining to the occupancy of the apartment. The application for the search warrant was the product of several months of police work including the collection of informant information, the execution of a controlled buy, and extensive use of police surveillance. The investigation focused on two individuals nicknamed Papo (later identified as codefendant Jose Carro), and Hector (later identified as the defendant), and a white Chevrolet Lumina automobile that they apparently used to make drug deliveries.

As set forth in the affidavit of Sergeant Gaffney, Papo and Hector operated their drug-selling business in a secretive manner. In order to purchase drugs from them, one needed to "beep" a specific telephone number. By a return telephone call, the order would be taken and directions given to a location where the drugs would be delivered. The location at which the drugs were stored and processed for distribution was never made known to the buyers, and was only discovered through police surveillance of the white Lumina after it was used to make deliveries. During the three-month period of police surveillance, Papo and Hector moved their operation from another location to the apartment at 5 Eastern Avenue.

After obtaining the search warrant, the police conducted two days of additional surveillance at 5 Eastern Avenue. At 6:23 P.M. on November 26, 1997, after observing both suspects enter the apartment, the police proceeded to execute the warrant. At the time of execution, it was dark; the suspects were not seen at the windows in the apartment; there were no apparent lookouts; the front door to the building that led to a common hallway and staircase and that normally required a key to open, gave way to "a little push"; and the officers proceeded up the stairs, breaking down the door to the apartment with a battering ram as they announced their presence.¹ Papo and the defendant were present in the apartment and were arrested.

The search proved productive. Heroin and cocaine were seized, as was equipment for their processing, packaging, and distribution. Also seized were pagers, $3,099 in cash, a handgun, and thirty-seven rounds of ammunition.

2. Discussion. The requirement that police "knock and announce" their presence and purpose prior to the execution of a search warrant has long been a part of our common law. Commonwealth v. Macias, 429 Mass. 698, 700 (1999). See Commonwealth v. Antwine, 417 Mass. 637, 638 (1994) (holding that, as general rule, police "must knock, announce their identity, and state their purpose"); Commonwealth v. Scalise, 387 Mass. 413, 418 n.5 (1982) (applying rule to search warrant as well as arrest warrant); Commonwealth v. Cundriff, 382 Mass. 137, 140-147 (1980), cert. denied, 451 U.S. 973 (1981) (tracing roots of common-law knock and announce rule to Seventeenth Century England). It has also been incorporated into the protections afforded by the Fourth Amendment to the United States Constitution against unreasonable searches. Wilson v. Arkansas, 514 U.S. 927, 934 (1995) (common-law knock and announce principle is "element of the reasonableness inquiry under the Fourth Amendment"). "Among the purposes of this rule are the protection of individual privacy interests and the desire to minimize the potential for violence or property damage." Commonwealth v. Macias, supra at 701. See Richards v. Wisconsin, 520 U.S. 385, 393 n.5 (1997); Commonwealth v. Cundriff, supra at 140-141.

It is equally well established that the failure of the police to knock and announce their presence may be justified in circumstances where concern for the safety of the officers executing the warrant or fear that a substantial portion of the evidence sought might be destroyed or secreted is present.² See Commonwealth v. Macias, supra at 701; Commonwealth v. Antwine, supra at 639; Commonwealth v. Scalise, supra at 418; Commonwealth v. Cundriff, supra at 147 n.15. See also Wilson v. Arkansas, supra at 936. In order to justify suspension of the knock and announce requirement, the Commonwealth must establish that there is probable cause to believe that, in the particular circumstances of the search to be undertaken, evidence will be destroyed or officer safety put at risk if the rule is observed. Commonwealth v. Macias, supra at 701, 703.³ This showing must ordinarily be made in advance of the search by affidavit submitted to the magistrate at the time of the warrant application. Commonwealth v. Scalise, supra at 420. See Commonwealth v. Benlien, 27 Mass. App. Ct. 834, 835 (1989). Such a showing can also be made after the fact, even if the warrant did not authorize a no-knock entry, if exigent circumstances arise at the threshold of the search justifying both the unannounced entry and the failure to obtain prior judicial authorization. Commonwealth v. Scalise, supra at 422 n.8. Even a no-knock entry properly authorized in advance of a search may turn out to be unlawful if the situation actually encountered by the police at the time of the warrant's execution is less exigent than what was anticipated. Consequently, the police who execute a search warrant that dispenses with the knock and announce requirement must make a "threshold reappraisal" of the actual circumstances they face before they may disregard the requirement. Id. at 421. Commonwealth v. Macias, supra at 704. Commonwealth v. Benlien, supra at 837. Cf. Richards v. Wisconsin, supra at 395 ("reasonableness of the officers' decision [to enter without knocking and announcing] must be evaluated as of the time they entered the [premises]").

In the present case, the Commonwealth attempted to demonstrate that the safety of the executing officers would be jeopardized and evidence might be destroyed if the officers were required to knock and announce their presence and purpose. To this end, the affidavit submitted in support of the warrant application included information that the suspects kept secret the location of the apartment where they stored their drugs, and moved it at least once during the period of police surveillance; that the apartment was located on the third floor of a residential building whose street-level door was kept locked; that it was not possible to approach the building without being seen; that heroin and cocaine could easily be disposed of by flushing them down the toilet; and that it was "common" for drug dealers to have firearms and for firearms to be confiscated in the execution of search warrants of this type.

In authorizing the no-knock execution of the warrant, the magistrate did not indicate whether it was justified on the basis of officer safety, likely destruction of evidence, or both. In denying the motion to suppress, the judge identified as "unique facts" supporting the request for the no-knock provision that there would be two suspects in the apartment; that it would be difficult to enter the building; that the officers' presence would become known before they reached the third-floor apartment; and that the drugs were stored in the apartment in secret. On the basis of these findings, he concluded that the affidavit adequately demonstrated both safety concerns and concerns that contraband would be destroyed. The judge made no findings regarding whether the circumstances as they existed at the time of the search continued to justify dispensing with the knock and announce requirement, even though that issue had been specifically raised by the defendant, and much of the hearing on the motion to suppress was devoted to taking testimony on that point.

We accept the judge's subsidiary findings absent clear error but conduct an independent review...