Commonwealth v. Silva

• Decision Date: 03 November 2003
• Citation: 440 Mass. 772,802 NE 2d 535
• Parties: COMMONWEALTH vs. REINALD SILVA, JR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

440 Mass. 772

802 NE 2d 535

COMMONWEALTH vs. REINALD SILVA, JR.

Supreme Judicial Court of Massachusetts, Hampden.

November 3, 2003.

January 28, 2004.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Thomas H. Townsend, Assistant District Attorney, for the Commonwealth

Neil V. Golden for the defendant.

IRELAND, J.

This case raises the first impression question of what standard police must meet under art. 14 of the Massachusetts Declaration of Rights to justify entry into a suspect's residence pursuant to a valid arrest warrant — probable cause or a reasonable belief. We conclude that a reasonable belief is the proper standard.

Background. The defendant was charged in the Holyoke District Court with breaking and entering in the daytime with the intent to commit a felony (G. L. c. 266, § 18); possession of a class A drug with the intent to distribute (G. L. c. 94C, § 32); possession of a class A drug (G. L. c. 94C, § 34); and a school zone violation (G. L. c. 94C, § 32J). Prior to trial, he filed a motion to suppress the heroin seized by the police in the course of arresting him in an apartment, alleging, inter alia, that "there was no probable cause to execute an arrest warrant and enter the premises." After an evidentiary hearing, the judge granted the defendant's motion. A single justice of this court allowed the Commonwealth's interlocutory appeal to the Appeals Court. We then granted the Commonwealth's application for direct appellate review. Because we conclude that the police, in executing a valid arrest warrant at the suspect's alleged residence, possessed the requisite reasonable belief that the suspect both lived in, and was present at, the residence, and there is no merit to the defendant's claims concerning violation of the "knock and announce" rule and the seizure of drugs at the residence, we reverse the motion judge's order allowing the defendant's motion to suppress, and remand the case for further proceedings consistent with this opinion.

Facts. In reviewing the allowance of a motion to suppress, we will not disturb a judge's findings of fact absent clear error. Commonwealth v. Torres, 433 Mass. 669, 670 (2001). We supplement the facts found by the motion judge with uncontroverted testimony of the police officers at the motion hearing.¹Commonwealth v. Watson, 430 Mass. 725, 726 n.5 (2000). We recognize that the sequence of events and some of the facts at first blush do not appear to make sense. However, these are, indeed, the circumstances of this case.

The judge found that at approximately midday on November 16, 1999, a confidential informant told Detectives Kenneth Ferris and William Lempke² of the Holyoke police department that three men were selling drugs through a hole in the wall of apartment no. 401 at 275 Main Street in Holyoke. The detectives were also informed that the apartment door was fortified. Lempke testified that, after receiving this information, the officers went to the apartment, knocked on the door that was ajar (the lock was broken) but secured by something behind it, and announced that they were the police. While Lempke remained in the hallway, Ferris went to the police station and telephoned the building owner. The building owner put the police in touch with the apartment building manager, who informed the police that Danny Acevedo was the sole lessee of apartment no. 401.

The motion judge found that, after checking records, the police determined that there were several outstanding warrants for Acevedo's arrest. Ferris and Detective Dennis Egan viewed Acevedo's photograph before going to the apartment. Ferris, Egan, and Officer Ron Mihalek then went to the apartment, but did not bring Acevedo's photograph with them. Approximately one hour after Lempke and Ferris first arrived at the apartment, the officers knocked on the door, which was barricaded, as the police later discovered, by three two-by-four inch boards and a full-size refrigerator. No one answered the door, but the officers heard movement and the toilet flushing inside the apartment.

Lempke was able to see inside the apartment through a two and one-half to three inch hole in a piece of plywood that, as the motion judge found, "apparently had been used to cover the apartment window." Through this hole, Lempke saw three men in the bathroom, including the defendant, whom Lempke thought to be Acevedo. Lempke did not have the opportunity to see Acevedo's photograph, because it had not been brought to the scene. Lempke based his identification on a very general description of Acevedo — Hispanic male, five feet, seven inches to five feet, eight inches tall, with facial hair — that he had gleaned from the building manager and from Acevedo's outstanding arrest warrants.

Lempke told the other officers that he thought he saw Acevedo in the apartment. The officers testified that they knocked and announced that they were the police, but did not state that they had an arrest warrant for Acevedo. They then forced the apartment door open. The officers found the kitchen and the combination bedroom-living room empty. There was a smell of marijuana in the apartment. Egan tried to open the bathroom door, but the handle came off in his hand. However, the bathroom door opened and three men, including the defendant, walked out.³ The police officers detained the men and placed them under arrest for breaking and entering.⁴

As the men were being secured, Lempke walked into the bathroom that he described as "a very small" room with a shower stall. Lempke saw "the end of a plastic bag in the bottom of the [toilet] bowl." The officers lifted the toilet off its foundation and discovered a plastic bag, which contained heroin. Acevedo was nowhere to be found.

The judge found that the officers never "indicated to any defendant that they had a warrant for his arrest." The judge also found that the Commonwealth offered no evidence that the officers tried to ascertain whether the defendants had permission to be in the apartment.

Discussion.

1. Standard of review. When reviewing the allowance of a motion to suppress, we give substantial deference to the judge's legal conclusions, but independently review the application of constitutional principles to the facts. Commonwealth v. Torres, 433 Mass. 669, 671-672 (2001). See Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002); Commonwealth v. Jones, 375 Mass. 349, 354 (1978) (judge's legal conclusion "a matter for review. . . particularly where the conclusion is of constitutional dimensions").

2. Reasonable belief. The Commonwealth argues that the motion judge erred in holding that the police officers needed a search warrant even though the officers entered the apartment pursuant to a valid arrest warrant for the apartment's resident. According to the Commonwealth, when the police possess a valid arrest warrant for a suspect, art. 14, like the Fourth Amendment to the United States Constitution, only requires that the police have a "reasonable belief," as opposed to probable cause, that the suspect is inside his residence before the police may enter to make an arrest. We agree.

An arrest warrant "encompasses the power to enter a [suspect's] residence for the purpose of executing the warrant." Commonwealth v. Nova, 50 Mass. App. Ct. 633, 634-635 (2000). See Commonwealth v. Pietrass, 392 Mass. 892, 897 (1984) (arrest warrant allows police to enter dwelling). A separate search warrant is not required. Commonwealth v. Acosta, 416 Mass. 279, 281 (1993). See Commonwealth v. Allen, 28 Mass. App. Ct. 589, 592 (1990) ("A person's home is not a castle against execution of a lawful arrest warrant directed against that person"). Cf. Steagald v. United States, 451 U.S. 204, 213 (1981) (separate search warrant required to enter third party's residence to execute arrest warrant).

The Supreme Court of the United States has held that for the purposes of the Fourth Amendment, "an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives where there is reason to believe the suspect is within." Payton v. New York, 445 U.S. 573, 603 (1980). Most of the circuits of the United States Court of Appeals that have addressed this issue have agreed that, under the Payton decision, "police officers entering a residence pursuant to an arrest warrant must demonstrate a reasonable belief that the arrestee lived in the residence, and a reasonable belief that the arrestee could be found within the residence at the time of the entry." Valdez v. McPheters, 172 F.3d 1220, 1224 (10th Cir. 1999), and cases cited. Every Federal circuit court of the United States Court of Appeals that has addressed the issue, except the Ninth Circuit,⁵ has held that the "reason to believe" language was meant to employ a standard less exacting than probable cause.⁶ The vast majority of State courts have followed suit.⁷

Whether art. 14 is more stringent than the Fourth Amendment is the issue of first impression. See Commonwealth v. Rivera, 429 Mass. 620, 623-624 (1999) (whether "art. 14 requires more than a reason to believe that the defendant was within the apartment to justify a forcible entry" is "a proposition that we do not reach"); Commonwealth v. DiBenedetto, 427 Mass. 414, 418 (1998) ("This court has not yet decided whether art. 14. . . requires that police, with a valid arrest warrant, have more than reason to believe a suspect is in a dwelling"). We conclude that art. 14, like the Fourth Amendment, requires that police with a valid arrest warrant have a reasonable belief that the location to be searched is the arrestee's residence, and a reasonable belief that the arrestee is in his residence at the time the arrest warrant is executed.

Our holding is supported by the language of art. 14, practical considerations, and our pre-Payton decisions. Article 14 recognizes that "[e]very subject has a right to be secure from all...