Commonwealth v. Tatum

• Decision Date: 22 July 2013
• Citation: 466 Mass. 45,992 N.E.2d 987
• Parties: COMMONWEALTH v. Justin TATUM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

466 Mass. 45

992 N.E.2d 987

COMMONWEALTH

v.Justin TATUM.

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued Dec. 3, 2012.

Decided July 22, 2013.

Alison R. Bancroft for the defendant.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

BOTSFORD, J.

Armed with three active arrest warrants for the defendant, a State police officer applied for and obtained a search warrant to search for him in someone else's residence. When the police executed the warrant, they found and arrested the defendant inside the residence, but in doing so, they also observed in plain view what they believed to be cocaine, marijuana, and other items consistent with drug distribution. Based on this evidence, which was seized during a subsequent search of the residence pursuant to a second search warrant, the defendant was indicted and tried in the Superior Court on charges of trafficking in cocaine in an amount of 200 grams or more, G.L. c. 94C, § 32E ( b ), and possession with intent to distribute marijuana, G.L. c. 94C, § 32C ( a ).¹ A jury found him guilty of both offenses, and the defendant appealed to the Appeals Court, which affirmed his convictions in a decision issued pursuant to its rule 1:28. See Commonwealth v. Tatum, 81 Mass.App.Ct. 1101, 2011 WL 6004012 (2011). We granted the defendant's application for further appellate review.

The principal issue the defendant raises concerns the validity of the first search warrant obtained by the State police to search for him at the third party's residence. The defendant argues that the affidavit submitted in support of that search warrant application was based on information obtained by the police trespassing into the curtilage of the residence, in violation of his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. We conclude that a person who is the subject of a valid arrest warrant and is arrested by police while in the residence of a third party has a right under the Fourth Amendment and art. 14 to insist that the police have a reasonable belief at the time they enter the residence that the person would be present. However, at least where, as in this case, the person has disclaimed any connection to the third party's residence, he does not have a constitutional right to insist that the police obtain a search warrant to search for him in the third party's residence or, where a search warrant is obtained, to challenge the basis on which the warrant issued.² We affirm the defendant's convictions.

Background. On December 18, 2006, State police Trooper Christopher Boyle applied for and obtained a “no-knock” search warrant to search a certain residence located in Kingston (third party's residence) for the defendant, who was the subject of active arrest warrants for, among other things, firearm and drug trafficking offenses.³ The special tactical operations(STOP) unit of the State police executed the search warrant in the early morning hours of December 19. On the first floor, Michael Goler–Branch (at one point a codefendant) was found sleeping on a recliner. When he stood up, officers observed a gun located in a sock underneath his right leg. Other officers located the defendant in bed in a room on the basement level, in close proximity to two large rolls of cash, an electronic scale, a sizeable bag of what appeared to be marijuana, and a cardboard box containing what appeared to be several clear plastic bags of cocaine. Both Goler–Branch and the defendant were arrested.

Based on the officers' observations made during the initial entry on December 19, 2006, Boyle applied for a second search warrant to search the third party's residence for narcotics, firearms, and evidence of drug distribution. The warrant was obtained, and a second search later the same day yielded, among other items, cash and large quantities of marijuana and cocaine packaged in a manner consistent with distribution. Both the defendant and Goler–Branch thereafter were indicted for trafficking in 200 or more grams of cocaine and possession with intent to distribute a class D substance, marijuana.

Prior to trial, the defendant moved to dismiss the indictments on the ground that the evidence before the grand jury did not establish probable cause to indict him on the charged offenses because the Commonwealth did not, and could not, prove that the defendant lived at the third party's residence. The defendant's first trial counsel withdrew the motion shortly thereafter.

The defendant and Goler–Branch were first tried together in the Superior Court in May, 2008. The trial judge declared a mistrial after the jury were unable to reach a verdict. Thereafter the defendant successfully moved to sever, and a second trial of the defendant alone commenced on July 27, 2009, before the same judge. On the first day of this second trial, the defendant's new counsel filed three motions to suppress. The first was a motion to suppress the recordings of telephone calls made by the defendant while he was detained awaiting trial; ⁴ the second sought to suppress all evidence seized from the third party's residence based on the “no-knock” provision in the first search warrant; and the third was a motion to suppress that evidence based on intentional omissions in the affidavit submitted in support of the first search warrant or, alternatively, for a Franks hearing.⁵ See Franks v. Delaware, 438 U.S. 154, 155–156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). After a brief argument on the motions, the judge took the second motion, challenging the “no-knock” warrant, under advisement, and denied the first and the third motions.⁶ Jury empanelment began almost immediately thereafter. At the conclusion of the second trial, the jury found the defendant guilty of both charges.

Discussion. 1. Third motion to suppress. The defendant does not challenge separately the validity of the second warrant, but contends that the search conducted pursuant to it was tainted by the illegality of the first search warrant and related search. As mentioned, the defendant argues that the affidavit submitted by Boyle in support of the first search warrant featured an intentional and material omission that, had it been included, would have demonstrated that to establish probable cause the police were relying on information that had been obtained in violation of the defendant's rights under the Fourth Amendment and art. 14. Accordingly, he claims, the search warrant was invalid, and all evidence seized pursuant to both searches must be suppressed. We set out in more detail the background facts of the two search warrants and related searches before considering the defendant's argument.

a. Background facts. Boyle's affidavit in support of his application for a warrant to search for the defendant at the third party's residence states, inter alia, that in each of the three months preceding the searches a confidential informant ⁷ provided information to the police that the defendant was living on a certain street in Kingston in a dwelling that police confirmed matched the description of the third party's residence; periodic surveillance of the third party's residence by the police revealed the defendant's half-brother being present there “on several occasions”; and during another “check” of the third party's residence, Sergeant J. Gilmore of the State police saw a black male fitting the defendant's description, but “could not make a positive identification.” The affidavit also states that on December 18, 2006—the same day the search warrant application was submitted—“[a]t approximately 1510 hours [3:10 p.m.] Sergeant J. Gilmore made an identification” of the defendant “inside of [the third party's residence].” Based on this information, the affidavit states there is probable cause to believe the defendant, the subject of three active arrest warrants described in the affidavit, “is currently located and residing at [the third party's residence]” and may be found there.

Not stated by Boyle in the affidavit but testified to at the second trial are the following facts. On December 18, 2006, Gilmore and Boyle conducted undercover surveillance of the third party's residence in an effort to confirm the defendant's presence there. The third party's residence is on the left side of a duplex with a shared front staircase and walkway facing the street. To maintain his cover, Gilmore wore a Verizon telephone utility helmet and blue jeans, and carried a clipboard. That evening, he walked down the driveway on the left side of the building and approached the rear entrance, entering onto a back porch that provided access to the first floor of the third party's residence.⁸ From his vantage point on the back porch, Gilmore observed the defendant ⁹ one to two feet away in a first-floor bathroom; Gilmore made the observation through a bathroom window that opened onto the porch. Gilmore engaged the defendant in a brief conversation and handed the defendant a window screen that apparently had fallen off the window. Gilmore then departed and informed Boyle of his observations. Boyle, in turn, promptly applied for a search warrant to search the third party's residence for the defendant's person, supported by the affidavit previously described. An assistant clerk-magistrate of the Plymouth Division of the District Court Department issued the warrant that day.

The next day, December 19, at approximately 5:30 a.m., the STOP unit forcibly entered the third party's residence through the front and rear doors to execute the search warrant. As mentioned, officers found and arrested Goler–Branch on the first floor, and found and arrested the defendant in a basement room. The police then sought and obtained the second search warrant for the third party's residence based on the drugs and related items they had just observed in plain view....