Opinion
11-P-28
04-02-2012
COMMONWEALTH v. PAUL A. COURTEAU.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in Superior Court, the defendant was convicted of one count of armed robbery, G. L. c. 265, § 17. On appeal, he challenges the denial of his pretrial motion to suppress certain evidence found in the trailer where he was apprehended. We affirm.
On December 12, 2008, the night manager of a grocery store in Brockton was robbed at knife point as he was closing up the store and preparing to make the nightly deposit. The robber was not only armed, but during the robbery he expressly threatened to kill the victim. Through a web of evidence that they had gathered, the local police had reason to believe that the defendant was involved in the robbery and that he could be found inside of a trailer parked in a warehouse district of the city. The police knocked on the trailer door and announced their presence. This led to a lot of 'commotion,' and one of the officers exclaimed that someone inside the trailer was 'reaching for something' (a circumstance that the judge specifically found 'suggests that at least safety may be involved here, there having been an armed robbery with a knife'). Another officer broke a window of the trailer as a diversionary tactic. This led the defendant to open the trailer door, and through the open door the police could observe a pile of cash sitting on the floor, interspersed with bags of what the officers believed to be crack cocaine. Once they were inside the trailer, the police observed in plain view another large stash of cash (approximately $2,000) stuffed in a partially opened oven, and clothes and a steak knife that matched a description provided by an eyewitness to the robbery.
Our recitation of facts is drawn from findings the motion judge made from the bench, as well as the uncontested testimony of the witnesses at the motion hearing, both of whom the judge found credible. The defendant has not challenged any of the judge's findings of fact.
We need not review what the specific evidence was, because the defendant conceded at oral argument that this evidence, taken together, amounted to probable cause.
The 'at least' appears to be a reference to concern about destruction of evidence or dispersal of the stolen money, concerns the judge discussed later in his findings from the bench.
The motion judge found that the police's approaching the trailer was in the immediate aftermath of the armed robbery. Specifically, he found 'this is within perhaps thirty to forty minutes, or certainly an hour of the reported armed robbery.' The judge concluded that given the 'fast-moving' and 'fluid situation,' exigent circumstances fully justified the police actions. We agree.
We begin by observing that the police needed no justification to approach the trailer, knock on the door, or announce themselves. Further, once the defendant opened the door, some of the evidence was lying in plain view from outside the trailer, and the other evidence was lying in plain view to police conducting a protective sweep of the interior (as was fully justified under the circumstances). See generally Commonwealth v. Peters, 453 Mass. 818, 823 (2009). The only police action subject to any reasonable debate is the officer's breaking the window (which the defendant appears to be arguing led the defendant to open the door). This limited intrusion was justified by the exigent circumstances presented, which included safety concerns, and the potential for both destruction of evidence and escape. See Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 226-227 (1992).
The defendant's remaining argument is to the effect that the Commonwealth cannot rely on exigent circumstances because the police could have secured a search warrant and, by not doing so, they created the exigencies. See, e.g., Commonwealth v. Molina, 439 Mass. 206, 211 (2003). We disagree. Regardless whether art. 14 of the Massachusetts Declaration of Rights takes a different view of 'police created exigency' from that under the Fourth Amendment to the United States Constitution, see Kentucky v. King, 131 S. Ct. 1849, 1858 (2011), in the circumstances of this case, the police did not create the exigency. Rather, in the immediate aftermath of an armed robbery they followed the defendant to the location where they knew he had fled and where they reasonably expected to find cash and other evidence and the weapon used in the crime. Their warrantless entry of the trailer was entirely proper in light of safety concerns and the potential for destruction of evidence and escape. See Commonwealth v. Washington, 449 Mass. 476, 485 (2007); Commonwealth v. Donoghue, 23 Mass. App. Ct. 103, 108 (1986), cert. denied, 481 U.S. 1022 (1987). Compare Commonwealth v. Tyree, 455 Mass. 676, 684-691 (2010). There was no error in the motion judge's denial of the defendant's motion to suppress.
In Kentucky v. King, 131 S. Ct. at 1858, the United States Supreme Court held that '[w]here . . . the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.' In Commonwealth v. Gentle, 80 Mass. App. Ct. 243, 251 (2011), we declined to reach the question as to what amounts to a police-created exigency as a matter of State constitutional law.
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Judgment affirmed.
By the Court (Grasso, Kafker, & Milkey, JJ.),