Opinion
20-P-1176
02-14-2022
COMMONWEALTH v. Nathan R. REID.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Nathan Reid, was convicted by a jury of assault and battery on a family or household member, G. L. c. 265, § 13M (a ) ; assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b ) ; assault and battery on a police officer, G. L. c. 265, § 13D ; and resisting arrest, G. L. c. 268, § 32B. On appeal, he challenges the denial of his pretrial motion to suppress arguing that, when the police entered his home to execute arrest warrants, they lacked a reasonable belief that the residence was his or that he was present at the time of the entry. We affirm.
Background. We summarize the relevant testimony elicited at the suppression hearing. At approximately 1:55 A.M. on January 27, 2018, Officers Thomas Kelly and John Kelley of the Arlington police department were dispatched to the Arlington fire headquarters after receiving a radio call that a woman had just been assaulted. The officers drove separate vehicles and when they arrived, a woman was standing in front of the headquarters, and she appeared to be "extremely upset" and had "swelling around her mouth," as well as blood on her face and clothing. The woman (hereinafter, victim) reported to the officers that she was just assaulted by her boyfriend, the defendant, in his apartment at 9 Palmer Street. She stated that, when she left the apartment, the defendant followed her until he heard her call 911, which made him retreat in the direction of his apartment. In addition to his address, the victim also informed the officers that the defendant was wearing blue jeans, brown work boots, and a gray hooded sweatshirt at the time of the assault. Based on that conversation, several officers, including Officers Kelly and Kelley, reported to "9 Palmer Street to the basement apartment," while another officer remained with the victim, and eventually accompanied her to the hospital.
In denying the defendant's motion to suppress, the motion judge did not make any findings of fact. While "it is desirable and prudent to make a record of the facts, ... a failure to do so is not reversible error." Commonwealth v. Grandison, 433 Mass. 135, 137 (2001). "The ‘judge's denial of the defendant's motion [to suppress] implies resolution of factual issues in favor of the Commonwealth.’ " Id., quoting Commonwealth v. Lanoue, 392 Mass. 583, 586 n.2, 588 (1984).
Though the officers’ surnames are similar, they are spelled differently, and as such, we refer to the officers by their title and surname.
Officer Kelly described 9 Palmer Street as a multifamily house, almost like a "rooming house," with a basement apartment unit and multiple upstairs apartment units. Upon arriving, he and a fellow officer of the Arlington police department, Sergeant Flavin, went to the rear of the house where there was a stairway and door that accessed the basement apartment. Officer Kelly knocked on the door leading to the basement, announced his presence and agency, and asked for the defendant. While Officer Kelly "could hear things being moved around inside the basement," nobody came to the door. Officer Kelly repeatedly knocked on the door and asked for the defendant but received no response. He, however, continued to "hear things being shuffled or somebody moving around inside th[e] basement apartment."
Simultaneously, Officer Kelley was knocking on the front door of the house and was eventually let into the common area hallway by one of the first-floor tenants. Officer Kelley asked the tenant where the basement was, and she directed the officer to a doorway at the end of the hallway that led to a stairway to the basement. From the top of the stairway, Officer Kelley could not see beyond the staircase and he did not know the layout of the basement apartment. Officer Kelley could, however, see lights being turned on and off inside the basement apartment. He could also hear music coming from the basement apartment. He testified that, over the course of time, he could hear the music's volume being turned up and down, and this, in conjunction with the fact that other officers could hear items being shuffled around, raised concerns that the defendant was barricading himself inside. As a result, the officers contacted the State police for a K-9 unit to respond to the residence.
At approximately 2:05 to 2:10 A.M. , in anticipation of the K-9 unit's arrival, the officers established a perimeter around the residence. Around 2:18 A.M. , the officers received a call from dispatch notifying them that the defendant had a lengthy criminal record including violent crimes, as well as two outstanding arrest warrants, one of which was for a prior domestic incident. After receiving that information, the officers continued to wait for the K-9 unit to arrive. While they were waiting, they were informed by the officer who accompanied the victim to the hospital that the defendant had sent the victim text messages stating that he was in a parking lot outside the Regent Theater and that he would like to speak with her. As a result, several officers reported to the parking lot where the defendant claimed to be and conducted a thorough search of that location and the surrounding area, but were unable to locate the defendant.
At that point, after approximately one hour of waiting, the State police K-9 unit arrived at the residence. When it did, Officer Kelly remained at the rear door while Sergeant Flavin, Officer Kelley, and the State trooper walked down to the basement via the stairway in the common hallway to conduct a protective sweep. Officer Kelley testified that, because the residence appeared to be a rooming house, the officers were not certain whether anyone else was in the basement, and the protective sweep was to ensure that no other tenants were present that could potentially be injured by the canine. When the officers reached the bottom of the stairs and took a right, they observed at least three, but possibly four bedrooms, two of which had doors that were partially open. The officers were not sure which door led to the defendant's bedroom, but were informed by the officer who was still with the victim that the first room on the right was the defendant's. They entered the first room, and in that room, located the defendant hiding in a closet. The defendant was then placed under arrest and taken into custody.
The first room was one of the two rooms that had a partially open door.
Thereafter, the officers took photographs of blood stains they observed on paper towels and on bedding located in the room. Later, during booking at the police station, officers recovered the boots that the defendant was wearing. The defendant moved to suppress the fruits of the officers’ entry, including the photographs and the boots. The motion was denied. Following a jury trial, where the photographs and boots were admitted as evidence, the defendant was convicted of assault and battery on a family or household member, assault and battery by means of a dangerous weapon, assault and battery on a police officer, and resisting arrest. This appeal followed.
The defendant was acquitted of one count of malicious destruction of property over $250 and a second count of assault and battery on a police officer. One count of witness intimidation was dismissed at the request of the Commonwealth.
Discussion. On appeal, the defendant now argues that the motion judge erred in denying his motion to suppress because: (a) the officers did not have a reasonable belief that the basement apartment, or the room he was in, was his residence; and (b) the officers did not have a reasonable belief that he was present when they sought to execute the outstanding arrest warrants. See Commonwealth v. Silva, 440 Mass. 772, 778 (2004). To be clear, the defendant did not assert this as a basis for his motion to suppress in the trial court. There, as grounds for his motion to suppress, the defendant argued that the entry into his home was improper because it was warrantless and executed without a valid exception to the warrant requirement. He neither acknowledged nor addressed the claim that the police had outstanding warrants for his arrest. Importantly, the judge's denial of his motion rested on the rule that the police may enter a suspect's residence to execute an arrest warrant, without obtaining a separate search warrant. See id. at 776, quoting Commonwealth v. Nova, 50 Mass. App. Ct. 633, 634-635 (2000) ("An arrest warrant ‘encompasses the power to enter a [suspect's] residence for the purpose of executing the warrant.’ ... A separate search warrant is not required"). Accordingly, the defendant's argument before us is waived, see Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004), and our review is limited to whether there was any error that created a substantial risk of a miscarriage of justice. See Commonwealth v. Santos, 95 Mass. App. Ct. 791, 795 (2019). We discern no error, and therefore no such risk.
"The Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights require that police who enter an individual's residence to execute an arrest warrant ‘have [(1)] a reasonable belief that the location to be searched is the arrestee's residence, and [(2)] a reasonable belief that the arrestee is in his residence at the time the arrest warrant is executed.’ " Commonwealth v. Gentile, 466 Mass. 817, 817-818 (2014), quoting Silva, 440 Mass. at 778. "[T]he ‘reasonable belief’ standard is ‘less exacting than probable cause.’ " Gentile, supra at 818, quoting Silva, supra at 776-777. It allows "officer[s] who ha[ve] already secured a valid arrest warrant to determine, while on the scene, and based on the information available at the time, whether the suspect is within his residence," and "prevent[s] a person for whom an arrest warrant has issued from using his own residence as a haven." Silva, supra at 778-779.
1. Reasonable belief of residence. Here, the officers possessed a reasonable belief that the basement apartment at 9 Palmer Street was the defendant's residence. The victim informed the officers where the defendant lived, and immediately upon learning this information, they reported to 9 Palmer Street and focused their attention solely on the basement apartment. Further, while the officers waited for the K-9 unit to arrive, they were notified by the officer who accompanied the victim to the hospital that the defendant's room was "at the bottom of the stairs," and was "the first ... immediate door on the right." The judge could reasonably infer from these facts that the victim informed the officers that the defendant resided in the basement apartment at 9 Palmer Street. See Commonwealth v. Grandison, 433 Mass. 135, 137 (2001), quoting Commonwealth v. Gaulden, 383 Mass. 543, 547 (1981) (where judge made no findings, "we ‘analyze[ ] the record to see if the findings implicit in the judge's ruling are supported’ "). This information was sufficient to provide the officers with a reasonable belief -- a lesser standard than probable cause -- that the defendant lived in that apartment. See Silva, 440 Mass. at 780 (reasonable belief where building manager informed police that person was resident of apartment).
Tellingly, at the motion to suppress hearing, the defendant never questioned why the officers homed in on the basement apartment at 9 Palmer Street.
The defendant characterizes each individual room in the basement as a separate apartment unit and argues that, because the officers lacked a reasonable belief that he resided in a particular room, they were not permitted to enter any of the rooms in the basement apartment. We are not persuaded. When determining the propriety of the entry, we "consider[ ] only the circumstances known to the police at the time of the entry into the residence." Silva, 440 Mass. at 781 n.11. Prior to descending the stairs to the basement, the officers did not know the layout of the basement, but believed it to be one apartment unit. Officer Kelley testified that, "for all [he] knew," prior to his entry, the basement was comprised of "one major bedroom." Similarly, Officer Kelly testified that his understanding was that the basement contained one apartment unit with multiple rooms, rather than three or four separate apartment units. This understanding was reasonable. The record does not establish any external indicia that would have led the officers to believe that there were multiple apartment units in the basement of 9 Palmer Street. Compare Commonwealth v. LaPlante, 416 Mass. 433, 439 (1993) (where, after reasonable investigation of premises, officers do not and reasonably could not know the multi-unit character of residence, warrant to search entire residence is valid). Even if the officers were incorrect in their understanding, which we are not convinced they were, that does not render unreasonable their belief that the basement consisted of one apartment unit. See Silva, supra at 780-781, quoting United States v. Risse, 83 F.3d 212, 216 (8th Cir. 1996) ("the officers’ assessment need not in fact be correct" to be reasonable).
2. Reasonable belief of presence. The officers also possessed a reasonable belief that the defendant was present in the basement apartment at the time they executed the warrants for his arrest. Given the early hour at which the police sought to execute the warrants, the police were entitled to presume that the defendant was home. See Gentile, 466 Mass. at 824, quoting United States v. Magluta, 44 F.3d 1530, 1535 (11th Cir.), cert. denied, 516 U.S. 869 (1995) ("officers may presume that a person is at home at certain times of the day -- a presumption which can be rebutted by contrary evidence regarding the suspect's known schedule").
In addition to this presumption, several factors provided the police with sufficient reason to believe that the defendant was inside the apartment. The officers established a perimeter around the residence just ten to fifteen minutes after the victim informed them that the defendant had walked toward the direction of his apartment. See Gentile, 466 Mass. at 823 (receiving information from third party that defendant at residence may support reasonable belief). While they were surrounding the residence, the officers could see the basement apartment's lights being turned on and off; they heard music coming from inside the apartment; and they could also hear noises that sounded like someone was potentially barricading the apartment door. See Silva, 440 Mass. at 780 (reasonable belief that person present in residence where officers could tell door was barricaded). Despite these obvious clues that someone was in the apartment, the officers’ multiple knocks on the basement apartment door were left unanswered. See Commonwealth v. Bruneau, 472 Mass. 510, 519 (2015) (failure to answer repeated knocks by police may be evidence of consciousness of guilt). Finally, when the officers searched the parking lot location where the defendant claimed to be, he was nowhere to be found, allowing officers to conclude that the parking lot ruse had been intended to distract them from his actual location in the home. These facts "permit[ted] a reasonable inference that, at the time of entry, the defendant [was] in the premises." Gentile, supra at 822.
Conclusion. There was no error in the denial of the motion to suppress.
Judgments affirmed.