Opinion
21-P-416
04-21-2022
COMMONWEALTH v. Jorge L. RODRIGUEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case requires us to consider the independent source exception to the exclusionary rule. The Commonwealth appeals from an order of a District Court judge suppressing evidence (cocaine, and evidence of drug distribution) that was seized in a New Bedford apartment after a search pursuant to a search warrant. The evidence was suppressed because the police had conducted an unconstitutional search of the same apartment prior to securing the warrant. We are required to apply the recent decision in Commonwealth v. Pearson, 486 Mass. 809 (2021), which held that to establish the independent source exception, "the Commonwealth must make two showings: (1) the officers’ decision to seek the search warrant was not prompted by what they observed during the initial illegal entry, and (2) the affidavit supporting the search warrant application contained sufficient information to establish probable cause, ‘apart from’ any observations made during the earlier illegal entry." Id. at 813, quoting Commonwealth v. DeJesus, 439 Mass. 616, 627 n.11 (2003). Here, we are satisfied that the warrant affidavit established probable cause, independent of any information obtained from the prior illegal search. We are constrained to remand, however, because the record and the judge's findings are not sufficient to determine whether the police "would have sought a search warrant regardless of the initial illegal entry and search." Id. at 815.
Background. This case centers on a search of an apartment at 168 Tinkham Street in New Bedford (the apartment) that occurred on April 8, 2015. As of that date, there were two separate police investigations involving the apartment.
As a result of one of these investigations, on April 8, 2015, police officers from the New Bedford Police Department's Detective Division went to the apartment looking for a woman named Amelia Early, for whom they had an arrest warrant. The officers did not have a search warrant for the apartment, and did not have reliable information indicating that Early lived or was present there. The officers knocked on the door, which was answered by the tenant of the apartment, Ines Lugo. Lugo repeatedly told the officers that Early did not live in the apartment, and (the motion judge found) Lugo did not give the officers permission to enter her apartment. Nevertheless, the officers entered the apartment, whereupon they did not find Early but did arrest Lugo's son on an outstanding warrant. After arresting Lugo's son, the officers found cocaine in his pocket.
Separately, the New Bedford Police Department's Organized Crime Intelligence Bureau (OCIB) was engaged in an ongoing investigation regarding the defendant, Jorge Rodriguez, and the apartment. OCIB's investigation began a month prior, in March of 2015. An OCIB officer received information from a confidential informant that the defendant was selling cocaine out of the apartment. The OCIB officer performed surveillance and saw the defendant leave the apartment, get in a car, and conduct what the officer believed to be a drug transaction. The OCIB officer thereafter, with the assistance of the confidential informant, conducted a controlled purchase of cocaine from the defendant; that transaction took place in the apartment. In early April, a second confidential informant disclosed to OCIB officers that it also had purchased cocaine from the defendant in the apartment.
The two investigations converged when, on April 8, the OCIB investigators learned that the Detective Division officers had entered the apartment looking for Early. OCIB then notified the detectives in the apartment of their investigation, and indicated that they were going to seek a search warrant. The Detective Division officers had not previously been aware of OCIB's investigation. Several Detective Division officers then remained in the apartment, to secure it until OCIB obtained the warrant.
The OCIB investigators completed the search warrant application (including a six-page warrant affidavit) expeditiously; the officers arrived at the apartment, warrant in hand, approximately one hour after the entry by the Detective Division. The warrant affidavit described the evidence accumulated from OCIB's investigation, including the surveillance of the defendant and the two purchases of drugs from the defendant in the apartment, one of which was a controlled buy. Relevant here, however, the warrant affidavit included a paragraph regarding the Detective Division's entry into the apartment that day -- including that the officers had arrested Lugo's son for drug possession.
The affidavit also reported that officers in the apartment had seen the defendant enter the back stairwell of the building, and then turn around and leave after he apparently observed the officers.
When the Detective Division first entered the apartment, they observed that one of the bedroom doors was locked. The judge found that prior to OCIB's arrival with the search warrant, the officers breached the locked bedroom door and conducted a "search," although the judge did not make a finding that the officers located any contraband or evidence at the time. Subsequently, after the warrant arrived, the police conducted another search of the apartment. Ultimately, the police recovered, among other things, twelve grams of cocaine, over $9,000 in cash, and correspondence addressed to the defendant. Neither the judge's findings nor the record, including the search warrant return form, identify whether the seized items were found in the previously locked bedroom, or elsewhere in the apartment. Nor do the judge's findings or the record reflect whether the officers located any of the seized items prior to the arrival of the search warrant. The defendant was arrested and charged with possession of a Class B controlled substance, with intent to distribute.
The officer testified that "[w]e just checked to make sure nobody was in there, and we waited to -- for the search warrant," and "somebody did go in to -- to look to see if there was anybody in there, but that was it."
In December of 2015, the defendant moved to suppress the materials recovered from the apartment on the grounds that the police officers searched the apartment prior to obtaining a warrant. Following an evidentiary hearing, the judge granted the defendant's motion in March of 2017. The judge concluded that the Commonwealth had not shown that Lugo consented to the officers’ original warrantless entry, and also found, specifically, that that the officers had no authority to enter the locked bedroom.
The Commonwealth was allowed to take an interlocutory appeal from the 2017 order, and in an unpublished memorandum and order this Court vacated the suppression order and remanded the case to the District Court for further findings. Commonwealth v. Rodriguez, 94 Mass. App. Ct. 1121 (2019). We asked two questions: (1) "whether the illegal entry resulted in a warrantless search, or [2] whether the search was conducted pursuant to a search warrant and, if so, whether the affidavit in support of the search warrant contained information sufficient to establish probable cause to search apart from observations made during the initial illegal entry." Id., slip op. at 5. On remand, the District Court judge entered a further order on June 26, 2019, in which he found that "the search of the bedroom in question was an illegal warrantless search because the police conducted a search of the bedroom prior to the arrival of the warrant." The judge also found that testimony from an officer that the search warrant had arrived prior to the bedroom door being breached was not credible.
The Commonwealth then filed a second interlocutory appeal. In September of 2019, a single justice of the Supreme Judicial Court remanded the case to the District Court, to consider once again "whether the affidavit in support of the search warrant contained information sufficient to establish probable cause to search apart from observations made during the initial illegal entry into the locked room" (quotation omitted). In December of 2019, the District Court judge entered another order, this time finding that "[t]he affidavit contain[ed] sufficient information to establish probable cause"; nevertheless, the suppression order remained in place. After yet another Commonwealth appeal, in December of 2019 a single justice of the Supreme Judicial Court ordered that the appeal proceed in this Court.
Before this Court the Commonwealth argues that the evidence should not be suppressed because, although the Commonwealth concedes that the initial entry was unlawful, that unlawful entry and search did not invalidate the subsequently obtained search warrant or the evidence seized thereunder. The thrust of the Commonwealth's argument is that the evidence was secured through an independent, untainted source. At oral argument in February of 2022, we requested further briefing from the parties regarding the applicability of the Supreme Judicial Court's recent decision in Pearson, 486 Mass. 809.
Discussion. The exclusionary rule prohibits the use of unconstitutionally obtained evidence against a defendant in a criminal case. Commonwealth v. Fredericq, 482 Mass. 70, 78 (2019). This rule excludes not only evidence seized during an unconstitutional search, but also evidence derived from the unconstitutional search -- so-called "fruit of the poisonous tree." Id., quoting Wong Sun v. United States, 371 U.S. 471, 487-488 (1963).
There are, however, exceptions to the exclusionary rule. Under the independent source exception, "evidence initially discovered as a consequence of an unlawful search may be admissible if later acquired independently by lawful means untainted by the initial illegality." DeJesus, 439 Mass. at 624. And, under the related inevitable discovery exception, unconstitutionally obtained evidence "is not rendered inadmissible if the government can demonstrate that it would have inevitably discovered the evidence lawfully." Commonwealth v. Benoit, 382 Mass. 210, 217 (1981). The policy underpinning these exceptions was succinctly summarized by the United States Supreme Court in Murray v. United States, 487 U.S. 533, 541 (1988) : "Invoking the exclusionary rule [under such circumstances] would put the police (and society) not in the same position they would have occupied if no violation occurred, but in a worse one."
As indicated, in Pearson the Supreme Judicial Court recently addressed the application of the independent source doctrine under circumstances very similar to those here, where an unlawful search had preceded a search conducted pursuant to a warrant. Pearson, 486 Mass. at 810-811. In holding that the case must be remanded for additional findings, the Pearson court applied the principles articulated in Murray, and provided further guidance regarding the application of the independent source exception. Id. at 813-816. In particular, the Court clarified that the independent source analysis includes two prongs. Id. at 813-814. The first prong requires a subjective inquiry into "whether the officers’ ‘decision to seek the warrant was prompted by what they had seen during the initial [unlawful] entry.’ " Id. at 814, quoting Murray, 487 U.S. at 542. When addressing this first prong, the judge also must assess the objective plausibility of the officer's stated rationale for why they would have sought the warrant independently. Pearson, supra at 815. The second prong "requires a determination whether, absent the tainted information, the affidavit nevertheless contained probable cause sufficient to issue the search warrant." Id. at 816.
Here, the second prong of the Pearson test is clearly satisfied. The judge concluded on remand that the warrant was sufficient to establish probable cause apart from the information obtained from the illegal entry, and we agree. The issue is an issue of law, based upon a review of the warrant affidavit with the tainted information excluded. See DeJesus, 439 Mass. at 625-626. Here, the untainted information established probable cause that the defendant was engaged in ongoing drug dealing from inside the apartment; this information included (1) surveillance of the defendant leaving the apartment and engaging in an apparent drug deal, (2) a controlled buy from the defendant, inside the apartment, executed by a reliable confidential informant, and (3) a second buy from the defendant inside the apartment, by a second, reliable confidential informant. These separate incidents occurred within one month of April 8, 2015, the most recent purchase being within seventy-two hours of the warrant application. There thus was probable cause to obtain the warrant before the Detective Division's entry. Commonwealth v. Desper, 419 Mass. 163, 171 (1994) (probable cause satisfied by controlled buys in apartment). Commonwealth v. Velez, 77 Mass. App. Ct. 270, 274 (2010) (same).
That leaves the first prong of the Pearson analysis -- whether the officers’ decision to seek a warrant was "prompted by what they had seen" during the initial illegal entry. Pearson, 486 Mass. at 814. Pearson holds that this is in the first instance a subjective inquiry. Id. There are no findings regarding whether the OCIB officers would have sought a warrant "regardless" of the actions of the Detective Division, and hence we cannot resolve the question on this record. As the Supreme Court noted in a similar context in Murray, "it is the function of the [trial court] rather than the [appellate court] to determine the facts," and we must therefore remand for further fact finding. , Murray, 487 U.S. at 543.
Pearson uses slightly different formulations of the test at different points in the opinion. See Pearson, 486 Mass. at 815, 816 (also describing first prong inquiry at one point as "whether law enforcement officers would have sought a search warrant regardless of the initial entry and search" and subsequently as "whether police would have sought a search warrant absent the observations that officers made during the initial unlawful entry"). The differing formulations are plainly intended to convey the same test.
As noted, the first prong also asks whether it is objectively plausible that the officers would have sought the warrant regardless of the initial illegal entry. Pearson, 486 Mass. at 815. On remand, the judge should address this issue in light of any testimony although, as we have noted, in this case there was an independent, ongoing investigation that had already established probable cause to obtain the warrant.
Prior decisions in this case, which were rendered before Pearson was decided, appear to attach significance to whether the evidence was discovered before, or after, the search warrant arrived. Indeed, prior to Pearson, an argument could perhaps have been made that the independent source exception does not apply if the evidence at issue was located before the warrant arrived and that, in such event, only the inevitable discovery doctrine might apply. As we understand Pearson and Murray, however, the same independent source test applies regardless of whether the evidence was initially located before, or after, the warrant arrived. Indeed, in both of those cases at least some of the evidence had been identified once, illegally, before the officers came back with a warrant, yet both courts described the applicable exception as "independent source." Murray, 487 U.S. at 541-542. Pearson, 486 Mass. at 810-811, 813.
Accordingly, we vacate the suppression order and remand for further proceedings. On remand, the judge should, if feasible, hold a further evidentiary hearing. Thereafter, the judge shall issue additional findings, which findings should address the officers’ subjective reasons for seeking the search warrant, and whether they "would have sought a search warrant absent the observations that officers made during the initial unlawful entry." Pearson, 486 Mass. at 816.
So ordered.
Vacated and remanded