Opinion
No. 01-063-01-02
January 8, 2003
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS
The defendant, Juan Burgos, has moved to suppress evidence seized on December 27, 2001. After hearing, the motion to suppress is denied for the following reasons.I. Findings of Fact
On December 27, 2000, an informant told Massachusetts State Trooper Mark Blanchard that a dealer named "J.J." had arranged to deliver a large quantity of heroin at about 4:15 p.m. in the vicinity of the Capricornio Restaurant on Hampshire Street in Lawrence. Blanchard spoke with Trooper Brian O'Neil. O'Neil told Blanchard that he had received information from the Drug Enforcement Administration ("the DEA") concerning an individual called "J.J." As reported to Blanchard by O'Neil, according to the DEA, J.J. was a large-scale heroin dealer named Juan J. Burgos who lived at 4 Bennington Street, Apt. 80, about one block from the Capricornio Restaurant. In August of 2000, the DEA had sent a picture of Burgos to O'Neil via telecopy. (Ex. 1).
Shortly before 4:00 p.m. on December 27th, O'Neil undertook a surveillance of 4 Bennington Street. He had the picture of Burgos with him. Burgos came out of the building and began to walk in the direction of the restaurant. O'Neil notified Blanchard that Burgos was walking toward the restaurant. He described the clothing worn by Burgos.
Burgos approached the restaurant and entered a black Honda on the passenger side. Blanchard approached the passenger side and identified himself displaying his badge. He saw Burgos throw an object to the floor of the car. Blanchard recognized the packaging (tape) as similar to that used by dealers packaging heroin in bulk. Blanchard removed Burgos from the vehicle and placed Burgos under arrest. He seized the package which was later determined to contain 40 grams of heroin. There were several people in the area who spoke to Burgos in Spanish during the arrest.
At the hearing, Blanchard testified that Burgos had entered a vehicle when he arrived at the restaurant and, according to the officer, had thrown the package on the floor of the vehicle, not on the ground. The reports of Burgos' arrest and grand jury testimony turned over to defendant made no mention of a vehicle. Even if it were otherwise appropriate, the purpose served by this deliberate concealment of material facts is unclear since Burgos presumably knew where he was when he was arrested. After receiving this information at the hearing, defendant did not ask for a continuance and he appears not to have been prejudiced by the misleading nature of the reports.
The officers were concerned that individuals in the vicinity of the restaurant who had witnessed Burgos' arrest and spoken with him in Spanish might cause evidence at his apartment to be destroyed. They retrieved keys from Burgos and went to his apartment. They knocked on the door and identified themselves. After hearing no response, they used Burgos' key to gain entry. They entered the apartment for the purpose of securing it while they obtained a search warrant and conducted a "sweep" to determine if anyone was in the apartment. No one was present. Trooper O'Neil then left to prepare the paperwork for the warrant. After obtaining a search warrant, the officers searched the apartment and seized additional evidence.
II Discussion
A. The Arrest and Seizure of Drugs at the Capricornio Restaurant
Probable cause to arrest and search a defendant exists where police officers have enough knowledge "to warrant a person of reasonable caution in believing" the defendant had illegal drugs in his possession. SeeCommonwealth v. Motta, 424 Mass. 117, 120 (1997); Commonwealth v. Cast, 407 Mass. 891, 895 (1990). "In dealing with probable cause, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id. The exigency requirement for warrantless searches is generally not as stringently applied to motor vehicles, as it is to homes. Motta, 424 Mass. at 123; Cast, 407 Mass. at 904. "The inherent mobility of an automobile `creates an exigency that they, and the contraband there is probable cause to believe they contain, can quickly be moved away while a warrant is being sought.'" Id. Finally, property seized in plain view "involves no invasion of privacy and is presumptively reasonable, assuming there is probable cause to associate the property with criminal activity." Commonwealth v. Skea, 18 Mass. App. Ct. 685, 689 (1984).
The following facts establish probable cause for the arrest of Burgos: 1) an informant told State Trooper Blanchard that a large-scale heroin dealer named "J.J." was going to make a scheduled heroin delivery in the area of the Capricornio Restaurant at approximately 4:15 p.m. that day; 2) DEA. agents had previously identified Juan J. Burgos, aka "J.J.", of 4 Bennington Street, Apt. 80, as a large-scale heroin dealer in Lawrence; 3) Bennington Street is close to the Capricornio Restaurant; 4) at about 4:00 p.m., Burgos was observed leaving 4 Bennington Street and walking to the Capricornio Restaurant; 5) when he arrived at the restaurant, Burgos entered a vehicle in which another person was sitting; and 6) when Trooper Blanchard approached the vehicle and identified himself, Burgos threw an object on to the floor of the vehicle that was packaged in the same manner as heroin is packaged by dealers. See Cast, 407 Mass. at 895 (police officers who corroborated nearly every detail of informant's tip and who observed defendant engaging in certain activities which they recognized as being suspicious had probable cause to stop defendant in belief that he was carrying drugs); Commonwealth v. Rivera, 27 Mass. App. Ct. 41, 43-44 (1989) (arrest and search was based on probable cause where experienced narcotics officer saw person in possession of highly suspicious object believed to be contraband and he attempted to conceal that object from police).
Furthermore, the seizure of the package that Blanchard observed in plain view through the window of the automobile was lawful. Skea, 18 Mass. App. Ct. at 689. "An officer seeing contraband items, or what reasonably may be thought contraband items, through the window [of a vehicle] may legitimately seize them." Id. at 689.
B. The Search Warrant
The issues raised by the motion to suppress evidence seized from Burgos' apartment pursuant to the search warrant include 1) whether there was probable cause for the issuance of a search warrant; 2) whether the entry to secure the apartment until a warrant was obtained was lawful; and, 3) if the entry was not lawful, whether evidence thereafter seized pursuant to a warrant based solely on probable cause which preexisted and was wholly independent of the entry should be suppressed.
1. Probable Cause
Before a search warrant can issue, a neutral and detached magistrate must make a determination that there is probable cause for the search.Commonwealth v. Santana, 411 Mass. 661, 663 (1992). The affidavit in support of a search warrant must contain sufficient facts "that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues." Commonwealth v. Donahue, 430 Mass. 710, 712 (2000), quoting Commonwealth v. Cinelli, 389 Mass. 197, 213 (1983). The Court's review of the validity of the issuance of a search warrant is limited to examining the four corners of the affidavit and reasonable inferences therefrom. Commonwealth v. Donahue, 430 Mass. at 712. To search the defendant's apartment, the affidavit had to show more than the defendant's address and propensity to sell drugs.Commonwealth v. Laughlin, 40 Mass. App. Ct. 926, 926-927 (1996). The affidavit must establish a sufficient nexus between the defendant's criminal activity and his residence. Commonwealth v. Alcantara, 53 Mass. App. Ct. 591, 593, rev. denied, 436 Mass. 1102 (2002);Commonwealth v. Olivares, 30 Mass. App. Ct. 596, 600 (1991).
I note that the affidavit did not contain all of the information produced at the hearing.
The affidavit submitted by Trooper O'Neil attested to the following facts. A confidential informant told Trooper Mark Blanchard that he was familiar with a "large scale heroin dealer." The dealer was known to him only by the name "J.J." The informant also told Officer Blanchard that J.J. made heroin deliveries in the area of the Capricornio Restaurant on Hampshire Street in Lawrence and that J.J. would be delivering a large quantity of heroin in that area on at approximately 4:15 p.m. on December 27, 2000. Blanchard communicated this information to O'Neil. O'Neil was familiar with a large-quantity heroin dealer known as Juan J. Burgos, a/k/a J.J., who resided at 4 Bennington St., Apt. 80 in Lawrence. O'Neil had a photograph of Burgos' license bearing that address. Near the appointed time, O'Neil began a surveillance of the defendant's apartment building at 4 Bennington Street. At about 4:00 p.m. he saw the defendant leave the building. The defendant walked toward the Capricornio Restaurant. He did not stop or meet with anyone during the walk from 4 Bennington Street to the Capricornio Restaurant. When the defendant arrived at the restaurant, Trooper Blanchard approached the defendant. When Blanchard identified himself as a police officer, the defendant threw an object that was later discovered to be four wax covered pellets wrapped in tape. Trooper Blanchard retrieved the pellets and, believing the substance to be a large quantity of heroin, arrested the defendant. During the arrest, several individuals had gathered in the area and spoken with the defendant in Spanish.
This is a close case but, based on the case law, the facts set forth in the affidavit are sufficient to establish probable cause to search the defendant's residence. In Commonwealth v. Alcantara, 53 Mass. App. Ct. at 594, the Court of Appeals held that there was a sufficient nexus between the defendant drug seller and the apartment to be searched where an informant stated that defendant, after receiving a telephone call from a prospective buyer, would deliver drugs to a location he (the defendant) specified. The informant pointed out the defendant's apartment, provided a description of the vehicle driven by the defendant and its license plate number. The officers checked the registration and found that the vehicle was registered to the defendant at the address in question. A controlled buy was then arranged and the officers observed the defendant leave the house and meet with the informant in the immediate vicinity of the house. The informant then turned over to them drugs purchased from the seller. See alsoCommonwealth v. Vynorius, 369 Mass. 17 (1975), where the Court held that there was probable cause to search the defendant's apartment where defendant, who was sixteen years old, was seen making a contact for the sale of drugs, leaving on foot in the direction of his apartment and returning shortly thereafter with the drugs. In this case, there was one delivery and the surveillance of Burgos' apartment building did not commence until some time after the delivery was arranged. However, the corroborated information in the affidavit was sufficient to support findings that Juan J. Burgos, known as "J.J.," lived at 4 Bennington Street which is within walking distance of the Capricornio Restaurant, that he made prearranged deliveries of large quantities of heroin in the area of the Capricornio Restaurant and that on the day of his arrest he brought a large quantity of heroin directly from his apartment to the point of delivery at the Capricornio Restaurant. Compare Commonwealth v.Olivares, 30 Mass. App. Ct. 596, 600-01 (1991). In Olivares, there was no specific information in the affidavit tying the defendant's residence to drug transactions. The officers had observed the defendant leave his residence in a vehicle and travel to his place of business where the drug transaction took place. The Court emphasized that "[t]he drug transaction occurred within the confines of defendant's business premises and the defendant was not observed to have carried anything into the premises prior to the transaction." Id. at 600. Here reasonable inferences from the sequence of events described in the affidavit placed illegal drugs in the defendant's residence on the day that the application for the warrant was made. The affidavit contained sufficient information, including the informant information, O'Neil's familiarity with the defendant, the results of the surveillance, the amount of heroin seized (described as large) and the manner in which the heroin was packaged, for the magistrate to conclude that the planned delivery on that date was not an isolated transaction and there was probable cause to believe that there was evidence of defendant's criminal activity in his apartment.
It is unclear how much time elapsed between the telephone call arranging the controlled buy and the surveillance of the defendant's apartment in Alcantara.
I therefore find that there was probable cause to issue the warrant.
2. The Entry To Secure the Premises
It is well settled that warrantless entries are per se unreasonable unless they are based on a "few narrowly drawn exceptions to the Fourth Amendment warrant requirements." Commonwealth v. Amaral, 16 Mass. App. Ct. 230, 233 (1983) . One such exception is an entry based on exigent circumstances. The Commonwealth bears the burden of establishing the existence of probable cause and exigent circumstances.Commonwealth v. Hall, 366 Mass. 790, 801-02 (1975). The standards as to exigency are strict. Id.; Commonwealth v. Forde, 367 Mass. 798, 800 (1975). Under Massachusetts law, a dwelling may be secured, on the basis of probable cause, where delay in obtaining a warrant would substantially increase the risk of the removal or destruction of drugs._Commonwealth v. Blake, 413, Mass. 823, 829 (1992); Commonwealth v. Forde, 367 Mass. at 801. In determining whether a warrantless entry was based on a valid exigency, the court must evaluate all the circumstances known to the officers at the time of the entry.
In cases in which an exigency has been found, there has been a "quite specific threat" based on the surrounding circumstances or information at hand making it reasonable to conclude that evidence will be removed or destroyed before police can obtain a warrant. Commonwealth v. Huffman, 385 Mass. 122 (1982); Commonwealth v. Hall, supra, 367 Mass. at 802-03;_Commonwealth v. Garcia, 34 Mass. App. Ct. 386, 394 (1993).
Compare Commonwealth v. DeJesus, 56 Mass. App. Ct. 523, 533 (2002). DeJesus, which was decided after the hearing on the motion to suppress in this case, involved the same affiant as the present case and presented the same issue as to the lawfulness of a warrantless entry to secure an apartment to prevent the removal or destruction of drugs. There are three opinions in DeJesus. For reasons which are unclear, the principal opinion does not analyze entries to secure premises to prevent the destruction of evidence under principles applicable to exigent circumstances. But see Commonwealth v. Kizer, 48 Mass. App. Ct. 647, 648-49 (2000). A concurring opinion in DeJesus notes the applicability of these principles. DeJesus, 56 Mass. App. Ct. at 535 (Mason, J., concurring in the result).
The DeJesus court stated that once probable cause exists and absent exigent circumstances, an officer must have an "objectively reasonable level of police concern" that drugs in the apartment might be destroyed in order to enter and secure the defendant's apartment in the absence of a warrant. The Court held that the officers' concern that the defendant's arrest was observed by others and that a co-conspirator who lived in the apartment might learn of it and destroy evidence was speculative.
The Court further stated that a warrantless entry to prevent the destruction of evidence will be authorized only when the officers initiate the application process for a search warrant at the same time as the entry is made. Id. at 530-31. The Court took note, however, of Massachusetts cases which hold that residence sweeps predicated on exigent circumstances are permissible even without simultaneous application for a warrant, but distinguished those cases on the basis that those cases did not involve an exploitation of the initial entry. Id. at 532, n. 8, citing Commonwealth v. Alvarez, 422 Mass. 198, 210-211 (1996); Commonwealth v. Cruz, 53 Mass. App. Ct. 24, 27 (2001).
The Commonwealth argues that there were people in the area of the Capricornio Restaurant at the time of Burgos' arrest who spoke to him in Spanish and that the officers had a legitimate concern that evidence at his apartment, e.g., heroin, packaging materials, scales and the like, would be destroyed if they waited to obtain a warrant. There is no question that based on the totality of the circumstances known to the officers at the time and the existence of probable cause to search the premises, the officers were justified in securing the premises from the outside until a warrant could be obtained. Since drugs are particularly vulnerable to immediate removal and transportation or destruction, police officers must be "unfailingly conscious of and repeatedly speculate about [this vulnerability] if they are to function effectively to protect the public interest." Commonwealth v. Amaral, 16 Mass. App. Ct. at 235, quoting United States v. Johnson, 561 F.2d 832, 844 (D.C. Cir. 1977). However, where the officers had no information suggesting that a third person was in the apartment and, after knocking and announcing themselves, had heard neither a response nor sounds indicating that someone was in the apartment, they were not justified in entering the apartment to secure it from the inside. Their concern that individuals who had observed the arrest and spoken to the defendant in Spanish might cause evidence to be destroyed was based on speculation and did not constitute the "specific threat" necessary to justify a warrantless entry. See Huffman, supra. I therefore find that the entry was unlawful.
3. The Effect of the Unlawful Entry
The officers did not search Burgos' apartment until they had obtained a valid search warrant. The warrant was predicated on probable cause which preexisted and was independent of the unlawful entry. The Supreme Judicial Court has unambiguously stated that where the warrant was based on sufficient probable cause derived from a source independent of the unlawful entry and the search did not precede the issuance of a warrant, evidence seized pursuant to the warrant will not be suppressed.Commonwealth v. Blake, 413 Mass. at 829. See Segura v. United States, 468 U.S. 796, 813-814 (1984) (legality of initial entry wholly irrelevant where information in application for warrant based on independent sources). See also Commonwealth v. Frodyma, 393 Mass. 438 (1984) and cases cited therein (evidence not suppressed where no showing of "exploitation" of prior illegality). Compare DeJesus, 56 Mass. App. Ct. at 534-35, where the warrant application relied on evidence acquired during the illegal entry. As a result, under established case law, there is no basis for suppression of the evidence seized pursuant to the warrant.
In Blake, the Court stated that "[e]ven assuming its illegality, the entry would not be a basis to suppress evidence subsequently obtained unless there is a showing that the evidence sought to be suppressed is an exploitation of the prior illegality." and that "whether the initial entry was illegal or not is irrelevant to the admissibility of the challenged evidence [if there is] an independent source for the warrant under which the evidence was seized." Blake, 413 Mass. at 829-830, citingSegura v. United States, 468 U.S. 796, 813-814 (1984).
III. Conclusion
The concern implicated by entering to secure the defendant's apartment and performing a "sweep" to determine whether anyone was present, a concern discussed by the Court in DeJesus, is that officers who have probable cause, but who have not initiated the warrant process, will enter an apartment in the guise of securing it to determine whether there is evidence in the apartment that makes it worth their while to expend the resources necessary to get a warrant. The DeJesus court attempted to address that concern by requiring that the warrant process be initiated at the time the entry was made. In many cases involving a true exigency, however, such a requirement would be foreclosed by the circumstances giving rise to the exigency, i.e., circumstances which establish "such a compelling necessity for immediate action as will not brook the delay of obtaining a warrant." Commonwealth v. Kizer, 48 Mass. App. Ct. at 649 (citations omitted). In any event, DeJesus does not control the admissibility of the evidence in this case, because the officers did not rely on observations resulting from the unlawful entry to secure the warrant to search Burgos' residence. The Supreme Judicial Court in Blake unambiguously stated that, absent exploitation of the unlawful entry, there is no basis for suppressing evidence seized pursuant to a valid warrant. For the reasons stated herein, the motion to suppress is denied.
The concern is exacerbated in this case because, as stated in n. 4, supra, the affiant in this case is the same officer who made the entry in DeJesus. The docket in DeJesus indicates, however, that no court had ruled upon the lawfulness of the entry in DeJesus before the entry was made in this case.
_________________________ Diane M. Kottmyer Justice of the Superior Court