Opinion
20-P-498
04-12-2021
COMMONWEALTH v. RaShad A. COPPER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of possession of cocaine with intent to distribute. The defendant's sole contention on appeal is that his motion to suppress evidence obtained during the execution of a search warrant should have been allowed because the police failed to knock and announce their purpose before entering the residence. We affirm.
Background. We summarize the pertinent facts from the judge's findings on the motion to suppress, supplemented where appropriate by uncontroverted testimony that the judge explicitly or implicitly credited. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). In the fall of 2017, Yarmouth Police Detective Scott Lundegren, an experienced narcotics officer, was investigating Amir Beyah for distribution of cocaine. In connection with that investigation, on October 10, 2017, Detective Lundegren sought and obtained a warrant to search Beyah's residence at 62 Baxter Road in Hyannis. The warrant authorized law enforcement officers to search the residence and anyone present at any time of the day or night, but did not relieve the officers of the requirement to knock and announce their presence before executing the warrant.
Police officers arrived in the area of 62 Baxter Road around 11:30 A.M. on October 12, 2017, and conducted surveillance for thirty to forty-five minutes. They observed Beyah arrive at 62 Baxter Road by car, enter the residence for a brief period, and then depart. Police stopped Beyah's car approximately one-third of a mile from the residence. Surveillance officers also observed Beyah's mother walk away from the residence. She was stopped by police "at the end of the street." At that point, Detective Lundegren decided to execute the search warrant.
Lundegren saw a "male standing next to a motor vehicle directly in front of the home." Detective Lundegren yelled, "Police, search warrant. Police, search warrant," and ordered the unknown male to the ground. The male appeared confused and did not immediately comply, so Detective Lundegren continued shouting instructions. As he did so, Detective Lundegren observed that the front door of the residence, which he had earlier observed to be open, was closed. Concerned that "[their] presence was compromised," Detective Lundegren directed other officers to enter the residence through the back door. The officers entered using a battering ram without knocking, shouting, "police, search warrant." The officers were wearing police jackets, and Detective Lundegren also had his badge suspended from a neck chain.
Police later determined that the individuals in the car and the male standing next to it had no connection to 62 Baxter Road.
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At trial, Detective Lundegren testified that the defendant was arrested inside the residence near a backpack that contained various forms of his identification and a large plastic bag of "compressed white powder," later determined to be "crack" cocaine. The target's brother, Wahzir Beyah, was also arrested in the residence. He was standing near a toilet which contained approximately 1.5 grams of cocaine, with his hands "dripping wet."
Discussion. We review the judge's decision under familiar standards. We accept the judge's factual findings unless they are clearly erroneous. See Commonwealth v. Meneus, 476 Mass. 231, 234 (2017). However, we "make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Durand, 475 Mass. 657, 664 (2016), quoting Commonwealth v. Bostock, 450 Mass. 616, 619 (2008).
The requirement that police officers knock and announce their purpose before forcibly entering a dwelling to execute a search warrant may be suspended where the police reasonably fear for their safety, or "where the person inside the dwelling to be entered has knowledge of the officers' purpose and presence ... and where making an announcement would facilitate a suspect's escape or the destruction of evidence" (citations omitted). Commonwealth v. Scalise, 387 Mass. 413, 418 (1982). "To justify the unannounced entry, the Commonwealth must show that there is probable cause to believe that the evidence will be destroyed if the knock and announce rule is observed." Commonwealth v. Silva, 440 Mass. 772, 783 (2004). This showing may be made after the search "if exigent circumstances arise at the threshold of the search justifying both the unannounced entry and the failure to obtain judicial authorization." Commonwealth v. Jimenez, 438 Mass. 213, 217 (2002). In determining probable cause, we consider the totality of circumstances, including the police officer's expertise and experience. See Commonwealth v. Ortega, 441 Mass. 170, 176 (2004).
Here, immediately before the search warrant was executed, Detective Lundegren confronted unknown individuals on the street in front of the residence to be searched. He identified himself and his purpose, twice yelling, "Police, search warrant." Detective Lundegren, a police officer for seventeen years and an experienced narcotics investigator, became concerned that occupants of the house could have seen or heard this confrontation and been alerted to the police presence. This concern was heightened by his observation that someone inside the residence had closed the front door. When the other officers followed Lundegren's direction to enter through the rear door, they identified themselves and announced their purpose by shouting, "police, search warrant." Thus, we agree with the judge, that the "announce" requirement was met. We also agree that the officers' forced entry without knocking was justified by the concern that occupants of the residence were aware of the police presence such that delayed entry could cause evidence to be secreted or destroyed. Because the search was lawful, we need not consider whether the results of an unlawful no-knock search must be suppressed. See Commonwealth v. Gomes, 408 Mass. 43, 46 (1990).
Accordingly, there was no error in the order denying the motion to suppress evidence.
Judgment affirmed.