Opinion
16-P-569
08-25-2017
COMMONWEALTH v. Zachary M. LACEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is the Commonwealth's interlocutory appeal from the order of a District Court judge allowing the defendant's motion to suppress evidence, including firearms and drugs seized during the execution of a search warrant. The Commonwealth argues that the judge erred by concluding that the warrant did not authorize a search of the location where the firearms and some drugs were found. For the reasons that follow, we reverse the order suppressing the evidence.
Background. We summarize the relevant facts from the affidavit filed in support of the search warrant and the police report filed after the warrant had been executed. On October 19, 2011, Trooper Francis M. Walls of the Massachusetts State police obtained a search warrant authorizing him to search the first-floor apartment located at 21 Porter Street in Brockton. The warrant described the apartment as "occupied by and/or in the possession of: Hector M. Rodriguez-Torres" and also permitted the officers to search Rodriguez-Torres's person and items in his possession. However, the warrant explicitly prohibited the police from "search[ing] any person present who may be found to have such property in his or her possession or under his or her control or to whom such property may have been delivered."
The judge did not conduct an evidentiary hearing on the motion.
The validity of the issuance of the warrant was upheld by a panel of this court in a challenge by the codefendant. See Commonwealth v. Rodriguez-Torres, 88 Mass. App. Ct. 1119 (2016).
In executing the search warrant, the police officers made a forced entry into the common first-floor hallway and then into the first-floor apartment. The officers found Rodriguez-Torres asleep in his bed. Rodriguez-Torres assisted the officers in conducting the search of the apartment. The officers found approximately 182.2 grams of heroin (including the weight of packaging) in a dresser drawer.
During the course of the search, Sergeant Michael McCarthy observed the defendant exiting the side rear door of 21 Porter Street. Sergeant McCarthy asked the defendant which floor he lived on, and the defendant replied that he lived on the first floor. The defendant was then escorted back to the first-floor apartment.
A narcotics-detecting canine alerted the police to the presence of narcotic odor in several locations in the defendant's bedroom. The officers conducted a search of the bedroom and found the following items: a black and silver Kahr Arms nine-millimeter firearm; two magazines; eleven rounds of ammunition; one black Kahr firearm holster; and one black nine-millimeter ammunition feeding device. The police also discovered three plastic bags of heroin, weighing approximately 1.4 grams.
Discussion. The Commonwealth argues that the judge erred in finding on the basis of these facts that the officers did not have the authority under the warrant to search the defendant's bedroom and, accordingly, in allowing the motion to suppress. We agree.
"Once the warrant authorizes the search, ‘[a] lawful search of [a] fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search.’ " Commonwealth v. Signorine, 404 Mass. 400, 403 (1989), quoting from United States v. Ross, 456 U.S. 798, 820-821 (1982). "[A] valid search may include any area, place, or container reasonably capable of containing the object of the search." Commonwealth v. Dorelas, 473 Mass. 496, 503 n.13 (2016), quoting from Signorine, supra at 405. See Ross, supra at 821 ("[A] warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found"). "In the physical world, police need not particularize a warrant application to search a property beyond providing a specific address, in part because it would be unrealistic to expect them to be equipped, beforehand, to identify which specific room, closet, drawer, or container within a home will contain the objects of their search." Dorelas, supra at 501. "Rather, ‘[a] lawful search of fixed premises generally extends to the entire area in which the object of the search may be found.’ " Ibid., quoting from Ross, supra.
We agree with the Commonwealth's contention that Commonwealth v. Walsh, 409 Mass. 642, 646 (1991), is controlling. Here, the police had a valid warrant to search the first-floor apartment of 21 Porter Street, "which is occupied by and/or in the possession of ... Rodriguez-Torres." See ibid. This case is also similar to Walsh to the extent that the person contesting the search was renting a room in the target address. The officers here learned, during the course of the search, that the defendant was also renting a room in the first-floor apartment that was described in the warrant.
The defendant makes a substantially similar, if not identical, argument that was rejected by the court in Walsh—namely that the officers were not authorized to search the defendant's bedroom and should have obtained an additional warrant when they learned that he also lived in the first-floor apartment. Despite the defendant's contentions, the search warrant affidavit established probable cause for the police to search the entire first floor of 21 Porter Street. "The answer to the defendant's contention is that the warrant authorized a search of the [first-floor apartment], not just so much of the [premises] as was occupied by [Rodriguez-Torres]." Ibid. See Signorine, supra. Indeed, "[t]he officers had a right to proceed in accordance with the warrant despite the information that came to them in the course of their doing so." Walsh, supra.
The defendant's, as well as the judge's, reliance on Commonwealth v. Perez, 68 Mass. App. Ct. 282, 284-285 (2007), where the warrant appropriately provided for the search of any person present, is misplaced. Here the warrant explicitly did not authorize the police to search "any person present" in the target premises, and the officers, accordingly, did not conduct a search of the defendant's person. See ibid. Instead, the officers in this case searched the defendant's bedroom, which was located within the target apartment described in the search warrant.
We also note that the defendant here, like in Walsh, does not argue that the warrant was too broad because it directed the search of a multiple-occupancy dwelling. See Walsh, supra at 646. Instead, he argues that the search was broader than authorized by the warrant. See ibid.
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Therefore, the order allowing the motion to suppress is reversed, and a new order is to enter denying the motion.
So ordered.
Reversed.