Commonwealth v. Abdirahaman Yusuf.

• Court: Massachusetts Appeals Court
• Decided: March 7, 2025
• Docket: 24-P-0664
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-664

COMMONWEALTH

vs.

ABDIRAHAMAN YUSUF.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In June 2016, members of the Boston police department youth

violence strike force (gang unit) began investigating the

defendant for illegally possessing firearms. A gang unit

detective viewed and preserved twenty-five to thirty videos

posted on the defendant's Snapchat account showing the defendant

with firearms. In February 2017, while the investigation was

ongoing, police responded to an unrelated domestic disturbance

call at the defendant's residence. While wearing a body-worn

camera (BWC), one of the police officers spoke with the

defendant as he stood at the threshold of his bedroom. Two

weeks later a gang unit detective obtained this BWC footage and

compared it with the Snapchat videos. At that time, the detective believed, but did not have confirmation, that some of

the Snapchat videos had been filmed in the defendant's bedroom.

The BWC footage confirmed that the distinctive curtains in the

defendant's bedroom matched the bedroom curtains depicted in one

of the defendant's Snapchat videos in which he brandished the

weapons. The detective then applied for and received a search

warrant for the defendant's home. Officers executed the search

warrant and recovered a firearm, ammunition, and narcotics. The

defendant was later charged in the Superior Court with gun

related crimes.

Prior to trial, a Superior Court judge denied the

defendant's motion to suppress the evidence recovered as a

result of the search warrant. In May 2019, the defendant was

convicted of unlawful possession of a firearm and unlawful

possession of ammunition. The defendant appealed, challenging

the judge's denial of his motion to suppress. The Supreme

Judicial Court (SJC) concluded that the BWC footage had been

lawfully captured, but "[t]he later, warrantless, investigatory

review of the video footage" was unconstitutional and "violated

the defendant's right to be protected from unreasonable searches

guaranteed by the Fourth Amendment and art. 14." Commonwealth

v. Yusuf, 488 Mass. 379, 380 (2021). The case was remanded for

an evidentiary hearing to determine whether "the decision to

2 seek the search warrant was not prompted by the unlawful review

of the video footage." Id. at 398. After an evidentiary

hearing, a different Superior Court judge allowed the

defendant's motion to suppress. We affirm.

Discussion. "When reviewing a motion to suppress evidence,

we adopt the motion judge's subsidiary findings of fact absent

clear error, but we independently determine the correctness of

the judge's application of constitutional principles to the

facts as found." Commonwealth v. Catanzaro, 441 Mass. 46, 50

(2004). "The general rule is that evidence is to be excluded if

it is found to be the 'fruit' of a police officer's unlawful

actions." Yusuf, 488 Mass. at 397, quoting Commonwealth v.

Balicki, 436 Mass. 1, 15 (2002). Here, the SJC held that the

warrantless review of BWC footage was unlawful and remanded for

a determination whether the Commonwealth could establish the

independent source exception to the general rule. Id. at 398.

To satisfy the independent source exception, the Commonwealth

must show that "(1) the officers' decision to seek the search

warrant was not prompted by what they observed during the

initial illegal [search], and (2) the affidavit supporting the

search warrant application contained sufficient information to

establish probable cause," apart from any observations gleaned

3 from the unlawful viewing of the BWC footage. Commonwealth v.

Pearson, 486 Mass. 809, 813 (2021).

The Commonwealth first contends that it was error for the

judge to find that the detective who applied for the search

warrant "testified that if he did not have the body-worn camera

video to establish that the Snap-Chat video was filmed in

defendant's home, he would have needed additional information

before applying for a warrant." The Commonwealth asserts that

the judge ignored the detective's testimony to the contrary.

"We leave to the judge the responsibility of determining

the weight and credibility to be given oral testimony presented

at the motion hearing" (quotation and citation omitted). Yusuf,

488 Mass. at 385. Here, the detective testified that the match

between the curtains in the two videos "was a significant link"

between the illegal activity and the defendant's home. The

detective continued, "[t]he nexus from the search warrant

clearly was the video of the Snapchat [with the] curtains

compared to the body cam video." When asked by the judge

whether he would have applied for the search warrant if he had

not reviewed the BWC footage, the detective testified that he

"[could not] say" whether he would have applied for the warrant

at that time. Although the detective also testified that he

believed he had information even without the BWC footage to

4 establish probable cause for a search warrant, he later

testified that, without his review of the BWC footage, he

"definitely would have continued to do an investigation," rather

than applying for the warrant at the time he applied for it. On

this record, we decline to disturb the judge's implicit

determination regarding which portions of the detective's

testimony merited greater weight. See Catanzaro, 441 Mass. at

50. We thus discern no clear error in the judge's finding that

without reviewing the BWC footage, the detective required

additional information to obtain a warrant.

The Commonwealth also argues that the judge erred by

considering only the detective's subjective intent to seek a

search warrant before he obtained the BWC video. A judge

"objectively must assess the totality of the attendant

circumstances to ascertain whether the officers' stated reasons

for seeking the warrant are implausible" (quotation and citation

omitted). Pearson, 486 Mass. at 815. However, this analysis

presumes a police officer claimed an intent to seek the warrant

notwithstanding the tainted information. In Pearson, the issue

was remanded for hearing because "there [was] no evidence in the

record demonstrating that the detective would not have sought

the warrant had the officers not made the initial illegal

entry." Id. at 816. Here, by contrast, the judge found that

5 the detective testified, in effect, that he would not have

sought this warrant absent the information on the BWC video. In

other words, the judge found that the detective was prompted by

the BWC footage to apply for the warrant. Therefore, there was

no need for the judge to explore the "plausibility" of an

explanation that was not given by the detective. We discern no

error in the judge's conclusion that the Commonwealth failed to

prove that the decision to file this warrant application was not

prompted by what was observed on the BWC video.1

Order allowing motion to suppress affirmed.

By the Court (Massing, Walsh & Brennan, JJ.2),

Clerk

Entered: March 7, 2025.

1 Because we conclude that the search warrant application was prompted by the unlawful viewing of the BWC footage, we need not reach the issue of whether, absent observations gleaned from the unlawful viewing, the affidavit supporting the search warrant application contained sufficient information to establish probable cause. See Pearson, 486 Mass. at 814.

2 The panelists are listed in order of seniority.