Commonwealth v. Bush

879 N.E.2d 1247, 71 Mass. App. Ct. 130, 2008 Mass. App. LEXIS 83
CourtMassachusetts Appeals Court
DecidedJanuary 29, 2008
DocketNo. 06-P-323
StatusPublished
Cited by5 cases

This text of 879 N.E.2d 1247 (Commonwealth v. Bush) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Bush, 879 N.E.2d 1247, 71 Mass. App. Ct. 130, 2008 Mass. App. LEXIS 83 (Mass. Ct. App. 2008).

Opinion

Vuono, J.

This appeal presents the issue whether a five-second delay between the time the police knocked on the defendant’s door, announcing their presence and intention to execute a search warrant, and their forced entry into the apartment was reason[131]*131able. Based on circumstances indicating a threat to the safety of the police officers, a Superior Court judge ruled that a five-second interval satisfied the knock and announce requirement. Consequently, the judge denied the defendant’s motion to suppress “crack” cocaine and weapons, including a three and one-half foot sword, knives, homemade nunchucks, and mace, seized during the search. A jury then convicted the defendant of possession of cocaine with intent to distribute, a related school zone violation, assault and battery with a dangerous weapon, resisting arrest, and illegal possession of a dangerous weapon.1 On appeal, he claims error in the denial of his motion to suppress and motions for required findings of not guilty.2 We affirm.

1. Motion to suppress. The hearing on the defendant’s motion to suppress centered on whether the police knocked prior to entering, and whether the concededly brief amount of time — five seconds — between the police officer’s knock and announcement and the forced entry was sufficient to permit the defendant to comply with the law and open the door. The motion judge heard testimony from Detective Thomas Keating of the Brockton police department, the lead investigating officer, and from Lieutenant Emmanuel Gomes, Keating’s supervising officer. We summarize the facts found by the motion judge, supplemented by uncontroverted testimony from the suppression hearing. Commonwealth v. Washington, 449 Mass. 476, 477 (2007).

[132]*132a. Facts. Following a two-week undercover narcotics investigation, Detective Keating sought a search warrant for the defendant’s residence, a second-floor apartment in a three-story, three-family building located at Six Carleton Street in Brockton. Although Detective Keating testified that he had learned during the course of the investigation that there might be guns in the apartment, he was unable to corroborate this information and did not request a no-knock warrant.

The warrant was issued on December 7, 2001, and executed at 8:45 p.m. the same day by Detective Keating, Lieutenant Gomes, and approximately ten additional members of the Brockton police department and the Massachusetts State police. All of the officers were wearing jackets or protective vests that identified them as police officers.

Detective Keating was in the lead of a group of six or seven officers who entered through the front door, while others covered the rear exit. He was carrying a forty-pound metal battering ram. The stairs up to the second floor made several turns, described by Lieutenant Gomes as a “zigzag,” before arriving at a small landing where there was only room for one person to stand. The hallway was dark. While the other officers were climbing the stairs leading to the second floor, Detective Keating approached the apartment door. He knocked and yelled, “Brockton Police, search warrant.” He heard movement inside the apartment, but there was no verbal response and no answer at the door.

Detective Keating then started hitting the door with the battering ram. He continued to yell, “Brockton Police, search warrant” as he struck the door. Detective Keating immediately realized that the door was barricaded; ordinarily, one blow to the lock would have been sufficient to open the door.3 Lieutenant Gomes, who was five or six steps down the stairway behind Detective Keating, and the other officers, were also all yelling, “Brockton Police, search warrant,” from the time they began running up the stairs until the door broke.

Based on this evidence, the motion judge found that Detective Keating knocked and announced his presence and purpose, [133]*133waited five seconds, and then began to strike the door. Noting that Detective Keating had testified that he waited approximately twenty seconds before he used the battering ram, the motion judge remarked that in the heat of the moment, hearing the “scuffling” noises inside, he might have overestimated the time he waited. The motion judge’s conclusion that Detective Keating waited five seconds prior to attempting to force down the door was based on Lieutenant Gomes’s testimony that he was “six steps behind, a few seconds behind” Detective Keating, and that the battering began after Gomes arrived at the landing outside the door.4 The judge also found that Detective Keating heard movement within the apartment and noted that “if he heard scurrying, then surely he could have heard if someone said, ‘Who’s there?’ ” She further determined that the battering at the door went on for several additional seconds before the door finally gave way, during which time Detective Keating and others continued to yell, “Brockton Police, search warrant,” and that no one within the apartment responded to the police during that time. The judge explicitly found that there was a concern for the officers’ safety because weapons might have been involved, even though the police did not have probable cause for a no-knock warrant. The danger, according to the motion judge, only increased once the police determined that the door had been barricaded.

b. Discussion. In reviewing a ruling on a motion to suppress evidence, we accept the motion “judge’s subsidiary findings of fact absent clear error, but conduct an independent review of the judge’s ultimate findings and conclusions of law.” Commonwealth v. Washington, 449 Mass. at 480.

The defendant claims that the judge erred in finding that Detective Keating knocked and then waited five seconds before making a forced entry, because the officers’ testimony differed as to the amount of time Detective Keating waited before he began hammering the door.5 We defer to the motion judge, who had an opportunity to observe the witnesses, in matters of [134]*134credibility. See Commonwealth v. Colon, 449 Mass. 207, 215-216, cert. denied, 128 S. Ct. 810 (2007). On this record,6 we discern no clear error in the motion judge’s finding that Detective Keating knocked and that five seconds elapsed between the announcement and the attempt to break down the door.

We next turn to the question whether the decision to use force after hearing no response within five seconds was reasonable. No “bright-line” rule marks the length of time that must elapse after a knock and announcement before police may proceed with a forced entry.7 United States v. Sargent, 319 F.3d 4, 11 (1st Cir.), cert. denied, 540 U.S. 1073 (2003). See Commonwealth v. Jimenez, 438 Mass. 213, 237 (2002) (Sosman, J., dissenting) (noting Supreme Judicial Court has not addressed issue of how much time must elapse and indicating courts are reluctant to set bright-line time requirements). As the United States Supreme Court has recently noted, “When the knock- and-announce rule does apply, it is not easy to determine precisely what officers must do. How many seconds’ wait are too few?” Hudson v. Michigan, 547 U.S. 586, 590 (2006).

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Cite This Page — Counsel Stack

Bluebook (online)
879 N.E.2d 1247, 71 Mass. App. Ct. 130, 2008 Mass. App. LEXIS 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bush-massappct-2008.