Commonwealth v. Clifford Lawrence

Opinion

            On April 7, 2025, at approximately 6:01 a.m., officers from the Lowell Police Department and the Northeastern Massachusetts Law Enforcement Council (“NEMLEC”) executed a search warrant at 61 Pond Street #1 in Lowell, the home of defendant Clifford Lawrence. They recovered firearms, ammunition, crack cocaine, and a large amount of cash. The defendant moved to suppress the evidence seized and statements he allegedly made to police on the grounds that: (1) the police failed to knock and announce their presence at the locked common-entry door to the two-family dwelling; (2) the search was conducted at night despite that the warrant did not authorize a nighttime search; (3) the affidavit in support of the application for a search warrant did not establish a nexus between the premises searched and illegal drug activity; (4) the affidavit did not establish probable cause; and (5) the defendants statements were made during custodial questioning and without a warning pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).

            The suppression motion raises a novel issue under Massachusetts law – whether police must knock and announce at the locked common door to a two-family home before entering the residence. Because I conclude that the officers were required to knock and announce their presence at the locked exterior door and did not do so, the

                                                            -1-

entry into the residence was impermissible. The execution of the search warrant was, therefore, invalid, and the evidence seized during the search must be suppressed. I further conclude that, by the time police executed the search warrant, there was no longer probable cause to believe that Oxycodone pills would be found in the residence. This is a separate and independent ground for suppression of evidence seized pursuant to the search warrant. Finally, I conclude that the Commonwealth has not met its burden of establishing that the defendant’s statements to police during the execution of the search warrant were voluntary. The statements, therefore, must be suppressed, both as fruits of the unlawful search and because the Commonwealth has not established that they were made voluntarily. The motion to suppress is, therefore, ALLOWED. The evidence recovered during the search and the defendant’s statements to police during the search warrant execution are, thus, ordered SUPPRESSED.

BACKGROUND

            The facts supporting the application for the search warrant are taken from the Affidavit of Matthew J. Krug (Exhibit 9) in support of the application. The remaining facts are taken from the testimony of the witnesses at the July 8, 2026, hearing on the motion to suppress – which I credit fully – and exhibits introduced at the hearing.

            A.        The Search Warrant Application

            On April 1, 2025, Detective Matthew J. Krug of the Lowell Police Department submitted an affidavit in support of his application for a warrant to search 61 Pond Street, #1, in Lowell. It recited that, in March 2025, Detective Krug met with a confidential informant, designated in the affidavit as “CIA.” Krug Aff. at 2, ¶ 3. CIA told Detective Krug that CIA was “aware of a male named Clifford Lawrence who [was] actively distributing pressed Oxycodone pills in the city of Lowell.” Id. CIA described Lawrence as “a black male, approximately 40 years old who is confined to a wheelchair.” Id. CIA told Detective Krug that Lawrence “live[d] at 61 Pond Street on the first floor with his girlfriend and children.” Id. When Detective Krug showed CIA a

                                                            -2-

photograph of Lawrence, CIA confirmed that the man in the photograph was, indeed, Lawrence. When Detective Krug consulted a past Lowell Police Department report dated September 8, 2021, he learned that, according to that report, Lawrence lived at 61 Pond Street Unit #1 with Jessica Brooks and their infant son.

            Also in March, Lowell detectives arranged with CIA to conduct a controlled purchase of pressed Oxycodone pills from Lawrence. Detectives instructed CIA – whom they had searched to confirm that he had neither contraband nor cash on his person – to contact Lawrence to arrange a purchase of pressed Oxycodone pills. CIA did so and was directed by Lawrence to a location to complete the purchase. Detectives then gave CIA cash to complete the transaction. CIA went to the location, followed by police, who confirmed that he made no stops and met no one on the way.

            At the same time, other officers were watching 61 Pond Street. After CIA called Lawrence to arrange the purchase, they saw a woman, later identified as Jessica Brooks, come out of the front door of 61 Pond Street and get into a white, 2020 BMW, later determined to be registered to the defendant at the 61 Pond Street address. Ms. Brooks then drove from 61 Pond Street to the location to which CIA had been directed by Lawrence to make the purchase. Ms. Brooks neither stopped nor met anyone along the way. When Ms. Brooks arrived at the arranged location, officers watched as CIA approached the front passenger door of the BMW, opened it, and leaned inside. After roughly ten seconds, CIA walked away from the BMW. Police followed Ms. Brooks as she then drove directly back to 61 Pond Street and parked in front. She left the BMW and re-entered 61 Pond Street by the front door.

            Meanwhile, CIA approached watching detectives and gave them “an end[-]tied bag containing an amount of blue, pressed Oxycodone pills.” Id. at 4, ¶ 4. CIA told detectives that CIA had met a woman, known to CIA as Lawrence’s girlfriend, at the arranged location and had exchanged the cash provided to CIA by the police for the

                                                            -3-

Oxycodone pills that CIA had turned over to them. Police then searched CIA, who was found to have neither cash nor contraband.

            Lowell detectives conducted two more controlled purchases of Oxycodone in March 2025, each of which proceeded along the same lines as the first, except that, on one occasion, after meeting CIA, Ms. Brooks stopped at a convenience store on the way back to 61 Pond Street. The third of these controlled purchases occurred within seventy- two hours of the filing of Detective Krug’s affidavit.

            On April 1, 2025, Detective Krug appeared before an assistant clerk of the Lowell District Court and applied for the search warrant that is the subject of this case. See Ex. 9. The assistant clerk issued the search warrant, 2511SW0054. The search warrant permitted the search of “61 Pond Street, Unit #1.” Id. The search warrant recited that “[a]ccess is gained to the target apartment by entering the front door which leads to a common hallway, followed by entering the door to unit #1 which is on the left.” Id.

            B.        The Search Warrant Execution

            On April 7, 2025, officers from the NEMLEC SWAT Team,[1] along with detectives from the Lowell Police Department, went to 61 Pond Street to execute the warrant. After an early morning planning meeting, which the Lowell detectives did not attend, the officers arrived at 61 Pond Street and prepared to enter the premises. At 6:01 a.m., the SWAT officers used a “hydraulic spreader” to force open the locked front door to 61 Pond Street, which opened onto a common hallway. The door suffered substantial damage in the process. See Hearing Exs. 2-6. At the same time, SWAT officers at a back

--------------------------------------------

            [1] Although no witness identified the full name of the SWAT Team, “SWAT” is an acronym that can be used to denote “Special Weapons and Tactics.” See, e.g. www.fbi.gov/news/gallery/swat. Nothing turns on whether this acronym correctly characterizes NEMLEC’s SWAT team.

                                                            -4-

door used a battering ram to open the back door, after a “manual spreader” failed to

open it.[2]

            Once SWAT team members had breached the outer door, they moved to the  front door of Unit #1, which was to their left as they entered the hallway. At the door, Officer Scott Fitzemeyer knocked and announced that the police were there to serve a search warrant. Officer Fitzemeyer then called to the occupants of the apartment: “I need you to come to the door.” A female voice, later identified as Ms. Brooks, responded that she was “coming to the door.” Ten to fifteen seconds later, Ms. Brooks opened the door and left the apartment with her hands up. Through the open door, officers could see a man in a wheelchair, later identified as the defendant, and a child on a couch. As police entered the apartment, they saw a second child run into one of the bedrooms.

            Upon entering, Officer Fitzemeyer asked the defendant whether he had “any firearms that [police] should know about,” and the defendant replied, “no, I do not.” Shortly thereafter, the defendant told SWAT Team members that there were guns in a safe and thanked officers for “being respectful.” Deputy Sheriff Scott Sacco, of the NEMLEC SWAT team, did not remember officers asking the defendant any questions before he volunteered that there were guns in the apartment. [3]

--------------------------------------------

            [2] At the hearing on the motion to suppress, neither party developed extensive evidence as to the layout of the rear entrance to 61 Pond Street. The defendant’s argument for suppression under the knock-and-announce rule is based entirely on the officers’ failure to knock and announce their presence before breaching the locked, front door to the two-family home. The defendant makes no argument for suppression based on the failure of officers at the rear door to knock and announce their presence there.

            [3] The apparent conflict between Officer Fitzemeyer’s testimony that, upon entering the apartment, he asked the defendant whether he had firearms (which, according to Officer Fitzemeyer, the defendant denied) and Officer Sacco’s testimony that the defendant volunteered that there were guns in a safe does not cause me to doubt either officer’s testimony. The evidence presented at the hearing depicted a

                                                            -5-

            Within moments – or, at most, minutes – of entering the apartment, the SWAT team had “cleared” it, meaning that they had identified all the occupants and determined that they were unarmed. At that point, the SWAT team handed the apartment over to Lowell Police detectives, who conducted the search pursuant to the warrant. As the Lowell detectives were entering the apartment and the SWAT team members were leaving, Deputy Sacco told Detective Krug that the defendant had said that there were guns in the safe in the bedroom.

            When he entered the apartment, Detective Krug asked the defendant to join him and Lowell Police Sergeant Burd[4] in the apartment’s kitchen. There, Detective Krug showed the defendant the search warrant and allowed him to read it. The detective then read the defendant a Miranda advisory from a printed card that the detective carries with him. See Ex. 8. Detective Krug asked the defendant if he would be willing to speak with the police, and he agreed. Detective Krug asked the defendant if there were drugs in the apartment, and the defendant said there were not. The detective then asked the defendant whether there were guns in the apartment, and he replied that there were – in a safe in one of the bedrooms. The defendant said that he kept the firearms to protect his family and acknowledged that he had neither a Firearms Identification (“FID”) Card nor a license to carry firearms. The defendant provided the police with the combination to the safe.

--------------------------------------------

complex, fast-moving sequence of events, charged with apprehension by both police and the apartment’s residents. Under those circumstances, it is entirely plausible that Officer Sacco did not hear Officer Fitzemeyer ask the defendant about firearms or the defendant’s response. Officer Sacco testified that the defendant “told another officer that there were guns inside a safe.” No witness testified as to whether the defendant volunteered the statement about guns in a safe or, instead, made it in response to one or more questions. I analyze the significance of this series of events in Section IV of the “Discussion.”

            [4] Sergeant Burd’s first name does not appear in the record.

                                                            -6-

            When police used the combination to open the safe, they found, among other items: two Glock semi-automatic pistols, two loaded Glock 9mm magazines, with 15 and 26 rounds of ammunition respectively, one empty Glock 9mm magazine, 97 Oxycodone pills, two end-tied bags of crack cocaine, and $3,759.00 in United States curency. They also found an assault-style rifle in a backpack on the bed in the same bedroom. The defendant was arrested and charged with firearms and narcotics offenses.

            The defendant was arraigned in this court on January 5, 2026. He filed his motion to suppress[5] on May 26, 2026, and I held an evidentiary hearing on the motion on July 8, 2026. After the parties filed post-hearing supplemental memoranda on July 15, 2026, I took the matter under advisement.

DISCUSSION

I.          The Knock-and-Announce Requirement

            Unless authorized by a search warrant not to do so, police officers executing a search warrant “must ‘knock and announce’ their presence and purpose before” entering a premises. Commonwealth v. Santiago, 452 Mass. 573, 574 (2008), citing, inter alia, Commonwealth v. Jimenez, 438 Mass. 213, 215 (2002). Although its roots are in the common law, the knock-and-announce rule has “been incorporated into the Fourth Amendment to the United States Constitution ” Id. The rule has a triple purpose: “to protect the privacy interests of individuals; to minimize the likelihood of property damage; and to reduce the possibility of violence after an unannounced entry.” Id., citing, inter alia, Richards v. Wisconsin, 529 U.S. 385, 393 n.5 (1997).

            The failure of the police to knock and announce before entering a residence  “does not automatically lead to suppression of the evidence.” Commonwealth v. Ortega, 59 Mass. App. Ct. 217, 222, citing Commonwealth v. Gomes, 408 Mass. 43, 46 (1990). A

--------------------------------------------

            [5] Defendant’s Motion and Incorporated Memorandum of Law in Support of Motion to Suppress Evidence (“motion” or “motion to suppress,” Paper No. 11)

                                                            -7-

decision regarding suppression of evidence for a violation of the knock-and-announce rule “depend[s] upon (1) the degree to which the violation undermined the principles underlying the governing law; and (2) the extent to which exclusion will tend to deter such violations from being repeated.” Id.

            The defendant contends that the police were required to knock and announce their presence at the locked front door of 61 Pond Street that led into the common hallway shared by two units in the dwelling and that the failure to do so necessitates suppression of all evidence seized in the search. The Commonwealth responds that the police were not required to knock and announce until they did – at the front door to Unit #1 – and that, in any event, any violation of the knock-and-announce rule should not result in suppression.

            A.        The Point at Which Police Were Required to Knock and Announce

            The parties have not drawn my attention to any Massachusetts case that establishes whether police must knock and announce at a locked door to a common hallway in a two-family dwelling. Indeed, there appear to be surprisingly few cases nationwide, at least among reported appellate decisions. The courts that have decided the question have not reached a consensus. See United States v. Smith, 941 F.2d 1210, 1991 WL 158699 at *8 (6th Cir. 1991) (unpublished) (“[T]he law is not well settled in this area, and courts disagree as to the applicability of the knock and announce rule in these situations.”) (citations omitted). Courts that have held that police officers need not knock and announce at common entrances to multi-unit dwellings generally have done so on the grounds that the defendant’s privacy interest in common entryways is insufficient to require police to knock and announce their presence there. See e.g. United States v. Mendoza, 281 F.3d 712, 715-716 (8th Cir. 2002) (“The threshold inquiry is whether [the defendant] had a legitimate expectation of privacy in the common area entryway of the duplex, which would have required the officers to knock and announce their presence.”). Courts that have reached the opposite conclusion generally have

                                                            -8-

concluded that residents of multi-family units who lock common, exterior doors are demonstrating an intention to exclude non-residents that is protected by the knock-and- announce rule. See e.g. United States v. Fluker, 543 F.2d 709, 716-717 (9th Cir. 1976) (“In light of the size of the building, then, we find significant the fact that the door to the hallway giving access to the two apartments was locked; the two lower-level tenants thus exercised considerably more control over access to that portion of the building than would be true in a multi-unit complex ”).

            The Commonwealth relies, almost exclusively, on cases that stand for the more general proposition that “tenants of multifamily dwellings have no legitimate expectation of privacy in common or shared areas.” Mendoza, 281 F.3d at 715, citing United States v. McGrane, 746 F.2d 632 (8th Cir. 1999) and United States v. Eisler, 567 F.2d 814 (8th Cir. 1977). Indeed, as a general statement of Fourth Amendment law, this appears to be the majority view. But see United States v. Rheault, 561 F.3d 55, 61 (1st Cir. 2009) (dicta) (distinguishing third-floor landing, an area where second-floor tenant could not reasonably expect privacy, from “the entryways in Fluker and Drummond – which were immediately outside the respective apartment doors”); Fluker, 543 F.2d at 716 (defendant “had a ‘reasonable expectation of privacy’ with respect to the corridor area separating the door of his apartment from the outer doorway of the [two-unit] apartment building”); United States v. Drummond, 98 F.Supp.2d 44, 53 (2000) (defendants had reasonable expectation of privacy in common hallway of two-unit building).

            That the majority view holds that residents in multi-unit buildings do not have an objectively reasonable privacy interest in common hallways, however, does not end the inquiry. In this case, the issue is not simply whether the residents of the two-family residence could reasonably expect privacy in their common hallway; rather, the issue is whether the police, armed with a warrant to search Unit 1, could force open the locked, exterior door without announcing their presence. That is, although a reasonable expectation of privacy is a factor to consider in determining whether the knock-and-

                                                            -9-

announce rule applies to the outer door, it is not the lone relevant consideration. The determination that I must make is whether, considering the purposes of the knock-and- announce rule – see Ortega, 59 Mass. App. Ct. at 22 – it was permissible for police not to comply with it at the outer door.

            One area of general consensus among courts that have addressed this issue is that the analysis is intensely fact-specific. See e.g., Mendoza, 281 F.3d at 715 (“Several factors have been identified as relevant to this showing [of a reasonable expectation of privacy]: ‘whether the party has a possessory interest in the things seized or the place searched; whether the party can exclude others from that place; whether the party took precautions to maintain the privacy; and whether the party had a key to the premises.’”), citing United States v. McCaster, 193 F.3d 930, 933 (8th Cir. 1999); Fluker, 543 F.2d at 716-717 (court finds violation of knock and announce rule “under the narrow set of facts in this case” and expresses no opinion as to whether “a similar result would obtain in circumstances other than the one before us”).

            In this case, there is no dispute that: the defendant lived in Unit 1; there are two units in the residence, the defendant’s first-floor unit and a second apartment upstairs; only the residents of the two units and their landlord have access to the common hallway; the defendant uses the common hallway, at least in part, to store personal items; the outer, common door has a working lock that was engaged when police officers arrived on April 7, 2025, to execute the search warrant; the police did not knock and announce when they encountered the locked common door; and the police forced open the outer door, breaking it in the process.[6]

            The defendant has thus met his burden of establishing that he had a subjective expectation of privacy that members of the public, including police officers, would not

--------------------------------------------

            [6] Some of these facts are taken from the Affidavit of the Defendant (Paper No. 11.2), which was submitted in support of the motion to suppress. Others were taken from the testimony of the officers at the hearing on the motion. None is disputed.

                                                            -10-

enter the common hallway without the permission either of a member of his family or of a resident of the second-floor unit. Cases that have held that such an expectation of privacy is not objectively reasonable have generally done so on the ground that a resident in the defendant’s position cannot control who may be given access to the hallway, either by the residents of the second unit or by the landlord. See, e.g., United States v. Nohara, 3 F.3d 1239, 1242 (9th Cir. 1993) (“The locks on the doors to the entrances of the apartment complex were to provide security to the occupants, not privacy in common hallways.”), quoting United States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1977). Although it is indisputable that the defendant did not have total control of who entered the hallway, it does not follow that he had no objectively reasonable expectation of privacy there. See Drummond, 98 F. Supp. 2d at 50 (“Defendants here would have ‘reasonably believed that [the common hallway] was not open to the world at large.’”), quoting United States v. Lyons, 706 F.2d 321, 325-326 (D.C. Cir. 1983).

            The fundamental weakness in the analysis of courts that have decided knock and announce cases based on a categorical characterization of common areas as unprotected by the rule is that “the Fourth Amendment protects people, not places.” Commonwealth v. McCarthy, 484 Mass. 493, 501 (2020), quoting Katz v. United States, 389 U.S. 347, 351 (1967) (Harlan, J., concurring). Thus, a categorical ruling that persons who live in multi- unit dwellings cannot have reasonable expectations of privacy in common areas – regardless of what precautions they take to maintain their privacy – entails an interpretation of the Fourth Amendment that addresses only the nature of the place and disregards entirely the person’s expectations of privacy.

            Indeed, even in the lead case relied on by the Commonwealth, Mendoza, the Eighth Circuit conducted a factual inquiry before concluding that the police were not required to knock and announce their presence before entering the common vestibule at the entrance to the duplex. The Mendoza Court explained that

                                                            -11-

[i]n the instant case, Mendoza [the defendant] did nothing that would  lead the officers to believe he had a protectable interest in the common area of his duplex. He made no efforts to secure the outer door. Moreover, because the door was not latched and there remained two mailboxes to its left, there was no signal to the officers that knocking on the outer door would have been necessary.

281 F.3d at 715-716 (emphasis added). Mendoza, therefore, is distinguishable from this case, in which the outer door was locked when police arrived and had to be forced open to allow the police to enter the common area.[7] Indeed, the Commonwealth has not presented me with a case in which a court has held that police with a search warrant were not required to knock and announce at the locked, common front door of a small multi-family residence, as distinguished from a large apartment building.[8] Further, the

----------------------------------------------

            [7] In another case relied on by the Commonwealth, United States v. Acosta, which involved the execution of an arrest warrant, the Third Circuit observed that:

[i]t is undisputed that one of the officers turned the doorknob [to the common side entrance of “a three story, multi-unit apartment building”] and found that the door was unlocked. Thus, the inner hallway was easily accessible to tenants, visitors, solicitors, workmen and other members of the public.

965 F.2d 1248, 1252 (3rd Cir. 1992) (emphasis supplied). That, in Acosta, the common door was unlocked and, therefore, any member of the public could simply walk in distinguishes that case from this one.

            [8] Several cases address the situation of a large apartment complex with a locked front door. See, e.g., United States v. Nohara, 3 F.3d 1239, 1242 (9th Cir. 1993); United States v. Barrios-Moriera, 8672 F.2d 12 (2nd Cir. 1989). Such residences pose different issues with respect to the knock and announce requirement. See Fluker, 543 F.2d at 716 (“[T]he two lower-level tenants thus exercised considerably more control over access to that portion of the building than would be true in a multi-unit complex, and hence could reasonably be said to have a greater expectation of privacy than would be true of occupants of large apartment buildings.”), citing Perkins v. United States, 432 F.2d 612 (1970) (Bazelon, J., dissenting); United States v. Carriger, 541 F.2d 545 (6th Cir. 1976). As

                                                            -12-

rationale of Mendoza itself suggests that, had the residents of the apartment in that case locked the common, exterior door, the Court might have reached a different result.

            In this case, the undisputed facts establish that the defendant had a subjective expectation of privacy against intrusions into the common area of his two-family residence by members of the public.[9] This expectation was manifested, primarily, in the locked front door that the police encountered when they went to execute the search warrant. I, therefore, conclude that the police officers executing the search warrant were

--------------------------------------------

this case involves a two-unit residence, I need not address how the outcome might be different had the defendant lived in a large apartment building.

            [9] In the Defendant’s Reply to the Commonwealth’s Supplemental Submission (Paper No. ), he argues that the United States Supreme Court’s decision in Florida v. Jardines, 569 U.S. 1 (2013) (“Jardines”), provides an independent basis to suppress evidence produced by the search. This is incorrect. In Jardines, the Supreme Court held that police officers’ use of “a drug sniffing dog on a homeowner’s porch to investigate the contents of a home is a ‘search’ within the meaning of the Fourth Amendment.” 569 U.S. at 3. Because the officers who brought the dog onto the porch did not have a warrant to do so, the Supreme Court upheld the trial court judge’s decision suppressing the resulting evidence. The defendant argues that, in doing so, the Supreme Court held that the “reasonable expectation of privacy” analysis first set out in Katz is unnecessary to consider if police commit a trespass on a homeowner’s property. See id. at 11 (“The Katz reasonable-expectations test ‘has been added to, not substituted for,’ the traditional property-based understanding of the Fourth Amendment.”), quoting United States v. Jones, 556 U.S. 400, 409 n.3 (2012). Thus, the defendant argues that, because police officers committed a trespass when they forced open the outer door to his residence, it is unnecessary to consider whether he had a reasonable expectation of privacy in the common hallway.

            This argument is unpersuasive because it is circular. As the officers had a warrant to search the defendant’s residence, their forcing open the outer, common door was not a trespass. If the breaking of the outer door was unlawful, it was only because police were required to knock and announce their presence before doing so and did not. Thus, the defendant’s argument under Jardine is entirely dependent on the analysis of whether he had a reasonable expectation of privacy in the common hallway.

                                                            -13-

required to knock and announce at the common front door before breaking it open and entering the common hallway.

            B.        Whether the Announcement at the Door to Unit 1 “Substantially Fulfilled” the Policies Underlying the Knock and Announce Rule

            As discussed, supra, the failure of the police to comply with the knock and announce requirement does not automatically dictate suppression of evidence seized during the ensuing search warrant execution. Suppression is not required “[i]f the policies underlying the [knock and announce] rule are substantially fulfilled in the circumstances in which the police enter premises to be searched . . . .” Ortega, 59 Mass. App. Ct. at 222. In making this decision, a court must consider: “(1) the degree to which the violation undermined the principles underlying the governing law; and (2) the extent to which exclusion will tend to deter such violations from being repeated.” Id.

            In this case, the officers’ entry into the common hallway without knocking and announcing their presence implicated all three interests protected by the knock and announce rule – protecting privacy, preventing property damage, and reducing the risk of violence following an unannounced entry. See Santiago, 452 Mass. at 574, citing, inter alia, Richards, 529 U.S. at 393 n.5. For the reasons set out in Section I, A, supra, the officers’ entry into the common hallway by forcing open the door impinged on the defendant’s expectation that members of the public could not enter the common hallway without the permission of a resident or the landlord. Had the police knocked and announced at the common front door, it is possible that the door would not have been extensively damaged, as it was when the officers used the hydraulic spreader to pull the door apart from the jam. Finally, although there was no violence in connection with the officers’ execution of the search warrant, the possibility that residents of the units might have mistaken the officers’ forced entry – with no announcement – for a home invasion created or increased the risk that residents might have resorted to violence based on a misapprehension of the situation. See United States v. Smith, 386

                                                            -14-

F.3d 753, 758 (6th Cir. 2004) (“The knock-and-announce rule . . . reduces ‘the potential violence to both the police officers and the occupants of the house into which entry is sought.’”), quoting United States v. Dice, 200 F.3d 978, 982 (6th Cir. 2000).[10]

            The Commonwealth does not dispute that the officers’ decision not to knock and announce their presence at the exterior door implicated each of the interests protected by the rule. Instead, the Commonwealth seeks to portray as minimal the extent to which each of the interests is implicated. Although the Commonwealth’s arguments are not without substance, they are ultimately unpersuasive.

            The Commonwealth additionally contends that, because the officers knocked and announced at the interior door – the front door to Unit 1 – “the policies underlying the [knock-and-announce rule were] substantially fulfilled,” Ortega, 59 Mass. App. Ct. at 222, and that, therefore, there is no deterrent-based reason to exclude the evidence recovered during the search. The Commonwealth cites three cases in which the appellate courts of the Commonwealth have held that the failure of police to knock  and

--------------------------------------------

            [10] The Commonwealth suggests that requiring the police to knock and announce at the exterior door would increase the risk of violence against either police officers or civilians. The Commonwealth does not, however, suggest why this is the case. Even if such a rule would require the police to knock and announce twice, once at the exterior door and once at the front door to the individual apartment (a question not presented in this case), it is not clear how that would increase the risk of violence. Moreover, to the extent that law enforcement has reason to be concerned that occupants of the premises to be searched have access to weapons, they can seek a ”no-knock” warrant. See Commonwealth v. Jimenez, 438 Mass. 213, 216 (2007) (police may seek “no-knock” warrant based on “concern for the safety of the officers executing the warrant or fear that a substantial portion of the evidence sought might be destroyed or secreted . . .”). Additionally, even if police do not have a “no-knock” warrant, their failure to knock and announce can be excused “if exigent circumstances arise at the threshold.” Id. “It is . . . well established that the failure of the police to knock and announce their presence may be justified in circumstances arise at the threshold of the search justifying both the unannounced entry and the failure to obtain judicial authorization.” Id.

                                                            -15-

announce did not require suppression of evidence because the interests underlying had been substantially vindicated.

            In the first of these cases, Commonwealth v. Wornum, 421 Mass. 220 (1995) the police notified the defendant’s brother – who was identified in the search warrant application as a resident of the premises to be searched – that they had a search warrant for the premises and intended to search them “directly.” 421 Mass. 220, 222 (1995). The Supreme Judicial Court in Wornum concluded that, “[i]n the special circumstances of [that] case, the objectives of the [knock-and-announce] rule were substantially achieved.” Id. The Court reasoned that the presence of the defendant’s brother with police both “lowered any privacy interests jeopardized by the entry” and “reduced the potential for violence.” Id. None of the “special circumstances” identified by the Wornum Court as fulfilling the policies underlying the knock-and-announce rule was present in this case, and Wornum, therefore, does not suggest that the purposes of the knock-and-announce rule were vindicated in this case.

            In Commonwealth v. Goggin, police with a search warrant entered the common hallway of a two-family house through a front door that “was unlocked and ajar.” 412 Mass. 200, 201 (1992). They then knocked on the front door to the apartment to be searched. Rather than identifying themselves as police, the officers used a ruse and identified themselves as associated with “Pop Warner.” Id. At that point, one of the residents – a target of the investigation – opened the door. When she saw that the persons at the door were police officers, she attempted to close the door. Id. One of the “officer[s] held his hand out across the threshold of the doorway and prevented the door from being closed.” Id. The officers then “announced their identity, authority, and purpose” before entering the apartment. Id. In Goggin, the Supreme Judicial Court held that the use of a ruse to cause the occupants to open the door was “not improper.” Id. Once one of the defendants opened the door, “[a]lthough . . . [she] may have been surprised to see a group outside, the identity of the police should have been

                                                            -16-

immediately obvious to her from the badges around their necks.” Id. The Goggin Court held that, “[s]ince the police did not force entry without appropriate identification and an announcement, the terms of the warrant were satisfied.” Id. at 203. In this case, police forced entry through the locked exterior door without announcing their presence or identifying themselves. The rationale for denying the motion to suppress in Goggin, therefore, is absent in this case.

            Finally, the Commonwealth relies on Commonwealth v. Siano, 52 Mass. App. Ct. 912 (2001). In that case, police opened an unlocked door to “a ‘breezeway,’ perhaps more appropriately described as an enclosed porch, which was furnished and used as a family room,” and “went to the kitchen door, which they found . . . ajar.” 52 Mass. App. Ct. at 914. An officer knocked on the kitchen door, called out to the resident by the resident’s first name, and identified himself as an officer of “the Springfield Police Department.” Id. When the officer received no response, the officer said,

Nicky, it’s the Springfield Police, it’s Jim Efantis. We have a search warrant for your house.

Id. The defendant then invited the police into the home. Noting that the motion judge had found “a technical violation of the knock and announce rule,” the Siano Court held that the “policies underlying the rule were not violated.” Id. The Appeals Court reasoned that “[h]ere there was no forced entry (one officer may have had his weapon drawn), no invasion of privacy (the police knew the defendant and he invited them in), and no property damage.” Id. As each of the policies underlying the knock-and- announce rule that the Siano court found were vindicated in that case were infringed upon in this case, Siano offers no support for the proposition that the violation of the rule in this case should not result in suppression of the evidence seized during the search.

            The Commonwealth counters that my ruling would require police to knock and announce at every obstacle they encountered between entering a multi-unit residence

                                                            -17-

and reaching the front door of the residence that they had a warrant to search. The Commonwealth’s argument, however, is far too broad. My ruling is based on the key fact that the front common door to the residence was locked against the public. Thus, were police to encounter another door between the common front door and the front door of the target apartment, they would be required to knock and announce only if it were locked. Rejecting a similar argument, the judge in Drummond reasoned that,

[w]here there are sufficient indicia that the inhabitants could have a reasonable expectation of privacy in the entryway directly behind the outer door, the police then have at least two options. They can knock and announce their presence at the outer door, or they can seek additional information about the building to determine if the entryway is open to the public in such a way as would defeat a reasonable resident's expectation that “uninvited and unauthorized persons will not intrude into [it].” View more Negative Treatments Lyons, 706 F.2d at 325. If these circumstances are present, forced entry may be warranted; if they are not, forced entry may not be warranted, absent exigent circumstances. In other search and seizure contexts, courts routinely charge law enforcement with the responsibility of obtaining enough information to act in a reasonable fashion. See, e.g., United States v. Whitfield, 939 F.2d 1071, 1074–75 (D.C. Cir.1991) (stating that FBI agents did not have enough information on which to base their determination that the defendant's mother had authority to give consent to search the defendant's room and that the search was thus invalid). It is reasonable to require law enforcement to obtain additional information in these circumstances as well.

98 F.Supp.2d at 51.

            In fact, the Commonwealth’s position – that police knocking and announcing at the door to Unit 1 satisfied the policies protected by the knock-and-announce rule – essentially would amount to a rule that police never would have to knock and announce at a common outer door, so long as they did so at the interior front door to the target unit. As I conclude, see Section I, A, supra, that the knock-and-announce rule required officers in this case to knock and announce their presence at the locked common front door, it would make no sense to conclude that, nonetheless, their

                                                            -18-

announcement at the front door to the defendant’s apartment excused their failure to do so at the common front door.

            Because I conclude that the police were required to knock and announce their presence at the common exterior door to the two-family residence and that their failure to do so was not cured by their knocking and announcing at the front door to the defendant’s apartment, I need not consider the defendant’s other arguments for suppression. I do so, however, to frame the additional issues in the event of an appeal  of my ruling.

II.        The Time of Day of the Search

            The defendant contends that the evidence collected at the defendant’s home – and his statements there to police – should be suppressed because the search was conducted in the nighttime and the warrant authorized only a daytime execution. The defendant initially contended, incorrectly, that the definition of “nighttime” in the context of search warrant execution had not been established in the Commonwealth.

            In fact, in Commonwealth v. Grimshaw, the Supreme Judicial Court – recognizing that the law of the Commonwealth had not established a definition of “nighttime” – promulgated such a rule. 413 Mass. 73, 81 (1992). The Grimshaw Court announced, unambiguously, that, “[h]enceforth, for [search] warrant purposes, nighttime begins at 10 P.M. and ends at 6 A.M.” Id. As the evidence is uncontested that police entered the residence at 6:01 a.m. on April 1, 2025, the search was conducted in the daytime, as permitted by the warrant.

            Although the defendant now does not contest the applicability of the Grimshaw rule to this case, he continues to argue that that the search in this case violated Article 14 because it was conducted in darkness – or, in my view of the evidence, near-darkness. Conceding that I have no authority to overrule Grimshaw, the defendant nonetheless contends that the lighting conditions in which the search was conducted constitute an independent basis for suppression. Because the Supreme Judicial Court considered

                                                            -19-

virtually identical arguments in Grimshaw, I discern no basis to revisit the holding in that case, even had I the authority to do so.

III.       Probable Cause

            The defendant challenges the probable cause supporting the search warrant on three grounds. He contends that: 1) the information in Detective Krug’s affidavit does not establish the confidential informant’s basis of knowledge and veracity; 2) the affidavit does not establish a sufficient nexus between the defendant’s alleged drug dealing and his home; and 3) the information in the search warrant affidavit was stale by the time officers executed the warrant. Although the issue is very close, I conclude that the probable cause to believe that drugs or other contraband would be found in the defendant’s apartment had dissipated by the time officers executed the warrant. This, then, provides a separate and independent basis for suppression of the evidence recovered during the search.

            In reviewing a motion to suppress evidence gathered pursuant to a search warrant, the court must determine whether the warrant was supported by probable cause. Commonwealth v. Perkins, 478 Mass. 97, 102 (2017), citing Commonwealth v. Valerio, 449 Mass. 562, 566 (2007). That determination is made from the “four corners of the [search warrant] affidavit.” Id. (brackets in original), quoting Commonwealth v. O’Day, 440 Mass. 296, 297 (2003). “To establish probable cause, the facts . . . in the warrant affidavit, and the reasonable inferences drawn from them, must be sufficient for the issuing judge to conclude that the police seek items related to criminal activity and that the items described ‘reasonably may be expected to be located in the place to be searched at the time the warrant issues.’” Id., quoting Commonwealth v. Walker, 438 Mass. 246, 249 (2002). In evaluating an affidavit in support of an application for a search warrant, a magistrate may draw reasonable inferences from the facts set out therein. See O’Day, 440 Mass. at 297. Affidavits supporting search warrant applications are reviewed “as a whole and in a common-sense fashion.” Commonwealth v. Dorelas, 473

                                                            -20-

Mass. 496, 501 (2016), quoting Commonwealth v. Cavitt, 460 Mass. 617, 626 (2011). They are not to be “parsed, severed, and subjected to hypercritical analysis.” Id., quoting Commonwealth v. Donahue, 430 Mass. 710, 712 (2000).

            A.        The Confidential Informant’s Basis of Knowledge and Veracity

            The defendant contends first that Detective Krug’s Affidavit did not establish probable cause to search the apartment because it was based largely on information from a confidential informant (“CIA” or “the informant”) whose basis of knowledge and veracity were not established. To the extent that it relies on information provided by an informant, an affidavit in support of a search warrant application must demonstrate the informant’s “basis of knowledge” and “veracity.” Commonwealth v. Upton, 394 Mass. 363, 373 (1985), citing Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969). See also Commonwealth v. Wilkerson, 486 Mass. 159, 170 (2020) (affirming Aguilar/Spinelli test for reliability of informant information). “Independent police corroboration may make up for deficiencies in one or both prongs of the Aguilar-Spinelli analysis.” Id., citing Commonwealth v. Depiero, 473 Mass. 450, 454 (2016). Controlled purchases conducted by the confidential informant can supply the necessary corroboration. See Commonwealth v. Clagon, 465 Mass. 1004, 1006 (2013).

            Although Detective Krug’s affidavit does not set out CIA’s basis of knowledge expressly, the detailed information provided by the informant about the defendant’s activities suggest that CIA was familiar with the defendant’s drug dealing operation. See Commonwealth v. Fujita, 497 Mass. 46, 68 (2026) (search warrant affidavit must be “[r]ead as a whole and with reasonable inferences”). The affidavit did not set out any information that established CIA’s veracity.

            Police were able to corroborate CIA’s basis of knowledge and veracity, however, by conducting three controlled purchases in which the informant was the buyer. In each of the three controlled purchases, detectives searched CIA to make sure that the informant had neither cash nor contraband, and watched CIA make a telephone call to

                                                            -21-

an individual that the informant told police was the defendant and arrange a meeting. Detectives then gave CIA cash and followed the informant to the arranged meeting location. Simultaneously, other detectives followed Ms. Brooks as she left 61  Pond Street and drove to the arranged meeting location. Detectives watched as CIA approached and briefly leaned into the car Ms. Brooks was driving. After approximately ten seconds, CIA emerged from the car, and Ms. Brooks drove away. Detectives watched her as she drove back to the residence. Meanwhile, the informant went to where detectives were waiting and turned over Oxycodone pills to them. In each case, detectives searched CIA and found that the informant no longer had any cash.

            A properly conducted controlled buy can establish a confidential informant’s basis of knowledge and veracity. See Commonwealth v. Baldasaro, 62 Mass. App. Ct. 925, 926 (2004) (Rescript), citing, inter alia, Commonwealth v. Warren, 418 Mass. 86, 88 (1994). See also Commonwealth v. Villela, 39 Mass. App. Ct. 426, 427 (1995) (“It is well settled that a controlled buy supervised by police provides probable cause to issue a search warrant.”), citing Commonwealth v. Luna, 410 Mass. 131, 134 (1991); Commonwealth v. Warren, 418 Mass. 86, 89 (1994). In this case, the three controlled buys amply established the confidential informant’s basis of knowledge and veracity.

            B.        The Nexus Between the Defendant’s Oxycodone Distribution and His Residence

            Further, although the question is an extremely close one, I conclude the affidavit in support of the search warrant application established a sufficient nexus between the defendant’s drug dealing and his residence. In each controlled buy, Ms. Brooks travelled by car directly from 61 Pond Street – where police investigation revealed that she lived in Unit 1 with the defendant – and drove to the arranged location. After brief interactions with the informant on both occasions, after which CIA produced

                                                            -22-

Oxycodone pills that CIA had not possessed before the meeting, Ms. Brooks drove straight back to her residence.

            The Commonwealth relies on Commonwealth v. Clagon, 465 Mass. 1004, 1005-1006 (2013) (Rescript). In that case, the Supreme Judicial Court found a sufficient nexus between drug dealing and the defendant’s home based on police having twice seen the defendant go straight from his home to a controlled purchase and once seeing him return straight home from a controlled purchase. Clagon, 465 Mass. at 1006, citing Commonwealth v. Escalera, 462 Mass. 636, 643 (2012) (“Observations by police of a suspect on multiple occasions leaving his residence and proceeding directly to a prearranged location to sell drugs can support a reasonable inference that the suspect is a drug dealer who stores drugs or packages drugs for resale in his residence.”).

            The defendant maintains that the affidavit in this case is more like the affidavit in Commonwealth v. Smith, 57 Mass. App. Ct. 907 (2003) (Rescript), than the one in Clagon. Although the question is, indeed, a close one, I conclude that the affidavit in this case is closer to the affidavit in Clagon than the one in Smith. In Smith, as in this case, the affidavit did not include any statement from the confidential informant that the defendant “either conducted drug transactions from [his residence] or kept drugs or related items there.” 57 Mass. App. Ct. at 908. In Clagon, the affidavit recited that one of the co-defendants “did business from a certain address in Jamaica Plain (the premises), although [the affiant] did not state how and when he first obtained this information.” 465 Mass. 1004, 1005 (2013). In Smith, police saw the defendant travelling directly from his home to one of the three controlled purchases and back to his home on a different occasion. 57 Mass. App. Ct. at 908. In contrast, police in Clagon watched the defendant return to the target premises after the first of three controlled purchases. Id. at n.7. In the second and third controlled purchases in Clagon, police watched the co-defendant go from the premises to the purchase and back again. Id.

                                                            -23-

            In concluding that there was a sufficient nexus between the co-defendant’s drug dealing and the target premises, the Court in Clagon noted that the confidential informant “described [the co-defendant] as a drug dealer, and this description was corroborated by the controlled purchases in which [the co-defendant] was able to produce the heroin a short time after receiving [the CI’s] telephone call, suggesting that he had a ready supply of heroin and did not need to obtain it from a third party.” 465 Mass. at 1006, citing Escalera, 462 Mass. at 643. This case involves essentially the same facts but is arguably stronger for the Commonwealth on this score as Ms. Brooks was observed traveling from 61 Pond Street to the arranged meeting and back again in connection with each of the three controlled purchases. The Clagon Court also noted  that the co-defendant, “while under police surveillance, left the premises and went directly to the location of a controlled purchase strongly suggests that he kept his supply at the premises.” Id. Finally, the Court in Clagon observed that “given [the co- defendant’s] apparent status as a regular dealer of heroin and his clear connection to the premises, it was reasonable to infer that other evidence, such as paraphernalia, money, and records connected with his trade, would likely be found there.”[11] Id. The same is true in this case.

--------------------------------------------

            [11] The Clagon Court noted that the affidavit in that case did “not state whether [the co-defendant] walked or drove to and from the sales.” 465 Mass. at 1006. The Court noted that, had the co-defendant “driven [to the controlled purchases, there would be a possibility that he kept the substance in the car rather than in the [target] premises.” Id. The Court went on to note, however, that

even this would not by itself be fatal to the existence of probable cause. “A warrant application ‘need not establish to a certainty that the items to be seized will be found in the specified location, nor exclude any and all possibility that the items might be found elsewhere. The test is probable cause, not certainty.’” Moreover, even if the substance itself was stored in the car, the other paraphernalia and records of a drug-distribution

                                                            -24-

            Thus, although it is true that, as in Smith, in this case there was no express statement from the confidential informant that the defendant sold Oxycodone pills from his home – or stored them there – the detective’s observation of Ms. Brooks three times traveling directly from the home that she shared with the defendant to a drug sale arranged with the defendant and then back to the home – twice directly – makes this case more like Clagon than Smith.

            C.        Timeliness of the Search Warrant Execution

            Finally, whether the execution of the search warrant six days after it was obtained and nine days after the last controlled buy was timely likewise presents a close question. The information in an affidavit in support of a search warrant “must be adequate to establish a timely nexus between the defendant and the location to be searched and to permit the determination that the particular items of criminal activity sought reasonably could be expected to be found there.” Commonwealth v. Wade, 64 Mass. App. Ct. 648, 651 (2005) (emphasis supplied), citing, inter alia, Commonwealth v. Cinelli, 389 Mass. 197, 213, cert. denied, 464 U.S. 860 (1983).

            The defendant contends that, as ten days[12] passed between the last of the three controlled purchases in this case and the execution of the search warrant, there was no

--------------------------------------------

enterprise are far more likely to be located in a residence than in an automobile.”

Id. (citations omitted).

            [12] The Commonwealth contends that only nine days passed between the final controlled purchase and the execution of the search warrant. The dispute turns on how one counts days. There is no dispute that Detective Krug obtained the search warrant on April 1, 2025, and executed it on April 7, 2025. Further, there is no dispute that, as Detective Krug recited in his affidavit that the last of three controlled purchases occurred within seventy-two hours of the submission of the affidavit, as many as three days elapsed between that controlled purchase and the submission of the affidavit. Nothing in my decision turns on whether nine or ten days passed between the last

                                                            -25-

longer probable cause, at the time of the search, to believe that Oxycodone pills would be found in the defendant’s home. Citing Commonwealth v. DiStefano, 22 Mass. App. Ct. 535, 541 (1986), the Commonwealth contends that, as there is evidence that the defendant was engaged in a continuing enterprise to distribute Oxycodone pills, the permissible period between the final controlled purchase and the execution of the search warrant is extended.

            In Commonwealth v. Wade, 64 Mass. App. Ct. 648, 651 (2005), the Appeals Court held that a search warrant executed on a car four days after the issuance of the warrant and five days after the last controlled purchase was untimely. In Wade, “[n]othing in the affidavit suggested that the defendant used the vehicle to store drugs.” 64 Mass. App. Ct. 651-652. Similarly, in this case, there were no allegations in the affidavit that the defendant sold or stored Oxycodone in his home. The Wade Court also noted that drugs, unlike more durable items, are readily “consumed or destroyed.” Id. at 652-653, quoting Commonwealth v. Burt, 393 Mass. 703, 716 (1985). The Commonwealth’s response – that the defendant’s ongoing Oxycodone distribution enterprise should extend the permissible period before the basis for probable cause became stale – is not without some force. That said, the evidence that the defendant’s drug dealing was an ongoing enterprise was not extensive, and the delay in executing the warrant in this case was twice the period found to be untimely in Wade. Thus, although the issue is concededly quite close, I would suppress the evidence seized in the search warrant execution on the independent ground that the execution was untimely.

IV.       The Defendant’s Statements

            Because I conclude that the execution of the search warrant violated the knock- and-announce rule and that, therefore, evidence recovered during the search must be

--------------------------------------------

controlled purchase and the execution of the search warrant. Thus, because I conclude that probable cause had dissipated by the time the search warrant was executed, I assume – in the Commonwealth’s favor – that only nine days had passed.

                                                            -26-

suppressed, see Section I, A, supra, and that the search warrant execution was untimely, see Section III, supra, the defendant’s statements made to police during that execution must be suppressed as fruits of the poisonous tree. See Commonwealth v. Fredericq, 482 Mass. 70, 78 (2019) (“fruit of the poisonous tree” doctrine bars the use of evidence derived from unconstitutional search or seizure.). See also Wong Sun v. United States, 371 U.S. 471, 488 (1963) (same). I also conclude that the defendant’s statements to police in the apartment after his initial denial of having guns must be suppressed as they have not been shown to have been made voluntarily. As to the defendant’s statements before he was read his Miranda rights in the kitchen, I find that his initial denial of having guns in the apartment was made in response to custodial questioning without Miranda warnings and, thus, must be suppressed. I further find that his subsequent, pre-Miranda statement that he had guns in the home must be suppressed because the Commonwealth has not demonstrated that it was not made in response to questioning. Finally, as to the defendant’s Mirandized statements, I conclude that suppression is warranted because there was not a significant break between the pre-Miranda custodial questioning and the post-Miranda statement in the kitchen.

            The familiar Miranda advisory exists to protect a person’s right not to “be compelled in any criminal case to be a witness against himself.” Commonwealth v. Cawthron, 479 Mass. 612, 616 (2018), quoting Miranda, 384 U.S. at 468. Police must give the advisory before commencing a “custodial interrogation.” Id. at 617. Questioning is custodial if “a reasonable person in the suspect’s shoes would experience the environment in which the interrogation took place as coercive.” Id., quoting Commonwealth v. Larkin, 429 Mass. 426, 432 (1999). This coercion exists if law enforcement officers question a person “after [the] . . . person has been taken into custody or otherwise deprived of [their] . . . freedom of action in any significant way.” Commonwealth  v.  Tejada,  484  Mass.  1,  8  (2020)  (parentheses  in  original),  quoting Commonwealth  v.  Jung,  420  Mass.  675,  688  (1995),  quoting  Miranda,  384  U.S.  at 444.

                                                            -27-

Whether a reasonable person in the defendant’s position would have “believed that he was not free to leave . . .,” Commonwealth v. Groome, 435 Mass. 201, 211 (2001), quoting Commonwealth v. Damiano, 422 Mass. 10, 13 (1996), is “a critical factor . . . but it [is not] . . . the determinative factor.” Cawthron, 479 Mass. at 623 (emphasis in original). A defendant has the burden of proving that an interrogation was custodial. Commonwealth v. Medina, 485 Mass. 296, 301 (2020) (“To succeed in his motion to suppress all of the statements he made, the defendant must meet his burden to prove that he was in custody throughout the encounter.”).

            In evaluating whether the circumstances of an interrogation render it custodial, a court must consider at least four factors:13 “(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that that person is a suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the person being interviewed; and (4) whether, at the time the incriminating statement was made, the person was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with an arrest.” Groome, 435 Mass. at 211-212. “Rarely is any single factor conclusive.” Cawthron, 479 Mass. at 618, quoting Commonwealth v. Bryant, 390 Mass. 729,

737 (1984).

            Applying these factors to the situation in this case, I conclude that the defendant has met his burden of establishing that police questioning of him in his apartment was custodial. The officers’ actions strongly, albeit implicitly, conveyed to the defendant that he was a suspect. The questioning was, because of the circumstances, unavoidably

--------------------------------------------

            [13] The Supreme Judicial Court “occasionally ha[s] . . . suggested that these four factors are the beginning and the end of the custody analysis.” Commonwealth v. Medina, 485 Mass. 296, 301 (2020). In Medina, the Court took the “opportunity to clarify that they are not.” Id.

                                                            -28-

confrontational. And, most important, a person in the defendant’s position would not have felt free to end the questioning by leaving or asking the officers to leave. Thus, the defendant’s negative response when Officer Fitzemeyer asked him whether there were guns in the apartment must be suppressed.

            The Commonwealth contends that, at some point after members of the SWAT team entered the apartment and before they turned the scene over to Lowell Police detectives, the defendant volunteered that he had guns in the apartment. As I credit Officer Fitzemeyer’s testimony that, immediately upon entering the apartment, he asked the defendant whether he had guns and the defendant denied it, I conclude that the questioning – entirely understandably – began as soon as officers entered the apartment.[14] Deputy Sacco testified that the defendant told another, unidentified SWAT team member that there were guns in a safe in the bedroom. It is certainly possible that the defendant volunteered this information without any questioning beyond the initial inquiry about guns from Officer Fitzemeyer as he entered the apartment, but the Commonwealth has not presented evidence to support that claim. Moreover, it is at

--------------------------------------------

            [14] As police were aware, before entering the apartment, that the defendant had a substantial history of felony convictions, see Krug Aff. at 6, ¶ 7, and, therefore, was disqualified from obtaining a license to carry a firearm, the incriminating nature of an affirmative response to Officer Fitzemeyer’s initial question was readily apparent. See Commonwealth v. Guardado, 491 Mass. 666, 690 (2023), S.C. 493 Mass. 1 (2023) (incriminating nature of possession of firearm is “immediately apparent” if police know that suspect does not have license to carry). Further, that Officer Fitzemeyer’s “question was introductory does not automatically cause it to be classified as merely ‘preliminary’ and not interrogatory for Miranda purposes.” Commonwealth v. Gordon, 47 Mass. App. Ct. 825, 828 (1999). As in Gordon, “[a]t the time of the question, the police knew enough about the defendant and [his alleged drug-dealing] for an objective suspicion to have fallen on [him].” 47 Mass. App. Ct. at 828. Indeed, police were at the defendant’s apartment to execute a search warrant. It is certainly entirely understandable that police entering a home of a person reported to possess firearms would ask him immediately if that was, in fact, the case. That Officer Fitzemeyer was entirely justified in protecting themselves, the defendant, his family, and the broader public by asking the question does not mean that the answer is admissible.

                                                            -29-

least as likely – given that it took the SWAT team only minutes to clear the apartment – that the defendant’s statement was made in response to Officer Fitzmeyer’s initial inquiry. I cannot, therefore, conclude that the defendant volunteered the answer, as opposed to providing it in response to a question or questions from Officer Fitzmeyer and/or another SWAT team member.

            Whether the defendant’s post-Miranda statement in the kitchen must be suppressed is a separate question. In Massachusetts, there is a presumption that a post- Miranda statement is tainted by an earlier custodial statement taken without Miranda warnings. Commonwealth v. Hand, 104 Mass. App. Ct. 815, 823 (2024) (Massachusetts rule “presumes taint from a voluntary statement obtained in violation of Miranda”). See also Commonwealth v. Osachuk, 418 Mass. 229, 235 (1994). To rebut the presumption of taint, the Commonwealth must establish that there has been “a sufficiently isolating break in the stream of events,” id., quoting Leon v. Wainwright, 734 F.2d 770, 772 (11th Cir. 1984), that “indicate[s] that the second confession was insulated from the effect of all that went before.” Id., quoting, inter alia, United States v. Lopez, 437 F.3d 1059, 1066 (10th Cir. 2006). Factors relevant to whether there has been such a break in the chain of events include: the time that has passed between statements, a change in the location of the questioning, and a change in questioners. Id.

            In this case, only the change in interrogators supports a finding that there was a break in the chain of events that would support a finding that the taint of the non- Mirandized questioning had dissipated. That the questioning in the kitchen took place virtually immediately after the un-Mirandized questioning and in the same location, however, prevents the Commonwealth from establishing the necessary break in the chain of events that would rebut the presumption of taint. I cannot, therefore, find that the Commonwealth has established that the defendant’s incriminating, post-Miranda

                                                            -30-

statements in the kitchen were free of the taint of his answers to custodial questions put to him minutes earlier.[15] Those statements, therefore, must also be suppressed.

            As I conclude that all evidence seized during the execution of the search warrant must be suppressed because the police did not knock and announce at the exterior common door to the residence, I need not address whether the evidence recovered from the safe must also be suppressed as fruit of the defendant’s statements. Were I to address that issue, I would conclude that the items seized from the safe need not be suppressed because of the inevitable discovery doctrine. See Commonwealth v. Melendez, 490 Mass. 648, 663 n. 4 (2022) (“Under the inevitable discovery doctrine, if . . . discovery of the evidence by lawful means was certain as a practical matter, the evidence may be admissible as long as the officers did not act in bad faith to accelerate the discovery of

--------------------------------------------

            [15] Although I agree with the defendant that his post-Miranda statement to Detective Krug in the kitchen must be suppressed, I do not agree with the defendant that the officers’ actions in this case implicate the disfavored two-step interrogation process analyzed in Missouri v. Seibert, 542 U.S. 600 (2004) (“Seibert”). In that case, police questioned a defendant five days after a fatal fire. Seibert, 542 U.S. at 604. The officers deliberately opted not to advise the defendant of her Miranda rights before questioning her. Id. Police questioned the defendant for thirty to forty minutes, “squeezing her arm and repeating” reminders that a teenager living with the family had died in the fire. Id. at 604-605. Only after she made statements implicating herself in the death did police Mirandize her. Id. at 605. They then re-interrogated her – this time on tape – and once again elicited incriminating statements. Id. In affirming the suppression of the defendants statements in Seibert, the United States Supreme Court observed that the police conduct in that case was “a police strategy adapted to undermine the Miranda warnings.” Id. at 616.

            There is no conduct of the sort in this case. The police who executed the search warrant had every reason – starting with their own safety and that of the residents – to want to know whether there were guns in the apartment. I credit entirely that this was their motivation for asking the defendant as they entered the apartment whether there were guns present. There is, therefore, no basis – under Seibert – for the suppression of the defendant’s subsequent Mirandized answers to Detective Krug’s questions.

                                                            -31-

evidence, and the particular constitutional violation is not so severe as to require suppression.”) (ellipses in original), quoting Commonwealth v. Mattier (No. 2), 474 Mass. 261, 271 (2016). Armed with a warrant to search for drugs and guns, the police would no doubt have seized and forced opened the safe regardless of whether the defendant disclosed its contents to them. That the defendant's statement made it easier for the police to open the safe in no way suggests that they would not have been able to do so absent the statement.

            As the police would have recovered the contraband from the safe with or without the defendant's statement, the inevitable discovery doctrine precludes exclusion of the contents of the safe as fruits of the suppressed statements. That said, as the items in the safe are suppressed as fruits of the unlawfully executed search warrant, this analysis is purely theoretical.

CONCLUSION AND ORDER

            For the foregoing reasons, the defendant’s motion to suppress (Paper No. 11) is ALLOWED. All evidence seized during the execution of the search warrant in this case and the defendant’s statements to police in his apartment are hereby ordered SUPPRESSED.

/s/David A. Deakin

Associate Justice

Date:

August 4, 2026