Commonwealth v. DeJesus

872 N.E.2d 1178, 70 Mass. App. Ct. 114, 2007 Mass. App. LEXIS 978
CourtMassachusetts Appeals Court
DecidedSeptember 12, 2007
DocketNo. 06-P-1133
StatusPublished
Cited by11 cases

This text of 872 N.E.2d 1178 (Commonwealth v. DeJesus) 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. DeJesus, 872 N.E.2d 1178, 70 Mass. App. Ct. 114, 2007 Mass. App. LEXIS 978 (Mass. Ct. App. 2007).

Opinion

Armstrong, J.

The defendant, charged with unlawful possession of a firearm, moved successfully for suppression of the dismantled handgun on which the charge was based, and a single justice of the Supreme Judicial Court allowed the Commonwealth’s petition to prosecute this interlocutory appeal. See G. L. c. 278, § 28E; Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996).

[115]*115The District Court judge, feeling constrained by appellate decisions (Maryland v. Buie, 494 U.S. 325 [1990], and Commonwealth v. Nova, 50 Mass. App. Ct. 633 [2000]), suppressed the gun as the product of an unlawful protective sweep despite also finding that the police acted reasonably “in good faith and with high professionalism. ”1

The circumstances, as found by the judge in careful and detailed findings, were these. Troopers James Devlin and Michael Sullivan, members of the State police violent fugitive apprehension section, received information from Springfield police officers that the defendant could be found at a particular apartment in Westfield. The police had a warrant for the defendant’s arrest on a charge of armed caqacking. Troopers Devlin and Sullivan did not know the details of that offense beyond the charge itself, but did know that the defendant had a record of violent felonies including firearm possession charges. Following the section’s usual procedure when executing an arrest warrant for a violent felon, the officers assembled a large force (eight officers, apparently) in anticipation of resistance — possibly armed. With officers posted to guard possible means of exit, three troopers, including Devlin and Sullivan, went to the front door of the apartment and knocked and announced. The defendant himself opened the door. Trooper Sullivan asked if the police could enter (the defendant said yes) and explained the purpose of the visit, to arrest the defendant under authority of the warrant. They placed handcuffs on the defendant; then, following the usual protocol of the violent fugitive apprehension section, the officers fanned out to discover who else was in the unit.2 Two women sat in the living room, one of whom was wanted on a charge of assault and [116]*116battery with a dangerous weapon. The two women said that the defendant’s father was in an upstairs room and that there was someone in the cellar, where the officers could hear music playing. One officer went upstairs, and two went to the cellar, where they found a man Hstening to music. In plain view in an open toolbox in the cellar, the officers saw the disassembled handgun. The defendant acknowledged that he had owned the gun for several years, saying he found it.

The defendant conceded in the trial court that the police entered the house lawfully. His contention is that the protective sweep of the house exceeded constitutional limits. The judge, in his conclusion of fact, did not question the good faith of the officers who conducted the protective sweep. In particular, he found that this was the standard practice of the violent fugitive apprehension section when effecting an in-house arrest, that the practice had been adopted for the safety of the officers and others in the dwelling and not as a pretext for a search for evidence. Nevertheless, the incursion into the cellar could not be squared with the governing case law, the judge concluded, because to “look [beyond] closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched[,] . . . there must be articulable facts which, taken together with reasonable inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Maryland v. Buie, 494 U.S. at 334. To the same effect, see Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 12-3[a][3][ii] (2006).

Concluding that the police had failed to show articulable facts warranting a belief that there were one or more individuals in the dwelling posing a danger to the police or others present, the judge, with misgivings, ordered suppression of the handgun. He cited as authority Maryland v. Buie, and a decision of this court, Commonwealth v. Nova, 50 Mass. App. Ct. 633, 635 (2000). The Nova decision, in turn, relied on an earlier decision of this court, Commonwealth v. Dubois, 44 Mass. App. Ct. 294, 296 (1998). [117]*117Both decisions relied on the quoted language from Maryland v. Buie, but both are distinguishable from the defendant’s case.

The Dubois decision involved officers attempting to execute a search warrant of an apartment of a woman named Corrine Skelly. They knocked but received no answer and heard no motion inside. On leaving, they spotted Skelly and her male companion, Charles Hallal, emerging from a garage across the street. Hallal turned and ran back into the garage, dropping a bag of cocaine as he fled. The police rushed him and took him into custody a few steps into the garage. From the adjoining garage, separated from the Skelly-Hallal garage by a floor to ceiling partition, but with an open door between them, the police heard a voice calling, “Charlie, is that you?” The officers entered the second bay through the open door and saw the defendant Dubois, lying on a bed in a parked camper, surrounded by accouterments of drug trafficking. Dubois, supra at 295. After an extended dictum questioning whether the entry into the second bay could be justified as a protective sweep under Maryland v. Buie, given evidence that the police had no fear whatever for their safety, our decision recites that “[t]he Commonwealth, on appeal, abandons the protective sweep exception which it argued below and, instead, urges a different rationale . . . : [that the police] . . . could enter the garage in pursuit of Hallal and, when they heard the defendant calling to Hallal, they had fresh probable cause to believe that the defendant was engaged in the distribution of cocaine and that any delay in confronting him would result in loss of evidence.” Dubois, supra at 297. Our decision’s holding rejected that theory as “too speculative to have probative value.” Id. at 298.3

In the Nova decision, the officers arrived at the defendant’s apartment with an arrest warrant (the defendant had fled from a courtroom where he was on trial for an unrelated matter), ascended the stairs, knocked and announced their purpose, but received no answer or other sound of any one within. They went down to the first floor and were talking with neighbors when they heard footsteps, apparently of one person only, ascending the stairs and [118]*118entering the apartment. They went back up, knocked and announced their purpose, and immediately heard the person within — the defendant Nova — racing to the rear door to flee. They broke down the front door, gave chase, arrested the defendant as he was leaving, and departed with him. Five minutes later, police reentered the now open apartment and conducted a search they attempted to justify as a protective sweep under the authority of Maryland v. Buie. We reversed the denial of the motion to suppress drugs and paraphernalia found as a result of the second entry. The Maryland v. Buie

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Bluebook (online)
872 N.E.2d 1178, 70 Mass. App. Ct. 114, 2007 Mass. App. LEXIS 978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-dejesus-massappct-2007.