Commonwealth v. Garner

5 Mass. L. Rptr. 629
CourtMassachusetts Superior Court
DecidedMay 8, 1996
DocketNo. 3502627
StatusPublished
Cited by1 cases

This text of 5 Mass. L. Rptr. 629 (Commonwealth v. Garner) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Garner, 5 Mass. L. Rptr. 629 (Mass. Ct. App. 1996).

Opinion

Doerfer, J.

Defendants Derek Garner and Markeith Garner are each charged with two counts of armed robbery while masked, aggravated rape, assault and battery with a deadly weapon, and unlawful possession of a sawed-óff shotgun. Defendants now move to suppress evidence seized by police as a result of a search and seizure conducted pursuant to a search warrant. Defendants claim that the search warrant was: (1) issued without probable cause; (2) executed in violation of the knock and announce requirement; and (3) executed with impermissible and excessive force. Defendants argue that the police action violated their rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article Fourteen of the Massachusetts Declaration of Rights.

The Commonwealth contends that the police validly executed a search warrant supported by probable cause and that the police did not violate defendants’ constitutional rights.

BACKGROUND

On September 2, 1994, New Bedford police officers from the Special Reaction Team executed a no-knock search warrant for lottery tickets and other stolen items located at defendant Derek Garner’s residence at 1261 Church Street, BuildingD, Apartment 39, New Bedford, Massachusetts.

In support of the search warrant application, Detective Paul J. Rozario (Rozario) had filed an affidavit, in which Rozario reported the following relevant information:

[630]*630(1) That on 8/30/94 at approximately 0300 HRS Store 24 being worked at that time by ANGELA NEWETT was robbed by two black males whom were both masked and wearing what appeared to be, dark colored shirts over their mouths and tied behind their heads, and baseball caps worn backwards on their heads armed with a shotgun and a handgun. During the course of this robbery Miss NEWETT was forced to the back room of the store where she was raped by one of the culprits at gunpoint, and a class ring from Bristol Aggie with her initials and a blue stone in it, were stolen from her in addition to 3-other gold colored rings, 1-14kt, gold wedding ring. A customer who had entered the store during the course of the robbery ANDRE CARDOZA was forced to lie on the floor by the second culprit also at gunpoint, at which time the culprit proceeded to rob CARDOZA of this wallet which contained $13.00 in assorted bills of U.S. Currency, along with the following items: ANDRE CARDOZA’S drivers license, & the following credit cards, DISCOVER CARD, MASTER CARD, SEARS CHARGE, J.C PENNY, CHERRY & WEBB, FILENE’S, TEXACO & SILVERSTEINS CHARGE also contained in the wallet was B. J. WHOLESALE CLUB [MEMBERSHIP] CARD, A BLOCKBUSTER VIDEO [MEMBERSHIP] CARD & L.A. VIDEO MEMBERSHIP CARD all of which list the name & have the [signature] of Mr. CARDOZA on same.
Taken from the store during the robbery was an undetermined [amount] of cash, approx. (3) three cartons of NEWPORT 100 BOX CIGARETTES and the following lottery tickets which were identified by the store manager as being ticket pack numbers J764715 FROM WHICH 50 Tickets (00-50) were taken & E784246 from which 43 tickets (00-43) were taken, after taking these items the culprits fled the store in an unknown direction.

Rozario then recited several attempts by a white female, described as 5’ 7" tall, heavyset, several months pregnant, with shoulder length light brown hair, to cash lottery tickets at various convenience stores. At each location, a warning alerted the store clerk that here was something wrong with the ticket presented or that it might have been stolen. After reviewing police photo arrays, a few of the clerks positively identified the white female as one Sharon Hubbard (Hubbard). The other store clerks were unable to identify Hubbard as the white female who entered the store to cash the tickets. One store clerk did indicate that after leaving his store, Hubbard got into a white Büick, two-door automobile with tinted windows which was occupied by two black male passengers.

On September 1, 1994, the police conducted a surveillance of Hubbard and observed her driving a white 1980 Buick Regal with tinted windows. The police saw Hubbard pick up an unidentified black male in New Bedford and followed the two as they drove to three separate all night convenience stores. The police then obtained a search warrant for Hubbard’s home based on a belief that she was still in possession of some of the stolen lottery tickets from the Store 24 robbery. On September 2,1994, the police conducted a search of Hubbard’s home and she was arrested. Hubbard provided the police with the following information as noted in Rozario’s affidavit:

(10) That on 8/30/94 at approx. 4:00 a.m., that Sharon Hubbard was visited at her home by her boyfriend Derek Garner and his nephew Markeith Garner, who when entering her home at that time, were armed with a sawed off shot-gun and small silver handgun, and that they also had in their possession: a large amount of change, estimated to be approx. 15-20 dollars worth, a white plastic bag containing several hundred .lottery tickets, a large amount of assorted U.S. Paper currency, (of which the two later split up between themselves, being $65.00 each), a ladies class ring described as being silver in color with a light blue stone (of which they told Sharon they had taken from the female clerk at Store 24), and a man’s [silver]-gold wedding band, of which they claimed they had found outside of Store 24. In her asking them where they had gotten all of this, they told her that they had just robbed Store 24 on Ashley Blvd. whereby Derek Garner had forced the female clerk to strip because she wouldn’t give him the key to the video-tape machine, and, that they had also robbed a male that had entered the store while the robbeiy was taking place.
(11) That after leaving Sharon’s home at approx. 4:30 a.m. 8/30/94, that [Sharon] drove both of these males to 164 Hathaway Rd., whereby Markieth [sic] left the vehicle for a short time to place his gun in that house, and they later all went out to cash the lottery tickets.
(12) That on 8/30/94 after Sharon, Derek Garner, and Markeith Garner attempted cashing the stolen lottery tickets until approx. 2:30 pm., that she dropped both Derek Garner and Markeith Garner, off at Derk’s [sic] Home at 1261 Church St. New Bedford, Ma. whereby Derek had taken a suitcase into the house as he normally did, which contained his shotgun in it in addition to the lottery tickets and other stolen items from the robbery.

Based on this information, Rozario asserted that there was probable cause to believe that the stolen lottery tickets, jewelry, a shotgun and handgun were being kept at Derek Garner’s home. Rozario requested an arrest warrant for the defendants and a search warrant for Derek Garner’s home. Rozario also requested a no-knock warrant based on his concern that the defendants were in possession of weapons and to prevent the destruction of evidence.

[631]*631Lieutenant Hebert (Hebert) of the New Bedford Police Department is in charge of training operations and was assigned to head this particular warrant execution. Hebert testified that he had met with the Special Reaction Team for a briefing just before the raid and was informed that Hubbard had provided information about the potential occupants and the layout of the apartment, and had identified the back bedrooms as being adult bedrooms.

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Related

Commonwealth v. Garner
7 Mass. L. Rptr. 25 (Massachusetts Superior Court, 1997)

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Bluebook (online)
5 Mass. L. Rptr. 629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-garner-masssuperct-1996.