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18-P-1302 Appeals Court
COMMONWEALTH vs. WASHINGTON PEARSON.
No. 18-P-1302.
Middlesex. May 14, 2019. - October 28, 2019.
Present: Blake, Henry, & McDonough, JJ.
Burglary. Intimidation of Witness. Witness, Intimidation. Arrest. Constitutional Law, Arrest, Search and seizure, Assistance of counsel. Search and Seizure, Arrest, Warrant, Fruits of illegal search. Practice, Criminal, Motion to suppress, Warrant, Assistance of counsel.
Indictments found and returned in the Superior Court Department on October 25, 2012, and December 10, 2013.
Pretrial motions to suppress evidence were heard by Elizabeth M. Fahey, J.; the cases were tried before Douglas H. Wilkins, J., and a motion for a new trial, filed on January 8, 2018, was heard by him.
Edward Crane for the defendant. Timothy Ferriter, Assistant District Attorney, for the Commonwealth.
BLAKE, J. Following a crime spree in Middlesex and Norfolk
Counties, the defendant, Washington Pearson, was indicted for
multiple breaking and entering and related offenses in both 2
counties (we refer hereafter to these offenses as burglary-
related crimes).1 He was first tried and convicted by a Superior
Court jury in Norfolk County.2 He appealed, contending that his
motion to suppress was erroneously denied. We affirmed the
Norfolk convictions in Commonwealth v. Pearson, 90 Mass. App.
Ct. 289 (2016) (Pearson I).
Meanwhile, the defendant was tried and convicted by a
Superior Court jury in Middlesex County of burglary-related
crimes and intimidation of a witness.3 Then, after a jury-waived
trial in Middlesex County, the defendant was found to be a
habitual criminal on three of the burglary-related convictions
and on the intimidation of a witness conviction. The defendant
filed a motion for a new trial on the intimidation conviction,
which was denied after a nonevidentiary hearing. The
defendant's appeal from the judgments on the burglary-related
indictments and his appeal from the order denying his motion for
1 Jenell Johnson, the codefendant, became a cooperating witness, as discussed infra, and is not a party to this appeal.
2 The Norfolk County convictions included multiple counts of breaking and entering in the daytime with the intent to commit a felony.
3 In Middlesex County, the defendant was convicted of two counts of breaking and entering in the daytime with intent to commit a felony, two counts of larceny over $250, four counts of identity fraud, four counts of improper use of a credit card, and one count of attempting to break and enter in the daytime. He was also convicted of intimidation of a witness, Jenell Johnson. 3
a new trial on the indictment charging intimidation were
consolidated in this court. We affirm.
Background. 1. The burglaries. Between January 31 and
February 8, 2012, a series of burglaries occurred in Brookline
and Cambridge resulting in the theft of jewelry, credit cards,
and electronics. While investigating a burglary that occurred
in Brookline on February 6, 2012, Brookline Police Detective
Matthew McDonnell learned that one of the stolen credit cards
was used to make a series of fraudulent purchases at multiple
retail stores. Surveillance video from some of the stores
depicted a Hispanic woman in her thirties making the purchases.
She was accompanied by an African-American man.
On February 8, 2012, Brookline police learned of a home
burglary in Cambridge, where the victim found a driver's license
in the name of Jenell Johnson, a person unknown to the victim.
Using Johnson's name, Detective McDonnell found booking
photographs from a 2011 breaking and entering involving Johnson
and the defendant. The photographs matched the physical
description of the suspects as seen in the surveillance video
from the retail stores.
2. The arrests. Detective McDonnell applied for arrest
warrants for the defendant and Johnson based on the Brookline
burglary. At approximately 12:30 A.M. on February 9, 2012, a
clerk-magistrate of the Brookline Division of the District Court 4
Department determined that there was probable cause to arrest
the defendants, authorized the issuance of arrest warrants, and
signed the applications for complaints.
That same day, at approximately 6:30 A.M. in a coordinated
effort by the Brookline, Cambridge, and Lynn police departments,
officers went to the Lynn apartment shared by the defendant and
Johnson, purporting to have warrants for their arrest. Although
the officers had applied for arrest warrants, they had not yet
been issued.
Johnson opened the door, was taken into custody, and was
advised of the Miranda rights. When asked about the location of
a pair of boots she had purchased, Johnson directed officers to
a bedroom, where they saw items matching the description of
items fraudulently purchased using the Brookline burglary
victim's credit card. The officers found the defendant hiding
in the third-floor bathroom and arrested him.
After the defendant and Johnson were arrested and
transported to the police station, officers remained at the
apartment to secure it while a search warrant was obtained.
During that time, police spoke with the owner of the house, who
identified himself as Johnson's stepfather. He confirmed that
the defendant and Johnson had been staying there for a number of
weeks. He told the officers that he had discovered a shopping
bag in a trash can at the back of the house that contained a 5
prescription bottle in the name of the Brookline burglary
victim, silverware, blue velvet Tiffany jewelry bags, and
assorted costume jewelry.
3. Norfolk County case. The defendant was first indicted
in Norfolk County, where he chose to represent himself. He
filed a motion to suppress statements made to police during and
after his arrest, as well as evidence obtained through the
execution of search warrants of the apartment and two cars.
Following an evidentiary hearing, the motion judge issued an
order dated January 13, 2013, allowing in part and denying in
part the defendant's motion (Norfolk order). The judge found
that the police did not have valid arrest warrants for the
defendant or Johnson when the officers entered the apartment.4
Accordingly, the judge ordered the suppression of statements
made at the times of the arrests. He then excluded from the
search warrant affidavit all information obtained during the
arrests and found that the subsequent search of the residence
was untainted by the initial illegality, as the remainder of the
affidavit established probable cause. Finally, he denied the
4 The judge who issued the Norfolk order found that the clerk-magistrate checked the boxes on the applications for complaints that stated, "[P]robable cause found for listed offenses" and "warrants to issue." The Commonwealth argued to the motion judge that this effectively satisfied the warrant requirement. The motion judge found that the formalities of Massachusetts statutory and constitutional law preclude such a finding. 6
portion of the motion seeking to suppress postarrest statements
made by the defendant. The defendant was convicted on all of
the Norfolk County indictments.
4. Middlesex County case. Meanwhile, the defendant was
indicted in Middlesex County on other burglary-related charges,
and he once again elected to represent himself. After a
colloquy that the defendant does not claim was involuntary,
uninformed, or defective, a Superior Court judge determined that
the defendant waived his right to counsel, and the judge
appointed Attorney Scott Matson to act as standby counsel.
The defendant filed motions to suppress,5 and on January 16,
2014, he orally requested an evidentiary hearing.6 The judge
ruling on the motion "incorporated [the findings of fact in the
Norfolk order] by reference . . . for the purpose of deciding
whether an evidentiary hearing is required in the present case."
The judge determined that, because the issue whether the warrant
was otherwise supported by probable cause is an analysis that
"begins and ends with the four corners of the affidavit," there
5 The defendant did not include copies of the motions in the record appendix.
6 The transcript of the hearing at which the defendant orally requested an evidentiary hearing is not included in the record appendix, and the occurrence of this hearing is not listed in the docket, but it is referenced in the order dated January 21, 2014, denying the request for an evidentiary hearing. 7
was no need for an evidentiary hearing on that matter. The
judge further concluded that "[t]he court will hear argument on
whether or not there was probable cause to issue the search
warrant with the unlawfully obtained information removed from
the affidavit submitted in support of the application for the
search warrant," and he outlined the information the court would
consider at such hearing, and the information that would be
excluded. A different judge held that hearing, denied the
defendant's motions to suppress, and ordered that the Norfolk
order "remain[] in effect." Notably, and as conceded by defense
counsel at oral argument before this court, the defendant never
specifically raised the question whether the police officers
would have applied for a search warrant if the initial entry
into the apartment was not illegal.
On December 10, 2013, another Middlesex County indictment
was returned against the defendant for intimidation of a
witness, stemming from his communication with Johnson while the
two were held on bail pending trial. At his arraignment on this
indictment, the defendant did not waive his right to counsel and
explicitly requested the appointment of counsel other than
Attorney Matson "due to [his] involvement in the related 8
matter."7 Attorney Matson was appointed for the arraignment. In
2014, the Commonwealth's motion to join the burglary-related and
witness intimidation indictments for trial was allowed, and the
defendant's motion to sever was denied.8
Over a series of court hearings, issues related to Attorney
Matson's representation of the defendant on the intimidation
indictment were raised. It is this representation that serves
as the basis of the defendant's claim of ineffective assistance
of counsel.
Discussion. 1. The Middlesex burglary-related
convictions. The defendant asks us to overrule Pearson I, 90
Mass. App. Ct. at 292, contending that the court there adopted a
version of the independent source doctrine that provides him
with less protection than what is required under Federal law.
See Murray v. United States, 487 U.S. 533 (1988). In the
alternative, the defendant asks us to remand the case to the
Superior Court for an evidentiary hearing on his motion to
suppress. We decline to overrule Pearson I or to remand the
case. This case is controlled in all material respects by
7 The Commonwealth objected, contending that Attorney Matson should be appointed because of his familiarity and involvement in the burglary-related indictments.
8 The defendant filed another motion to suppress on June 18, 2014, which was also denied. The defendant did not include a copy of this motion in the record appendix; however, we obtained a copy of the motion from the Superior Court. 9
Commonwealth v. DeJesus, 439 Mass. 616, 627 n.11 (2003) (where
defendant was already under arrest for involvement in sale of
300 grams of cocaine, and had been identified as regular
supplier, court concluded that "[t]here can be no doubt that the
police were committed to an investigation of the defendant's
cocaine dealing before seeing additional cocaine in his kitchen,
and would have sought the search warrant with or without that
observation"). Here, as in DeJesus, the police were committed
to an investigation of the defendant before the illegal entry,
and had, in fact, applied for arrest warrants before the illegal
entry. Moreover, a clerk-magistrate had determined that there
was probable cause to arrest the defendant before the illegal
entry.
In DeJesus, the court recognized that Murray "extended the
independent source doctrine to apply to 'evidence initially
discovered during, or as a consequence of, an unlawful search,
but later obtained independently from activities untainted by
the initial illegality.'" DeJesus, 439 Mass. at 627 n.11,
quoting Murray, 487 U.S. at 537. Pursuant to Murray, the
independent source doctrine requires a two-pronged analysis:
(1) whether the police officers would have decided to seek a
search warrant without the evidence obtained from an illegal
search; and (2) whether there was sufficient probable cause to
obtain a search warrant without the tainted information. See 10
United States v. Silva, 554 F.3d 13, 19 (1st Cir. 2009), citing
Murray, supra at 542.9 Under the analysis used by the United
States Court of Appeals for the First Circuit, "determination of
police officers' intent to seek a warrant is framed as a
subjective inquiry." See United States v. Dessesaure, 429 F.3d
359, 369 (1st Cir. 2005) (court focused on whether "these
particular police officers [would] have sought the warrant even
if they had not known, as a result of the illegal search," that
evidence sought was present in specified location). The
officers' subjective intent is to be ascertained by objective
means, based on the totality of the attendant circumstances.
See id.
In Pearson I, 90 Mass. App. Ct. at 292, we stated that
"[t]he appropriate inquiry under State jurisprudence is . . .
whether it was objectively reasonable for police to seek a
warrant" even without the information obtained through the
illegal search. This approach, which is based on art. 14 of the
Massachusetts Declaration of Rights, is intended to provide
9 We are not bound by the analysis of constitutional principles applied by the United States Court of Appeals for the First Circuit. See Commonwealth v. Montanez, 388 Mass. 603, 604 (1983) ("Though we always treat their decisions with deference, we are not bound by decisions of Federal courts except the decisions of the United States Supreme Court on questions of Federal law"). Nonetheless, the First Circuit's independent source doctrine cases, upon which the defendant relies, highlight the importance of an objective inquiry. See United States v. Silva, 554 F.3d at 19. 11
added protection to a defendant by avoiding the potential for a
judge to find that the first prong of Murray's two-prong test
was satisfied on the basis of police testimony that a search
warrant would have been sought, even if the illegal entry had
not been made, when such testimony would be objectively
unreasonable. Pearson I, 90 Mass. App. Ct. at 292.
Here, there is no basis for a finding that the police would
not have applied for a search warrant. The situation was
rapidly evolving. Numerous break-ins with the same modus
operandi continued unabated. Once the police identified the
suspects, they went to a clerk-magistrate in the middle of the
night to obtain arrest warrants. After arresting the defendant
and Johnson, the police remained on the scene to secure the
residence while a search warrant was obtained. During this
time, the landlord approached the police and pointed them to
items in a trash can that were consistent with the burglaries,
as well as a prescription bottle bearing the name of one of the
victims. Given the rash of burglaries spanning two counties,
the police sought to arrest the defendant and Johnson quickly.
They knew that a large amount of property had been stolen or
obtained by use of stolen credit cards. On this record, there
is no basis for a finding other than the police would have
sought a search warrant, and indeed, they did. As in DeJesus,
439 Mass. at 627 n.11, the police were "committed" to this 12
investigation and would have sought a search warrant with or
without the initial observations.10
The independent source doctrine is an exception to the
fruit of the poisonous tree doctrine as set forth in Wong Sun v.
United States, 371 U.S. 471, 487-488 (1963). At the core of
this doctrine is the goal that in gathering evidence of a crime,
the police should not be allowed to benefit by exploiting their
illegal conduct. On the other hand, "the Commonwealth also may
rely on evidence obtained after the illegal search if it can
show that the evidence was independently obtained. Holding
otherwise would contravene the principle of the independent
source doctrine that the interest of society in deterring
unlawful police conduct and the public interest in having juries
receive all probative evidence of a crime are properly balanced
by putting the police in the same, not a worse, position [than]
they would have been in if no police error or misconduct had
occurred" (quotations and citations omitted). Commonwealth v.
Estabrook, 472 Mass. 852, 868 n.26 (2015). See Commonwealth v.
Cassino, 474 Mass. 85, 91 n.4 (2016). Here, the police did not
10The judge did not abuse his discretion in denying the request for an evidentiary hearing on the motion to suppress. "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). 13
benefit from the illegal search. The Middlesex judge properly
concluded that what remained in the search warrant affidavit
after exclusion of the tainted evidence was more than enough to
establish probable cause, and thus the defendant's motion to
suppress was properly denied. This is precisely what is
required by Commonwealth v. Tyree, 455 Mass. 676, 692 (2010),
and then reaffirmed in Estabrook, supra at 868.
2. The intimidation conviction. The defendant filed a
motion for a new trial on the intimidation indictment, claiming
that he received ineffective assistance of counsel during trial
on that charge. "We review the denial of a motion for a new
trial 'only to determine whether there has been a significant
error of law or other abuse of discretion.'" Commonwealth v.
Sullivan, 469 Mass. 621, 629 (2014), quoting Commonwealth v.
Grace, 397 Mass. 303, 307 (1986). "To prevail on a motion for a
new trial claiming ineffective assistance of counsel, a
defendant must show that there has been a 'serious incompetency,
inefficiency, or inattention of counsel -- behavior of counsel
falling measurably below that which might be expected from an
ordinary fallible lawyer,' and that counsel's poor performance
'likely deprived the defendant of an otherwise available,
substantial ground of defence.'" Commonwealth v. Millien, 474
Mass. 417, 429-430 (2016), quoting Commonwealth v. Saferian, 366
Mass. 89, 96 (1974). "A strategic or tactical decision by 14
counsel will not be considered ineffective assistance unless
that decision was 'manifestly unreasonable' when made."
Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting
Commonwealth v. Adams, 374 Mass. 722, 728 (1978).
Despite the defendant's protestations about Attorney
Matson's appointment as standby counsel on the burglary-related
charges, and his appointment as counsel on the intimidation
indictment, the defendant did not appeal the propriety of this
"bifurcated" representation. In fact, when Attorney Matson
informed the judge that in his professional view this was not a
good way to proceed, the defendant interjected, "Your Honor, I
will agree, I will help [the assistant district attorney] and
the [c]ourt, I will agree with what the [c]ourt has said, and I
will put as much forward as I can." Indeed, one could say he
acquiesced to this arrangement.
In any event, the defendant's sole claim is that he was
prejudiced by Attorney Matson's decision to not cross-examine
Johnson.11 The defendant supported his motion for a new trial
with an affidavit from Attorney Matson but did not file an
affidavit of his own. After a nonevidentiary hearing, the
motion judge, who was also the trial judge, denied the motion,
11At trial, Attorney Matson gave an opening statement on the intimidation indictment. He did not cross-examine Johnson and did not give a closing argument. 15
concluding that Attorney Matson "exercised his professional
judgment on [the defendant's] behalf in the circumstances" and
that Attorney Matson's chosen strategy at trial was a "tactical
decision." The judge also noted that there was "little to be
gained by . . . intervention [on Attorney Matson's part] and
something to be lost. . . . Attorney Matson acted entirely
reasonably in declining to compromise the effectiveness of [the
defendant's] own representation. His decision necessarily
accepted some imperfections in [the defendant's] examination or
argument to achieve the greater benefit of [the defendant's]
total performance. . . . His decisions were not 'manifestly
unreasonable when made.'" In addition, the judge concluded that
the defendant was not prejudiced by Attorney Matson's inaction
because the defendant fully presented his own defense such that
"further participation by Attorney Matson would not likely have
achieved anything for the defense."
The defendant relies on United States v. Cronic, 466 U.S.
648, 658-660 (1984), to argue that we must presume prejudice on
these facts. He cites the second of three classes of
ineffective assistance to support his argument that there is a
presumption of prejudice. Specifically, he claims that "counsel
entirely fail[ed] to subject the prosecution's case to
meaningful adversarial testing," Commonwealth v. Velez, 77 Mass.
App. Ct. 270, 277 (2010), quoting Cronic, supra at 659-660, and 16
that a reasonably competent attorney could have done a better
job testing the Commonwealth's case. However, that is simply
not enough, as the Cronic holding has limited application. In
Bell v. Cone, 535 U.S. 685, 696-697 (2002), the United States
Supreme Court clarified that the presumed prejudice described in
the second class of ineffectiveness outlined in Cronic requires
a complete failure to test the government's case. See
Commonwealth v. Alvarez, 62 Mass. App. Ct. 866, 872 (2005)
("unless counsel entirely fails to subject the prosecution's
case to meaningful adversarial testing[,] . . . a finding of
ineffectiveness without a demonstration by the defendant of
specific errors and resulting prejudice is inappropriate"
[quotation and citation omitted]). That did not happen here.
The Commonwealth's theory of the case was thoroughly tested.
While Attorney Matson did not in fact examine the witness or
deliver a closing argument, the defendant comprehensively cross-
examined Johnson and explored all viable defenses.12 Additional
participation by Attorney Matson would not likely have achieved
a better outcome. The judge did not abuse his discretion in
denying the motion for new trial.
Judgments affirmed.
12The defendant cross-examined Johnson about her cooperation agreement, criminal history, and communications while the two were in custody. HENRY, J. (dissenting in part). I agree with the majority
that this case is controlled by Commonwealth v. DeJesus, 439
Mass. 616 (2003), "in all material respects." Ante at . In
DeJesus, the court rightly acknowledged and applied the
subjective test required by the United States Supreme Court
under the Fourth Amendment to the United States Constitution.
However, our decision in Commonwealth v. Pearson, 90 Mass. App.
Ct. 289 (2016) (Pearson I), does not. Pearson I conflicts with
controlling Supreme Court precedent and departs from DeJesus.
Massachusetts courts cannot provide less protection from
unlawful searches than the Supreme Court mandates. Accordingly,
I dissent as to the issue of the defendant's request for an
evidentiary hearing on his motion to suppress.
Our case law seems to have strayed because of a footnote --
or rather, because later case law overlooked that footnote. As
explained by the Supreme Judicial Court in a footnote, DeJesus,
439 Mass. at 627 n.11:
"In Murray v. United States, 487 U.S. 533 (1988), the Supreme Court extended the independent source doctrine to apply to 'evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality.' Id. at 537. Accordingly, the Murray Court held that, under the Fourth Amendment, bales of marijuana first discovered by Federal law enforcement agents during an illegal warrantless search of a warehouse may, when later rediscovered and seized pursuant to a warrant to search the warehouse, have an independent source in the warrant, provided that neither the decision to seek that warrant nor the decision to issue it was influenced by the 2
earlier illegal entry and observation of the bags. See id. at 541-543. Because the District Court judge had made no clear findings as to whether the agents would have sought a warrant had they not earlier entered the warehouse, the Murray Court remanded the case to the trial court for a determination whether there was, in fact, an independent source for the challenged evidence. See id. at 543-544.
"Our decision in this case is grounded on art. 14 [of the Massachusetts Declaration of Rights]. Cognizant that we are not free to impose less restrictive standards under State constitutional analysis than are required under the Fourth Amendment, we nevertheless conclude that it is not necessary to remand this case to the trial judge. The defendant raises no claim that the police officers would not have sought a warrant had they not earlier entered the apartment and appears to concede that the initial entry, albeit illegal, was made with the intent thereafter to obtain a warrant. The defendant was already under arrest for his involvement in a sale of approximately 300 grams of cocaine, and had been identified by [a witness] as a regular supplier of cocaine. There can be no doubt that the police were committed to an investigation of the defendant's cocaine dealing before seeing additional cocaine in his kitchen, and would have sought the search warrant with or without that observation. With respect to the independent source issue, the defendant asserts only that the affidavit in support of the warrant was insufficient to support a finding of probable cause without the description of cocaine and drug paraphernalia observed during the initial illegal entry. (The defendant undoubtedly does so because, unlike in the Murray case, the supporting affidavit on its face indicates that a warrantless entry was made and that at least some of the evidence listed on the warrant application had been observed in plain view). Our determination in this case that the search pursuant to the warrant was a genuinely independent source of the evidence at issue is, on the record established by the parties, purely one of law."
In other words, the Supreme Judicial Court in DeJesus
acknowledged that Murray requires a two-prong inquiry to
determine whether (1) the particular police officers would have
sought a search warrant without the evidence obtained from an 3
illegal search, and (2) there was sufficient probable cause to
obtain a search warrant without the tainted information. The
court also acknowledged that in some cases, the first Murray
prong requires an evidentiary hearing into the subjective intent
of the particular police officers involved in the illegal search
-- inquiring whether they would have sought a warrant without
the tainted information. In DeJesus, the defendant did not
raise a first prong challenge. The Supreme Judicial Court found
the two-prong Murray test satisfied.
Subsequently, however, the Supreme Judicial Court, in
Commonwealth v. Tyree, 455 Mass. 676 (2010), omitted the
requirement of a hearing into the subjective intent of the
particular police officers. The court wrote:
"Evidence obtained during a search pursuant to a warrant that was issued after an earlier illegal entry and search is admissible as long as the affidavit in support of the application for a search warrant contains information sufficient to establish probable cause to search the premises 'apart from' observations made during the initial illegal entry and search. Commonwealth v. DeJesus, 439 Mass. 616, 625 (2003). In such circumstances, the search pursuant to a valid warrant provides an independent source for the challenged evidence 'untainted by information discovered during the initial [illegal] entry.' Id. at 627."
Tyree, supra at 692. In other words, without any discussion,
the court in Tyree dropped the subjective inquiry into the
police officers' motivations, essentially removing the first
Murray prong. 4
Then, in Pearson I, 90 Mass. App. Ct. at 292, this court
materially changed the first Murray prong into an objective
inquiry as to "whether it was objectively reasonable for police
to seek a warrant" even without the information obtained through
the illegal search. This reframing deprives the defendant of
the opportunity to challenge whether the particular police
officers would have sought a warrant had they not earlier
entered the home illegally. Indeed, this reframing collapses
the two prongs of the Murray test, because if probable cause
existed without the illegally obtained information, it would be
objectively reasonable for police to seek a search warrant.
In Pearson I, 90 Mass. App. Ct. at 292, this court stated
that the new objective standard provides defendants with more
protections than Federal law. Indeed, in many cases, if not the
overwhelming majority, the outcome of using a subjective versus
objective inquiry for the first Murray prong will be a
distinction without a difference. But because we cannot say
with certainty that in every case the objective Pearson I
standard will provide a defendant with greater protection, we
are not following binding Supreme Court precedent. Thus, under
Pearson I, Massachusetts courts are not determining that there
was, in fact, an independent source for the challenged evidence. 5
That is not our prerogative. Numerous cases from around the
country recognize this difference.1 We should correct our error.
1 See, e.g., United States v. Rose, 802 F.3d 114, 123-124 (1st Cir. 2015), cert. denied, 136 S. Ct. 2418 (2016) (referring to first prong as "subjective inquiry" that "turns on whether the particular officer would have still sought the warrant absent the unlawfully-obtained information"); United States v. Hill, 776 F.3d 243, 252 (4th Cir. 2015) (remanding for factual determination on officer's intent to seek warrant); United States v. Markling, 7 F.3d 1309, 1317-1318 (7th Cir. 1993) (remanding for factual finding whether actual officer involved would have sought search warrant absent illegal search); United States v. Restrepo, 966 F.2d 964, 972 (5th Cir. 1992) ("unlike the objective test of whether the expurgated affidavit constitutes probable cause to issue the warrant, the core judicial inquiry before the [D]istrict [C]ourt on remand is a subjective one: whether information gained in the illegal search prompted the officers to seek a warrant"); United States v. Herrold, 962 F.2d 1131, 1141 (3d Cir.), cert. denied, 506 U.S. 958 (1992) (first prong satisfied where District Court heard evidence that officers intended to seek search warrant prior to unlawful entry); State v. Gulbrandson, 184 Ariz. 46, 59 (1995), cert. denied, 518 U.S. 1022 (1996) (focusing on detective's subjective intent when applying Murray); Fultz v. State, 333 Ark. 586, 594 (1998) ("the warrant can be defeated if the officer’s motivation for the warrant arose from evidence discovered during the illegal search"); People v. Weiss, 20 Cal. 4th 1073, 1079 (1999) (Murray requires "a finding that the police subjectively would have sought the warrant even without the illegal conduct"); People v. Schoondermark, 759 P.2d 715, 719 (Colo. 1988) ("the People must bear the burden of establishing by a preponderance of the evidence that the officers would have sought the warrant even absent the information gained by the initial illegal entry"); Evans v. United States, 122 A.3d 876, 884 (D.C. 2015) (recognizing that first prong of Murray requires factual findings whether actual officer involved would have sought search warrant absent illegal entry); People v. Carter, 284 Ill. App. 3d 745, 752-753 (1996) (finding first prong not met because officers testified that they only decided to seek warrant after their unlawful entry); Kamara v. State, 205 Md. App. 607, 627-628 (2012) (looking to subjective intent of officers when applying first prong); State v. Lieberg, 553 N.W.2d 51, 57-58 (Minn. Ct. App. 1996) (recognizing that Murray requires factual determination about 6
As for whether the issue was preserved, it is undisputed
that the defendant requested an evidentiary hearing.2 The
Middlesex motion judge denied the request based on the wrong
legal standard. Citing Commonwealth v. O'Day, 440 Mass. 296,
297 (2004), the motion judge determined that the only question
was "whether or not the warrant was supported by probable
cause." O'Day, however, is wholly inapplicable because it did
subjective intent of officers); State v. Jurgens, 235 Neb. 103, 106 (1990) (remanding for further findings on specific officer's intent to seek search warrant); State v. Holland, 176 N.J. 344, 364-365 (2003) (looking to officers' subjective intent and decision-making in applying first prong); People v. Marinez, 121 A.D.3d 423, 424 (N.Y. App. Div. 2014) (ordering new trial where evidence demonstrated unlawful search prompted officer to seek search warrant); State v. Winkler, 567 N.W.2d 330, 334 (N.D. 1997) ("Murray instructs us to determine what actually motivated the search and what was the intention of the officers in the specific case. This results in a subjective, rather than objective test"); State v. Krukowski, 100 P.3d 1222, 1227-1228 (Utah 2004) (recognizing that first Murray prong requires credibility determination when officer asserts that he would have sought warrant regardless of illegal entry); State v. Hilton, 164 Wash. App. 81, 92 (2011), cert. denied, 568 U.S. 914 (2012) ("the question is whether the process of obtaining the derivative evidence was tainted by an earlier illegality. This factual problem necessarily looks to what the police were doing and what motivated them to take the action they did"); State v. Lange, 158 Wis. 2d 609, 626-627 (App. Ct. 1990) (reviewing officer's testimony about his subjective intent to determine whether first prong was satisfied).
2 I disagree with the majority's reliance on defense counsel's statements at oral argument to conclude that the defendant did not preserve the issue. Ante at . See Commonwealth v. Johnson, 481 Mass. 710, 726 n.14 (2019), quoting Commonwealth v. Wojcik, 358 Mass. 623, 631 (1971) ("Statements in a brief or oral argument cannot be used as a means of placing before this court any facts which are not included in the record on appeal"). 7
not involve an illegal search. The issue there was whether
there was sufficient probable cause to search the defendant's
home (as opposed to his workplace). Id. Thus, where the motion
judge here entertained the defendant's request for an
evidentiary hearing and then made an error of law, the judge's
denial of the defendant's request was an abuse of discretion.3
Moreover, I disagree with majority's holding that "there is
no basis for a finding that the police would not have applied
for a search warrant." Ante at . We cannot hold this as a
matter of law, and it is not our function to decide issues of
fact. We know that the police did not seek a search warrant
based on the information they possessed prior to the illegal
entry. However, the current record does not reveal why. That
is a question Murray requires these officers to answer.4 The
evidence may support a conclusion that the police officers would
have decided to seek a search warrant without the evidence
obtained from an illegal search. It may support the contrary
conclusion. The defendant was denied the opportunity to develop
3 The Middlesex judge's independent error of law is not nullified because a different judge subsequently adopted the Norfolk order without an evidentiary hearing.
4 It is worth noting that the facts may not be identical to the Norfolk case because the parties there did not litigate the independent source doctrine. That issue was raised by the judge sua sponte in the order denying the motion to suppress, so the Norfolk case did not include a hearing on this issue. 8
that record at an evidentiary hearing. Without an evidentiary
hearing and findings of fact, we are speculating.
The defendant does not seek a reversal of the judgments on
this issue. He seeks what the Supreme Court has held is due:
an evidentiary hearing on the officers' subjective intent. The
defendant's request for a hearing should have been granted. We
should overrule Pearson I and resume following the Supreme
Court's two-prong test in Murray. Respectfully, I dissent.