Commonwealth v. Villar

667 N.E.2d 891, 40 Mass. App. Ct. 742, 1996 Mass. App. LEXIS 738
CourtMassachusetts Appeals Court
DecidedJuly 19, 1996
DocketNo. 95-P-27
StatusPublished
Cited by2 cases

This text of 667 N.E.2d 891 (Commonwealth v. Villar) 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. Villar, 667 N.E.2d 891, 40 Mass. App. Ct. 742, 1996 Mass. App. LEXIS 738 (Mass. Ct. App. 1996).

Opinion

Smith, J.

The defendant was indicted for trafficking in fourteen or more grams of cocaine and for conspiracy to traffic in cocaine. Prior to trial, the defendant filed a motion to suppress the evidence seized pursuant to a search warrant. After an evidentiary hearing, a Superior Court judge denied the suppression motion. A trial was held on the trafficking [743]*743charge only.1 At the close of the Commonwealth’s case and again at the close of all the evidence, the defendant filed a motion for a required finding of not guilty. Both times the judge denied the motion. The jury returned a guilty verdict against the defendant.

On appeal, the defendant argues that the judge committed error in denying his suppression motion and his motion for a required finding of not guilty.

1. Denial of suppression motion. The defendant claims that his suppression motion should have been allowed because the search warrant was the “fruit” of a prior, illegal, warrantless search of the premises. In particular, the defendant argues that the information used by the Commonwealth to establish probable cause for the issuance of the warrant was obtained through the use of an improper ruse by the police.

After a hearing at which two police officers testified, the judge issued a memorandum of decision containing his findings of fact. We summarize relevant portions of the judge’s findings.

On January 13, 1994, a police officer assigned to the Boston police department drug unit began following one Tejeda, a suspected dealer in drugs. Tejeda was observed using a key to enter an apartment complex. After a few minutes, Tejeda left the complex. When the officers approached him, he reached into his pocket and brought out six plastic bags of white powder which the officers believed was cocaine. He was placed under arrest, and the police discovered six more bags of cocaine, a beeper, and keys to the apartment complex in his coat pocket.

The police used Tejeda’s key to enter the common area of the apartment complex.2 Once inside, they followed wet footprints, which matched Tejeda’s shoes, to apartment 4A. The apartment door had a peephole. A police officer then noticed a telephone number on Tejeda’s beeper. In order to verify that apartment 4A was the apartment Tejeda had just visited, the officer radioed headquarters and instructed them [744]*744to call the telephone number that was on Tejeda’s beeper. Following that instruction, the telephone in apartment 4A began to ring. The telephone was answered by a Hispanic sounding male.

The officer again requested headquarters to call the telephone number. When the officers heard the telephone in the apartment ring again, they placed Tejeda in front of the peephole in the apartment door. The officers knocked on the door. They did not say anything. Someone opened the door. An individual named Baez stood to the left of the defendant and held several bags of cocaine in his hand. Upon seeing the officers, Baez put the cocaine in his mouth and attempted to swallow it. The officers entered the apartment and forcibly prevented Baez from swallowing the cocaine. They then arrested Baez and the defendant and secured the apartment. A police officer obtained a search warrant using the information obtained by the police when the defendant opened the door. The search pursuant to the warrant resulted in the seizure of cocaine and drug paraphernalia.

At the hearing on his suppression motion, the defendant argued that the police, by placing Tejeda in front of the peephole, used a ruse to have the occupants of the apartment open the door. The use of the ruse, according to the defendant, constituted an unlawful entry, and, therefore, he argued, the police could not seize the cocaine that was in plain view. The defendant claimed further that, because the cocaine seized in the unlawful entry must be suppressed, there was insufficient probable cause to obtain the search warrant, the basis for the subsequent search.

The judge specifically found that when the police placed Tejeda in front of the door and knocked, they did not intend to enter and search the apartment but only wished to speak with the occupants. He ruled that the use of a ruse by the police was proper, and the information they obtained while standing in the hallway and looking through the open door may be used to establish probable cause to obtain a search warrant.

In his analysis of the “ruse” issue, the judge wrote that “Santo Baez observed Tejeda through the peephole and opened the door.” However, there was no evidence that Baez, or any other occupant, responded to the knock by looking first through the peephole, seeing Tejeda, and then opening [745]*745the door. Rather, the evidence showed that the police knocked on the door, said nothing, and the door opened in response to the knock. Therefore, if we assume that placing Tejeda before the peephole was a ruse, there was no evidence that the door was opened as a result of the use of the ruse. A defendant must show that he responded to the use of a ruse in order to claim improper police conduct in using a ruse. Mere use of a ruse, by itself, would not amount to police misconduct.

The police conduct in approaching the door and knocking on it was proper. Commonwealth v. Acosta, 416 Mass. 279, 282 (1993)(a police officer “did no more than any citizen could do by entering a common area and knocking on the door”). Here, the police knocked on the door and said nothing. Further, they did not invoke their authority to have the door opened. Compare Commonwealth v. Acosta, supra, where the officer did not announce himself as a police officer, and Davis v. United States, 327 F.2d 301, 303-305 (9th Cir. 1964) (no “search” where police knocked but did not invoke authority as police to command entry), with Commonwealth v. Hamilton, 24 Mass. App. Ct. 290, 292-295 (1987) (where search began when police compelled the defendant to open door by announcing police presence).

Once the defendant opened the door, the police observed in Baez’s possession four packages of white powder which the officers believed to be cocaine. Their plain view observation obtained from a common hallway did not constitute a search. Commonwealth v. Figueroa, 412 Mass. 745, 749 & n.6 (1992). The incriminating nature of the drugs was readily apparent. See Commonwealth v. Santana, 420 Mass. 205, 211 (1995). Because the police were lawfully present outside the defendant’s apartment when they observed the drugs and in view of Baez’s attempt to destroy the evidence, the seizure of the cocaine was valid. Commonwealth v. Martino, 412 Mass. 267, 276 (1992).

Further, even if we assume that the judge’s inference is correct that Baez observed Tejeda through the peephole before he opened the door, the use of a ruse would not make the seizure of the cocaine illegal or invalidate the search warrant in the circumstances here.

The police have been permitted to employ a ruse to gain entry into a defendant’s home in certain situations. In Commonwealth v. Goggin, 412 Mass. 200, 201-203 (1992), the po[746]*746lice went to the defendants’ apartment to execute a search warrant. The warrant required the officers to knock and announce their identity before entering.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Streeter
883 N.E.2d 290 (Massachusetts Appeals Court, 2008)
Commonwealth v. Ewing
854 N.E.2d 993 (Massachusetts Appeals Court, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
667 N.E.2d 891, 40 Mass. App. Ct. 742, 1996 Mass. App. LEXIS 738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-villar-massappct-1996.