Commonwealth v. Colon
88 Mass. App. Ct. 579
| Mass. App. Ct. | 2015Background
- Police executed an arrest warrant at an apartment for Robert Colon; trooper testified to knocking, announcing, and waiting several minutes.
- While waiting, officers heard a man and a woman talking, running water, and a woman say she needed to get dressed.
- When the door opened, officers smelled a strong odor of fresh marijuana; Colon said, “Let’s go,” attempted to leave, was brought back inside, and handcuffed.
- Officers then conducted a warrantless protective sweep of the apartment and discovered large bags of suspected marijuana, drug paraphernalia, and cash in a bedroom closet.
- The motion judge found the sweep permissible as a protective sweep; the defendant appealed the denial of his motion to suppress.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a warrantless protective sweep incident to arrest was justified | Officers had reasonable, articulable facts (delay in answering, voices inside, running water, smell of fresh marijuana) and the warrant related to firearm/distribution offenses supporting safety concerns | The facts did not establish a reasonable belief that the area could harbor a dangerous person; defendant had surrendered and cooperated | Reversed: the facts found by the judge did not meet the Buie standard for a protective sweep |
| Whether the underlying warrant/offense justified broader entry/search | Commonwealth argued the warrant involved prior firearm-related/violent offenses that supported officer safety | Defendant argued possession alone is not per se violent and findings did not establish danger | Court: possession charge alone, absent contextual facts, does not automatically justify sweep; Commonwealth’s reliance on unadopted facts fails |
| Whether appellate court may rely on uncontroverted testimony not included in judge’s findings | Commonwealth relied on officer testimony about warrant details; concurrence noted additional uncontroverted testimony might matter | Defendant relied on the judge’s limited factual findings presented in the record | Court: under Jones-Pannell appellate courts cannot supplement judge’s findings with unadopted testimony; reversal based on existing findings |
| Whether smell of marijuana could justify sweep to prevent destruction of evidence (post-G. L. c. 94C) | Commonwealth did not press destruction-of-evidence exception on appeal | Defendant limited appeal to protective-sweep issue | Court: did not address whether smell alone justifies sweep to prevent imminent destruction of evidence under current statutory framework |
Key Cases Cited
- Maryland v. Buie, 494 U.S. 325 (U.S. 1990) (authorizes limited protective sweeps incident to arrest when officers have specific and articulable facts suggesting danger)
- Commonwealth v. Matos, 78 Mass. App. Ct. 156 (Mass. App. Ct. 2010) (protective sweep upheld where defendant fled into a bedroom and officers reasonably feared hidden threats)
- Commonwealth v. DeJesus, 70 Mass. App. Ct. 114 (Mass. App. Ct. 2007) (articulable facts including violent-felony history and firearm charges can support a sweep)
- Commonwealth v. Jones-Pannell, 472 Mass. 429 (Mass. 2015) (appellate courts may not supplement a motion judge’s findings with unadopted, unincorporated testimony)
- Commonwealth v. Pacheco, 464 Mass. 768 (Mass. 2013) (addressed search issues connected to marijuana odor before statutory amendments)
- Commonwealth v. Rodriguez, 472 Mass. 767 (Mass. 2015) (addressed effect of statutory changes to drug-search jurisprudence)