Lead Opinion
The defendant was convicted of trafficking in cocaine having a net weight of twenty-eight grams or more, G. L. c. 94C, § 32E; conspiracy with a codefendant, Brandy Hartzog, to violate the controlled substance laws, G. L. c. 94C, § 40; telecommunications fraud, G. L. c. 166, § 42A; unlawful possession of telecommunications equipment, G. L. c. 166, § 42B; and larceny of property exceeding $250 in value, G. L. c. 266, § 30. Prior to trial, the defendant filed a motion to suppress evidence seized from his apartment at the time of a search pursuant to a warrant for drug and drug-related items, procured after a “protective sweep” of the apartment. After an evidentiary hearing, a Superior Court judge denied the suppression motiоn. The case against the defendant proceeded to trial with Hartzog as a witness for the prosecution under a plea agreement. A jury found the defendant guilty on all of the charges.
On appeal, the defendant argues that his suppression motion should have been allowed because the police lacked probable cause to arrest Hartzog, rendering the subsequent seizure of cocaine from her person and the search of the apartment occupied by them unlawful. In addition, the defendant contends that the seizure of cellular telephone equipment and related unlawful telephone cloning paraphernalia was not authorized by
1. Denial of the suppression motion. After a hearing at which Duane Kennefick, a State police officer, testified, the judge issued a seventeen-page memorandum of decision containing his findings of fact. We summarize relevant portions of those findings, supplemented by uncontroverted tеstimony at the motion hearing. See Commonwealth v. Watson,
During May, 1996, State police Officer Thomas Coffey enlisted the help of an untested informant concerning a drug-dealing operation in the Haverhill area. Based on information obtained from this informant and another identified informant who was a drug user willing to cooperate with the police because of pending criminal charges against her husband, Coffey and other officers of the Essex County drug task force initiated a surveillance of the defendant’s and Hartzog’s joint residence at 24 his Way in Haverhill. On June 19, 1996, Coffey had Kennefick set in motion a chain of events that led to the arrest of the defendant and Hartzog. They instructed the first untested, but known, informant to pagе the defendant to make a purchase of cocaine, the delivery of which would take place at the informant’s residence.
Fearful that her failure to return to 24 Iris Way would tip off the defendant that the deal had gone awry •— and that the evidence related to their drug-dealing operation would be at risk — Kennefick went to 24 Iris Way to secure the apartment, by assigning officers to watch it, and made a protective sweep of the apartment. The defendant answered the door, and an officer stayed with him while Kennefick looked through the apartment to make sure no one else was there.
Without removing anything, and leaving two Haverhill officers to secure the apartment, Kennefick returned to his office to prepare an application for a search warrant. By that time, the defendant had been placed under arrest for dealing in cocaine and brought in for routine booking.
Neither the application and accompanying affidavit nor the warrant obtained to search 24 Iris Way mentioned anything about cellular telephone cloning equipment. The wаrrant dealt solely with the seizure of evidence related to illegal narcotics distribution. While at his office to prepare the application for the warrant, Kennefick contacted State Trooper Kevin C. Hogaboom, who had special training with the cellular fraud unit, and requested his assistance. Hogaboom assembled a search team who were familiar with the equipment used in cellular technology and specially trained in cellular fraud, composed of two United States Secret Service special agents and a telephone
Kennefick returned with a warrant to search the apartment and its storage areas, including the garage, for evidence of drug trafficking. In a utility closet off the living room, the officers found a black knapsack — which Hartzog identified as belonging to the defendant — containing more than a kilogram of boric acid, two digital scales, and other items associated with cocaine trafficking. In the master bedroom, the defendant’s wallet, containing $2,105 in cash, was found. From the floor of the bedroom, the officers recovered an extra-large tee shirt with the recipe for making crack cocaine displayed on the back. In the upstairs office area were two notebоoks containing records and notes of narcotics transactions. Hartzog later identified the defendant’s handwriting in each notebook.
While the police were executing the search warrant, Hogaboom and his team arrived. Kennefick handed Hogaboom a cellular telephone that he had found in his search of the defendant’s car, which was parked in the garage. Hogaboom tested it and found that it had been altered; it was a Motorola telephone, but its serial number began with digits assigned to another brand of cellular telephones. Hogaboom and his colleagues then fanned out through the apartment.
On an ironing board in the master bedroom, Hogaboom found a device used to reprogram telephones and serial numbers of cellular telephone sets. He also discovered a scanner and programmer, a sophisticated and expensive piece of equipment capable of capturing telephone and serial numbers from the airwaves. Both devices, a Motorola program box and a “copycat” box used exclusively to clone cellular telephones, are illegal.
Beside the telephone cloning equipment was a list of MIN and ESN numbers, see note 4, supra, in matched pairs. The list, which could have been generated by the scanner, included 200 telephone numbers owned by the Cellular One Company, including the number that had been programmed into the Motorola telephone. Upstairs, Hogaboom’s team found computers and other electronic equipment, including what is known as a double
a. Probable cause to arrest Hartzog. We need not pause long to consider the defendant’s first contention, that the arrest of Hartzog was unlawful and tainted the subsequent search of the apartment. The information the police obtained and corroborated satisfies both prongs of the Aguilar-Spinelli test. See Aguilar v. Texas,
With regard to the veracity prong of the test, there was no showing of previous circumstances establishing reliability. However, the identity of the informant was known to, the police. See Commonwealth v. Bakoian,
b. Search of apartment. A far more perplexing problem is the legality of the warrantless search of the apartment that occurred after the initial protective sweep search of the apartment and during the time that the search pursuant to a warrant for drugs and drug-related items was being conducted. As already described above, during a protective sweep search of the apartment immediately after Hartzog’s arrest, Officer Kennefick noticed “in plain view” computer equipment and a small black box which he thought (although he was not sure) might be cellular telephonе cloning equipment. After leaving two police officers to guard the apartment, Kennefick applied for and obtained a warrant solely to search the apartment for drug and drug-related items. However, he also called in, for assistance in the search, a State trooper who had expertise in cellular fraud; the trooper then assembled a team of experts in such fraud —
In many respects, this case resembles the situation in Commonwealth v. Lewin,
If the police had probable cause to believe that the defendant was involved in telecommunications fraud, they should have
The Commonwealth contends that, because the items were seized during a search pursuant to a warrant for drugs and drug-related items and were discovered in “plain view” during the initial sweep search and during the search under the warrant, their seizure was proper. Compare Commonwealth v. D’Amour,
The first problem with this contention is that the team that conducted the search for cloning equipment was a separate team that entered the apartment after the execution of the search warrant for drugs — by four other police officers — had already begun. Here, although the warrant only authorized a search for drugs and drug-related items, the trooper assembled a team of three specially trained experts, including an employee of a private telephone company, apparently solely and specifically to search the already secured apartment for items not authorized by the warrant. Compare United States v. Ewain,
There is another serious problem with the seizure of the telephone cloning equipment — a defect that provides an independent alternative basis for reversal of the motion judge’s order. As already mentioned, the Commonwealth, as well as the motion judge, justify the seizure of the telephone cloning equipment under the “plain view doctrine.” That exception to the warrant requirement permits police to seize property not described in a warrant provided (1) the officers are lawfully in the place where the seized items are observed, and (2) the “incriminating character [of the object seized] is immediately apparent” (emphasis supplied), and (3) the officers have a lawful right of access to the object.
Here, the only evidence introduced at the motion hearing regarding the “incriminating character” of the cloning equipment was supplied by Officer Kennefick, one of the officers who conducted the protective sweep.
*34 “There was a little black box I saw there. And I had seen it once before, and I believed at that time it could be telephone cloning equipment .... [Later, while preparing the search warrant,] I called Kevin Hogaboom, who’s a trooper assigned to the cellular fraud unit for the State police. I told him . . . that I would like to have him come look at it, so if it was any illegal material, it would not be left behind.”
And later, under cross-examination, defense counsel asked, “Now, you had, maybe, some suspicion as to what this computer business was about upstairs, and the black box, correct?” Officer Kennefick answered, “That’s correct.” In response to the next question, as to whether he thought these were telephone cloning devices, he said, “I was not exactly sure, no. I’m not a — I don’t know anything about the stuff . . . .” Trooper Hogaboom, who, as noted above, arrived later at Kennefick’s request and assisted in determining that the computer gear was, indeed, cloning equipment, did not testify at the motion hearing. As in any situation where evidence is seized without a warrant, the Commonwealth bears the burden of proving the police action was lawful. Officer Kennefick’s testimony was insufficient as matter of law to establish that the cloning equipment seized by police had an “immediately apparent” incriminating character as required by plain view principles. On this ground alone, the defendant’s motion to suppress, at least as to the telephone cloning equipment, should have been allowed.
The.only other information before us on the items seized is contained in the return filed with the search warrant by Trooper Hogaboom. In that return Trooper Hogaboom stated that he “placed this Motorola cellular [telephone into a test mode,” which revealed a mobile identification number that he knew through his training and experience to be a number belonging to a different type of cellular telephone, indicating that this was a “counterfeit cellulаr telephone.” Passing over the question whether the Commonwealth can meet its burden of proving that a presumptively invalid warrantless search was lawful solely on the basis of an unsworn police report, we note that the above statement does not support the Commonwealth’s case. As the motion judge correctly ruled, the fact that an officer may recognize the criminal nature of an object because of his or her
In the absence of testimony at the suppression hearing on the point, there is nothing to indicate whether the incriminating nature of the other equipment seized was immediately apparent or whether it only became apparent following the testing of the cellular telephone. The Commonwealth thus failed to meet its burden of showing that the warrantless seizure of the items was justified under the “plain view” doctrine.
The “plain view” doctrine is intended primarily to permit police officers to seize contraband (i.e., objects, such as illegal drugs, that are unlawful to possess for any reason, see Commonwealth v. Wojcik,
Needless to say, we are well aware of the fact that our analysis of these issues may seem somewhat “hypertechnical” in view of the defendant’s obvious guilt. However, use of the concept of a protective sweep search and of the plain view doctrine can present a potentially far-reaching encroachment on the rights protected by art. 14 and the Fourth Amendment to the United States Constitution. This case graphically illustrates how police, by clever resort to these doctrines, can entirely circumvent the warrant requirement.
Police here entered the defendant’s apartment to conduct a drug raid. Before long, expert searchers began combing through the defendant’s apartment looking for evidence of an entirely different type of criminal activity without a warrant to guide or constrain them (as noted, the warrant here was obtained for and limited to searching for drugs). See Commonwealth v. Guaba, 417 Mass, at 753-755 (on the necessity of having a warrant where items sought are not contraband per se). This was a fundamental violation of the defendant’s constitutional rights, and an altogether appropriate occasion for imposition of the exclusionary rule.
The motion judge’s ruling on the defendant’s motion to suppress the telephone cloning equipment was error.
2. Evidence of defendant’s prior drug-dealing activities. The defendant claims “prosecutorial error” and ineffеctive assistance of counsel with respect to hearsay testimony elicited from Officer Coffey, depicting Coffey as having contacts with informants so that the jury would infer that the defendant was a drug dealer. Except in one instance, defense counsel lodged objections to this testimony. Because the prosecutor argued in his closing that the police were aware of the defendant’s past drug-dealing, the defendant now argues that his confrontation rights were
The judge advised the jury during thе examination of the police witnesses that evidence about what an individual told the witness about other unrelated drug sales could not be considered for the truth, but only “as a basis for what this witness did or what actions he took as a result of that information.” Thus limited, the testimony was properly admitted under the rule that “policemen or other investigators may explain what they did in consequence of conversations with others.” Commonwealth v. Perez,
3. Prosecutorial misconduct. It was not unfair of the prosecutor to refer in closing argument to Coffey’s having initiated the transaction by using the defendant’s pager number obtained from a named informant. It was part of the Commonwealth’s case to prove how the police knew it was the defendant who responded to the page. This evidence was elicited by the prosecutor after defense counsel had opened the issue, and its admission was not improper. A prosecutor may argue the evidence and its fair inferences. See Commonwealth v. Kozec,
4. Conclusion. The defendant’s suppression motion with respect to the cellular telephone and related cloning equipment should have been allowed. That portion of the judge’s order that denies the motion to suppress the cellular telephone and telephone cloning equipment is reversed, and an order is to
So ordered.
Notes
Officer Coffey had previously, in a meeting with the first unidentified informant, personally dialed the pager number that both confidential informants said belonged to the defendant and listened to the incoming call in response to the page. He heard the confidential informant order one ounce and five “eight balls” of cocаine from a male called “Mike” and heard “Mike” say that because he was out of town he would take care of the order after he returned in three days.
An infant was found asleep in a first-floor bedroom.
A cloned cellular telephone is one in which the mobile identification number (MIN) — the telephone number assigned to that cellular telephone — and the telephone’s unique internal electronic serial number (ESN) have both been altered to allow the user to make calls that are billed to a legitimate customer of the cellular telephone service. Cloning requires a match of both the MIN and ESN of a legitimate telephone. •
This information is drawn from the return filed by State Trooper Hogaboom.
For other cases discussing the limits of protective sweep searches, see Commonwealth v. Dubois,
Probable cause, not just reasonable suspicion, must be shown to justify a warrantless “plain view” seizure under the Fourth Amendment to the United States Constitution. Arizona v. Hicks, 480 Mass. U.S. 321, 326 (1987).
Massachusetts cases in the past have also required that the police officers come across the item inadvertently, Commonwealth v. Santana, supra, a requirement that has been rejected by the United Statеs Supreme Court for purposes of the Fourth Amendment to the United States Constitution. Horton v. California,
Officer Kennefick testified that, during the initial protective sweep search, he had noticed “a whole line of computer equipment” and “a little black box.” The motion judge found that “the small black box” observed by Kennefick in the initial sweep search was in “plain view.” There was no testimony, and no finding by the motion judge, whether the items other than the computer and the small black box were “in plain view.”
It is also apparent that the third requirement under Federal law for justifying a warrantless seizure under the Fourth Amendmеnt to the United States Constitution — that probable cause exist — also would not be met since probable cause to seize the equipment may only have arisen after the testing of the cellular telephone and the Commonwealth presented no evidence otherwise.
The Commonwealth does not contend that police had any prior knowledge of the defendant’s involvement in telephone cloning.
Despite the claims to the contrary in the concurring opinion, none of the cloning equipment seized here properly may be characterized as contraband. Under Massachusetts law, the items seized here are unlawful to possess only when couplеd with an intent to use them for an unlawful purpose. The term “contraband” refers to items that are unlawful to possess irrespective of intent.
Concurrence in Part
(concurring in part and dissenting in part, with whom Gelinas, J., joins). In my view, the Motorola program box, the “copy cat” box, and the ESN and MIN combination lists, all contraband items found in plain view, were properly seized. Because the other items seized at the same time — the double “E” prong box, the computer equipment, and the cellular telephone found in the defendant’s car — were not contraband items and should have been suppressed, I concur with the majority that the error in admitting these items requires reversal of the fraud, larceny, and unlawful possession of the communications equipment convictions. However, I disagree with the majority’s conclusion that, on retrial, the contraband items may not be introduced in evidence. The three “contraband” items seized from the defendant’s premises that relate to the unlawful cloning operation were properly seized and, with regard to these items, I would affirm the judge’s denial of the defendant’s suppression motion.
These items were seized during the course of the execution of a valid search warrant, a point conceded by the majority. The police here, unlike in Commonwealth v. Lewin,
The police need not have come across the contraband items inadvertently, see Commonwealth v. Accaputo,
While Kennefick’s testimony at the suppression hearing was indeed insufficient to satisfy the Commonwealth’s burden, Hogaboom’s report was properly before the motion judge, as it was attached to the warrant return submitted to the judge by the Commonweаlth for the purposes of resolving the issues in the hearing. To disparage Kennefick because he was “not exactly sure” (about the contraband) and to reject Hogaboom’s expertise which informed Kennefick’s decision to seize the contraband items, merely because Hogaboom did not testify at the motion hearing, in my estimation, elevates form over substance.
In the final analysis, since the double “E” prong box, the computer equipment, and the cellular telephone should have been suppressed, I conclude that the error in admitting this evidence was not harmless beyond a reasonable doubt. See Commonwealth v. Beauchamp,