438 Mass. 213 | Mass. | 2002
Lead Opinion
The defendant was convicted of trafficking in cocaine and heroin in amounts exceeding 200 grams, and of possessing controlled substances with intent to distribute in a school zone. G. L. c. 94C, §§ 32E (b) (4), (c) (4), and 32J.
1. Facts. We glean the following facts from the affidavit submitted in support of the warrant application and from the undisputed testimony adduced at the hearing on the motion to suppress.
On November 24, 1997, a search warrant with a no-knock provision was issued on the application of Sergeant Thomas Gaffney of the Worcester police department for an apartment occupying the third floor of a residence at 5 Eastern Avenue in Worcester, and for any persons who might be found on that premises. The property sought included heroin, drug distribution paraphernalia, financial records, money, and documents pertaining to the occupancy of the apartment. The application for the search warrant was the product of several months of police work including the collection of informant information, the execution of a controlled buy, and extensive use of police surveillance. The investigation focused on two individuals nicknamed Papo (later identified as codefendant Jose Carro), and Hector (later identified as the defendant), and a white Chevrolet Lumina automobile that they apparently used to make drug deliveries.
As set forth in the affidavit of Sergeant Gaffney, Papo and
After obtaining the search warrant, the police conducted two days of additional surveillance at 5 Eastern Avenue. At 6:23 p.m. on November 26, 1997, after observing both suspects enter the apartment, the police proceeded to execute the warrant. At the time of execution, it was dark; the suspects were not seen at the windows in the apartment; there were no apparent lookouts; the front door to the building that led to a common hallway and staircase and that normally required a key to open, gave way to “a little push”; and the officers proceeded up the stairs, breaking down the door to the apartment with a battering ram as they announced their presence.
The search proved productive. Heroin and cocaine were seized, as was equipment for their processing, packaging, and distribution. Also seized were pagers, $3,099 in cash, a handgun, and thirty-seven rounds of ammunition.
2. Discussion. The requirement that police “knock and announce” their presence and purpose prior to the execution of a search warrant has long been a part of our common law. Commonwealth v. Macias, 429 Mass. 698, 700 (1999). See Commonwealth v. Antwine, 417 Mass. 637, 638 (1994) (holding that, as general rule, police “must knock, announce their identity, and state their purpose”); Commonwealth v. Scalise, 387 Mass. 413, 418 n.5 (1982) (applying rule to search warrant
It is equally well established that the failure of the police to knock and announce their presence may be justified in circumstances where concern for the safety of the officers executing the warrant or fear that a substantial portion of the evidence sought might be destroyed or secreted is present.
In the present case, the Commonwealth attempted to demonstrate that the safety of the executing officers would be jeopardized and evidence might be destroyed if the officers were required to knock and announce their presence and purpose. To this end, the affidavit submitted in support of the warrant application included information that the suspects kept secret the location of the apartment where they stored their drugs, and moved it at least once during the period of police surveillance; that the apartment was located on the third floor of a residential building whose street-level door was kept locked; that it was not possible to approach the building without being seen; that heroin and cocaine could easily be disposed of by flushing them down the toilet; and that it was “common” for
In authorizing the no-knock execution of the warrant, the magistrate did not indicate whether it was justified on the basis of officer safety, likely destruction of evidence, or both. In denying the motion to suppress, the judge identified as “unique facts” supporting the request for the no-knock provision that there would be two suspects in the apartment; that it would be difficult to enter the building; that the officers’ presence would become known before they reached the third-floor apartment; and that the drags were stored in the apartment in secret. On the basis of these findings, he concluded that the affidavit adequately demonstrated both safety concerns and concerns that contraband would be destroyed. The judge made no findings regarding whether the circumstances as they existed at the time of the search continued to justify dispensing with the knock and announce requirement, even though that issue had been specifically raised by the defendant, and much of the hearing on the motion to suppress was devoted to taking testimony on that point.
We accept the judge’s subsidiary findings absent clear error but conduct an independent review of his ultimate findings and conclusions of law. Commonwealth v. Thomas, 429 Mass. 403, 405 (1999). We also acknowledge that affidavits in support of search warrants are to be approached with a view toward common sense, read in their entirety and with considerable latitude allowed for the drawing of inferences. Commonwealth v. Smith, 370 Mass. 335, 342-343, cert. denied, 429 U.S. 944 (1976), quoting Commonwealth v. Perada, 359 Mass. 147, 149 (1971). Here, the judge’s acceptance of the affidavit’s contents as establishing probable cause based on facts uniquely present in the particular circumstances can be sustained as to the likely destruction of evidence, but not as to the presence of safety concerns. More importantly, the uncontested evidence as to the conditions existing at the time of the search require that his ultimate ruling denying the motion be reversed.
First, with respect to concerns for safety, the affidavit described only general concerns present in the execution of any warrant authorizing a search for drags. While it may be true, as
In Richards v. Wisconsin, supra, the Supreme Court reviewed a ruling of the Supreme Court of Wisconsin that the reasonableness requirement of the Fourth Amendment to the United States Constitution was satisfied by a per se exception to the knock and announce rule in the execution of search warrants in felony drug investigations. In reaching its ruling, the Wisconsin court found it reasonable to assume, based on studies, articles, and judicial opinions, that felony drug searches involve “an extremely high risk of serious if not deadly injury to the police.” Id. at 390. Accordingly, it concluded that the police do not need to demonstrate specific information about dangerousness in order to dispense with the knock and announce requirement in such searches. Id. In rejecting this holding, the Supreme Court held that even though “felony drug investigations may frequently present circumstances warranting a no-knock entry,”
While the affidavit here contained a great deal of detail about the defendant’s drug operation, it contained no particular facts and circumstances suggesting that there might be weapons on the premises, that the defendant or the codefendant might carry or possess weapons, or that either had a history of weapons possession or violence. Without more, the affidavit was inadequate to establish probable cause (or even reasonable suspicion) that the officers’ safety would be jeopardized by requiring them to knock and announce their presence before executing the warrant. Commonwealth v. Hernandez, 49 Mass. App. Ct. 911, 913 (2000).
The circumstances presented in the affidavit with regard to the likelihood of destruction of evidence lead us to a different conclusion. While the fact that drugs can often readily be disposed of in a sink or toilet is not an adequate basis on which probable cause can be found, Commonwealth v. Scalise, 387 Mass. 413, 421 (1982), it is, of course, an obvious and important factor that the magistrate may consider along with other reasons for tipping the balance and justifying an exception to the knock and announce rule. Foremost among such other reasons is the likelihood that the occupants of the dwelling will have advance knowledge of the officers’ presence and purpose. Here, the information set forth in the affidavit specifically raises this likelihood in its description of the premises as having
Having concluded that the warrant was properly issued, we turn to its execution. As noted, the police timed the execution of
The fact that an unlawful search has occurred does not automatically result in the exclusion of any illegally seized evidence. Commonwealth v. Grimshaw, 413 Mass. 73, 78 (1992), quoting Commonwealth v. Gomes, 408 Mass. 43, 46 (1990). The Commonwealth, however, has not pointed to any reason in its brief or argument why exclusion should not be the remedy in this case. The evidence seized in the apartment should have been suppressed. Because there could not have been a valid conviction without the impermissible evidence, the judgments are vacated, the verdicts set aside, and judgments shall enter for the defendant.
So ordered.
The Commonwealth does not contend that the police complied with the knock and announce requirement by calling out “police” as they proceeded to batter down the door. See, e.g., Commonwealth v. Gomes, 408 Mass. 43, 44, 46 (1990).
Circumstances suggesting that a suspect might escape if given notice of police presence can also be grounds for dispensing with the knock and announce requirement. Commonwealth v. Rodriguez, 415 Mass. 447, 450 (1993). The Commonwealth does not contend on appeal that a risk of escape justified the no-knock provision in this warrant.
In Commonwealth v. Macias, 429 Mass. 698, 701 (1999), we declined to depart from the probable cause standard established in our common law and adopt the reasonable suspicion standard that the United States Supreme Court concluded was required in order to justify a no-knock entry in the execution of search warrants under the Fourth Amendment to the United States Constitution. See Richards v. Wisconsin, 520 U.S. 385, 394-395 (1997). This elevated standard for the unannounced entry into a dwelling is consistent with
While our assessment of the validity of the warrant is confined to the facts set forth in an affidavit that contained no specific factual basis for its assertion that certain events were “common,” we note that during the hearing on the motion to suppress, Sergeant Gaffiiey (the affiant) testified that he participates in one hundred to 120 drug searches each year, and that about thirty to forty firearms are typically found in these searches. Assuming that this is the basis of Sergeant Gaffney’s averment that firearms are “commonly” found in drug searches, it translates into firearms being found between twenty-five and forty per cent of the time. With regard to searches where firearms were found, there was no testimony as to whether in some or all of these instances the police had specific reasons to believe that a suspect might possess weapons before the searches were conducted.
In Commonwealth v. Rodriguez, 415 Mass. 447, 448-451 (1993), we upheld a no-knock entry on grounds of likely destruction of evidence and danger to the officers conducting the search even though there was no specific information that weapons might be present. This decision was issued before Richards v. Wisconsin, 520 U.S. 385 (1997). To the extent that the Rodriguez decision might be read to hold that an affidavit merely stating that in the affiant’s experience handguns are “a danger to law enforcement agents during drug-related searches,” without specific information regarding the search to be undertaken, is an adequate basis for waiver of the knock and announce rule, id. at 451, it is a reading that is no longer apt in light of Richards v. Wisconsin, supra. This is not to say that an affidavit specifically detailing police experience in dealing with drug dealers associated with a particular criminal enterprise or in a particular community (of which the suspects might be a part) would not suffice, but such an affidavit would need more than the general averments contained here.
Such notice would not only give the occupants added time to dispose of the evidence, it would also negate one of the principle purposes of the knock and announce requirement, i.e., to give adequate warning to the occupants that it is the police at the door, so as to avoid surprise which might lead to unnecessary violence. See Commonwealth v. Antwine, 417 Mass. 637, 638-639 (1994) (if person already knows of police presence, knock and announce requirement is “useless gesture” excusing police from full compliance with rule).
Dissenting Opinion
(dissenting). In my view, the interests of officer safety justified dispensing with the requirement that the officers knock and announce their presence when executing this
1. Standard for issuance of warrant with no-knock provision. At the outset, the puzzling history of this court’s adoption of a “probable cause” standard for approval of no-knock provisions must be addressed. The use of that standard is at odds with the Supreme Court’s “reasonable suspicion” standard, articulated in Richards, supra at 395, at odds with virtually every other jurisdiction that has considered the issue (see note 1, infra), and is particularly inappropriate when officer safety is implicated. This court’s use of a “probable cause” standard for no-knock provisions has been perpetuated without ever articulating either why it was adopted in the first place or why it is more appropriate than “reasonable suspicion.” Consistent with other areas of search and seizure jurisprudence that address issues of officer safety, and consistent with other jurisdictions, our jurisprudence on no-knock provisions should adopt a standard of “reasonable suspicion.”
Our most comprehensive discussion of the common-law “knock and announce” rule is found in Commonwealth v. Cundriff, 382 Mass. 137, 140-147 (1980), cert. denied, 451 U.S. 973 (1981). There, we upheld an unannounced entry to execute an arrest warrant based on “a strong possibility that an announcement by the police of their identity and purpose would have endangered themselves or others.” Id. at 147. The court did not articulate a particular standard to be applied to requests
The reference to a “probable cause” standard for no-knock entries first surfaced in Commonwealth v. Scalise, 387 Mass. 413, 421 (1982) (Scalise). Without citation to any precedent, and without any analysis pertaining to selection of a standard for dispensing with the knock and announce requirement, the court simply announced that “[i]n order to obtain authority for an unannounced entry, the police must inform the issuing magistrate of the circumstances which give the police probable cause to believe that the evidence, i.e., the object of the search, will be destroyed.” Id. The court then proceeded to opine, consistent with other jurisdictions, that the mere fact that drugs were the object of the search would not suffice for an automatic exception to the knock and announce rule. Id. However, the court concluded that the search warrant affidavit’s recitation that the suspect was dealing significant quantities of marijuana and that he had moved to a different location in response to feared police surveillance was sufficient to support the inference that he was “ready to destroy the drugs” such that “the facts were sufficient to give rise to probable cause to believe that the evidence would be destroyed if the police knocked and announced their purpose before entering the apartment.” Id. at 422-423. Thus, where the Commonwealth’s showing had met the standard, whether formulated as “probable cause” or as “reasonable suspicion,” there was no need to focus on what the standard should be. The adoption of a standard of “probable cause” occurred without any apparent consideration of whether that should in fact be the standard for a no-knock provision.
Citing Scalise, supra at 421, the court next repeated the standard as one of “probable cause” in Commonwealth v. Gomes, 408 Mass. 43, 45 (1990). In that case, the Commonwealth conceded that there was no basis for a no-knock entry, and was
The next repetition, similarly devoid of analytical substance or relevance to the contested issues in the case, came in Rodriguez, supra at 450. Again, the court merely cited Scalise for the proposition that “[a] no-knock entry is permitted where the police informed the magistrate of circumstances which provided probable cause to believe that the object of the search, the contraband, would be destroyed.” Id. As in Scalise, the court held that the search warrant affidavit had satisfied that “probable cause” standard, making it unnecessary to consider whether that standard was inappropriately stringent. Id. at 451.
After this “probable cause” standard was enshrined as oft-repeated dictum in the above cases, the Supreme Court issued its decision in Richards, supra. There, the Court was confronted with a State court decision that had created a blanket rule excepting all drug searches from the knock and announce requirement. As part of its explanation as to why such a categorical exception was inappropriate, the Court articulated “reasonable suspicion” as the standard to be applied to requests for no-knock entries. “In order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard — as opposed to a probable-cause requirement — strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries.” Id. at 394. By way of analogy,
Two years later, on appeal from an order suppressing evidence uncovered during a search following a no-knock entry, the Commonwealth asked this court to reconsider its adherence to the probable cause standard in this area. Commonwealth v. Macias, 429 Mass. 698, 701 (1999). The Commonwealth pointed the court to the Supreme Court’s decision in Richards, noted that “the common-law knock and announce rule and its counterpart under the Fourth Amendment to the United States Constitution derive from the same source, English common law, and implicate the same concerns,” and argued that the same standard should therefore be utilized. Commonwealth v. Macias, supra. The Commonwealth’s argument was rebuffed in a single sentence, without discussion or explanation: “We see no reason, however, to depart from the rule we have previously followed.” Id. This curt rejection of a soundly reasoned argument would be understandable if “the rule we ha[d] previously followed” had itself been adopted for some articulated reason. As outlined above, however, the probable cause standard had been adopted without articulating any reason, in a case for which the precise standard was of no consequence to the outcome, and had merely been repeated in other cases where the outcome was similarly unaffected by the choice of standard.
Adherence to the probable cause standard, whatever its hidden merits might be with respect to concerns about destruction of evidence, is wholly inconsistent with our related jurisprudence concerning risks to officer safety. If reasonable suspicion as to the presence of such dangers is insufficient to dispense with the knock and announce requirement, that translates to the following unacceptable scenario: officers who have an objectively reasonable belief, based on specific and articulable facts, that knocking and announcing their presence will pose a danger to themselves (or others) will nevertheless be required to knock and announce and to endure the risk of injury (or even death) that they have objectively and reasonably predicted. Despite the
Rather, a standard of “reasonable suspicion” has uniformly been applied to search and seizure practices involving officer safety. As referenced by the Supreme Court in Richards, supra at 394, police executing an arrest warrant may conduct a sweep of the premises if they possess “a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Maryland v. Buie, 494 U.S. 325, 337 (1990). See Commonwealth v. Bowden, 379 Mass. 472, 478 (1980) (police arrested suspect in hallway of apartment; sweep search of basement justified where “a security check was reasonably believed necessary by the police to ensure their personal safety”); Commonwealth v. Walker, 370 Mass. 548, 556-557, cert. denied, 429 U.S. 943 (1976). Similarly, a pat-down frisk for weapons is justified when an officer “has reason to believe that he is dealing with an armed and dangerous individual,” to be judged by “whether a reasonably prudent man in the circumstances would
2. The affidavit. Applying what I believe to be the correct
On the subject of weapons, the affidavit referenced the vice squad’s experience with “this type” of search: “[M]embers of the vice squad commonly confiscated firearms in the service of search warrant[s] of this type.” While that sentence was introduced with an insufficient generalization about the propensity of drug dealers to carry weapons (“it is common today for drug dealers to be in possession of firearm[s]”), the sentence concluded with a reference to the actual experience of that vice squad, in that city (Worcester), with warrants of that
Indeed, despite espousing a standard of “probable cause” by which to assess the likelihood that occupants would be armed, this court previously held that an officer’s prior experience finding weapons during drug searches, coupled with information that the drug dealer was dealing in significant quantities, sufficed to justify an unannounced entry to conduct a search. Commonwealth v. Rodriguez, 415 Mass. 447, 450-451 (1993). If anything, the facts set forth in the search warrant affidavit in that case were sketchier than those set forth in the present affidavit. In Rodriguez, the affidavit recited an informant’s report that the suspect had eight or nine ounces of cocaine for sale. Id. at 448. The informant had no information concerning firearms, and the affidavit contained no information specifically connecting the suspect with firearms. Id. at 449-450 & n.1. However, the officer’s affidavit cited his own experience “that drug dealers often carry weapons to protect themselves from rip offs by other drug dealers, and that these weapons are usually handguns.” Id. at 449 n.l. The affidavit also stated that the officer had been present “many times on past raids when our officers have recovered [sjuch handguns,” and that he had been present when an officer “was shot with a handgun on a drug
In apparent recognition of the fact that Rodriguez would be dispositive of the present case, the court suggests in a footnote that Rodriguez is no longer good law in the wake of the Supreme Court’s decision in Richards. Ante at 220 n.5. The reasoning, apparently, is that because Richards prohibited a blanket no-knock exception that would apply to all drug searches, references in affidavits to characteristics that would be common among many drug dealers, or even references to an officer’s common experience with drug dealers, must be deemed insufficient lest they create the equivalent of a blanket exception. The logic is faulty, as is the interpretation of Richards.
In Richards, the Supreme Court of Wisconsin had ruled that, without needing to present any information concerning the proposed search, a mere showing of probable cause that drug dealing was involved meant that the officers “ ‘necessarily have reasonable cause to believe exigent circumstances exist’ to justify a no-knock entry.” Richards v. Wisconsin, 520 U.S. 385, 389 (1997). The Court rejected the use of such an automatic exception to the knock and announce requirement because,
Nothing in the current affidavit, or in the affidavit at issue in
3. Reevaluation at the scene. I will accept, at least for purposes of argument, that the absence of any lookout and the unexpected ease with which the officers gained access to the building reduced the risk that any significant amount of drugs would be destroyed during the interval following a knock and announcement of police presence.
As noted in Rodriguez, supra at 449 n.l, drug dealers carry weapons principally to protect themselves (and their valuable stash of drugs and drug proceeds) from robbery. It is reasonable to expect, in light of that purpose, that weapons at the stash site are kept loaded and near at hand. One would therefore expect that such a drug dealer occupant, once notified of the presence of police at the door, would be able to arm himself in a matter of a few seconds. Additional advance notice, by way of lookouts or by awareness of someone breaking into the building two floors below, would not be necessary. (Indeed, when the court justified a no-knock entry on grounds of likely presence of weapons in Rodriguez, supra, it did so despite the fact that, as here, the officers’ presence would not have been known prior to
Although this court has never addressed the issue of precisely how much time must elapse after a knock and announcement before police may proceed with a forcible entry, the time allotted must, in order to serve the purpose of the knock and announce requirement, be comparable to the time it would reasonably take an occupant to respond to the door. The purpose of the requirement is to give occupants “the opportunity to comply with the law and to avoid the destruction of property occasioned by a forcible entry.” Richards, supra at 393 n.5, citing Wilson v. Arkansas, 514 U.S. 927, 930-932 (1995). See Commonwealth v. Cundriff, 382 Mass. 137, 141 (1980). While the time reasonably necessary for an occupant to respond will vary with the circumstances (including the time of day, the size and layout of the premises, and the physical condition of the occupant), and courts have therefore been reluctant to set bright-line time requirements, most cases have required a minimum wait of ten to twenty seconds, a minimum that commentators view as “unduly lenient” on the police. See 2 W.R. LaFave, Search and Seizure § 4.8(c) (1996 & Supp. 2002), and cases cited. Ten to twenty seconds would provide ample time for an occupant to retrieve (and, if need be, even to load) a weapon, plus time to hide or otherwise place himself in an opportune location from which to fire. Where, as here, the police have reasonable suspicion that an occupant may be armed, the mere fact that the police have reached the threshold unnoticed does not diminish their need to dispense with the knock and announce requirement. Rather, where weapons are concerned, every fraction of a second counts, and reasonable suspicion of the presence of weapons would still justify a no-knock entry. I therefore respectfully dissent.
Virtually every court that has considered this issue subsequent to the Supreme Court’s decision in Richards v. Wisconsin, 520 U.S. 385 (1997) (Richards), has adopted its standard of “reasonable suspicion.” See Ilo v. State, 85 S.W.3d 542, 547 (Ark. 2002); Cook v. State, 255 Ga. App. 578, 579 (2002); State v. Wakefield, 267 Kan. 116, 130-131 (1999); State v. Miskell, 748 So. 2d 409, 413 (La. 1999); Davis v. State, 144 Md. App. 144, 152 (2002); State v. Wasson, 615 N.W.2d 316, 320-322 (Minn. 2000); White v. State, 746 So. 2d 953, 957 (Miss. Ct. App. 1999); State v. Hamilton, 8 S.W.3d 132, 136 (Mo. Ct. App. 1999); People v. Skeete, 257 A.D.2d 426 (N.Y. 1999); State v. Mastracchio, 721 A.2d 844, 846 (R.I. 1998); State v. Henning, 975 S.W.2d 290, 300 (Tenn. 1998); Price vs. State, No. 14-01-01028-CR (Tex. Ct.
The court’s announcement in Commonwealth v. Macias, 429 Mass. 698, 701 (1999), that it would adhere to a standard of probable cause for no-knock entries, was made in connection with the Commonwealth’s claimed concern about potential destruction of evidence. In that case, the only claimed concern involving officer safety was premised on the assumption that an undercover officer would be in the apartment at the time the warrant was executed. Id. at 700, 703-704. Consideration of that alternative ground for a no-knock entry was obviated by the fact that the undercover officer was not in the apartment when the search actually took place. As such, this court has never confronted the anomaly of applying a probable cause standard to an unannounced entry when the justification advanced pertains to officer safety.
There is no reasoned distinction between the intrusion at issue in dispensing with the knock and announce requirement and the kinds of intrusions that have been justified by mere “reasonable suspicion.” A protective sweep during an arrest involves a form of intrusion — e.g., police barging unannounced through closed doors to such private areas as bedrooms and bathrooms — that is virtually identical to an unannounced entry into the premises. As to the intrusion at issue during a patfrisk, the contact amounts to a nonconsensual touching of one’s person, including one’s private parts, that would, in any other context, constitute an indecent assault and battery. Moreover, it may be performed in a public place, adding to the humiliation inherent in such a search. See Terry v. Ohio, 392 U.S. 1, 17 (1968) (patfrisk “is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment”). If these forms of intrusions are justified by “reasonable suspicion” of danger, police with a warrant to conduct a search of particular premises should be able to dispense with the requirement that they knock and announce if there is comparable “reasonable suspicion” of danger that would result from knocking and announcing. A higher standard cannot be justified by “the high degree of privacy that this court has histori
Police surveillance of the vehicle identified by one of the informants had traced the suspects to one address but, after the vehicle was stopped by another officer, the suspects moved from that address. Further surveillance identified the new location, that being the apartment identified in the search warrant.
The officer’s reference to what was “commonly” found during searches had not exaggerated some rare, infrequent occurrence into a “common” one. The court suggests, ante at 219 n.4, that, based on the figures identified later at the evidentiary hearing, this reference to what was “commonly” found would have been mathematically insufficient. Those figures — thirty to forty firearms found during each year’s approximately 120 searches — represent a twenty-five to forty per cent chance that the occupants of the location being searched would be armed with a gun. A roughly one out of three likelihood that the police are dealing with an armed suspect would unquestionably justify a patftisk, a protective sweep, an exit order, or a vehicle search. If “reasonable suspicion” were held to incorporate some numerical calculation of risk, these figures would qualify as sufficiently significant to give rise to a “reasonable suspicion” that the occupants would have a firearm.
The search uncovered a nine millimeter pistol with thirty-seven rounds of ammunition. As such, this" search added to the officers’ understanding that firearms are “commonly” found during searches of major drug dealers in Worcester.
We should reject out of hand any suggestion that police must have actual knowledge of an officer's being shot by a drug dealer before they may have reasonable safety concerns when dealing with armed drug dealers. Again, we impose no such requirement on officers’ conducting protective sweeps, pat-frisks, or vehicle searches based on fear of weapons.
The conclusion that the dealer was sophisticated was premised on the fact that she dealt in “large quantities of cocaine” while “insulating herself from detection.” Commonwealth v. Rodriguez, 415 Mass. 447, 451 (1993). The information concerning that dealer’s “sophistication” was, if anything, less comprehensive than that presented here.
The latter situation was precisely what this court confronted in Commonwealth v. Macias, 429 Mass. 698, 702 (1999), where the police knew that the cocaine was individually packaged in many small bags and stored in multiple locations, such that rapid destruction of any significant amount of the cocaine was not feasible.
This point was illustrated during the oral argument in Richards, where one of the Justices asked: “[I]f you have to justify the failure to knock and announce, you’re going to be able to do it, I would assume, without too much trouble. In fact, I assume you could do it with virtually no trouble in most cases. There will occasionally be a rare case in which, for example, the informant has told you there are no guns, the marijuana is stored in bales out in the bam so that there’s no risk of destruction, and in those rare cases you wouldn’t be able to justify the failure to knock and announce, but in most of them you could. So are we talking really about the need for anything more than dispensing with what is probably in most cases almost a formality in the proof that you will adduce, the evidence that you will adduce at the suppres
I note, however, that in some respects our jurisprudence on the subject of evidence destruction has failed to account for the significance our statutes now place on the precise quantity of drags possessed. Our statutes define differing levels of drug trafficking premised on the possession of quantities of drugs