71 Mass. App. Ct. 304 | Mass. App. Ct. | 2008
The defendant, Orlando Ocasio, Jr., was convicted by a jury in the Superior Court of possession of a firearm without an identification card, G. L. c. 269, § 10(A), and of resisting arrest, G. L. c. 268, § 32B. He appeals the denial of his motion to suppress items seized in the apartment of his mother, Elizabeth Santos, and appeals his conviction of resisting arrest, asserting insufficient evidence supporting the charge.
Background. We summarize the underlying facts as found by the motion judge, which we supplement with testimony that was “uncontroverted and undisputed and [that] the judge explicitly or implicitly credited.” Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007). On the morning of the defendant’s arrest, Miguel Delvalle called the Springfield police department to complain that the defendant had threatened him with a sawed-off shotgun when Delvalle went to the defendant’s apartment to collect money the defendant owed him. Officers Starks and Cornejo were dispatched to the reported address. Delvalle, who knew the defendant, directed the officers to the apartment, which was located on the thirty-first floor. The officers and Delvalle went together to the hallway outside the apartment, where they knocked on the door. When the defendant opened the door, Delvalle stated, “That’s him.” The officers “grabbed” the defendant, who was unarmed, and handcuffed him. As they did so, the apartment door closed. Officer Starks asked the defendant if he had a key to the apartment. The defendant stated that he did not and that no one else was in the apartment.
Another officer, Lieutenant Lynch, arrived at that point. Lieutenant Lynch then summoned a building employee, the director of operations. The employee informed the officers that the defendant did not belong in the apartment, and that the apartment was occupied by a female tenant, who was later iden
In order to ascertain whether there was anyone else present in the apartment who might have access to a weapon that might be used against the officers or others present, the officers asked the employee to open the door to the apartment. After verifying that no one else was in the apartment, the officers returned to the hall, leaving the front door ajar. Shortly after they returned to the hall, the telephone in the apartment rang. Officer Starks answered and the caller identified herself as Santos, the defendant’s mother, and confirmed that she lived in the apartment. Officer Starks told her that the defendant “was taken into custody because he was accused of committing a serious crime and that it happened in the doorway of her apartment.” He asked her if the defendant “belonged here,” and she told him that she allowed her son to stay at the apartment. Officer Starks asked her this question to verify that the defendant was indeed her son and not an intruder.
Within about fifteen minutes, Santos arrived at the apartment building. Lieutenant Lynch spoke with her in the building’s management office located on the first floor. Officer Starks was present when Santos signed a consent form that permitted the police to search the apartment without first obtaining a search warrant.
The additional facts from the trial are recited in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). When the officers told the defendant that they were taking him into custody, the defendant said that he “didn’t do it,” despite not having been told what crime he was accused of committing. As the officers were escorting the defendant to the elevator in order to leave the building, the defendant began yelling. The defendant said that he “wasn’t going back to . . . jail.” As the officers attempted to place the defendant in the cruiser, he kept kicking his feet away from the cruiser. Two officers were needed to get the defendant into the cruiser.
The jury acquitted the defendant of possession of a sawed-off shotgun and of assault and battery by means of a dangerous weapon, but convicted him of possession of a firearm (the handgun) and of resisting arrest.
Discussion. 1. The consensual search of the apartment. a. Consent from a cotenant. The motion judge found, with ample support in the record, that Santos’s consent to the search of her apartment “was given freely, voluntarily and intelligently with the knowledge that she was free to refuse to consent to the search.”
“we have to admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.
“This is the line we draw, and we think the formalism is justified. So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant’s permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant’s contrary indication when he expresses if (emphasis added).
Id. at 121-122.
The defendant here seeks to portray himself as falling on the protected side of the “fine line” drawn by the Supreme Court. See id. at 121. We disagree. While he was clearly at the threshold of the apartment, the record contains no evidence of any protest or objection, despite the fact that not one, but two searches occurred while he stood at the door.
b. The taint of the illegal entry. The defendant argues that the officers’ reentry into the apartment to answer the telephone was improper.
“[Wjhere the defendant seeks to suppress information obtained after unlawful police conduct, the issue is whether the evidence challenged has been obtained by exploiting the illegality or by means sufficiently distinguishable to dissipate the taint.” Commonwealth v. Fredette, 396 Mass. 455, 458-459 (1985). See Wong Sun v. United States, 371 U.S. 471, 488 (1963). Several factors guide us in our determination whether a subsequent consensual search is sufficiently attenuated from a prior illegality: “lapse in time, intervening circumstances, and disconnection between the prior illegality and the person giving consent to search.” Commonwealth v. Midi, 46 Mass. App. Ct. 591, 595 (1999). Also relevant is “the purpose and flagrancy of the official misconduct.” Commonwealth v. Avellar, 70 Mass. App. Ct. 608, 617 (2007), quoting from Commonwealth v. Bradshaw, 385 Mass. 244, 258 (1982). See Wong Sun v. United States, supra at 486-488. It is this last factor that the defendant urges
We also address the lapse in time and disconnection between the illegality and Santos’s consent to search. We note that the officers did not obtain consent during or immediately after the illegal entry. Contrast Commonwealth v. Midi, supra. Nor did they obtain consent while they were illegally inside the apartment talking with Santos on the telephone. Rather, after the officer spoke to Santos on the telephone, fifteen minutes elapsed before she arrived. Then she spoke with the officers in the management office of the apartment building before finally giving the police her consent to search. The illegal entry and the consent were sufficiently distanced.
Finally, as to the presence of intervening circumstances, the police officers informed Santos of her right to refuse consent before she signed a “Consent to Search” form. See Commonwealth v. Bradshaw, supra at 258-259 (that defendant received Miranda warning prior to making confession was relevant to dissipation of taint of unlawful arrest). The record supports the motion judge’s finding that Santos gave her consent “freely, voluntarily and intelligently with the knowledge that she was free to refuse to consent to the search.” The voluntary nature of Santos’s consent suggests that it was “sufficiently an act of free will to purge the primary taint of the unlawful invasion.” Wong Sun v. United States, supra at 486. Contrast Commonwealth v. Midi, supra at 594-595 (one might view skeptically whether consent to search was act of free will where consenting party was surrounded by police who had just made arrest in her home).
2. Resisting arrest. The defendant challenges the denial of his motion for a required finding of not guilty as to the resisting arrest charge, arguing that there was insufficient evidence to sup
3. Remaining arguments. The defendant’s remaining arguments do not merit reversal. It was properly in the trial judge’s discretion to admit the defendant’s statement that he “wasn’t going back to . . . jail.” This statement was highly relevant to whether the defendant knew he was being arrested, an essential element of the crime of resisting arrest. See G. L. c. 268, § 32B; Commonwealth v. Lawson, 46 Mass. App. Ct. 627, 629-630 (1999) (knowledge as element of resisting arrest requires defendant knew he was preventing arrest by police officers acting under color of their authority).
Finally, while we do not condone the prosecutor’s closing argument insofar as it might be understood as inviting the jury to infer guilt from the defendant’s denial of guilt before he had been informed of the reason for his arrest, it did not create an error resulting in a substantial risk of a miscarriage of justice.
Judgments affirmed.
The employee also determined that in addition to Santos, there may have been two other females authorized to live in the apartment.
The employee also was present when Lieutenant Lynch spoke to Santos and witnessed her signing the consent form. The employee testified that the police did not threaten or coerce Santos, but instead calmly informed her that they wanted to search her apartment because they believed there was a firearm inside.
In a jury-waived hearing, the trial judge found the defendant guilty as to that portion of the indictment charging the defendant, pursuant to G. L. c. 269, § 10G(ti), with having been previously convicted of one violent crime. This is not part of the defendant’s appeal.
We find unpersuasive the defendant’s argument that Santos’s consent was tainted due to her telephone conversation with Officer Starks while he was in her apartment. There is no basis in the record to reverse the motion judge’s explicit finding that Santos freely, voluntarily, and intelligently gave her consent, totally absent of any coercion, trickery, or deceit by the police.
The motion judge’s decision was issued approximately two months before the release of Georgia v. Randolph, supra. At the suppression hearing, defendant’s counsel argued, with prescience, that the Randolph decision
Indeed, even when Officer Starks asked him if he had a key, the defendant did not refuse consent to enter the apartment, but only stated that he did not have a key and that no one else was in the apartment.
Our references to cotenancy here must be read in the context that the record establishes simply that the defendant was using at least one bedroom in the apartment with the permission of Santos, who was an authorized tenant. As a result of his silence at the time of search, we need not address whether his status would have qualified him for the protection afforded a cotenant in Georgia v. Randolph, supra, if he had in fact objected.
The defendant conceded at oral argument that the initial protective sweep, which did not lead to the discovery of any evidence, was valid.
During closing argument, the prosecutor stated:
“And you remember the officer said we told him we were going to have to take him into custody and he didn’t say, ‘For what?’ He never said for what, what? At that point they are in the hallway and they say, we are going to have to take you into custody because you are accused of a crime. His words weren’t, ‘For what? What did I do?’ I didn’t do it. I didn’t do it. I. didn’t do, what? I didn’t do what is pointed a sawed-off shotgun at a guy who wanted to collect the money back. A sawed-off shotgun that is in the room along with a .22 revolver under the bag when they move it.”