COMMONWEALTH vs. WASHINGTON PEARSON.
No. 15-P-896.
90 Mass. App. Ct. 289 (2016)
September 20, 2016.
Norfolk. June 7, 2016. - September 20, 2016.
Present: CYPHER, GRAINGER, & KINDER, JJ.
A Superior Court judge did not err in denying the criminal defendant‘s pretrial motion to suppress evidence seized from the defendant‘s apartment by police officers pursuant to a search warrant obtained following an unlawful arrest, where it was objectively reasonable for the officers to secure a search warrant for which they had probable cause apart from observations made during the unlawful entry and arrest, including statements made by the owner of the apartment house to police officers while they were securing the premises, which were sufficiently distinguishable from the defendant‘s unlawful arrest to be purged of the primary taint. [291-294]
INDICTMENTS found and returned in the Superior Court Department on April 12, 2012.
A pretrial motion to suppress evidence was heard by Kenneth J. Fishman, J., and the cases were tried before Raymond J. Brassard, J.
Edward Crane for the defendant.
Pamela Alford, Assistant District Attorney, for the Commonwealth.
CYPHER, J. A jury convicted the defendant, Washington Pearson, of four counts of breaking and entering in violation of
Following a pretrial hearing, the motion judge determined that warrants did not validly issue for the arrest of Jenell Johnson and the defendant in their apartment, and consequently, he allowed their
“In reviewing a decision on a motion to suppress, ‘we accept the judge‘s subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law.‘” Commonwealth v. Keefner, 461 Mass. 507, 515 (2012), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004). “We make an independent determination of the correctness of the judge‘s application of constitutional principles.” Commonwealth v. Cassino, 474 Mass. 85, 88 (2016) (quotation omitted).
We recite the facts found by the motion judge after an evidentiary hearing, and supplement where necessary with undisputed testimony implicitly credited by the judge. Commonwealth v. Oliveira, 474 Mass. 10, 11 (2016). Between January 31, 2012, and February 8, 2012, Brookline police responded to five incidents of residential breaking and entering. Victims reported missing various valuable items, including jewelry, electronics, and credit cards. On February 6, 2012, one victim reported that a credit card reported stolen from his apartment had been fraudulently used at four local retail stores. Surveillance footage from three of the stores depicted a Hispanic female in her mid-to-late thirties, wearing blue jeans, a white fleece jacket, and a hat, making the fraudulent purchases. Surveillance footage from a fourth store depicted a woman with similar appearance, but wearing a white coat and black boots that matched the description of items previously purchased, using the stolen credit card. An employee at one of the stores told police that the woman had been accompanied by a dark-skinned black male, estimated to be in his mid-to-late thirties.
On February 7, 2012, Brookline police received information about a breaking and entering at a Cambridge residence, where a driver‘s license belonging to Johnson was found. That victim told officers that she did not know Johnson. Based on the information
On February 9, 2012, police officers arrived at the apartment where Johnson and the defendant were living, purporting to have warrants for their arrest.3 When Johnson answered the door, she was taken into custody and advised of her Miranda rights. The officers then asked her where they could locate some of the items allegedly purchased with the stolen credit card. She directed them to a bedroom on the second floor, where they observed items matching the description of fraudulently purchased merchandise and stolen goods in plain view. The officers asked Johnson, whom they had escorted to the second floor, for consent to search the apartment, which she declined to give, saying that it was not her house and things found there may not belong to her. The officers apprehended the defendant in the bathroom on the third floor.
After Johnson and the defendant had been arrested and transported to police headquarters, police remained at the house to secure the premises while a search warrant was prepared.4 While securing the premises, police officers spoke with the owner of the house, who identified himself as Johnson‘s stepfather and told the officers that the defendant had been staying in the residence for the past five or six weeks. The owner notified police that he had discovered a shopping bag containing silverware, jewelry bags, and a prescription bottle bearing the name of a victim of one of the burglaries in a trash can outside the house.
The defendant argues that the judge erroneously omitted the first of a two-step independent source inquiry mandated by Murray v. United States, 487 U.S. 533 (1988), by failing to determine whether police officers’ decision to seek the warrant was influenced by their observations in the course of the warrantless entry and arrest.
The defendant bases his argument on the independent source analysis articulated by the United States Court of Appeals for the First Circuit (First Circuit) in United States v. Dessesaure, 429 F.3d 359 (1st Cir. 2005). Under that approach, determination of police officers’ intent to seek a warrant is framed as a subjective inquiry.5 See id. at 369; United States v. Siciliano, 578 F.3d 61, 69 (1st Cir. 2009). Cf. United States v. Silva, 554 F.3d 13, 19 (1st Cir. 2009) (holding that, in totality of circumstances, reasonable officer would seek warrant). Because Massachusetts courts may provide greater protection against search and seizure under
To demonstrate probable cause, “[a]n affidavit must contain sufficient information for an issuing magistrate to determine that
The owner of the house spoke to police officers while they were lawfully securing the premises. Although the nature of the owner‘s interaction with officers is not clear, “[t]he record is devoid of anything to suggest that the police did anything to solicit, provoke, or tempt [the owner] into making [his] disclosures, and thus devoid of anything suggesting police misconduct.” Commonwealth v. Brandwein, 435 Mass. 623, 631 (2002). In this case, where there is no indication that police engaged in serious, “distinctly egregious” conduct toward the owner, the defendant does not have target standing to challenge the owner‘s statements to police. See Commonwealth v. Santiago, 470 Mass. 574, 578 (2015) (recognizing, but declining to adopt, target standing where police conduct was not “distinctly egregious“).
As for the defendant‘s contention that the owner‘s statements constitute the fruit of unlawful police conduct toward himself (as opposed to misconduct toward the owner), we agree with the motion judge‘s implicit finding that the statements were an independent and intervening act, giving rise to probable cause to search the apartment. “The ‘crucial question’ regarding whether a particular statement must be suppressed as the fruit of the initial illegal [entry and arrest] is whether that statement ‘has been come at by exploitation of . . . [the primary illegality] or instead by
As noted above, the owner of the house spoke to police while they were acting with lawful authority to secure the premises, and after the defendant had already been arrested and transported to police headquarters. See Commonwealth v. Blake, 413 Mass. 823, 829 (1992) (“Securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of the dwelling or its contents“). Thus, the temporal proximity between the unlawful arrest and the owner‘s statements was attenuated. Moreover, the owner‘s statements to police were an intervening act that occurred after the arrest had already concluded, not “in direct and immediate response to the illegal police action.” Commonwealth v. Borges, 395 Mass. at 796. Finally, we do not regard the warrantless arrest, although unlawful, as flagrant misconduct where police had probable cause to arrest the defendant and proceeded to procure a warrant before commencing to search the apartment. Accordingly, the owner‘s disclosure to police that the defendant resided at the apartment to be searched was sufficiently distinguishable from the defendant‘s unlawful arrest “to be purged of the primary taint.” Commonwealth v. Estabrook, 472 Mass. at 860. See Commonwealth v. Brandwein, 435 Mass. at 631-632 (“the target of the exclusionary rule is official misconduct, and the rule is not intended to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals” [quotation omitted]).
Because the search warrant supported by probable cause constituted an independent source of the challenged evidence, it follows that the motion judge did not err in denying, in part, the defendant‘s motion to suppress.
Judgments affirmed.