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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Demogenes,
14 Mass.App.Ct. 577 (1982)
Appeals Court of
Massachusetts, Middlesex.
Argued
Decided
Further Appellate Review Denied
Kevin J. Ross, Legal Asst.
to the Dist. Atty., for the commonwealth.
Frank R. Herrmann,
[14 Mass.App.Ct.
578] Steven H.
Bowen, Lowell (Nicholas Macaronis, Lowell, with him), for Michael Demogenes.
Before PERRETTA, KASS and SMITH, JJ.
PERRETTA, Justice.
Pursuant
to a warrant, the State police seized gaming paraphernalia from the premises
located at
1. The Facts.
Our review
of the affidavit in support of the warrant, the warrant, the transcript of the
hearing on the defendants' motions, photographs introduced in evidence, and the
judge's findings of fact reveal the following.
During the week of
Ford began
surveillance of the premises, a two and one‑half story wood frame
building. His check of a street
directory disclosed that the building contained four apartments numbered 1116,
1118, 1120, and
Ford
conducted his surveillance throughout most of April. At various times during this period, he
observed vehicles, registered to the defendants, parked at or being driven to
and from this building. He saw a man,
identified at the hearings as Demogenes, leave the
building by the rear door;
on one occasion, Ford saw Demogenes
through the window at the right side of the house.
It is unnecessary
to recite the additional facts contained in Ford's affidavit as they add
nothing to the description of the premises to be searched and are directed to
the existence of probable cause for the search, an issue the defendants have
abandoned on appeal.
On the
information available to him, Ford obtained a warrant to search the "room
or rooms that constitute or comprise the premises of
Warrant in
hand, Ford and two other troopers, all in plain clothes, entered the main front
door of the building. One trooper
carried a twenty‑pound sledgehammer.
Upon entering the building, they observed a stairway to the second floor
to their left and an unmarked door to their right at the rear of the
hallway. They knocked on that door and [14 Mass.App.Ct.
580] asked for Channon
Scot. The occupant of that apartment did
not open the door but responded that Scot's apartment was next door.
The
officers then went out the front door, walked around to the back of the house,
opened the rear storm door, and knocked at a pane of glass in the inner wood
door. Demogenes,
with papers in his hand, came to the door and saw the three men, who identified
themselves as police officers. They announced that they had a warrant
to search the premises and ordered him to open the door. Upon seeing Demogenes
turn away from the door and walk quickly towards another room, the police
hammered the door two to three times and entered the apartment.
Ford
testified at the hearing that he knew from his surveillance that the rear door
led into apartment number 1116 but that he never saw those numbers on the left
front door. He also knew that the
apartment in question was on the first floor, but he did not know whether there
was another unit on that floor. Ford
stated that he and his fellow officers decided that it would be more common for
strangers to knock on the front rather than the rear door, and, hence, they
used the front entrance to the building. (FN2)
When they discovered that there was another unit on the first floor and
that there was no access to
The judge
found that the warrant referred to
Based upon
these findings, which were warranted by the evidence, the judge concluded that
Ford "was mistaken as to what constituted the premises of 1116 Mammoth
Road" and, as a consequence, there was a "reasonable
probability" that the wrong premises would be searched. We are bound by the judge's findings of fact,
but not by his conclusions. Commonwealth v. Moon, 380
2. The Search Warrant.
[1] The
warrant accurately describes and isolates which of the multiple units of the
building was to be searched and identifies the unit in question as located on
the first floor. Compare the overbroad
warrant discussed in Commonwealth v.
Erickson, 14 Mass.App. 501, 440
N.E.2d 1190 (1982). However, it
does not further identify the particular unit by naming the occupant, nor does
the warrant set out the means of access to the apartment. In determining the sufficiency of this
warrant, "[t]he standard is not whether the description given is
technically accurate in every detail but whether it is sufficient to enable an
officer to identify the place intended with reasonable effort, and whether
there is a likelihood that another place might be searched."
Commonwealth v. Cohen, 6 Mass.App.
653, 655, 382 N.E.2d 1105 (1978), and cases therein cited.
There was
little likelihood that the wrong apartment would be searched. We are not here concerned with what might
have happened had the warrant been executed by an officer with no familiarity
with the premises.
Although
Ford initially knocked on the wrong, unnumbered door, his mistake does not
appear to be the result of [14 Mass.App.Ct. 582]
an arbitrary, indiscriminate selection; it was the only inner door off the
first floor hallway, and it was to the rear of the building. Knocking on that door was consistent with the
observations Ford had made during his surveillance.
The
defendants argue that the warrant could have been more specific but for Ford's
negligent surveillance. They take him to
task for not having entered the main hallway to look for an inner front door
and for not having approached the left front door to check for identifying
numbers. They suggest that these
observations could have been attempted under darkness or when Ford saw that
window shades were drawn.
We think
it obvious that a prior observation of the inner unnumbered door off the right
end of the hallway would not have dispelled Ford's reasonable belief that the
door opened into unit 1116. Further, we
do not think Ford was required to risk disclosure of the surveillance and
jeopardize his investigation by an earlier approach to either of those doors.
While it
was possible, and in fact happened, that the wrong door might be approached,
there was little danger that another apartment would be searched mistakenly
under the instant warrant. The warrant
restricts its execution to Ford, cf.
Commonwealth v. Rugaber, 369
We hold
the warrant valid, but we go further to say that if it were so ambiguous as to
be defective, we would see no prophylactic value in the application of the
exclusionary rule in the circumstances of this case.
3. The Entry.
[2] The
judge found that when the officers knocked at the rear door and Demogenes appeared with papers in his hands, one of the
officers, Sergeant Henderson, twice stated, "State Police, we have a
search warrant, open up," and displayed his badge. The judge further found that when Demogenes turned and headed toward the front of the
building, the officers believed that the papers were evidence of gaming and
that Demogenes would destroy them, given the opportunity.
Based on
these findings the judge concluded that the officers did not violate the
"knock and announce" rule when, ten seconds after their last demand
for entry, they broke down the door.
There is no error in either the judge's findings or his conclusions. See generally Commonwealth v. Scalise, 387
4. Conclusion.
The order
allowing the defendants' motion to suppress on the basis of a facial defect in
the warrant is reversed, the order denying their motion on the ground of an
illegal mode of entry is affirmed, and the case is remanded to the trial court
for further proceedings.
So ordered.
FN1. Channon J. Scot.
FN2. The officers did not have a "no
knock" warrant, compare Commonwealth
v. Scalise, 387 Mass. 413, 416‑417, 439
N.E.2d 818 (1982), and were required to knock, identify themselves, and
announce their purpose when executing the warrant. Commonwealth
v. Cundriff, 382