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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. Garner, 423
Supreme Judicial Court of Massachusetts,
Argued
Decided
David B. Mark, Assistant District Attorney, for
Commonwealth.
Stewart Hall Grimes,
Before WILKINS, C.J., and
ABRAMS, O'CONNOR and FRIED, JJ.
FRIED, Justice.
A Superior
Court judge granted the defendant's motion to suppress evidence seized pursuant
to the execution of a no‑knock warrant on the ground that the use of a
"flash‑bang" diversionary device in the course of the warrant's
execution was unreasonable in the circumstances. A single justice of this court allowed the
Commonwealth's application for an interlocutory appeal, and we now vacate the
order allowing the defendant's motion to suppress.
I
The
warrant in this case was issued to the
According
to the judge's summary, which he denominated "Background," Lieutenant
Eugene Hebert, the police witness at the suppression hearing, testified
regarding the department's preparations for the execution of the warrant, their
actual deployment at the time of its execution, what was done once the warrant
was executed, and the purpose and characteristics of the "flash‑bang"
device or stun grenade which is at the center of the controversy in this
case. Lieutenant Hebert testified that
he was in charge of coordinating the execution of the warrant. From the information available to him he had
concluded that the inhabitants of 1261 Church Street might be armed with a
handgun and a sawed‑off shotgun.
He had a [423 Mass. 737] sense of the layout of the apartment
and was aware that, in addition to Garner and another male, a pregnant woman
might be present with her two small children.
Before the police entered, Hebert
stationed sniper teams outside the apartment.
Hebert's plan was to have Officer LaVoie break
a window of one of the rear bedrooms, which were believed to belong to the
adults, look inside and drop the diversionary device. This device‑‑variously referred
to as a flash‑bang device, a stun grenade and a diversionary device‑‑is
intended to make a loud noise and produce a large quantity of smoke when
discharged. It is not designed to cause
fire, but rather to surprise and distract.
(FN1) Because the device does
cause an explosion and flash Hebert acknowledged that it is inherently
dangerous and carries a warning label that "misuse can cause physical
injury or death." The judge noted
Hebert's testimony that he had assigned an officer to protect the woman and
children and remove them from the apartment when the team moved in.
According
to the judge's findings, the New Bedford police require special training in the
use of this diversionary device and the department had a policy relating to its
use that required the deploying officer to break a window and look into the
room before detonating the device, just as LaVoie had
been instructed to do in this instance.
(FN2) The judge found that LaVoie broke a window in a back bedroom and dropped the
device inside without looking inside. A
four year old child was in the bedroom when the device went off with a bright
flash and "filled the apartment with smoke." Immediately police officers in black
military outfits rushed into the apartment.
In the ensuing excitement the pregnant woman was struck in the face and
abdomen by a door. The police swept
through the apartment and secured it within three to four minutes. No one offered any resistance. The woman complained of feeling ill and was
taken to a hospital. The child was
screaming and gagging from the smoke in the apartment, and was treated a few
days later "for a health complaint
[423 Mass. 738] associated with
smoke inhalation, and continues to suffer from nervousness, crying and
nightmares." As a result of their
search the police seized a sawed‑off shotgun, ammunition, credit cards,
and jewelry that might have been taken in the robbery, and clothing that the
robbers might have worn.
The judge
ordered that all the evidence seized in the execution of the warrant be
suppressed. The judge first ruled that Markeith Garner lacked standing to challenge the
constitutionality of the search because he had asserted no interest in the
apartment and, in the circumstances of this case, could not be the beneficiary
of our rule of automatic standing. See Commonwealth v. Amendola,
406 Mass. 592, 550 N.E.2d 121 (1990).
(FN3) The judge went on to rule
that the warrant was supported by probable cause as
"the police were
warranted in having a reasonable belief that weapons might be present on the
premises and that a no‑knock warrant was needed for their safety when
entering Derek Garner's apartment.... In addition, there were no changed
circumstances as to the presence of weapons at the premises which would have
required the police officers at the scene to dispense with the‑no‑knock
authorization and instead announce their presence."
The
basis for the judge's suppression of the evidence was thus not the validity of
the no‑knock warrant but the manner in which it was executed.
The
judge acknowledged that the method used in executing a search warrant is
generally left to the discretion of the officers executing it, but went on to
note that the method of execution is also subject to the general strictures
against unreasonable searches and seizures found in the Fourth Amendment to
the United States Constitution. See Dalia v. United
States, 441 U.S. 238, 257, 99 S.Ct. 1682, 1693,
60 L.Ed.2d 177 (1979). The judge
determined that the police had used excessive force in executing the warrant
and therefore ruled that the search and seizure were unreasonable [423 Mass. 739] and the evidence seized must be suppressed. Stating that the prevailing test for
reasonableness was an objective test examining the circumstances as they were
known to the police officers at the time of the warrant's execution, the judge
asked whether the use of the "pyrotechnic diversionary device was necessary and thus reasonable conduct,
to effect a safe entry into the dwelling" (emphasis supplied). He concluded that the device's use could not
meet this criterion, based on his findings (1) that, although the police knew
the defendant was in the apartment and was probably armed, (2) they were also
aware that two small children and their pregnant mother would be present, and
(3) they had made no effort to determine whether the apartment was barricaded
or whether its occupants were monitoring the area for police activity, and
there was no sign that any activities, such as a hostage situation, existed
within the apartment and endangered its inhabitants. "In short, the officers did not possess
information that warranted the strength of the police assault on the
premises." Thus it would seem that
the judge's conclusion was based not just on the use of the diversionary
device, but also on the mode of entry, the number of officers, and the way they
were dressed.
The
judge was similarly influenced by the fact that the device was deployed in a
child's bedroom where the child was present.
Although the judge heard testimony that "the officer who had deployed
the device had beeninstructed
to look into the room before throwing in the device, there was no evidence
offered to show that the officer had in fact done so" (emphasis in
original). This "gap in the
evidence" led the judge to declare that either the police had not acted in
good faith because the device was not deployed "in accordance with the
department's own policy," or the actions were rendered even "more
egregious" because the officer looked into the room and deployed the device
despite the child's presence.
II
A
[1]
At the outset we note that the judge explicitly limited his analysis to the
Fourth Amendment to the United States Constitution, and we have no claim before
us under our Declaration[423 Mass.
740]
of Rights. The authorities invoked
by the judge and by Garner's brief offer but slim
support for their conclusions. The two
Supreme Court decisions to which the judge refers are only tangentially
apposite. In Dalia v. United States, supra, the Court
considered the lawfulness of a covert entry made by Federal agents onto
business premises to place an electronic surveillance device. The electronic surveillance was authorized by
a warrant issued pursuant to 18 U.S.C. §§ 2510‑2520. The Court characterized as
"frivolous," id. at 247, 99
S.Ct. at 1688, Dalia's
contention that the Fourth Amendment prohibits all covert entries onto private
property, and noted that "[i]t is well
established that law officers constitutionally may break and enter to execute a
search warrant where such entry is the only means by which the warrant
effectively may be executed." Id. (FN4)
In the course of its opinion in Dalia, the Court stated:
"Nothing
in the language of the Constitution or in this Court's decisions interpreting
that language suggests that ... search warrants also must include a
specification of the precise manner in which they are to be executed. On the contrary, it is generally left to the
discretion of the executing officers to determine the details of how best to
proceed with the performance of a search authorized by warrant‑‑subject
of course to the general Fourth Amendment protection
'against unreasonable searches and seizures' " (footnote omitted).
Id. at 257, 99 S.Ct. at 1693. It
is the caveat contained within the last clause to which Garner and the judge
refer. The general point made in that
caveat is unexceptionable, and the judge might as well have referred to Tennessee v. Garner, 471 U.S. 1, 8, 11,
105 S.Ct. 1694, 1699‑1700, 1701, 85 L.Ed.2d 1
(1985), in which the Court ruled that the use of deadly force to prevent the
escape of a suspected felon constituted an unreasonable seizure and violated
the suspect's Fourth Amendment rights where the suspect posed no significant
threat to the officers. Nor does Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), on [423 Mass. 741] which
principal reliance is placed, move us any closer from the realm of generality
to the circumstances of this case. In Graham a police officer stopped Graham,
a diabetic, because he believed Graham was behaving suspiciously. What appeared to the officer to be suspicious
behavior was, in fact, Graham's response to what he sensed as an impending
insulin reaction. Not only did the
officer disbelieve the explanation proffered by Graham and his friend, but the
officers called for backup assistance treated him with great roughness which
caused injuries and they refused him the sugared food or drink he needed. The Court acknowledged the possibility of liability
under 42 U.S.C. § 1983 for this mistreatment, and‑‑citing Tennessee v. Garner‑‑used
the case to explain that all claims asserting the use of excessive force by law
enforcement officers "in the course of an arrest, investigatory stop, or
other 'seizure' of a free citizen should be analyzed under the Fourth Amendment
and its 'reasonableness' standard, rather than [as some Federal courts of
appeals had done] under a 'substantive due process' approach." Id.
at 395, 109 S.Ct. at 1871. It takes a considerable feat of
extrapolation to take the brief caveat in
Dalia and join it to an analogy to Garner in order to arrive at the
conclusion the judge reached here.
This is not to say that we doubt that the mode of the
execution of a search warrant does not fall under the "reasonableness
standard." Just last year in Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), a unanimous Supreme
Court finally held that the failure to knock and announce might cause an
otherwise valid search to violate the Fourth Amendment's requirement of
reasonableness, where there is no reason to believe such an announcement would
be a fruitless gesture, endanger the lives of the persons executing the search,
or lead to the destruction of evidence. Id. at ‑‑‑‑ ‑
‑‑‑‑, 115 S.Ct. at 1918‑1919. The Supreme Court came to this conclusion
after a meticulous historical analysis focusing on the special significance the
common law had long assigned to the knock and announcement. Id. at ‑‑‑‑
‑ ‑‑‑‑, 115 S.Ct. at
1916‑1919. In this case, of
course, there is no issue regarding knock and announcement, since the police
officers had obtained a no‑knock warrant.
As the occupants of the premises were reasonably considered heavily
armed and vicious, the judge found this warrant to be valid and justified.
[2][3] The Federal Courts of Appeals cases referred to by the
judge and Garner's brief do not significantly advance
Garner's [423
Mass. 742] case either.
United States v. Baker, 16 F.3d 854 (8th Cir.1994), did make
reference to the use of "distraction devices" similar to the one used
here. But the court held that the
warrant was reasonably executed because "the officers acted pursuant to
express no‑knock authority ... [and] the police had particularized,
timely information justifying a no‑knock entry." Id. at 856. In
Baker, the police had information that the front door of the house was
barricaded and there were two Doberman pinscher dogs inside; thus, the finding that "the police
reasonably believed the use of distraction devices was needed to effect a safe entry
was not clearly erroneous." Id.
The other case urged below and to this court, United States v. Stewart, 867 F.2d 581 (10th Cir.1989), provides
even less support for the judge's decision.
In Stewart, the police, who
were investigating a drug‑dealing operation and executing a Federal
search warrant,
"used
a two‑man steel battering ram to break down the front door [of a
residence] and immediately threw a full charge stun grenade into the living
room, where it detonated (as the officers stood back) with an explosion and flash. The occupants were blinded and disoriented
for at least five or ten seconds. There
was no knock and no warning before the door was broken down and the grenade was
detonated. There were three people in
the living room at the time, the defendant, a co‑defendant and a woman
who had no connection with any illegal activity. The co‑defendant was slightly
injured.... There was no testimony that
anyone had seen a gun in the house before the search. There were no other facts known to the police
that would have led to the inference that firearms were present in the
house."
Id.
at 583. Continuing its discussion of
the circumstances of this search, the court stated‑‑and this loomed
large for the judge below‑‑that "[t]he officers had no reason
to think that the house was barricaded and indeed it was not barricaded." Id. The sole ground for suppression of the
evidence obtained in Stewart was the
officers' failure to follow the dictates of 18 U.S.C.
§ 3109, which required "prior notice of authority and purpose before
forcing entry into a home," id.
at 584, quoting Miller v. United States,
357 U.S. 301, 313, 78 S.Ct. 1190, 1197‑1198, 2
L.Ed.2d 1332 (1958), as well as [423
Mass. 743] the absence of any
"information that would have led [the officers] to believe that the
defendant armed himself on a regular basis," id. at 585, thus providing no basis to believe that there was any
exigency to justify departure from § 3109's procedures. (FN5)
B
[4][5] In spite of this paucity of
Federal precedent, we do not doubt that an unreasonable execution of a warrant
may violate the Fourth Amendment. But
the execution was not unreasonable here.
The judge emphasized that:
"no
effort was made to determine whether the apartment was barricaded or fortified,
or if the occupants of the home were monitoring the area for police
activity. There was no indication that a
hostage situation existed or that any activities within the apartment were
endangering its inhabitants. In short,
the officers did not possess information that warranted the strength of the
police assault on the premises."
With respect, the conclusion does not
follow. The door to the apartment was
not barricaded and there was no reason to believe that it was. This is a factor considered in the Stewart case with regard to the use of
a battering ram. Whatever the
significance of the absence of this factor and the others mentioned by the
judge below, it is swamped by the very [423
Mass. 744] strong grounds the police
had for believing the occupants of 1261 Church Street were armed and
vicious. Garner, himself, was believed
to be armed with a sawed‑off shotgun‑‑a particularly lethal
weapon when used at close range. (This
weapon is surely as deadly as the Dobermans in Baker, supra.) A surprise
entry with overwhelming force, accompanied by a strong and stunning diversion,
may well have seemed the best way to avoid a deadly gun battle. True, it cannot be said that the methods used
were, in the judge's words, "necessary,
and thus reasonable conduct, to effect a safe entry into the dwelling"
(emphasis supplied). The police might
have secretly surrounded the apartment and waited until Garner left. Or they might have taken a chance on a less
dramatic and less overwhelming show of force.
But these are exactly the kinds of speculations that we must not
engage in under the aegis of determining whether police action in executing a
valid no‑knock warrant was reasonable in the circumstances. The question is not whether the methods of
the police entry were "necessary," but whether they were reasonable.
This leaves the one issue that was
certainly uppermost in the judge's mind when he deemed the search
unreasonable: The police knew or should
have known that two children and a pregnant woman were present in the
apartment. Even worse is the fact that
one of the children was in the room into which the diversionary device was
thrown. Because no evidence was offered
to the contrary, the judge inferred that the officer who threw the device did
not look into the room before his throw, even though he had been instructed to
do so. Faced with the weaponry and
dispositions of the suspects inside the apartment, we think it parses a
frightening situation too fine to fault the officer for not looking, or if he
had looked, for not seeing the child after he broke the window and before he
threw in the device. Although the stun
grenade may be dangerous, it is important to recall that it is not intended to
be. It is reusable and intended to
frighten and distract. The judge found
that the child sustained emotional injuries as a result of the assault and was
treated a few days later "for a health complaint associated with smoke
inhalation." The entry in force
would have been frightening even if the device had been detonated down a
hallway. And so, it must be said, would
have been a gun battle in which police officers or one of the bystanders might
have been shot or killed. As to the [423 Mass. 745] child's physical symptoms, the judge specifically found that the device
"filled the apartment with smoke," making it probable that the use of
the device anywhere in the apartment would have had similar effects. Once the decision to enter was made, the use
of the device within the apartment cannot be described as an unreasonable part
of a plan designed to get the operation over with as quickly as possible and to
minimize the possibility of a gun battle that might have been truly
lethal. While it is regrettable that the
device was deployed in a room where the little girl happened to be, it cannot
be said to have contributed greatly to the inherent dangerousness of the
situation as a whole, nor indeed to whatever ill effects she suffered.
C
[6] Before the single justice and on
argument to this court, Garner urged us to adopt a rule of practice for the
Commonwealth that would require the police to seek prior judicial authorization
for the use of the flash‑bang device discussed here, in much the same way
that we have long required explicit authorization for no‑knock entries
under a warrant. Commonwealth v. Rodriguez, 415 Mass. 447,
614 N.E.2d 649 (1993). Commonwealth v. Scalise,
387 Mass. 413, 439 N.E.2d 818 (1982). We
decline to do so. As the Supreme Court
demonstrated in Wilson v. Arkansas,
514 U.S. 927, ‑‑‑‑ ‑ ‑‑‑‑,
115 S.Ct. 1914, 1916‑1919, 131 L.Ed.2d 976
(1995), the knock and announce procedure is an ancient and distinct requirement
for the execution of a warrant. The stun
grenade, by contrast, is just one of many modes and devices by which an entry
may be effected in a variety of difficult and dangerous circumstances. That we now have this particular device
before us is not a good enough reason to single it out and fashion a new rule
of procedure in respect to it. To
fashion a proper response to the problems presented by this one device would
require us either to undertake a survey of other devices and procedures which
may present similar or greater hazards, or to fashion some rule of such
generality as would accomplish little but breed litigation, or finally to
require the police, where possible, to submit their plans for forcible entries
in detail for prior approval by a judicial officer. This would embark our judiciary on an
enterprise for which we are ill equipped by training or experience, and thus
quite different from those cases where we have adopted such practice rules. [423
Mass. 746] See, e.g., Commonwealth v. Rosario, 422 Mass. 48,
56, 661 N.E.2d 71 (1996) (adopting rule under which otherwise admissible
statements made in response to police questioning will not be excluded if made
within six hours of arrest); Commonwealth v. Ortiz, 422 Mass. 64, 661
N.E.2d 925 (1996) (same); Ciummei v.
Commonwealth, 378 Mass. 504, 509‑510, 392 N.E.2d 1186 (1979) (rule
requiring judge in criminal case to hold a colloquy with
defendant to ensure waiver of right to trial is made voluntarily and
intelligently).
The order allowing the defendant's motion
to suppress is vacated and an order denying the motion is to enter. The case is remanded to the Superior Court
for further proceedings consistent with this opinion.
So
ordered.
(FN1.) At the hearing, Hebert provided further
explanation regarding the diversionary device.
According to his testimony, the stun grenade is a metal cylinder
containing black powder and a small amount of magnesium which produces a loud
noise "like an M‑80 firecracker" and a big flash. It is not designed to cause injury or damage
and is reusable.
(FN2.) Throughout his decision, the judge
refers to Officer LaVoie as "Levine."
(FN3.) His citation to our rule of automatic
standing in this context may be inapposite, since the instant case was decided
solely under the Fourth Amendment to the United States Constitution, and the
Supreme Court has held that the doctrine of automatic standing has been
abandoned as a matter of Federal law. United States v. Salvucci,
448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).
(FN4.) This unnuanced
judgment was later qualified by the Supreme Court in Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct.
1914, 131 L.Ed.2d 976 (1995), which required officers to knock and announce
their intentions before executing a warrant, except where previously authorized
or in exigent circumstances. This
qualification has no bearing here, as the police were acting under the authority
of a no‑knock warrant which the judge found had been properly issued.
(FN5.) Reference was also made to United States v. Green, No. 93‑1284
(10th Cir. May 17, 1994), an unpublished decision. Unpublished decisions are specifically stated
to lack precedential effect by rule of that
court. Rule 36.3 of the Rules of the
Tenth Circuit (1996). In that case, a
forced entry was accompanied by the use of a diversionary devise. The court held that there were sufficient
exigent circumstances to justify an unannounced entry and use of the device,
since the police "were informed that a gun had been seen in the apartment
twenty‑four hours earlier ... [and that] cocaine was kept in a bedroom of
the house." The court did note
that there was no evidence to support the contention that the use of the flash‑bang
device was "excessive force rendering the search unreasonable. No one was injured. No children were present." Thus the court may be taken to assume that
the presence of children might be evidence of excessive force. Of course such a factor does not make the use
of the device unreasonable per se.
Although we take the facts as found by the judge, the judgment of
unreasonableness is reviewed de novo. United States v. Moland
996 F.2d 259, 260 (10th Cir.1993), cert. denied, 510 U.S. 1057, 114 S.Ct. 722, 126 L.Ed.2d 686 (1994).