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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Gondola, 28 Mass.App.Ct.
286 (1990)
Appeals Court of Massachusetts,
Middlesex.
No. 89‑P‑813.
Argued
Decided
[28 Mass.App.Ct.
287] Richard Birke,
Asst. Dist. Atty., for Com.
John C. McBride,
Robert J. Wheeler, Jr.,
Before [28
Mass.App.Ct. 286]
FINE, CUTTER and JACOBS, JJ.
[28 Mass.App.Ct. 287]
FINE, Justice.
[1] A
Superior Court judge allowed the defendants' motion to suppress drugs and drug
paraphernalia found in their apartment in
The
Commonwealth contends on appeal, first, that the judge erred in applying the
exclusionary rule as the remedy for the violation. Instead, the Commonwealth contends, the judge
should have engaged in a cost‑benefit analysis, balancing the seriousness
of the violation against the harm caused by suppression of the evidence. Compare
Commonwealth v. Sheppard, 387 Mass. 488, 507 n. 20, 441 N.E.2d 725 (1982), revd., 468 U.S. 981, 104 S.Ct.
3424, 82 L.Ed.2d 737 (1984) (Sheppard I
);
Commonwealth v. Sheppard, 394 Mass. 381, 391 n. 8, 476 N.E.2d 541
(1985) (Sheppard II ). Had the judge done so, it is argued, the
relatively minor departure from the requirements of the rule would have been
outweighed by the serious harm to the public resulting from barring the
prosecution[28 Mass.App.Ct.
288]
from using the evidence. Second,
the Commonwealth contends that suppression of the evidence was not required
because full compliance with the requirements of the rule, in the circumstances,
would have been a "useless gesture."
The judge
found the following facts. On the night
of the search, two police officers went to the front door of the defendants'
apartment, while a third officer went to the side of the house. One officer knocked rapidly on the door four
or five times, waited a few seconds, and then knocked
again. One of the officers heard no
voices from within. (The other officer
testified that he heard voices from within, but the judge did not include that
point in his findings.) There was no
response to the knocks. After a
perceptible pause, he tried the door, found it unlocked, and opened it. One of the officers entered the apartment and
began walking up the hallway. When the
second officer to enter the apartment was perhaps one step inside the doorway,
he announced "police." They
walked into another room where, upon finding one of the defendants, they
announced that they had a search warrant.
1. There
is little question that the police officers were acting without any improper
intent, and it is apparent, with hindsight, that little, if any, harm was
caused by the unannounced entry. Thus,
if we were to accept the Commonwealth's invitation to engage in a cost‑benefit
analysis, the balance might well tip in favor of allowing the Commonwealth to use
the narcotics as evidence at trial. We
think that analysis is foreclosed, however, by Commonwealth v. Manni, 398 Mass. at 741,
500 N.E.2d 807. See also Commonwealth v. Upton, 394 Mass. 363,
368 n. 4, 476 N.E.2d 548 final par.
(1985). In the Manni case, a
police officer knocked on the door of the defendant's dwelling and,
simultaneously, turned the knob and opened the unlocked door. He announced his identity and purpose
"as soon as [he] got in the room."
398 Mass. at 742, 500 N.E.2d 807.
The court held that the "knock and announce" rule had been
violated and, without explanation, applied the exclusionary rule as the
remedy. We assume that the basis for the
application of the exclusionary rule was the significance and ancient origin of
the privacy rights involved and "recognition of the shared [28 Mass.App.Ct.
289] common‑law roots" of
the knock and announce rule and the constitutional right to be secure against
unreasonable searches and seizures. United States v. Nolan, 718 F.2d 589, 596
(3d Cir.1983). See the discussion of the
history and purpose of the rule in Ker v. California, 374 U.S. 23, 47‑52, 83 S.Ct. 1623, 1636‑1639, 10 L.Ed.2d 726 (1963)
(Brennan, J., dissenting), and
Commonwealth v. Cundriff, 382 Mass. at 140‑147,
415 N.E.2d 172.
It is true
that later, in Commonwealth v. Sepulveda,
406 Mass. at 181, 546 N.E.2d 879, the court stated that the knock and announce
rule, having its origin in the common law, is not constitutionally
required. Nowhere in that decision,
however, is the question discussed whether, notwithstanding the lack of
constitutional grounding for the knock and announce rule, the exclusionary rule
might be applied in the event of a violation.
The knock and announce rule was held inapplicable to the facts of the
case in Sepulveda because entry was
gained peaceably, with consent. Manni was
distinguished on the ground that it involved uninvited entry through an
unlocked door. 406 Mass. at 182, 546
N.E.2d 879. Recognizing that occupants
of a dwelling who close but do not lock their front door reasonably do not
expect that uninvited persons will enter at will, see Sabbath v. United States, 391 U.S. 585, 88 S.Ct.
1755, 20 L.Ed.2d 828 (1968), the
Sepulveda court, understandably, viewed the entry in Manni as nonconsensual. The
Sepulveda decision, as we read it, leaves the Manni decision intact insofar as Manni holds
that the appropriate remedy for a violation of the knock and announce rule is
suppression of the evidence seized in the search. As the rule is not constitutionally based, if
the Legislature should conclude that the public interest so requires, it could
relax or change the remedy, for example, by giving trial court motion judges
some discretion to determine in a particular case that a less severe remedy may
be appropriate and adequate to encourage good faith police compliance with the
rule. See and compare Commonwealth v. Santoro, 406 Mass. 421,
423‑424, 548 N.E.2d 862 (1990), and
Commonwealth v. Manning, 406 Mass. 425, 429, 548 N.E.2d 1223 (1990).
[2][3]
Although the facts in the present case differ slightly from those in Manni, the
differences, in our view, are insignificant. [28 Mass.App.Ct.
290] Nor was the violation de minimis. One of the
officers was several feet inside the apartment and, according to his testimony,
"walking briskly" when their identity was first announced.
Neither officer was in uniform.
One of the purposes of the rule is to decrease the potential for
physical violence. (FN2) The judge properly determined, therefore,
that the remedy for the violation was suppression of the drugs found in the
search of the apartment.
[4] 2. The
Commonwealth makes the alternative contention, not raised in the trial court,
that full compliance with the "knock and announce" rule "would
have amounted to a useless gesture." State v. Suits, 73 Wis.2d 352, 356, 243
N.W.2d 206 (1976). See State v. Jones, 127 N.H.
515, 521, 503 A.2d 802 (1985). As the
occupants either did not hear the knocking, or heard it but did not respond,
the Commonwealth takes the position that any announcement would have been
futile.
Massachusetts
has given recognition to a "useless gesture" exception, at least in
the narrow situation "where 'the facts known to officers would justify
them in being virtually certain that the ... [occupant] already knows their
purpose ...' " (citations omitted). Commonwealth v. McDougal, 2 Mass.App.Ct. 820, 309 N.E.2d 891 (1974). See also
Commonwealth v. Cundriff, 382 Mass. at 147 n. 15,
415 N.E.2d 172. Compare United States v. James, 764 F.2d 885,
888 (D.C.Cir.1985). The present case is
not one in which the police officers could reasonably have believed that the
occupants were aware of their identity and purpose. Relying on two cases from other jurisdictions
applying the "useless gesture" exception, the Commonwealth argues
that the doctrine is not so narrowly limited and applies to the facts of the
present case. State v. Suits, 73 Wis.2d at 352, 243
N.W.2d 206, dealt with a situation in which police officers, having observed
through an open door that people were in the living room and a party was in
progress, concluded that a knock on the door would not have been heard.
State v. Jones, 127 [28 Mass.App.Ct. 291]
N.H. at 515, 503 A.2d 802, dealt with a situation in
which police officers observed through an unlocked glass door a person asleep
on a couch; their knocking failed to
arouse him, and they concluded that any announcement would also have failed to
arouse him. In each of the cases relied
upon it was held that full compliance with the knock and announce rule was not
required as it would have been a "useless gesture."
In the
present case, on the other hand, the officers had made no observations which
could have led them reasonably to believe that announcing their presence,
identity, and purpose would have been futile.
One of the officers testified that he heard voices from within the
dwelling. He must have sensed,
therefore, that it was occupied. It does
not seem unlikely that a prior announcement would have been heard by the
occupants. We do not think that the
failure to respond to the knocks, by itself, was sufficient to establish the
futility of making a verbal announcement.
Order allowing motion to suppress affirmed.
(FN1.) One against Charles Gondola and two
against Loretta Gondola.
(FN2.) The
other two purposes are to protect privacy and to prevent destruction of
property. See Commonwealth v. Scalise, 387 Mass. at
417, 439 N.E.2d 818, quoting from
Commonwealth v. Cundriff,
382 Mass. at 146, 415 N.E.2d 172; 2 LaFave, Search & Seizure § 4.8(a) (1987).