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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. Lee, 32 Mass.App.Ct.
85 (1992)
Appeals Court of Massachusetts,
Nos. 90‑P‑175, 90‑P‑1046.
Argued
Decided
Further Appellate Review Denied
Charles W. Rankin,
Marina Medvedev, Asst.
Dist. Atty., for Com.
Before DREBEN, FINE and GILLERMAN, JJ.
FINE, Justice.
After a
jury‑waived trial in the Superior Court, the defendant was convicted of
trafficking in cocaine. His trial
counsel did not file a motion to suppress evidence obtained by the police as a
result of a warrantless entry to a private basement
area in his supermarket. Unquestionably,
the evidence obtained as a result of the entry had a significant influence on
the verdict, and it is unlikely that any strategic considerations prevented
counsel from moving to suppress it. With
different counsel, the defendant moved for a new trial, claiming that trial
counsel had provided ineffective assistance by failing to file any motion to
suppress. The new [32 Mass.App.Ct. 86] trial motion, supported only by the record of evidence at trial
and an affidavit from the defendant describing his business premises, was
denied. The present appeals are from the
defendant's conviction and the denial of his motion for a new trial. The question before us is whether there is a
reasonable likelihood that, if a pretrial motion to suppress had been filed, it
would have been allowed.
The
relevant evidence was as follows. Around
2:30 P.M. on June 24, 1987, two undercover officers, Jeffrey Coy and Donald Gosselin, were introduced to Fitzgerald Lee, the
defendant's son. They discussed the
officers' interest in buying five ounces of cocaine for $4,500. Fitzgerald Lee said he would have to talk to
his father and proceeded to make a call from a pay phone. Upon completion of the telephone call,
Fitzgerald Lee, Officers Coy and Gosselin, and
another individual drove by automobile to the defendant's supermarket. Officer Coy and Fitzgerald Lee went
inside. Fitzgerald Lee approached the
defendant, and the two engaged in a whispered conversation. Fitzgerald Lee and Officer Coy then opened a
door marked "employees only" and descended a staircase to the
basement. They discussed the drug
transaction, and Officer Coy gave Fitzgerald Lee a $200 advance. Officer Coy returned to the automobile. He saw the defendant leave the supermarket
briefly and stare at the three individuals waiting in the vehicle. Fitzgerald Lee then returned to the vehicle
and told the group they would have to wait elsewhere for word that the drugs
were ready. The group drove to
Fitzgerald Lee's apartment, and Officers Coy and Gosselin
waited outside in the vehicle. Word that
the drugs were ready came around 4:00 P.M., and the
group returned to the supermarket.
Officer Coy and Fitzgerald Lee again descended to the basement. Doreen Smith, an employee of the defendant (who
was tried with the defendant but acquitted), handed Fitzgerald Lee a bag containing
cocaine. Officer Coy handed over $4,500
in currency, and Fitzgerald Lee and Doreen Smith proceeded to count the money.
[32 Mass.App.Ct.
87] Boston police detective Thomas
Matheson had previously recorded the serial numbers on the larger bills. Officer Coy and Fitzgerald Lee returned to
the waiting vehicle, which drove off. A
police surveillance team quickly stopped the vehicle and arrested the occupants
near the defendant's supermarket.
Meanwhile, Detective Matheson entered the basement and found the
defendant and Doreen Smith counting the money Officer Coy had just used to pay
for the drugs. The defendant and Doreen
Smith were placed under arrest.
[1] The
police officers had no warrant to enter the basement area either to search it
or to make an arrest. On the evidence
presented, a reasonable fact finder could find that, even though the basement
area of the supermarket was being used for commercial rather than residential
purposes, the defendant had a reasonable expectation of privacy in it which was
entitled to protection under the Fourth Amendment to the United States
Constitution. See Commonwealth v. Cadoret, 388 Mass. 148,
150, 151, 445 N.E.2d 1050 (1983). The
police were without authority, therefore, to make a nonconsensual entry into
the basement area unless they had probable cause to make an arrest or to search
for evidence and, in addition, there were exigent circumstances. See
Payton v. New York, 445 U.S. 573, 590, 100 S.Ct.
1371, 1382, 63 L.Ed.2d 639 (1980); Commonwealth v. Forde,
367 Mass. 798, 800, 329 N.E.2d 717 (1975); Commonwealth v. Hamilton, 24 Mass.App.Ct. 290, 292‑293, 508 N.E.2d 870
(1987). The existence of probable cause
either to search the basement or arrest the defendant not being in dispute, the
sole issue before us is whether the Commonwealth met its burden of showing, by
strict standards, Commonwealth v. Forde, 367 Mass. at 800, 329 N.E.2d 717 the existence
of exigent circumstances sufficient to excuse the failure of the police to
obtain a warrant. See Commonwealth v. Hall, 366 Mass. 790,
801, 323 N.E.2d 319 (1975); Commonwealth v. Forde,
supra. "[T]he question whether
exigent circumstances exist depends upon an evaluation of all the
circumstances." Commonwealth v. Huffman, 385 Mass. 122,
126, 430 N.E.2d 1190 (1982).
[2] The
defendant contends that the police officers involved in the investigation could
have sought a warrant to search the basement or to arrest the defendant much
earlier in the day, [32 Mass.App.Ct. 88]
after the drug deal had been discussed and $200 had changed hands. If the police could have obtained a warrant
earlier in the day, they could not justify the warrantless
entry to the basement on the basis of exigency.
See Commonwealth v. Forde, 367 Mass. at 801‑803, 329 N.E.2d 717;
United States v. Rubin, 474 F.2d 262, 268 (3d Cir.1973); 2 LaFave, Search
and Seizure: A Treatise on the Fourth
Amendment § 6.1(f), at 604 n. 174 (2d ed. 1987). Until Officer Coy emerged from the
defendant's store with the drugs, however, the arrangement remained tentative
and uncertain at best, particularly as to when and where the sale would take
place. It would have been impracticable,
therefore, for the officers to have requested a magistrate to issue a warrant
much before the officers and Fitzgerald Lee returned to the supermarket to
complete the transaction. See Commonwealth v. Cast, 407 Mass. 891,
904, 556 N.E.2d 69 (1990); Commonwealth v. Olivares, 30 Mass.App.Ct. 596, 599, 571 N.E.2d 416 (1991). Once the time and place of the exchange were
set, events moved too rapidly to make it feasible for the officers to obtain a
warrant.
Factors to
be considered in determining exigency when there is insufficient time to obtain
a warrant have been enumerated. See Commonwealth v. Forde,
367 Mass. at 807, 329 N.E.2d 717; Commonwealth v. DiSanto,
8 Mass.App.Ct. 694, 700, 397 N.E.2d 672 (1979);
Dorman v. United States,
435 F.2d 385, 392‑393 (D.C.Cir.1970);
2 LaFave,
supra § 6.1(f), at 596‑598 (warrantless
entry to arrest) & § 6.5(a), (b), & (d) (warrantless
entry to search). See also United States v. Rubin, 474 F.2d at 268‑269
(frequently both warrantless search and warrantless arrest are involved; criteria are similar). Many of the factors mentioned in those
authorities do not apply to the instant case.
Three, however, are applicable here.
Two of these are (1) whether there was probable cause to believe the
suspect committed a felony and strong reason to believe the suspect was present
in the place to be entered, and (2) whether entry was made peaceably and during
daylight. In this case, before the
police entered the basement, they had probable cause to arrest the defendant
and strong reason to believe the evidence would be found there. The entry was [32 Mass.App.Ct. 89] peaceable and was made during daytime hours. The third factor, of crucial significance
here, is whether delay attendant upon securing a warrant was likely to result
in destruction or disappearance of evidence.
See Commonwealth v. Hall, 366
Mass. at 801‑802, 323 N.E.2d 319; Commonwealth v. Forde,
367 Mass. at 801, 329 N.E.2d 717; Commonwealth v. Huffman, 385 Mass. at 125‑126,
430 N.E.2d 1190; United States v. Rubin, 474 F.2d at
268; 2 LaFave, supra § 6.5(a) & (b).
The
Commonwealth contends that the circumstances were exigent once the buy was
completed because there was an urgent need to seize the currency for use as
evidence. Otherwise, there was a danger,
given the nature of the defendant's business, that the bills, whose serial
numbers had been recorded by the police, would be used in commerce or otherwise
quickly dispersed, and the evidence would have vanished. The money used to pay for the drugs was
crucial potential evidence as it was the link to the supplier. The circumstances were viewed by this court
as exigent on very similar facts in
Commonwealth v. Olivares, 30 Mass.App.Ct. at 597‑598,
599, 571 N.E.2d 416. See also Diggs v. State, 531 N.E.2d 461
(Ind.1988); State v. Miller, 19 Or.App.
604, 528 P.2d 1082 (1974); State v. Peardot,
119 Wis.2d 400, 402‑406, 351 N.W.2d 172 (1984). Compare
People v. Blasius, 435 Mich. 573, 459 N.W.2d 906
(1990).
The
defendant argues that nothing in the record suggests that, at the time the
police entered the basement without a warrant, he had any awareness of the
police investigation. He contends,
therefore, that the fear that evidence would disappear was based not upon any
specific threat, but upon pure speculation.
Compare United States v. Veillette, 778 F.2d 899, 901‑903 (1st Cir.1985),
cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d
654 (1986); Commonwealth v. Hall, 366 Mass. at 802‑803,
323 N.E.2d 319; Commonwealth v. Huffman, 385 Mass. at 123‑124,
125‑126, 430 N.E.2d 1190.
Although the defendant is correct that it would not have been sufficient
for the Commonwealth to establish exigency by showing a mere possibility that
the evidence would disappear, we think, on the basis of the officers' testimony
at trial, the Commonwealth would have been able to make the necessary
showing. It is true that there was no
specific evidence of [32 Mass.App.Ct. 90]
the defendant's awareness of the investigation or of his, or anyone else's,
intention immediately to disperse the funds.
However, the defendant operated a supermarket in which currency was
constantly changing hands, and, presumably, large numbers of people were
regularly entering, transacting business, and leaving. Moreover, there was a likelihood that the
defendant would soon become "aware that the police [were] on [his]
trail," United States v. Rubin,
474 F.2d at 268, and that the money might be marked. The arrest of Fitzgerald Lee and the others
was made near the supermarket, and it was possible that the defendant would
soon have been alerted to that fact.
Fitzgerald Lee, himself, would soon have been able to alert his father to
his arrest by telephone from the police station. Moreover, drug dealers may be expected to
know of the police practice of using marked money for undercover drug
buys. In these circumstances, we think
it reasonable for the officers to have believed that some or all of the bills
would leave the supermarket in the hands of someone other than the defendant
before a warrant could be
obtained. This would be so even if
officers stationed at the supermarket exits could have arrested the defendant
had he sought to leave.
We also
weigh in the balance, for the purpose of determining whether there were
sufficiently exigent circumstances to justify the police in entering the
premises without a warrant, the nature of the area invaded and the extent to
which an occupant would have had a reasonable expectation of privacy. Although entitled to reasonable Fourth
Amendment protection, the basement area was not a dwelling, but, instead, a
supermarket stock room area open at least to employees. Compare
G.M. Leasing Corp. v. United States, 429 U.S.
338, 353, 97 S.Ct. 619, 629, 50 L.Ed.2d 530 (1977);
Donovan v. Dewey, 452 U.S. 594, 598‑599, 101 S.Ct. 2534, 2537‑38, 69 L.Ed.2d 262 (1981); Dow
Chem. Co. v. United States, 476 U.S. 227, 236‑237, 106 S.Ct. 1819, 1826, 90 L.Ed.2d 226 (1986).
In sum, we
think it likely that a judge ruling on any motion to suppress filed in this
case would have found that the police were faced with exigent circumstances
when they entered the supermarket basement without a warrant and that [32 Mass.App.Ct.
91] a motion to suppress would have
been denied. The defendant has not
shown, therefore, that failure to file the motion deprived him of the effective
assistance of counsel at his trial.
Judgment affirmed.
Order denying motion for new trial affirmed.