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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. Lopez, 38 Mass.App.Ct.
748 (1995)
Appeals Court of Massachusetts,
No. 94‑P‑309.
Lisa J. Stephani,
Jane L. McDonough, Asst. Dist. Atty., for Com.
Before ARMSTRONG, KASS and
GREENBERG, JJ.
ARMSTRONG, Justice.
At issue
is whether exigent circumstances excused police officers' failure to obtain an
arrest or search warrant prior to entering the defendant's apartment to arrest
him.
The entry
immediately followed a controlled buy of cocaine. Undercover officer Alejandro made the
purchase, having been led to the defendant's apartment and introduced to him by
an informant called "Juney." After the buy, Alejandro on leaving gave a
prearranged signal to the several officersposted [38 Mass.App.Ct.
749] outside that the buy had been
accomplished, and those officers converged on the apartment, entered, and
arrested the defendant who was then in the process of trying to dispose of the
marked bills ($2,700) that Alejandro had given him. Beyond arresting the defendant and recovering
the marked bills and the wallet they had been in, the police made no further
search or seizure. (FN1)
[1] The
judge ruled correctly that the circumstances were exigent. "Juney"
was not shown to be an informant of established reliability. The police lacked probable cause to obtain a
warrant until the controlled buy was accomplished.
[2] The
typical factors supporting a finding of exigency in cases when probable cause
arises only upon a successful controlled buy are present in this case: the apartment remained occupied by the
defendant and others, (FN2) any one of whom would have to be stopped and
searched if he or she left the premises, unless the police were to risk the
loss of evidence; [38 Mass.App.Ct.
750] additional visitors could
appear at any time; the defendant would
have time to secrete the marked bills without leaving the apartment; and a surveillance close enough to avoid the
risk of the marked bills being moved from one apartment to another within the
building would invite detection, giving the defendant time to destroy evidence.
[3] Viewed
another way: when Officer Alejandro made
the controlled buy, he had witnessed the commission of a felony and could have
effected the arrest on the spot within the apartment and, presumably, summoned
reinforcements from the officers waiting outside. If, instead, to protect his or the informant's
identity, or for reasons of police safety, the police should deem it more
prudent to have the buying officer leave and then immediately enter in force,
there has been no significant additional intrusion on the defendant's
expectations of privacy, and a court should not second guess the judgment of
the officers in the field. On either
analysis, the motion to suppress was correctly denied.
[4] The
other points argued are without merit.
The defendant's counsel is not shown on this record to have been
ineffective in not pressing (and, indeed, withdrawing) his motion for
disclosure of "Juney's" full name and
whereabouts. This was obviously a
tactical decision; we have no way of
knowing the reasons for it. Typically
this is the type of information that must be developed on a motion for a new trial. Earl
v. Commonwealth, 356 Mass. 181, 183‑184, 248 N.E.2d 498 (1969);
Commonwealth v. Colomna, 33 Mass.App.Ct. 914, 915, 597 N.E.2d 445 (1992), although,
equally typically, conscious tactical decisions by trial counsel, unless shown
to be manifestly unreasonable, will not be ground for a new trial.
Commonwealth v. Adams, 374 Mass. 722, 728, 375 N.E.2d 681 (1978).
Commonwealth v. White, 409 Mass. 266, 272‑273, 565 N.E.2d 1185
(1991). The judge's instructions on
reasonable doubt tracked the Webster
charge without significant deviation (Commonwealth
v. Webster, 59 Mass. 295, 5 Cush. 295, 320 [1850]
); similarly, the judge's instruction on
unanimity of the jury verdict was the standard charge. What the defendant is asking, as he
recognizes, is that we overrule
Commonwealth v. Dinkins, 415 Mass. 715, 723‑724, 615 N.E.2d 570
(1993), and Thames v. Commonwealth,[38 Mass.App.Ct.
751]
365 Mass. 477, 479, 312 N.E.2d 569 (1974). This, for the reasons stated in Burke v. Toothaker,
1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973), we
may not do.
Judgment affirmed.
(FN1.) As Alejandro and "Juney" left the premises and walked down the street,
one of the officers staking out the premises emerged from his concealed
location. The defendant, who was
watching the departure from his front window, observed the officer and his
uniform and immediately ran back into the apartment. At that point, unquestionably, circumstances
were exigent, because the defendant was alerted; but as the police were intending to raid the apartment
immediately in any case, the defendant's premature detection of the raid is not
crucial to our analysis.
(FN2.)
Contrast Commonwealth v. Hall, 366
Mass. 790, 802, 323 N.E.2d 319 (1975), where the police knew there was no one
in the apartment.