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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. Marmolejos,
35 Mass.App.Ct. 1 (1993)
Appeals Court of Massachusetts,
No. 92‑P‑185.
Argued
Decided
Review Denied
William Volk, Cummington,
for defendant.
Jane Woodbury, Asst. Dist. Atty., for Com.
Before [35
Mass.App.Ct. 1]
BROWN, DREBEN and FINE, JJ.
BROWN, Justice.
A Superior
Court jury convicted the defendant upon an indictment charging trafficking in
cocaine of a net weight of two hundred grams or more. See G.L. c. 94C, §
32E(b )(4). The narrow question presented on appeal is
whether the trial judge properly refused to reconsider, pursuant to Mass.R.Crim.P. 13(a)(5), 378 Mass. 872 (1979), the
defendant's pretrial motion to suppress, which had been denied by a different
judge following an evidentiary hearing.
(FN1) The trial judge's refusal
to entertain reconsideration of the defendant's motion to suppress was not
error.
In his
pretrial motion to suppress, the defendant maintained that the cocaine was seized
as a result of a warrantless search of apartment # 2
at 36 Mozart Street in the Jamaica Plain section of Boston, that there were no
exigent circumstances justifying the entry without a warrant, and, further,
that the police did not have the consent of those present in the apartment to
enter. In rejecting the defendant's
arguments, the motion judge filed a memorandum of decision containing his
findings of fact and rulings of law, in which he concluded, in pertinent part,
that an initial entry made by State Trooper Jose Alejandro, who was acting in
an undercover capacity, was consensual, that a second entry made a few minutes
later by Alejandro, trailed by other officers, was also consensual, that the
police had probable cause to believe that a crime had been committed and
properly seized the contraband, and that no constitutional rights of the
defendant were violated. Given that the
defendant does not challenge the action of the motion judge, we need not review
that judge's subsidiary findings of fact.
(FN2) As previously noted, the [35 Mass.App.Ct.
3] defendant claims that the trial
judge erred in not reconsidering the motion to suppress.
Under Mass.R.Crim.P. 13(a)(5), "[u]pon
a showing that substantial justice requires, the judge ... may permit a
pretrial motion which has been heard and denied to be renewed." However, the judge has no obligation to
consider such a motion, "so long as no new issues are raised and the
relevant law has not changed." Commonwealth v. Parker, 412 Mass. 353,
356, 589 N.E.2d 306 (1992). Defense
counsel sought reconsideration of the motion at the close of all the
evidence. The trial judge had before him
the motion judge's memorandum of decision.
Characterizing the defendant's motion for reconsideration as "pro
forma," he denied it.
What the
defendant appears to be arguing here is that Trooper Alejandro's trial
testimony diverged from, and was inconsistent with, his testimony at the motion
hearing as to whether his second entry into apartment # 2 was with the consent
of the occupants. (FN3) Thus, as we understand it, the defendant
maintains that testimony at trial raised "new issues" within the
meaning of rule 13, thus requiring reconsideration of his motion to suppress.
At the
trial, Trooper Alejandro stated unequivocally on direct examination that Vilma Villanueva, the codefendant, who was the legal
occupant of the apartment, opened the apartment door for him to reenter. Alejandro reiterated the point on cross‑examination
and on recross‑examination. Because Alejandro was the first officer up
the stairs and the first to reach the second floor landing, other officers were
not able to testify directly as to how the door was opened or as to who opened
it. Trooper Stephen Matthews, however,
who closely trailed Alejandro, testified that there was a female at the door
when he arrived at the top of the stairs.
[35 Mass.App.Ct.
4] Any minor inconsistencies in
Trooper Alejandro's testimony as to his exact location at the time that he
announced the presence of the police (FN4) are not sufficient to support a
conclusion that "substantial justice" required reconsideration of the
motion to suppress, and do not vitiate the consent, as the defendant
claims. The evidence of Villanueva's
consent was not ambiguous. See and
compare Commonwealth v. Brown, 32 Mass.App.Ct. 649, 651‑652, 593 N.E.2d 245
(1992). Alejandro testified that when he
arrived at the top of the stairs, "Vilma
[Villanueva] had the door open, [and was] looking out." (FN5)
The trial judge fairly could conclude that the circumstances here
revealed invitation, and thus consent, given that the occupants, who were in
the midst of their efforts to execute a sale of narcotics to Alejandro, were
anxiously awaiting his return with the purchase money. (FN6)
See id. at 652, 593 N.E.2d 245. It makes no difference that entry to the
apartment was obtained by a ruse. Commonwealth v. Sepulveda, 406 Mass. 180,
182, 546 N.E.2d 879 (1989).
Parenthetically,
we commend these police officers for their decision to secure the apartment
until a search warrant for the entire apartment could be obtained, actions
which may fairly be characterized as reasonable and restrained in the
circumstances. See Commonwealth v. A Juvenile, 411 Mass. 157, 165 n. 9, 580 N.E.2d
1014 (1991). Compare Commonwealth v. Skea, 18 [35 Mass.App.Ct.
5] Mass.App.Ct.
685, 691, 470 N.E.2d 385 (1984).
Contrast Commonwealth v. Wigfall, 32 Mass.App.Ct. 582,
586‑587, 595 N.E.2d 327 (1992).
Judgment affirmed.
DREBEN, Justice (concurring).
At trial
Officer Alejandro testified that Villanova had opened the door for him to
enter, had stood "right in front of the door," and "was
surprised." He also testified, on
cross‑examination, that as he got to the door he had his "firearm
out" and "when [he] came to the threshold of the door," he
announced, "State police." In
these circumstances I do not consider the evidence at trial of consent to the
second entry to be as unambiguous as do the majority of the panel. I note that at the hearing on the motion to
suppress, Alejandro did not mention that he had his gun drawn when he
approached the apartment. He also
explicitly testified at that hearing that he made the announcement of
"State police" after his
entry into the apartment.
It is,
however, unnecessary in my view to determine whether the evidence at trial
contradicted the evidence at the suppression hearing which supported the
conclusion that the second entry was consensual. The trial judge's refusal to reconsider the
pretrial motion to suppress is supported on the ground briefly mentioned in
note 6 of the majority opinion, namely that the police had probable cause to
make the second entry into the apartment and that the circumstances were
exigent.
On the
occasion of the original entry, which the defendant concedes was consensual,
Alejandro, acting in an undercover capacity, had been shown samples of the
drugs he had shown an interest in purchasing.
After rejecting one sample and indicating satisfaction with another, he
left the apartment for the ostensible purpose of obtaining money from his
car. Had Alejandro not promptly
reappeared on the second floor, having stated that he was satisfied with the
sample examined by him, the occupants would have become alarmed and would
likely have destroyed or removed the evidence.
Because there [35 Mass.App.Ct. 6]
was not time to obtain a warrant, the trial judge acted correctly in not
reconsidering the pretrial motion.
(FN1.) The defendant is not appealing the
denial of his pretrial motion.
(FN2.)
We observe, however, that there is evidentiary support in the record for the
findings of the motion judge. See in
this regard Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990)
("we accept the motion judge's subsidiary findings of fact absent clear
error").
(FN3.)
There is no dispute that Trooper Alejandro's initial entry was by consent. Nor does the defendant contest that while in
the apartment, Alejandro observed a "kilo" of cocaine, which was in
plain view. We note in passing that
contraband may be seized by the police without a warrant whenever it is in
plain view and the police are in a place where they have a right to be.
Sullivan v. District Ct. of Hampshire, 384 Mass. 736, 742‑743,
429 N.E.2d 335 (1981).
(FN4.)
Trooper Alejandro testified on cross‑examination that he had his firearm
out but he denied that it was pointed at Villanueva. There was no mention of the trooper's firearm
at the motion hearing.
(FN5.)
As mentioned above, Trooper Alejandro's second entry was within a few minutes
of his departure following his previous entry into the apartment.
(FN6.)
Although the majority of the panel concludes that the testimony at trial would
support a finding of entry by consent, we note that there was another basis for
upholding the warrantless search. Probable cause and exigent circumstances
provide constitutional justification for the warrantless
search of the residence. See, e.g., Commonwealth v. Skea,
18 Mass.App.Ct. 685, 695, 470 N.E.2d 385 (1984). Had the officer not returned promptly to
complete the purchase, the occupants would have become suspicious and very
likely would have moved or destroyed the drugs.
They had made statements to the trooper to the effect that they wanted
to sell the drugs quickly.