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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. Osorno, 30 Mass.App.Ct.
327 (1991)
Appeals Court of Massachusetts,
No. 89‑P‑1148.
Argued
Decided
Further
Appellate Review Denied
Francis T. O'Brien, Jr.,
Kenneth V. Desmond,
Before DREBEN, KAPLAN and GILLERMAN, JJ.
DREBEN, Justice.
Following
his conviction for trafficking in excess of 100 grams of cocaine, (FN1) the
defendant filed a motion for a new trial claiming that drugs seized from him by
police executing a search warrant of an apartment should have been suppressed. (FN2)
The reason‑‑the police had failed to comply with the
"knock and announce" rule, see
Commonwealth v. Cundriff, 382 Mass. 137, 415
N.E.2d 172 (1980), cert. denied, 451 U.S. 973, 101 S.Ct.
2054, 68 L.Ed.2d 353 (1981), a rule which "[a]part from situations falling
within narrowly defined exceptions" requires a police officer, before
entering a dwelling, to "knock, identify himself as a police officer, and
state his purpose." Commonwealth v. Gondola, 28 Mass.App.Ct. 286, 287, 550 N.E.2d 880 (1990), and cases
cited.
Recognizing
that this claim had not been made prior to trial when a motion to suppress on
other grounds had been filed, new counsel put forth two alternate claims in
support of the motion for a new trial:
1) testimony at trial constituted newly discovered evidence suggesting
that cocaine had been seized pursuant to an illegal execution of the
warrant; 2) if the evidence is not
deemed newly discovered, the defendant was ineffectively assisted by
counsel. (FN3) The trial judge considered the motion on the
basis of trial testimony and the defendant's affidavit, and, after a nonevidentiary hearing, rejected both claims. (FN4)
In this appeal from the denial of the motion for a new trial, the
defendant renews the same arguments and also claims error in the failure of the
judge to grant an evidentiary hearing.
[1] 1. Ineffective assistance of counsel. The judge decided that the defendant had not
been deprived of an available substantial ground of defense, and, accordingly,
did not consider the first prong of
Commonwealth v. Saferian, 366 Mass. 89, 96, 315
N.E.2d 878 (1974): whether there was
behavior of counsel falling measurably below that which might be expected from
an ordinary fallible lawyer. We follow
the same route noting, moreover, that nothing in the record suggests counsel
fell below the Saferian
standard.
We turn to
whether the "no knock" claim was an available substantial ground of
defense. The evidence before the motion
judge as to the execution of the search warrant‑‑a warrant which
did not authorize the police to enter the premises without announcement‑‑consisted
of the testimony of police and the defendant's affidavit. The latter in conclusory
fashion, insofar as here pertinent, stated merely that while the defendant was
lawfully present in apartment 128 at 60 Charles Gate East, "the police
entered the apartment without announcement." As noted by the motion judge, "Because
the manner of entry into the apartment was not an issue at trial, the testimony
about it is scant."
What
appears from the transcript is that at about 9:00 P.M. on June 22, 1988, Rentas, an undercover police officer (who had previously
purchased drugs from an occupant of the apartment), went to the front door on
the first floor of the apartment building to ring the bell to apartment 128 on
the fifth floor. In the meantime, three
other officers had climbed the back stairs to the fifth floor and were waiting
near the door of apartment 128. After Rentas rang the downstairs buzzer, the apartment door
opened and the three officers who were outside waiting entered without
problem. Detective Hartford, the first
officer to enter, gave the following response when asked to "[t]ell the
members of the jury just exactly what you encountered, what you saw just as you
crossed the threshold of that apartment."
[30 Mass.App.Ct. 330] "As I entered the apartment, I
identified myself as a police officer and one of the occupants [name of
occupant omitted] ran towards the bathroom carrying a plastic
bag. I grabbed ..."
We digress
to determine whether the motion judge erred in denying an evidentiary
hearing. Noting that the defendant's
affidavit provided no details, was "unimpressive on the whole, [and was]
unpersuasive as to the manner of the police entry," the judge held that
the defendant's "conclusory statement"
contradicting the trial testimony of Officer Hartford did not "prompt
[him] to conduct an evidentiary hearing."
[2][3] A
judge need not hear evidence and may decide a post‑conviction motion on
the basis of affidavits. Where, however,
"a substantial issue is raised and is supported by a substantial
evidentiary showing", an evidentiary hearing should be held.
Commonwealth v. Stewart, 383 Mass. at 259‑260, 418 N.E.2d 1219
(1981).
Commonwealth v. Meggs, 30 Mass.App.Ct. 111, 114‑115, 565 N.E.2d 1249
(1991). Mass.R.Crim.P.
30(c)(3), 378 Mass. 901 (1979). Whether
to decide a motion for a new trial on the basis of affidavits or to hear oral
testimony is a matter within the discretion of the judge. Commonwealth v. Stewart,
383 Mass. at 257, 418 N.E.2d 1219. Fogarty v. Commonwealth, 406 Mass. 103,
110‑111, 546 N.E.2d 354 (1989).
There was here no abuse of discretion.
[4] On the
substantive issue, the judge ruled:
"[T]here was no need to
knock because the door was open.
Although the transcript does not establish whether any part of
Hartford's body, or the body of either of the other officers, had broken the
plane of the threshold before he announced himself, it does establish that a
peaceful, announced entry was made by the search party."
The
common law "knock and announce" rule is one which is not
constitutionally required. Commonwealth v. Sepulveda, 406 Mass. 180,
181, 546 N.E.2d 879 (1989). Its original
rationale continues today: "decreasing
the potential for violence [initiated by residents in response to a sudden and
unexpected invasion of their premises, provoking further retaliatory
violence[30 Mass.App.Ct. 331] by the police], protection of privacy, and
the prevention of unnecessary damage to homes." Id. at 182, 546 N.E.2d 879,
quoting from Commonwealth v. Cundriff, 382 Mass. at 146, 415 N.E.2d 172. See
Commonwealth v. Gomes, 408 Mass. 43, 45, 556 N.E.2d 100 (1990).
[5]
Because of the importance of the privacy interests involved even some
nonviolent entries are subject to the rule.
Thus an entry through an unlocked door will require an
announcement. "[O]ccupants of a dwelling who close but do not lock their
front door reasonably do not expect that uninvited persons will enter at
will." Commonwealth v. Gondola, 28 Mass.App.Ct. 286, 289, 550 N.E.2d 880 (1990).
Commonwealth v. Manni, 398 Mass. 741, 742‑743,
500 N.E.2d 807 (1986). A consensual
police entry, even if obtained by ruse or trickery, however, will not invoke
the rule.
Commonwealth v. Sepulveda, 406 Mass. at 182‑183, 546 N.E.2d
879. (FN5) And it appears, although there is no
Massachusetts case on point, that a number of courts permit a peaceable police
entry without announcement through an open door when made in the presence of
the defendant. See, e.g., under the
Federal statute, (FN6) United States v.
Williams, 351 F.2d 475, 477 (6th Cir.1965), cert. denied, 383 U.S.
917, 86 S.Ct. 910, 15 L.Ed.2d 671 (1966); Ng Pui Yu v. United States, 352 F.2d 626, 629, 632 (9th
Cir.1965); United States v. Conti, 361 F.2d 153, 157
(2d Cir.1966), vacated on other grounds, 390 U.S. 204, 88 S.Ct.
899, 19 L.Ed.2d 1035 (1968); United States v. Salter, 815 F.2d 1150,
1152 (7th Cir.1987); United States v. Levesque, 625 F.Supp. 428, 455 (D.N.H.1985), aff'd,
879 F.2d 853 (1st Cir.1989). See also
[30 Mass.App.Ct. 332] United States v. Johns, 466 F.2d 1364, 1365 (5th Cir.1972). Some courts even allow entry without
announcement when force is used. See
e.g., United States v. Remigio, 767 F.2d 730, 732‑733 (10th Cir.), cert.
denied, 474 U.S. 1009, 106 S.Ct. 535, 88 L.Ed.2d 465
(1985). Contra Hair v. United States, 289 F.2d 894, 896‑897
(D.C.Cir.1961). State courts also have
permitted entry through a door already open. Jones v. United States, 336 A.2d 535, 538
(D.C.1975). State v. Erwin, 789 S.W.2d 509, 511‑512
(Mo.Ct.App.1990). State v. Rudisill,
20 N.C.App. 313, 315, 201 S.E.2d 368 (1973).
Commonwealth v. Regan, 254 Pa.Super. 555,
559, 386 A.2d 89 (1978). State v. Suits, 73 Wis.2d 352, 355, 356‑357,
243 N.W.2d 206 (1976). Contra State v. Carufel,
112 R.I. 664, 672, 314 A.2d 144 (1974); State v. Coyle, 95 Wash.2d 1, 4, 621 P.2d
1256 (1980). See generally 2 LaFave, Search and Seizure § 4.8(b) ( 2d ed. 1987). Here, a door was opened voluntarily by an
occupant in response to a knock or a buzzer, and a partial announcement (FN7)
was made "as," but not before, Detective Hartford entered the
apartment.
[6]
We need not, however, decide whether the circumstances of the entry comported
with the rule, as we consider the police "excused from the usual knock and
announce requirement [as they were] reasonably acting to prevent destruction or
disposal of the items named in the search warrant"‑‑here
cocaine.
Commonwealth v. Scalise, 387 Mass. 413,
418, 439 N.E.2d 818 (1982). (FN8) As stated earlier, Hartford's testimony was
that, as he entered, "one of the occupants, [name omitted] ran toward the
bathroom carrying a plastic bag. I
grabbed ..." Hartford's testimony was interrupted by the next question.
Q.
"What did you do when [that occupant] ran in that direction?"
A.
"I ran towards him."
Q.
"What happened next?"
[30 Mass.App.Ct. 333] A. "I grabbed him as he got to the
bathroom door, took the bag of white powder out of his hand, placed him under
arrest."
We
infer from this testimony that Hartford, at the open door, could reasonably
have thought that destruction of the drugs was imminent. In these circumstances he was not required to
wait to announce himself prior to entry.
See Commonwealth v. Scalise, 387 Mass. at 421, 439 N.E.2d 818. "[W]here those within, made aware of the
presence of someone outside (because, for example, there has been a knock at
the door), are then engaged in activity which justifies the officers in the
belief that an escape or the destruction of evidence is being attempted,"
an announcement is not necessary. Ker v. California,
374 U.S. 23, 47, 83 S.Ct. 1623, 1636, 10 L.Ed.2d 726
(1963) (Brennan, J., dissenting). Smith,
Criminal Practice and Procedure, § 235 (2d ed. 1983).
Since
a motion to suppress based on the "knock and announce" rule would not
have succeeded, the defendant has not sustained his claim of ineffective
assistance of counsel. See Commonwealth v. Lykus,
406 Mass. 135, 142‑143, 546 N.E.2d 159 (1989).
[7] 2. Newly discovered evidence. The defendant also argues that the trial
testimony of the police concerning their manner of entry "effectively
constituted newly discovered evidence for purposes of a motion for new
trial." Our discussion in part 1, supra, disposes of any claim that the
testimony would have resulted in the suppression of the evidence found on the
defendant during the search. In any event, the evidence was not
"newly discovered" for purposes of Mass.R.Crim.P.
30(b), 378 Mass. 900 (1979). "As
[the defendant] ... was not asleep at the time of the police entry, it cannot
be contended that he had no knowledge before trial of the purportedly unlawful
entry." Commonwealth v. McDougal, 2 Mass.App.Ct. 820, 821, 309 N.E.2d 891 (1974). Evidence known to the defendant is not newly
discovered, even if it is not known to his counsel. See
Commonwealth v. Kelley, 370 Mass. 147, 152, 346 N.E.2d 368 (1976);
Commonwealth v. Pires, 389 Mass. 657, 665,
451 N.E.2d 1155 (1983); Commonwealth[30 Mass.App.Ct.
334] v. Rodriguez, 17 Mass.App.Ct. 547, 554, 460 N.E.2d 1292 (1984).
Order denying motion for new trial affirmed.
(FN1.) The defendant's indictment on a
conspiracy charge (possession of cocaine with intent to distribute) was placed
on file with his consent.
(FN2.)
The defendant incorrectly assumes that the failure to comply with the knock and
announce rule automatically results in the exclusion of all evidence obtained
in a search made without the police first declaring themselves. See Commonwealth
v. Gomes, 408 Mass. 43, 46, 556 N.E.2d 100 (1990). We need not reach the issue of remedy as we
do not find the search to have been illegal.
(FN3.)
Other grounds not pursued on appeal were also claimed in the motion for a new
trial.
(FN4.)
The argument based on newly discovered evidence was rejected on a motion for
reconsideration.
(FN5.)
In Commonwealth v. Cundriff,
382 Mass. at 139, 415 N.E.2d 172, the police knocked on an apartment door. When a woman asked, "Who is
it?" They replied, "School
bus." The woman opened the door
and several officers rushed inside with their weapons drawn. The court noted, without comment, at 147 n.
17, 415 N.E.2d 172, that the "judge assumed that despite the ruse the
actions of the policemen rushing into the defendant's apartment with guns drawn
constituted a 'violent entry,' and, therefore, the police were required to
announce their presence and purpose absent an exception to the rule."
(FN6.)
Title 18 U.S.C. § 3109 (1988) provides:
"The
officer may break open any outer or inner door or window of a house, or any
part of a house, or anything therein, to execute a search warrant, if, after
notice of his authority and purpose, he is refused admittance or when necessary
to liberate himself or a person aiding him in the execution of the
warrant."
(FN7.) Although Hartford stated he was a
police officer, he did not give the purpose of the entry.
(FN8.) In reviewing an order concerning the
suppression of evidence, an appellate court may affirm on a ground not relied
on by the Commonwealth or motion judge.
See Commonwealth v. Signorine, 404 Mass. 400, 403 n. 1, 535 N.E.2d 601
(1989).