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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. Scalise, 387
Supreme Judicial Court of Massachusetts,
Argued
Decided
Lee Diane Flournoy, Asst.
Dist. Atty., for the Commonwealth.
Leonard H. Cohen,
Margaret H. Van Deusen,
Before [387
LIACOS, Justice.
The
defendants were indicted for possession of cocaine and marihuana with intent to
distribute and for possession of ephedrine.
(FN2) All indictments arise as a
result of the execution of a search warrant by the police at an apartment
shared by the defendants. Prior to
trial, the defendants moved to suppress all items seized under the
warrant. The only issue argued to the
motion judge was that entry under the warrant was illegal because the police
failed to knock and identify themselves before they entered the defendants'
apartment. (FN3) The judge allowed the motions to
suppress. A single justice of this court
granted the Commonwealth's application for leave to appeal the ruling of the
trial judge to this court. See
The
evidence presented at the hearing on the motion to suppress was confined to the
warrant, affidavit, and the return on the warrant. The facts gleaned from these documents and
the judge's memorandum of decision are as follows.
On or
about
Approximately
one month later, "a responsible adult citizen" told Officer Viner that Scalise had lived at
White Terrace in a particular apartment with Scalise's
brother and the brother's girl friend.
Officer Viner learned from the citizen that Scalise had moved out of the apartment around August 1 and
that, while Scalise had lived in the apartment, young
men and women would enter the building, ask directions to Scalise's
apartment, stay a few minutes, and leave.
The citizen told Officer Viner that he had
seen as many as fifty people in a day go to Scalise's
apartment and that he believed that Scalise was
selling drugs.
A few days
later, a detective in the Pittsfield police department learned from an informant
that a person known as Hopper Lyons was living on West Housatonic
Street in Pittsfield and was selling cocaine, hashish, and marihuana from that
address. On the same day, Officer Viner learned from an informant that Scalise
was living with Lyons and selling drugs from the West Housatonic
Street apartment. The next day, Officer Viner and another police officer, Henry Ferris, set up
surveillance of the West Housatonic Street
apartment. They observed that entry to
the apartment was by means of a fire escape outside the building leading to the
door of the apartment. During the three
hours that they watched, the officers saw approximately ten people enter the
apartment and leave after remaining only a few minutes. As some of these persons left, they were
holding "plastic bags of the type used to contain marihuana." The officers also saw a Doberman pinscher
dog tied at the bottom of the fire escape and watched someone substitute a
second Doberman, which appeared "quite vicious." Scalise was
observed by the officers entering and leaving the apartment and talking to
different people who were in and out of the apartment. The officers also observed Scalise leaving [387
Mass. 416] the apartment carrying
what appeared to be his personal property.
The officers believed that Scalise was moving.
On or
about September 2, 1980, Officer Ferris received information from an informant
that Scalise had been selling drugs at West Housatonic Street, but had become afraid and decided to
move after receiving information that he might be under surveillance. Approximately one week later, Officer Viner received information from an informant that Scalise had moved to 38 North Pearl Street in
Pittsfield. The informant told Officer Viner that Scalise had been
selling "crystal meth" amphetamines at that
location but was currently out of supply.
A few days
later, an informant told Officer Viner that Scalise was selling hashish and other drugs at the North
Pearl Street address, and that Stephen Claffie was
also living there and selling drugs.
Officer Viner searched the informant and gave
him money. Officer Viner
and Sergeant David Boyer, the affiant, watched the informant knock and enter at
38 North Pearl Street. They watched the
informant come out and followed him to another location where he turned over to
the officers cocaine and hashish which he had bought from Scalise
in the presence of Claffie.
A day or
two later, Sergeant Boyer appeared before a magistrate and applied for a search
warrant, setting out these facts. The
officer requested permission to enter without knocking or announcing because of
"the eas[y] method in which these articles of
controlled substances can be disposed."
The magistrate found probable cause to search and issued a search
warrant marked "No Knock Warrant."
The warrant authorized a search of three bedrooms on the second floor,
three rooms on the first floor, and the basement and attic of the wood frame
house at 38 North Pearl Street, Pittsfield.
The objects of the search described in the warrant were "[a]ll illegally possessed controlled substances as defined in MGL C. 94C and in particular marihuana, also all drug
paraphernalia, also Cocaine and Hashish [and] [a]ll
class A thru E controlled substances."
The warrant was executed on the same day. Entrance was without announcement,[387 Mass. 417] and quantities of
controlled substances and drug paraphernalia were seized.
The
Commonwealth claims that the judge erred by suppressing the evidence seized as
a result of the execution of this warrant.
It argues that police executing a search warrant should not be required
to knock and announce identity and purpose when they have an articulable reason to fear for their safety or the destruction
of evidence. The judge, recognizing that
the knock and announce rule was part of our common law, ruled that there was no
"blanket" exception to the rule where easily destroyed items, such as
drugs, are involved and then concluded that there was otherwise insufficient
evidence to invoke an exception to the rule.
We conclude that the judge was correct in ruling that there is no
blanket exception to the knock and announce rule which can be invoked
where the object of the search is drugs.
We disagree, however, with the judge's conclusion that the circumstances
in the case were insufficient to invoke a destruction of evidence exception to
the knock and announce rule.
This court
has recently examined the history of the common law rule that forbids police
officers from making an unannounced entry into a dwelling house except in
limited circumstances. See generally Commonwealth v. Cundriff,
382 Mass. 138, ‑‑‑, Mass. Adv. Sh. (1980) 2519, 2522‑2529, 415 N.E.2d 172,
cert. denied, 451 U.S. 973, 101 S.Ct. 2054, 68
L.Ed.2d 353 (1981). We reaffirm the
views there stated: "History
teaches that the announcement requirement is a part of our common law. We add that the policies underlying the
announcement rule at common law, i.e., decreasing the potential for violence,
protection of privacy, and the prevention of unnecessary damage to homes, are
as valid today as they were in the past."
(FN4) Id., 382 Mass. at ‑‑‑,
Mass. Adv. Sh.
(1980) at 2528, 415 N.E.2d 72.
[387 Mass. 418] In Cundriff,
however, we held that where the police had reason to fear for their own safety,
as well as the safety of others in the dwelling, the failure of the police to
identify themselves and announce their purpose when executing an arrest warrant
was justified as a matter of our common law.
(FN5) In Cundriff we also noted that "[o]ther exceptions to the knock and announce rule have been
recognized where the person inside the dwelling to be entered has knowledge of
the officers' purpose and presence, see Ker v. California, 374 U.S. 23, 47, 83 S.Ct. 1623, 1636, 10 L.Ed.2d 726 (1963) (Brennan, J.,
dissenting); Commonwealth v. McDougal, 2 Mass.App.Ct. 820, 309 N.E.2d 891 (1974), and cases cited,
and where making an announcement would facilitate a suspect's escape or the
destruction of evidence, see Miller v.
United States, 357 U.S. 301, 309, 78 S.Ct. 1190,
1195, 2 L.Ed.2d 1332 (1958) (dictum) (citing
People v. Maddox, 46 Cal.2d 301, 294 P.2d 6 [1956] ); Ker
v. California, supra, 374 U.S. at 47, 83 S.Ct. at
1636 (Brennan, J., dissenting); United States v. Cisneros, 448 F.2d 298,
304 (9th Cir. 1971) (possibility of escape)." Commonwealth v. Cundriff, supra, 382 Mass. at ‑‑‑,
Mass. Adv. Sh.
(1980) at 2529 n. 15, 415 N.E.2d 72.
Many
courts have held, as a matter of common law, or by statutory authority, that
police are excused from the usual knock and announce requirement when
reasonably acting to prevent destruction or disposal of the items named in the
search warrant. See, e.g., People v. Gastelo,
67 Cal.2d 586, 587‑588, 432 P.2d 706 (1967); People v. Ouellette, 78
Ill.2d 511, 36 Ill.Dec. 666, 401 N.E.2d 507 (1979);
State v. Lien, 265 N.W.2d 833 (Minn. 1978); State v. Gassner,
6 Or.App. 452, 488 P.2d 822 (1971). In Ker v. California, supra, a four member plurality of
the Court recognized the destruction of evidence exception when it upheld
action of police officers in entering the defendant's dwelling without prior
notice in order to arrest him. The Court
stated that "[h]ere justification for the officers' failure to give notice [387 Mass. 419] is uniquely present. In
addition to the officers' belief that Ker was in
possession of narcotics, which could be quickly and easily destroyed, Ker's furtive conduct in eluding them shortly before the
arrest was ground for the belief that he might well have been expecting the
police. We therefore hold that in the
particular circumstances of this case the officers' method of entry, sanctioned
by the law of California, was not unreasonable under
the standards of the Fourth Amendment as applied to the States through the
Fourteenth Amendment" (footnote omitted). Ker,
supra, 374 U.S. at 40‑41, 83 S.Ct. at 1633‑1634. The dissenters in Ker agreed that there was an exception
to the knock and announce rule when officers had reason to believe that someone
inside the dwelling was attempting to destroy evidence. Ker,
supra at 47, 61, 83 S.Ct. at 1636, 1643 (Brennan,
J., dissenting). The members of the
Court disagreed only as to the sufficiency of the evidence in Ker tending
to give rise to the exception.
Some State
courts have interpreted Ker as establishing a blanket rule of exception, i.e.,
the destruction of evidence exception is established when the objects named in
the search warrant are by their nature amenable to ready disposal or destruction,
such as narcotics or gambling records. 2
W. LaFave, Search and Seizure § 4.8, at 132
(1978). See, e.g., People v. De Lago, 16 N.Y.2d 289, 266
N.Y.S.2d 289, 213 N.E.2d 659 (1965), cert. denied, 383 U.S. 963, 86 S.Ct. 1235, 16 L.Ed.2d 305 (1966); State v. Spisak,
520 P.2d 561 (Utah 1974). Because the
disagreement in Ker,
however, was over how much evidence supporting the exception to the knock and
announce rule was required, not over whether any particularized showing was
required, Ker
is generally interpreted as foreclosing blanket exceptions. See, e.g.,
People v. Gastelo, supra; State v. Harris, 12 Wash.App. 481, 530 P.2d 646 (1975). Thus, the major area of disagreement in the
State courts since Ker
has been over the proper scope of the destruction of evidence exception.
State v. Gassner, supra, 6 Or.App. at 461, 488 P.2d 822.
In the
instant case, the Commonwealth argues first that a magistrate has the authority
to issue a warrant dispensing with the knock and announce requirement, and
second that [387 Mass. 420] the unannounced entry was justified
here even if the magistrate could not issue such a warrant. (FN6)
[1][2] The
relevant statutory provisions dealing with the authority of a magistrate to
issue a warrant are G.L. c. 276, §§ 1, 2, &
2A. The statute is silent on the issue
of the magistrate's authority to issue a no knock warrant. Section 1 of c. 276, however, states: "Nothing in this section shall be
construed to abrogate, impair or limit powers of search and seizure granted under
other provisions of the General Laws or under the common law." St. 1964, c. 557, § 1. The knock and announce requirement is part of
our common law. We conclude it to be a
sound principle that the decision whether to dispense with the requirement of announcement
should be left to judicial officers, whenever police have sufficient
information at the time of application for a warrant to justify such a
request. Accord, State v. Parker, 283 Minn. 127, 166 N.W.2d 347 (1969). Although advance judicial determination is
not constitutionally required, "constitutional policy holds [that] the
informed and deliberate determination of a magistrate is preferred over the
hurried action of an officer." Parsley v. Superior Court of Riverside
County, 9 Cal.3d 934, 943, 513 P.2d 611 (1973) (Clark, J., dissenting),
citing United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct.
420, 423, 76 L.Ed. 877 (1932). See
State v. Carufel, 112 R.I. 664, 668, 314 A.2d 144
(1974) (knock and announce rule has constitutional dimensions). Further, in some instances "the
Constitution requires 'that the deliberate, impartial judgment of a judicial
officer ... be interposed between the citizen and the police.' " Katz
v. United States, 389 U.S. 347, 357, 88 S.Ct.
507, 514, 19 L.Ed.2d 576 (1967), quoting from Wong Sun v. United States, 371 U.S. 471, 481‑482, 83 S.Ct. 407, 413‑414, 9 L.Ed.2d 441 (1963). See The Magistrate's Role in Unannounced
Entry, 26 Hastings L.J. 273, 275 (1974) (prior
judicial review required by Fourth Amendment whenever facts justifying
unannounced entry known when search warrant obtained); No‑Knock and the Constitution: [387
Mass. 421] The District of Columbia
Court Reform and Criminal Procedure Act of 1970, 55 Minn. L. Rev. 871, 891‑892
(1971) (benefits of prior judicial review can be realized in instances where
facts relied upon for no knock warrant known in advance). Cf.
Michigan v. Summers, 452 U.S. 692, 704, 101 S.Ct.
2587, 2595, 69 L.Ed.2d 340 (1981).
[3] We
recognize that the facts existing at the time the warrant is issued may no
longer exist at the time the warrant is executed. In those instances, the officers would be
required to knock and announce their purpose.
The changed circumstances would render ineffective the magistrate's
decision that a no knock entry was justified.
26 Hastings L.J., supra at 285. Thus, the
police officers at the scene are required to make a threshold reappraisal of
the actual threat of the destruction of evidence. (FN7)
See State v. Lien, 265 N.W.2d
833, 839 (Minn. 1978).
[4][5] In
order to obtain authority for an unannounced entry, the police must inform the
issuing magistrate of the circumstances which give the police probable cause to
believe that the evidence, i.e., the object of the search, will be destroyed. This requires more than simply showing that
drugs are involved. See People v. Gastelo,
supra, 67 Cal.2d at 588, 432 P.2d 706; State v. Lien, supra, 265 N.W.2d at
838. See generally LaFave, supra at 131 & n. 54. We decline to adopt the blanket rule that invokes
the destruction of evidence exception whenever the objects named in the search
warrant are by their nature amenable to ready disposal or destruction, see LaFave, supra at
131. The police must have probable cause
to believe that the evidence will be destroyed, based on other factors uniquely
present in the particular circumstances.
See Ker
v. California,[387 Mass. 422]
supra, 374 U.S. at 40‑41, 83 S.Ct.
at 1633‑1634. (FN8) "Just as the police must have
sufficiently particular reason to enter at all, so must they have some
particular reason to enter in the manner chosen." People v. Gastelo,
supra, 67 Cal.2d at 589, 432 P.2d 706.
[6][7][8]
We now turn to the particular circumstances in this case. We conclude that the magistrate was justified
in finding on the face of the affidavit that the facts were sufficient to give
rise to probable cause to believe that the evidence would be destroyed if the
police knocked and announced their purpose before entering the apartment. In addition to the information showing that
the defendants were probably in illegal possession of controlled substances
which could be quickly and easily destroyed, the magistrate could have found
probable cause to believe that Scalise's furtive
conduct in moving from place to place was in order to avoid apprehension. He could also have concluded the defendants
were aware of police surveillance and were prepared quickly to dispose of
incriminating evidence in the event of a police search. Ker
v. California, 374 U.S. 23, 40, 83 S.Ct. 1623,
1633, 10 L.Ed.2d 726 (1963). Because the
defendants were retailing the narcotics, the magistrate could have inferred
that the drugs were kept in relatively small packages and, hence, were easily
disposable. "Reasonable inferences
and common knowledge are [387 Mass.
423] appropriate considerations in
determining probable cause." Commonwealth v. Alessio,
377 Mass. 76, 82, 384 N.E.2d 638 (1979).
The magistrate could reasonably have inferred from the facts before him
that a dealer who had moved his location and feared police surveillance, also
feared arrest and search and was ready to destroy the drugs, and that a
"no knock" entry was required.
Assuming
that the informants' credibility and the reliability of their information were
insufficient, without more, to permit a finding of probable cause under the
"two‑pronged" test of
Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct.
1509, 1514, 12 L.Ed.2d 723 (1964), we conclude that the affidavit, taken as a
whole, showed sufficient police corroboration of the information. See
Commonwealth v. Alessio, supra. (FN9)
Although Scalise's moving from place to place,
standing alone, might be ambiguous conduct, and thus an insufficient
circumstance from which to draw the conclusion that he was seeking to elude the
police, the inference that he was seeking to elude the police was corroborated
by an informant's tip and properly could be relied upon in deciding whether to
dispense with the knock and announce requirement.
The orders
of the judge allowing the defendants' motions to suppress are reversed. We leave it to the discretion of the judge as
to whether a further evidentiary hearing is warranted to determine the need for
an unannounced entry at the time of the execution of the warrant.
So ordered.
(FN1.) Against Scalise
and Stephen G. Claffie.
(FN2.)
The defendant Scalise was also indicted for
possession of hashish.
(FN3.)
The defendants claim to have raised several other grounds in the trial court in
support of their motions to suppress and to have reserved their right to assert
them later. The motion judge appears to
have considered these issues as waived.
In any event, neither defendant has briefed these issues before us, and thus
the issues are deemed waived here. Mass.
R.A.P. 16(a)(4), as amended, 367 Mass. 921
(1975). The parties agreed at oral
argument that the issue whether the warrant was supported by probable cause is
not before the court.
(FN4.)
We note that the recent enactment by the Legislature of a statute purporting to
increase the right of home owners to use deadly force when there has been
unlawful entry into their homes adds further validity to the views expressed in Commonwealth v. Cundriff,
Mass. Adv. Sh.
(1980) 2519, cert. denied, 451 U.S. 973, 101 S.Ct.
2054, 68 L.Ed.2d 353 (1981). Compare G.L. c. 278, § 8A, inserted by St. 1981, c. 696, with Commonwealth v. Shaffer, 367 Mass. 508,
326 N.E.2d 880 (1975).
(FN5.)
Although Commonwealth v. Cundriff, supra, dealt with the knock and announce rule
in the context of the execution of an arrest warrant, it is generally assumed
that the rule and its exceptions apply equally to search warrants. See 2 W. LaFave,
Search and Seizure § 4.8, at 123‑124 (1978), and cases cited. See also
Commonwealth v. Huffman, 385 Mass. 122, 125 n. 5, 430 N.E.2d 1190 (1982);
Commonwealth v. Cundriff, supra, 382 Mass.
at ‑‑‑, Mass. Adv. Sh. (1980) at 2524 n. 6, 415 N.E.2d 72.
(FN6.)
None of the parties contend that police seeking to execute a search warrant,
without first knocking, must in all cases seek and obtain prior authorization
by a magistrate.
(FN7.)
Whether there were changed circumstances in the instant case prior to the
execution of the warrant, such that the exigency no longer was present, is
unknown to this court because no evidentiary hearing was held on the motion to
suppress. We note, however, that the
warrant was executed on the same day that it was issued. The factors that we have identified, infra, as giving rise to the exigency,
i.e., presence of narcotics and Scalise's awareness
that he was under surveillance, would be unlikely to change in so short a
period of time.
(FN8.)
Nothing we say here today derogates from the principles established in Commonwealth v. Cundriff,
382 Mass. at ‑‑‑, Mass. Adv. Sh. (1980) at 2519, 415 N.E.2d 72, cert. denied,
451 U.S. 973, 101 S.Ct. 2054, 68 L.Ed.2d 353
(1981). In Cundriff we recognized that, even
without prior judicial authorization, the failure of the police to make an
announcement before entering a dwelling to make an arrest may sometimes be justified. Id.,
382 Mass. at ‑‑‑, Mass. Adv. Sh. (1980) at 2521, 415 N.E.2d 72. Thus, if the police have no reason to seek
advance authorization, they may still make an unannounced entry to execute a
warrant if facts arising at the threshold give them probable cause to believe
that an unannounced entry is necessary in order to prevent destruction of the
evidence.
State v. Lien, 265 N.W.2d 833, 839 (Minn. 1978). The circumstances arising at the threshold
must amount to exigent circumstances to justify the failure to obtain advance
judicial authorization to dispense with the knock and announce
requirement. See Commonwealth v. Huffman, 385 Mass. 122, 124‑126, 430 N.E.2d
1190 (1982). Accord, People v. Lujan, 174 Colo. 554, 560, 484 P.2d 1238 (1971). The standards as to exigency are strict, and
the burden is on the Commonwealth to demonstrate that exigency in the totality
of the circumstances. See Commonwealth v. Forde,
367 Mass. 798, 800‑801, 329 N.E.2d 717 (1975).
(FN9.)
The police personally observed Scalise move from the
West Housatonic Street address. Five days later, an informant told the police
that Scalise had moved because he was afraid that he
was being watched by the police. The
police, who had been watching Scalise at that
address, knew from their own observations that Scalise
had resided on West Housatonic Street for a short
period of time.