|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Sespedes,
Middlesex
Convicted of trafficking in heroin (100 grams
or more) and in cocaine (200 grams or more), the defendant seeks reversal of
the judgments, based on (1) the denial of his motion to suppress keys seized
from his person during a search of his
third-floor apartment, as well as drugs found in the false ceiling of a vacant
second-floor apartment to which access was gained by means of the seized keys;
and (2) the denial of his motions for required findings of not guilty on both
indictments. We discern no errors in the challenged rulings and affirm the
judgments of conviction.
Factual Summary. In the course of conducting
surveillance on the third-floor, right hand apartment at
As the officers (wearing clothing and badges prominently identifying them as
police) were ascending to the rear third-floor landing to execute the warrant,
they saw the defendant looking out the window. Immediately after the defendant
made eye contact and looked at the officers, he ran from
the window into the interior of the apartment. The police broke down the door
with a battering ram and seized the defendant as he ran towards the front of
the apartment. A search of the defendant's pockets produced forty dollars and
two keys. After an intensive search of the third-floor apartment, including
probing into the drop ceilings, moldings, and electrical fixtures, the police
found some paraphernalia but no drugs. While the search was progressing, an
officer tried the keys taken from the defendant in the several doors of the
third-floor apartment, but they did not open any of them. The police then tried
the keys in other vacant apartments in the building, discovering
that both keys fit the doors to the second-floor apartment where the defendant
had been observed earlier.
After securing the front and back doors of the apartment, the police obtained a
second search warrant for the second-floor apartment. It was entirely vacant,
without furniture, appliances, curtains, or any personal effects. Another
intensive search revealed a drop ceiling, behind which the police found several
plastic bags containing almost 2,000 grams of both powder and crack cocaine
(worth between $60,000 and $80,000), plus two bags containing over 125 grams of
88.2 per cent pure heroin with a retail value of $125,000.
Discussion. 1. a. Contrary to the defendant's
contention, the affidavit supporting the first search warrant provided
sufficient, reliable facts establishing probable cause for the no-knock
provision. The particularly pertinent facts were: the easy destructibility of
the drugs (being sold from the apartment in small packages for street
distribution); the lookout activity by occupants of the apartment, as observed
by police; the occupants' awareness of police presence; and the enterprise's
controlled method of operation, requiring the placement of advance orders by
customers who were carefully monitored as they approached the building to
effect their transactions.
b. The motion judge correctly rejected the defendant's argument that the
officers made no threshold reappraisal before entering the third-floor
apartment pursuant to the no-knock warrant. The approaching police were in fact
observed by the defendant as they came up to the rear door of the apartment in
clothing clearly identifying them as police. The defendant was "looking at
us through the window that looks from the kitchen out to back porches."
The defendant then ran from the window to the interior of the apartment. The
officers immediately realized that the defendant actually knew of, and was reacting
to, their presence. Under such circumstances -- far more exigent than the
police had anticipated -- to have required the police to knock and announce
would have been a useless gesture and could have afforded the defendant
additional time to escape or dispose of the contraband.
c. The defendant's assertion that the seizure of the keys improperly exceeded
the scope of the first search warrant is unfounded. The search of the
defendant's person, which yielded the keys that unlocked the vacant
second-floor apartment, was expressly authorized by the terms of the search
warrant itself. Discovering the presence of a hard metallic object in the
defendant's pants pocket during their frisk of the defendant while executing
the warrant, the police were "justified in retrieving that object as a
potential weapon." Commonwealth v. Blevines, 438
"[O]nce [the keys] were [lawfully seized], the
police had a reasonable basis to conclude that they were relevant to the issue
of control over the premises"; and, "as information began to emerge
during the execution of the search warrant that the drugs [which the police had
probable cause to believe had been in the third-floor apartment] may have been
moved [because none were found in the third-floor apartment despite an
intensive search], it was reasonable for the police to conclude that one of the
keys [none of which fit the doors in or to the third-floor apartment] might be
to [the] nearby [second-floor] apartment [inside of which the defendant had
been observed shortly before the police entry] and [was] thus an
'instrumentality of crime' and within the scope of the warrant." Commonwealth v. Alvarez, 422
2. The Commonwealth's evidence was more than adequate, under the indulgent
standards of Commonwealth v. Latimore, 378 Mass. 671,
676-677 (1979), and its progeny, see Commonwealth v. Henault,
54 Mass. App. Ct. 8, 12 n.6 (2002), to justify the trial judge's denial of the
defendant's motions for required findings of not guilty with respect to the
trafficking charges. That evidence easily permitted the jury to conclude, by
reasonable inferences, that the defendant (who had been reliably identified as
being personally involved in dealing drugs from the
third-floor apartment) did not merely have access to the second-floor apartment
but also had actually been present in that apartment for a sufficient period of
time to indicate his knowledge of the drugs secreted in the apartment ceiling,
as well as his ability and intention to exercise control over them.
Judgments affirmed.
Brownlow M. Speer, Committee for Public Counsel
Services, for the defendant.
Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.
FOOTNOTES:
[1] The defendant does not contest the existence of
probable cause to issue the search warrant but argues that the magistrate had
insufficient information to dispense with the knock and announce requirement.
See section 1.a., infra.
[2] The Commonwealth asserts, as an alternative basis
for seizure of the keys, that it was incident to the defendant's arrest. The
defendant did not contest the search on that basis at the suppression hearing,
but instead argued, incorrectly, that the seizure of the keys "went beyond
the scope of the search warrant." After announcing that she would
"reread Alvarez" (referring to Commonwealth v. Alvarez, 422 Mass. 198
[1996]), the motion judge denied the defendant's motion to suppress the keys,
mentioning additionally that her ruling was "[b]ased
on the four corners of the affidavit, of the warrant" and that the
defendant "had been placed under arrest."
[3] Additionally, we agree with the Commonwealth
that, even if the defendant were entitled to automatic standing to challenge the
search of the second-floor apartment under Commonwealth v. Amendola,
406 Mass. 592, 601 (1990), it would not avail his cause because on this record
he failed to establish that he had any reasonable expectation of privacy with
respect to the drugs found in the vacant second-floor apartment.