On December 8, 1998, a complaint issued out of the Juvenile Division of the Wrentham District Court (Juvenile Complaint No. 9857JV000222) charging the juvenile, ----- -----, with one count of possession of a Class D controlled substance (Count 1), one count of possession of alcohol by a person under twenty-one (Count 2), and one count of possession with intent to distribute a Class D controlled substance (Count 3). He entered pleas of not delinquent. [R. App. 1, 4] .
On February 4, 1999, the juvenile filed a motion to suppress evidence and statements illegally seized. [R. App. 2, 5-13]. After an evidentiary hearing before McCallum, J., on March 2, 1999 [R. App. 14-52], the motion was denied on March 30, 1999. [R. App. 7]. On April 27, 1999, Judge McCallum issued findings, conclusions of law and an order on the motion to suppress. [R. App. 2, 53-63].
On July 20, 1999, the juvenile moved for reconsideration of the order denying the motion to suppress. On December 14, 1999, Judge McCallum denied the motion to reconsider in a brief memorandum and order. [R. App. 3, 64-67].
A jury-waived trial on stipulated facts was held before Winslow, J., on January 28, 2000. Judge Winslow entered findings of delinquency on all counts. He ordered the juvenile committed to the Department of Youth Services until his nineteenth birthday (March 6, 2001), but suspended that sentence on certain conditions. [R. App. 1-2].
The juvenile filed a timely notice of appeal on January 28, 2000. [R. App. 68].
The case was entered on the docket of this court on June 15, 2001.
Except where noted below, the juvenile will adopt the facts found in the motion judge's memorandum and order. Those facts are set forth as follows:
1. On December 7, 1998, the Franklin Police Department was conducting a surveillance of ----- ----- and James Willis, regarding the sale of marijuana at the Franklin High School and from -----'s home located at 474 Maple Street, Franklin, MA. The police had been conducting this surveillance for approximately three months.
2. On December 7, 1998, at approximately 7:00 p.m., State Trooper Dziadosz of the DEA Task Force, entered the rear of 474 Maple Street with an unidentified individual. Trooper Dziadosz did not have a search warrant at the time she entered -----'s home. The trooper and her companion walked up to the second floor of the residence, through a doorway and down a hallway to an area within the home where the juvenile lived. Trooper Dziadosz purchased marijuana from James Willis, who was described as an “Oriental looking person”, for $40.00. The trooper used two marked $20.00 bills to buy the drugs. There was another youth in the bathroom at the time of the purchase and several young people in the room.
3. The juvenile, ----- -----, is a Caucasian male.
4. After buying the marijuana, the trooper and her companion left the room and went back downstairs and out of the house, where she spoke to Sergeant Heagney of the Franklin Police Department, who was supervising the operation. There were several other Franklin Police officers at this location. Trooper Dziadosz described the events of the sale and described the individual from whom she purchased the marijuana to Sergeant Heagney.
5. Sergeant Heagney then ordered some of his officers to the front of the residence. Sergeant Heagney and Detective Connolly next entered the residence and walked up to the second floor traveling the same route Trooper Dziadosz had just used. As he approached the second floor area, Sergeant Heagney encountered a youth and asked him who lived there. The unidentified youth replied, “----- lives here.” Sergeant Heagney then told the youth to come with him as they walked down the interior hallway. As they walked through the hallway, Sergeant Heagney detected a faint odor of marijuana which grew stronger as [he] approached the end of the hall. At the end of the hall, Sergeant Heagney saw approximately twelve youths in a rear room. He also observed a small pile of marijuana, full and empty beer cans throughout the room, a large amount of cash on a coffee table and two boxes of sandwich bags. When several youths started reaching for the cash and started stuffing it into their pockets, Sergeant Heagney ordered all of the youths to “just hold it” and told them not to move. He instructed the officers to watch everyone while he proceeded downstairs to speak with the juvenile's parents.
6. Sergeant Heagney walked around the front of the residence, spoke to ----- -----'s parents and explained that their son had been under investigation by the police department for selling drugs for several months. He further explained that an undercover officer had just purchased marijuana in the rear upstairs room.
7. Sergeant Heagney explained to the parents that he intended to apply for a search warrant to search the juvenile's room, which could take several hours. The sergeant explained to Mr. and Mrs. ----- that they could consent to a search of that room, however, they were under no obligation to consent. He informed the parents that he was only interested in searching the upstairs room where the juvenile lived and that the search would be confined to that particular area.
8. The parents consented to the search of their son's room. Initially, they provided their consent verbally at 8:40 p.m. Detective Connolly then retrieved a written “Consent to Search” form from his cruiser which was shown to the parents and reviewed with them in detail, during which conversation Sergeant [Heagney] explained all of the rights specified on the form, having the parents initial each right as it was explained. The parents signed the “Consent to Search” form at 9:09 p.m.
9. After obtaining the parents' consent to search the room, Sergeant Heagney returned to the juvenile's room and all of the youths in the room [were] placed under arrest. As each youth was arrested, he was searched by a police officer. The police were particularly looking for which individual(s) had the marked $20.00 bills used by Trooper Dziadosz to purchase the marijuana earlier. One of the marked bills was found on the juvenile, ----- -----, when he was searched following his arrest.
10. The juvenile has moved to suppress all of the evidence obtained by the police on the evening of December 7, 1998, including without limitation, items seized from the juvenile's person and his room, marijuana, money and drug paraphernalia; statements alleged to have been made by the juvenile; all evidence alleged to have been seized form any co-defendants, including with out limitation, marijuana, money and drug paraphernalia; all statements alleged to have been made by any co-defendant; and all views and the identification of the juvenile.
[R. App. 53-55].
I. The Juvenile's Motion To Suppress Should Have Been Allowed (A) Where There Were No Exigent Circumstances Justifying The Initial Warrantless Entry Into His Apartment, And (B) Where The Consent The Juvenile's Parents Subsequently Gave To The Police Cannot Be Deemed Voluntary Or Untainted By The Prior Illegality
The juvenile challenges the denial of his motion to suppress the evidence obtained after the police entered his residence without a warrant. In denying that motion, the motion judge correctly found that the Commonwealth failed to show that there were exigent circumstances justifying a warrantless entry into the apartment. [R. App. 56-59]. See Commonwealth v. DiGeronimo, 38 Mass. App. Ct. 714, 722 (1995). The judge found, however, that the consent subsequently given by the juvenile's parents purged the taint from the prior illegal entry. [R. App. 59-62]. The juvenile challenges that conclusion. In particular, he contends that the consent of his parents was not voluntary and was tainted by the initial illegality. The entry and subsequent search violated the juvenile's rights under the Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights. He is entitled to suppression of the fruits of the officers' illegal conduct. The order denying his motion to suppress should be reversed and the complaint dismissed.
The right of the police to enter into a defendant's private space “represents a serious governmental intrusion into one's privacy. It was just this sort of intrusion that the Fourth Amendment was designed to circumscribe by the general requirement of judicial determination of probable cause.” Commonwealth v. Forde, 367 Mass. 798, 805 (1975). See Payton v. New York, 445 U.S. 573 (1980); Commonwealth v. Kiser, 48 Mass. App. Ct. 647, 648 (2000); Commonwealth v. Midi, 46 Mass. App. Ct. 591, 594 (1999); Commonwealth v. DiGeronimo, 38 Mass. App. Ct. at 720. In the absence of express or implied permission to enter, a warrant, or extreme necessity, such entries are presumptively unreasonable. Id.
A. The Motion Judge Correctly Found That The Officers Illegally Entered The Premises
“Without a search warrant, the police lacked authority to make a nonconsensual entry 'unless they had probable cause to make an arrest or to search for evidence and, in addition, there were exigent circumstances.'” Commonwealth v. Martinez, 47 Mass. App. Ct. 839, 842 (1999), quoting Commonwealth v. Lee, 32 Mass. App. Ct. 85, 87 (1992). See Welsh v. Wisconsin, 466 U.S. 740, 753 (1984)(police acted unreasonably under the Fourth Amendment when they entered the home of a drunk driver and arrested him in his bedroom); Payton v. New York, 445 U.S. at 587-590; Commonwealth v. Forde, 367 Mass. at 800. The United States Supreme Court and the Supreme Judicial Court have established strict standards as to exigency and have placed the burden of showing exigent circumstances squarely on the Commonwealth. Commonwealth v. Hall, 366 Mass. 790, 801-802 (1975).
In this case, there were two entries into the apartment. First, Trooper Dziadosz entered the premises in the company of an unidentified “confidential source.” [R. App. 21]. They went in through an open door and then located James Willis. The trooper spoke with him briefly and purchased marijuana from him. [R. App. 18-19]. The juvenile did not give his permission for her to enter, as he was not present at the door. [R. App. 23]. Where there is no indication that anyone connected with the premises allowed her in, the Commonwealth has failed to meet its heavy burden of showing that her entry was lawful. See Commonwealth v. Cadoret, 388 Mass. 148, 150-152 (1983) (officer's entry into premises was unlawful where he was denied admission into club by owners and where he was not brought in as a guest of a club member, as permitted by club rules).
The second entry took place a few minutes later when the officers walked up the stairs and entered the apartment through the open door. After entering the apartment, the officers smelled an odor of marijuana. As they walked further into the apartment, they observed marijuana, cash, two boxes of sandwich bags, and some open beer containers. They also observed some of those present attempt to stuff money in their pockets. The Commonwealth attempted to argue that the circumstances were sufficiently exigent to warrant this entry. However, the judge correctly found that the Commonwealth failed to meet its “heavy burden of clearly demonstrating an urgent need to effect entry” within some “recognized category of exceptional circumstances.” Commonwealth v. DiGeronimo, 38 Mass. App. Ct. at 722. See Commonwealth v. Forde, 367 Mass. at 800; Commonwealth v. Hurd, 51 Mass. App. Ct. 12, 17-18 (2001); Commonwealth v. Kiser, 48 Mass. App. Ct. at 648.
As the judge noted, there is no evidence that the juvenile or anyone else in the house was aware that the police had just made an undercover buy or were present outside. [R. App. 58]. See Commonwealth v. Hamilton, 24 Mass. App. Ct. 290, 293 (1987) (no indication that suspect knew of police presence). Thus, there was no danger that the marijuana or marked bills would disappear or that the suspects would flee before the officers could obtain a warrant. See Commonwealth v. Lee, 32 Mass. App. Ct. at 87-91 (of crucial significance here, is whether delay attendant upon securing a warrant was likely to result in destruction or disappearance of evidence). The police had had the juvenile's house under surveillance for three months and apparently believed the illegal activities to be ongoing. Compare Commonwealth v. Krisco Corp., 421 Mass. 37, 47 (1995) (the repetitive nature of the illegal activity lessens the claimed exigency). The criminal activity in question was rather minor. Commonwealth v. DiGeronimo, 38 Mass. App. Ct. at 728 n.16. See Welsh v. Wisconsin, 466 U.S. at 753 (“an important factor in determining whether an exigency exists is the gravity of the underlying offense for which the arrest is being made”). There was no imminent danger to the public or the police. See Commonwealth v. Midi, 46 Mass. App. Ct. at 594; Id. at 722 n. 9. See also Commonwealth v. Pietrass, 392 Mass. 892, 897 (1984) (police may enter without a warrant in a “'pure' emergency where entry was effected solely to avert a dangerous situation that threatened life or safety....”). Contrast Commonwealth v. Martinez, 47 Mass. App. Ct. at 843 (delay necessary to obtain warrant would have placed undercover officer in immediate danger).
Where the police had no explicit or implicit permission to enter, and where under any view of the facts, they had no other grounds supporting their warrantless entry, the motion judge properly found the entry to be illegal. See Commonwealth v. Kiser, 48 Mass. App. Ct. at 651-653.
B. The Consent To Search Provided By The Juvenile's Parents Did Not Purge The Taint From The Illegal Entry Where, In The Circumstances, A Reasonable Person Would Have Felt Compelled To Consent To The Search
The police may conduct a warrantless search with the free and voluntary consent of a person possessing the ability and apparent authority to give it. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). See United States v. Matlock, 415 U.S. 164, 171 (1974). Whether such consent is an act of free will is ordinarily determined by a totality of the circumstances test for which the Commonwealth bears the burden of proof. Commonwealth v. Aguiar, 370 Mass. 490, 496 (1976). See Commonwealth v. Midi, 46 Mass. App. Ct. at 594-595. Where, however, “consent to search is obtained through exploitation of a prior illegality, particularly very close in time following the prior illegality, the consent has not been regarded as freely given. Evidence gathered in a search allowed by such a compromised consent has been thought to be tainted and inadmissible.” Commonwealth v. Midi, 46 Mass. App. Ct. at 595 and cases cited. See Commonwealth v. Hurd, 51 Mass. App. Ct. at 18, n.3.
In this case, the motion judge found the parents' consent to be voluntary because they were informed of the rights they were waiving, they were advised that they were not obliged to consent to the search, and there was a lapse of time of an hour and a half between the illegal entry and the consent to search. [R. App. 59-62].
The fact that the juvenile's parents were informed of the rights they were waiving, including the right to withhold their consent, is a factor in determining voluntariness, but is not dispositive. See Commonwealth v. Harmond, 376 Mass. 557, 561 (1978). Sergeant Heagney advised them that an undercover officer had purchased drugs from the house and that they intended to apply for a search warrant and search the upstairs apartment if such consent were not forthcoming. See Id. In effect, he advised them that the search of the house was inevitable and that obtaining a search warrant “would be a time-consuming process” that would only delay the inevitable. [R. App. 31]. The juvenile's mother was particularly upset at their presence. [R. App. 31]. Her and her husband's comments when they finally consented to the search-“They bought drugs out of the house, you might as well let them search” [R. App. 32]-strongly suggests that their consent was little more than an acquiescence to authority. Compare United States v. Worley, 193 F.3d 380, 386-387 (6th Cir. 1999) (statement, “You've got the badge, I guess you can,” clearly indicated an acquiescence to authority and not a voluntary consent to search).
Adding to the coercive atmosphere was the overwhelming police presence at the time, compare Commonwealth v. Sanderson, 398 Mass. 761, 767 (1986), and most significantly, the fact that the police were already in the house at the time they requested permission to search. Although the judge found that Sergeant Heagney walked around to the front of the residence, he in fact testified without contradiction that he went from the second floor apartment to the parents' first floor apartment “through an interior stairway[.]” He was therefore “within the house” at the time he approached and spoke with the juvenile's parents. [R. App. 29].
Finally, the record does not support the finding that there was some sort of attenuation between the initial illegality and the request to search. Trooper Dziadosz testified that she entered juvenile's apartment at 7:00 p.m., and Sergeant Heagney indicated that he sought the parents' consent shortly after 8:30 p.m. It appears, however, that Trooper Dziadosz was mistaken as to the time she entered the apartment. Sergeant Heagney indicated that he entered the residence immediately after Trooper Dziadosz left. After securing the suspects in the upstairs apartment, which would have taken no more than a few minutes, he went downstairs. Contrary to the judge's finding, the lapse of time between the illegal entry and the request for consent to search would have been a few minutes at most rather than an hour and a half. Commonwealth v. Midi, 46 Mass. App. Ct. at 595. Beyond the time element, the Commonwealth has failed to point to any intervening events that might have dissipated the taint from the illegal entry. Immediately after securing their son and his friends, he asked them to consent to the search. Especially where the police used the information obtained during the two entries in order to convince the parents to consent to the search, the Commonwealth failed to meet its burden of demonstrating the validity of their consent. Commonwealth v. Hurd, 51 Mass. App. Ct. at 18, n.3.; Id.; Commonwealth v. Ellsworth, 41 Mass. App. Ct. 554, 556-557 (1996).
C. The Commonwealth Cannot Justify The Admission Of The Challenged Evidence Under The Inevitable Discovery Rule
The Commonwealth will fare no better should it argue the admissibility of the evidence under the so-called “inevitable discovery” rule. Under the Massachusetts version of that rule, evidence obtained through illegal conduct may be admitted if the Commonwealth meets a two-part test. First, the Commonwealth must “demonstrate by a preponderance standard that discovery of the evidence by lawful means was certain as a practical matter[.]” Commonwealth v. Sbordone, 424 Mass. 802, 810 (1997); Commonwealth v. Perrot, 407 Mass. 539, 546-547 (1990); Commonwealth v. O'Connor, 406 Mass. 112, 117 (1989). Second, the Commonwealth must show that the officers did not act in bad faith to accelerate the discovery of evidence, and the particular constitutional violation is not so severe as to require suppression. Id.
It is questionable whether the Commonwealth can meet the first part of this test. As noted above, it is not at all clear that the initial entry into the apartment by Trooper Dziadosz was lawful. She entered the apartment through an open door with an unidentified person who may or may not have been authorized to bring her in. It is somewhat doubtful that a magistrate or judge would have issued a search warrant in these circumstances.
Assuming her entry was lawful, she purchased drugs from someone other than the juvenile who clearly did not live on the premises. Trooper Dziadosz handed him the money and received a bag of marijuana in return. There is no indication that he obtained the contraband from within the apartment, as opposed to from his person. While there may have been probable cause to believe that Willis was selling marijuana, there was no probable cause connecting the contraband to the juvenile's residence. Commonwealth v. Laughlin, 40 Mass. App. Ct. 926, 927 (1996). It is not at all certain-and indeed, it is unlikely-that a search warrant would have issued.
Even if the Commonwealth could meet the first part of the test, it clearly fails the second part. The Supreme Judicial Court has specifically held that “evidence seized in violation of a search warrant requirement would not be admitted even if its subsequent lawful discovery was inevitable.” Commonwealth v. Perrot, 407 Mass. at 547. See Commonwealth v. Benoit, 382 Mass. 210, 217-220 (1981). Here, the police located and secured the contraband and other evidence during the course of the unlawful entry. The violation of the warrant requirement was particularly egregious, since, as the judge found, the officers could have easily secured the scene during the short time it would have taken to obtain a warrant.
The search fails to pass muster under Article 14 of the Massachusetts Declaration of Rights, and the juvenile's motion to suppress the fruits of that unlawful search should have been allowed. Commonwealth v. Perrot, 407 Mass. at 546-547; Commonwealth v. O'Connor, 406 Mass. at 117. See Wong Sun v. United States, 371 U.S. 471, 488 (1963); Commonwealth v. Gonsalves, 429 Mass. 658, 668 (1999); Commonwealth v. Bishop, 402 Mass. 449, 452 (1988).
II. Conclusion
Based on the authorities cited and the reasons aforesaid, the juvenile requests that the judgment be reversed, that the order denying his motion to suppress be vacated, and that the complaint be dismissed.
Respectfully submitted,
----- -----
By his attorneys,
Joseph P. Cataldo
B.B.O. # 558646
Cataldo Law Offices, LLP
55 West Central Street
Franklin, Massachusetts 02038
(508) 528-2400
Dana Alan Curhan
B.B.O. # 544250
101 Arch Street
Suite 305
Boston, Massachusetts 02110
(617) 261-3800