Commonwealth v. Saywahn ( 2017 )


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    16-P-1098                                               Appeals Court
    COMMONWEALTH    vs.   BENJAMIN B. SAYWAHN, JR.
    No. 16-P-1098.
    Hampden.      April 13, 2017. - June 15, 2017.
    Present:    Kafker, C.J., Grainger, & Kinder, JJ.
    Firearms. Search and Seizure, Protective sweep.         Constitutional
    Law, Search and seizure.
    Complaint received and sworn to in the Springfield Division
    of the District Court Department on February 4, 2016.
    A pretrial motion to suppress evidence was heard by William
    P. Hadley, J.
    An application for leave to prosecute an interlocutory
    appeal was allowed by Francis X. Spina, J., in the Supreme
    Judicial Court for the county of Suffolk, and the appeal was
    reported by him to the Appeals Court.
    David L. Sheppard-Brick, Assistant District Attorney, for
    the Commonwealth.
    Thomas C. Maxim for the defendant.
    KAFKER, C.J.        During a protective sweep of the home of the
    defendant, Benjamin B. Saywahn, Jr., conducted during the
    execution of a warrant for his arrest, police discovered a
    2
    firearm.    The defendant was subsequently charged with possession
    of a firearm and ammunition without an identification card,
    G. L. c. 269, § 10(h), improper storage of a firearm, G. L.
    c. 140, § 131L(a) & (b), and receiving stolen property, G. L.
    c. 266, § 60.1    The defendant moved to suppress "the fruits of
    the sweep" on the ground that the protective sweep was not
    justified by the officers' reasonable belief that a dangerous
    individual in the home posed a threat to the officers.     The
    motion judge agreed and granted the motion.     The Commonwealth
    appeals pursuant to Mass.R.Crim.P. 15(a)(2), as appearing in 
    422 Mass. 1501
    (1996), claiming that the protective sweep was
    justified.2    We affirm.
    Background.     "We summarize the pertinent facts from the
    judge's findings on the motion to suppress, supplemented where
    appropriate by uncontroverted testimony from the suppression
    hearing."     Commonwealth v. Matos, 
    78 Mass. App. Ct. 156
    , 157
    (2010) (quotation omitted).     On February 1, 2016, a warrant
    issued in the State of Connecticut for the defendant's arrest.
    Because the defendant resided in Springfield, a member of the
    Windsor, Connecticut police department contacted Detective
    1
    The defendant was also considered to be a fugitive from
    justice, G. L. c. 276, § 20A.
    2
    A single justice of the Supreme Judicial Court ordered the
    case to be considered by this court. See Mass.R.Crim.P.
    15(a)(2).
    3
    Christopher Bates of the Springfield police department with
    regard to the warrant.    Detective Bates learned that the
    defendant was wanted in connection with a shooting that had
    occurred during the course of a marijuana sale in Windsor.       He
    learned that the victim, the defendant, and an unidentified
    third person were involved in the shooting, that the victim had
    been shot in the face, and that no firearm had been recovered.
    At approximately 2:30 P.M. on February 3, 2016, Detective
    Bates and six to seven other members of the Springfield police
    department went to the defendant's home to execute the arrest
    warrant.   All of the officers were armed, with their weapons
    holstered, and in uniform or wearing police insignia.    The
    officers knocked, and the defendant answered the door after
    twenty or thirty seconds.    Four to five officers entered the
    home; the other officers went to the rear and sides of the home.
    The officers immediately recognized the defendant from his
    photograph.3   The officers asked the defendant whether he was the
    person named in the warrant, and he responded, "Yes, I am."       The
    officers then placed the defendant in handcuffs just inside the
    front door.    The defendant did not resist or attempt to flee.
    3
    Detective Bates obtained the defendant's photograph from
    the registry of motor vehicles using the biographical
    information he had received about the defendant. Detective
    Bates had a copy of the photograph with him during the execution
    of the arrest warrant.
    4
    Detective Bates patted down the defendant for weapons and
    found none.   Lieutenant Steven Kent then asked the defendant
    whether anyone else was in the home.   The defendant did not make
    eye contact and mumbled something inaudible.    Lieutenant Kent
    asked him again whether anyone else was in the home.   The
    defendant hesitated and then said, "[N]o."
    Based on the defendant's mumbled response and hesitation,
    Lieutenant Kent decided to conduct a protective sweep to ensure
    that there was no one else in the home who might pose a danger
    to the officers.4   Lieutenant Kent proceeded to the second floor
    of the home and opened the door to a bedroom.   As he looked
    under the bed, he noticed a firearm protruding from between the
    box spring and mattress.   He completed the sweep of the home
    and, after determining that the defendant was not licensed to
    possess a firearm, secured a search warrant.    The police later
    returned with the warrant and recovered the firearm.
    Standard of review.   In reviewing the grant "of a motion to
    suppress, we accept the judge's subsidiary findings of fact
    absent clear error and accord substantial deference to the
    judge's ultimate findings."   Commonwealth v. Carr, 
    458 Mass. 295
    , 298 (2010) (citation and quotation omitted).   The ultimate
    4
    One of the officers who participated in the sweep
    testified that the officers had learned that the home was a
    foster home, and that the defendant lived there with his foster
    family. The officers did not know, however, how many people
    lived in the home.
    5
    legal conclusions to be drawn from the findings, however, are
    matters for review by this court.   
    Id. at 299.
    Discussion.    "While executing an arrest warrant, police may
    conduct a protective sweep, 'a quick and limited search of the
    premises' to protect the officers' safety, if they have a
    reasonable belief based on 'specific and articulable facts' that
    the area [to be swept] could harbor a dangerous individual."
    
    Matos, 78 Mass. App. Ct. at 159
    , quoting from Maryland v. Buie,
    
    494 U.S. 325
    , 327, 334 (1990).   Among the factors to be
    considered are (1) "the violence implicit in the crime for which
    the defendant is sought and the violence implicit in his
    criminal history," Commonwealth v. DeJesus, 
    70 Mass. App. Ct. 114
    , 119 (2007); (2) the location of the arrest in relation to
    the area to be swept, Commonwealth v. Colon, 
    88 Mass. App. Ct. 579
    , 581-582 (2015); (3) the defendant's resistance or
    cooperation at the time of arrest, Commonwealth v. McCollum, 
    79 Mass. App. Ct. 239
    , 251 (2011); and, of course, (4) the
    presence, or at least the suspicion of the presence, of other
    individuals, including those known to be dangerous, in the area,
    Commonwealth v. Nova, 
    50 Mass. App. Ct. 633
    , 634-636 (2000).
    Finally, the sweep must last "no longer than is necessary to
    dispel the reasonable suspicion of danger and in any event no
    longer than it takes to complete the arrest and depart the
    premises."   
    Buie, 494 U.S. at 335-336
    .
    6
    In the present case, we conclude that the protective sweep
    of the bedroom on the second floor of the defendant's home was
    not justified, despite the violent crime for which the defendant
    was arrested, when the defendant was immediately handcuffed and
    secured in the front doorway of his home in a peaceful manner,
    and there was no indication of anyone else present in the home.
    We begin by recognizing that the defendant was wanted in
    connection with a shooting, which "clearly justifies caution."
    
    Colon, 88 Mass. App. Ct. at 581
    .   This is obviously an important
    factor, as "[t]he risk of danger in the context of an arrest in
    the home is as great as, if not greater than, it is in an on-
    the-street or roadside investigatory encounter."   
    DeJesus, 70 Mass. App. Ct. at 119
    , quoting from 
    Buie, 494 U.S. at 333
    .    This
    factor must, however, be considered along with others.     "[W]hile
    the charge to which the warrant relates is generally a relevant
    factor bearing on our consideration of the appropriate conduct
    of arresting officers, it must be viewed in context."    
    Colon, supra
    .   In the instant case, the nature of the crime for which
    the defendant was wanted is more difficult than usual to
    evaluate:   although the defendant was allegedly present, along
    with another unidentified suspect, at a marijuana sale during
    which someone was shot, the officers did not know what role the
    7
    defendant played in the shooting or his criminal history.5
    Compare 
    DeJesus, 70 Mass. App. Ct. at 120
    (protective sweep
    justified by arrest warrant for armed carjacking and known
    record of "violent felonies and firearm possession charges");
    
    Matos, 78 Mass. App. Ct. at 159
    (same; arrest warrant for drug
    distribution and "prior arrests related to firearms offenses").
    Other factors cut against the need for the protective
    sweep.   The defendant was already handcuffed and secured at the
    front door when the officers went upstairs to conduct the sweep.6
    At this point, the arrest had been completed, and the officers
    could have easily removed the defendant via the front door
    safely, without needing to enter a bedroom on the second floor.
    See 
    Colon, 88 Mass. App. Ct. at 581
    -582 (sweep not justified
    where defendant opened door, said, "{L]et's go," and attempted
    to leave, yet officers brought him back inside home, handcuffed
    him, and conducted sweep).   See also 
    Nova, 50 Mass. App. Ct. at 634-636
    (sweep not justified where officers returned to
    apartment after chasing defendant through apartment and
    apprehending him at rear of building).   Here, the defendant
    5
    Lieutenant Kent testified that he had "nothing to do with
    the Connecticut investigation whatsoever." Defense counsel
    argued in closing that "there was no testimony whatsoever about
    the history of [the defendant]" and whether the officers knew
    whether the defendant had a record of any "violent felonies."
    6
    Detective Bates testified that the defendant was placed in
    handcuffs in the "living room area" of the home, "right when you
    enter the doorway."
    8
    appeared, by all accounts, completely compliant and cooperative
    throughout the interaction.   He answered the door promptly,
    admitted to being the person named in the warrant, and did not
    resist or attempt to flee.    See 
    Colon, 88 Mass. App. Ct. at 581
    (officers had "achieved their objective without conflict and in
    fairly short order").
    Importantly, there was no objective indication of anyone
    else in the home and no facts suggesting that the officers
    needed to secure the bedroom on the second floor to protect
    themselves.   See 
    DeJesus, 70 Mass. App. Ct. at 116
    , quoting from
    
    Buie, 494 U.S. at 334
    ("to 'look [beyond] closets and other
    spaces immediately adjoining the place of arrest from which an
    attack could be immediately launched[,] . . . there must be
    articulable facts which . . . would warrant a reasonably prudent
    officer in believing that the area to be swept harbors an
    individual posing a danger to those on the arrest scene'").    As
    the motion judge explained, "[T]he police made no observations
    of individuals entering or leaving the home, and they heard no
    sounds coming from any other location in the home."   Thus,
    "[b]eyond Lieutenant Kent's concern that the defendant was not
    being truthful, there was no direct or circumstantial evidence
    to support an inference that anyone but the defendant was home
    or posed a danger to the police."   In these circumstances, the
    defendant's mumbled initial response to questions about whether
    9
    anyone else was present was not sufficient to justify a sweep
    for other individuals.7    See Commonwealth v. Wren, 
    391 Mass. 705
    ,
    708 n.2 (1984) (attempt to avoid contact with police "not enough
    in itself to justify a suspicion").     See also Nova, 50 Mass.
    App. Ct. at 635 (sweep not justified where "there were no
    articulable facts to support an inference that anyone was in the
    apartment at the time of the sweep -- let alone anyone who posed
    a danger to the police" [quotation omitted]); Colon, 88 Mass.
    App. Ct. at 582 ("there was no evidence of danger to be expected
    from the apartment").     Compare Commonwealth v. Walker, 
    370 Mass. 548
    , 552, 556-557, cert. denied, 
    429 U.S. 943
    (1976) (officers
    heard noises and saw individual peering from window); 
    DeJesus, 70 Mass. App. Ct. at 115-116
    (officers saw two women in living
    room and learned that defendant's father was upstairs and
    another person was in cellar).
    In sum, "any perception of a threat to officers was simply
    too speculative here to meet constitutional requirements" for a
    protective sweep of an upstairs bedroom, 
    Nova, 50 Mass. App. Ct. at 635
    , when the defendant, the only person posing a potential
    danger to the police in the home, appeared by all objective
    7
    We further note that the defendant eventually answered
    "no" in response to this question. Also, although there was
    another suspect involved in the crime for which the defendant
    was arrested, the shooting had occurred in Connecticut, not
    Massachusetts, and had taken place at least two days before the
    sweep, thus diminishing any concern that the other suspect might
    be found with the defendant.
    10
    evidence to be home alone, and was handcuffed and peacefully
    secured at the front door.   We therefore affirm the order
    allowing the motion to suppress.
    So ordered.
    

Document Info

Docket Number: AC 16-P-1098

Filed Date: 6/15/2017

Precedential Status: Precedential

Modified Date: 6/15/2017