Commonwealth v. Pearson , 90 Mass. App. Ct. 289 ( 2016 )

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15-P-896 Appeals Court
COMMONWEALTH vs. WASHINGTON PEARSON.
No. 15-P-896.
Norfolk. June 7, 2016. - September 20, 2016.
Present: Cypher, Grainger, & Kinder, JJ.
Arrest. Search and Seizure, Arrest, Securing of premises,
Fruits of illegal arrest, Warrant, Affidavit. Evidence,
Result of illegal arrest. Practice, Criminal, Motion to
suppress, Warrant, Affidavit.
Indictments found and returned in the Superior Court
Department on April 12, 2012.
A pretrial motion to suppress evidence was heard by Kenneth
J. Fishman, J., and the cases were tried before Raymond J.
Brassard, J.
Edward Crane for the defendant.
Pamela Alford, Assistant District Attorney, for the
Commonwealth.
CYPHER, J. A jury convicted the defendant, Washington
Pearson, of four counts of breaking and entering in violation of
G. L. c. 266, § 18, and four counts of larceny over $250 in
violation of G. L. c. 266, § 30(1). On appeal, he argues that
2
the motion judge erred in denying his motion to suppress
evidence seized pursuant to a search warrant obtained following
a warrantless arrest. We find no error by the motion judge.
Following a pretrial hearing, the motion judge determined
that warrants did not validly issue for the arrest of Jenell
Johnson and the defendant in their apartment and, consequently,
he allowed their motions to suppress statements made at the time
of the arrests.1,2 He concluded, however, that evidence seized
pursuant to the subsequently secured search warrant was
untainted by the initial illegality and therefore admissible.
The defendant claims that his motion to suppress should have
been allowed in full because the search warrant was tainted by
his prior unlawful arrest, and therefore could not constitute a
genuinely independent source for the challenged evidence.
"In reviewing a decision on a motion to suppress, 'we
accept the judge's subsidiary findings of fact absent clear
error but conduct an independent review of his ultimate findings
and conclusions of law.'" Commonwealth v. Keefner, 461 Mass.
507, 515 (2012), quoting from Commonwealth v. Scott, 440 Mass.
642, 646 (2004). "We make an independent determination of the
correctness of the judge's application of constitutional
1
The Commonwealth does not challenge the suppression of
statements made at the time of the arrests.
2
Johnson subsequently pleaded guilty and testified as a
cooperating witness against the defendant at trial.
3
principles." Commonwealth v. Cassino, 474 Mass. 85, 88 (2016)
(quotation omitted).
We recite the facts found by the motion judge after an
evidentiary hearing, and supplement where necessary with
undisputed testimony implicitly credited by the judge.
Commonwealth v. Oliveira, 474 Mass. 10, 11 (2016). Between
January 31, 2012, and February 8, 2012, Brookline police
responded to five incidents of residential breaking and
entering. Victims reported missing various valuable items,
including jewelry, electronics, and credit cards. On February
6, 2012, one victim reported that a credit card reported stolen
from his apartment had been fraudulently used at four local
retail stores. Surveillance footage from three of the stores
depicted a Hispanic female in her mid-to-late thirties, wearing
blue jeans, a white fleece jacket, and a hat, making the
fraudulent purchases. Surveillance footage from a fourth store
depicted a woman with similar appearance, but wearing a white
coat and black boots that matched the description of items
previously purchased using the stolen credit card. An employee
at one of the stores told police that the woman had been
accompanied by a dark-skinned black male, estimated to be in his
mid-to-late thirties.
On February 7, 2012, Brookline police received information
about a breaking and entering at a Cambridge residence, where a
4
driver's license belonging to Johnson was found. That victim
told officers that she did not know Johnson. Based on the
information on the driver's license, the police found booking
photographs from a 2011 breaking and entering incident, for
which Johnson and the defendant were both arrested while
attempting to flee in the defendant's vehicle. The police
determined that the booking photographs of Johnson and the
defendant matched the physical characteristics of the suspects
depicted in the surveillance footage from the retail stores.
When presented with a photographic array, an employee at one of
the stores identified Johnson and the defendant as the customers
who had made purchases using the stolen credit card.
On February 9, 2012, police officers arrived at the
apartment where Johnson and the defendant were living,
purporting to have warrants for their arrest.3 When Johnson
answered the door, she was taken into custody and advised of her
Miranda rights. The officers then asked her where they could
locate some of the items allegedly purchased with the stolen
credit card. She directed them to a bedroom on the second
floor, where they observed items matching the description of
3
The motion judge found that properly executed applications
for criminal complaints filed by the police, signed by the
clerk-magistrate who determined that there was probable cause to
arrest the defendant and Johnson and authorized the issuance of
arrest warrants, were not sufficient to satisfy the warrant
requirement where the police did not have the arrest warrants in
hand at the time they went to the apartment.
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fraudulently purchased merchandise and stolen goods in plain
view. The officers asked Johnson, whom they had escorted to the
second floor, for consent to search the apartment, which she
declined to give, saying that it was not her house and things
found there may not belong to her. The officers apprehended the
defendant in the bathroom on the third floor.
After Johnson and the defendant had been arrested and
transported to police headquarters, police remained at the house
to secure the premises while a search warrant was prepared.4
While securing the premises, police officers spoke with the
owner of the house, who identified himself as Johnson's
stepfather and told the officers that the defendant had been
staying in the residence for the past five or six weeks. The
owner notified police that he had discovered a shopping bag
containing silverware, jewelry bags, and a prescription bottle
bearing the name of a victim of one of the burglaries, in a
trash can outside the house.
The defendant argues that the judge erroneously omitted the
first of a two-step independent source inquiry mandated by
Murray v. United States, 487 U.S. 533 (1988), by failing to
determine whether police officers' decision to seek the warrant
4
The defendant does not claim that the police improperly
secured the premises.
6
was influenced by their observations in the course of the
warrantless entry and arrest.
The defendant bases his argument on the independent source
analysis articulated by the United States Court of Appeals for
the First Circuit (First Circuit) in United States v.
Dessesaure, 429 F.3d 359 (1st Cir. 2005). Under that approach,
determination of police officers' intent to seek a warrant is
framed as a subjective inquiry.5 See id. at 369; United States
v. Siciliano, 578 F.3d 61, 69 (1st Cir. 2009). Cf. United
States v. Silva, 554 F.3d 13, 19 (1st Cir. 2009) (holding that,
in totality of circumstances, reasonable officer would seek
warrant). Because Massachusetts courts may provide greater
protection against search and seizure under art. 14 of the
Massachusetts Declaration of Rights than is secured by the
Fourth Amendment to the United States Constitution, see
5
Although the First Circuit frames the first Murray prong
as a subjective test ("would these particular police officers
have sought the warrant?"), it instructs Federal District Courts
to ascertain officers' subjective intent by objective means,
based on the totality of attendant circumstances. United States
v. Dessesaure, 429 F.3d at 369. Since Murray, the United States
Supreme Court has eschewed the use of subjective intent in the
context of the Fourth Amendment to the United States
Constitution. See Whren v. United States, 517 U.S. 806, 812-816
(1996); Devenpeck v. Alford, 543 U.S. 146, 153-156 (2004). The
First Circuit "did not reach this question in Dessesaure because
it was unnecessary for the resolution of the case. We again
decline to reach the question, though for a different reason.
The Supreme Court has repeatedly instructed lower courts that
only it has the prerogative to overrule its own decisions."
United States v. Siciliano, 578 F.3d 61, 69 n.5 (1st Cir. 2009).
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Commonwealth v. Blevines, 438 Mass. 604, 607 n.4 (2003), they
are not required to follow the First Circuit's analysis of
officer intent. Instead, when judging the propriety of police
conduct, Massachusetts courts apply "a standard of objective
reasonableness without regard to the underlying intent or
motivation of the officers involved." Commonwealth v. Ceria, 13
Mass. App. Ct. 230, 235 (1982) (quotation omitted). The
appropriate inquiry under State jurisprudence is, therefore,
whether it was objectively reasonable for police to seek a
warrant under the circumstances. See Commonwealth v. Santana,
420 Mass. 205, 208 (1995). On this record, we conclude that it
was reasonable for police to secure a search warrant for which
they had probable cause.
To demonstrate probable cause, "[a]n affidavit must contain
sufficient information for an issuing magistrate to determine
that the items sought are related to the criminal activity under
investigation, and that the items reasonably may be expected to
be located in the place to be searched at the time the search
warrant issues." Commonwealth v. DeJesus, 439 Mass. 616, 626
(2003). "Evidence obtained during a search pursuant to a
warrant that was issued after an earlier illegal entry and
search is admissible as long as the affidavit in support of the
application for a search warrant contains information sufficient
to establish probable cause to search the premises 'apart from'
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observations made during the initial illegal entry and search."
Commonwealth v. Tyree, 455 Mass. 676, 692 (2010), quoting from
Commonwealth v. DeJesus, 439 Mass. at 625. The defendant argues
that the motion judge erred in taking statements made by the
owner of the house into account as part of the probable cause
analysis because that information was the product of officers'
unlawful entry and arrest. He asserts that, without the owner's
statement that the defendant had been living at the apartment,
the affidavit failed to establish a connection between the items
sought and the place to be searched, and therefore the police
lacked probable cause to search the apartment.
The owner of the house spoke to police officers while they
were lawfully securing the premises. Although the nature of the
owner's interaction with officers is not clear, "[t]he record is
devoid of anything to suggest that the police did anything to
solicit, provoke, or tempt [the owner] into making [his]
disclosures, and thus devoid of anything suggesting police
misconduct." Commonwealth v. Brandwein, 435 Mass. 623, 631
(2002). In this case, where there is no indication that police
engaged in serious, "distinctly egregious" conduct toward the
owner, the defendant does not have target standing to challenge
the owner's statements to police. See Commonwealth v. Santiago,
470 Mass. 574, 578 (2015) (recognizing, but declining to adopt,
9
target standing where police conduct was not "distinctly
egregious").
As for the defendant's contention that the owner's
statements constitute the fruit of unlawful police conduct
toward himself (as opposed to misconduct toward the owner), we
agree with the motion judge's implicit finding that the
statements were an independent and intervening act, giving rise
to probable cause to search the apartment. "The 'crucial
question' regarding whether a particular statement must be
suppressed as the fruit of the initial illegal [entry and
arrest] is whether that statement 'has been come at by
exploitation of . . . [the primary illegality] or instead by
means sufficiently distinguishable to be purged of the primary
taint.'" Commonwealth v. Estabrook, 472 Mass. 852, 860 (2015),
quoting from Commonwealth v. Bradshaw, 385 Mass. 244, 258
(1982). "In determining whether the connection between an
illegal arrest and [] subsequent [third party statements] has
become so attenuated as to dissipate the taint of the
illegality, we consider the following: (1) the temporal
proximity of the arrest to the [statements]; (2) the presence or
absence of intervening circumstances; and (3) the purpose and
flagrancy of the misconduct in the context of the circumstances
of the arrest." Commonwealth v. Borges, 395 Mass. 788, 795-796
(1985).
10
As noted above, the owner of the house spoke to police
while they were acting with lawful authority to secure the
premises, and after the defendant had already been arrested and
transported to police headquarters. See Commonwealth v. Blake,
413 Mass. 823, 829 (1992) ("Securing a dwelling, on the basis of
probable cause, to prevent the destruction or removal of
evidence while a search warrant is being sought is not itself an
unreasonable seizure of the dwelling or its contents"). Thus,
the temporal proximity between the unlawful arrest and the
owner's statements was attenuated. Moreover, the owner's
statements to police were an intervening act that occurred after
the arrest had already concluded, not "in direct and immediate
response to the illegal police action." Commonwealth v. Borges,
395 Mass. at 796. Finally, we do not regard the warrantless
arrest, although unlawful, as flagrant misconduct where police
had probable cause to arrest the defendant and proceeded to
procure a warrant before commencing to search the apartment.
Accordingly, the owner's disclosure to police that the defendant
resided at the apartment to be searched was sufficiently
distinguishable from the defendant's unlawful arrest "to be
purged of the primary taint." Commonwealth v. Estabrook, 472
Mass. at 860. See Commonwealth v. Brandwein, 435 Mass. at 631-
632 ("the target of the exclusionary rule is official
misconduct, and the rule is not intended to discourage citizens
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from aiding to the utmost of their ability in the apprehension
of criminals" [quotation omitted]).
Because the search warrant supported by probable cause
constituted an independent source of the challenged evidence, it
follows that the motion judge did not err in denying, in part,
the defendant's motion to suppress.
Judgments affirmed.