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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.
Commonwealth v. Saywahn
Combined Opinion