Commonwealth v. DeJesus

Mason, J.

(concurring in result). I agree that the order allowing the motion to suppress in this case should be affirmed. I would state flatly, however, that absent one of the well defined exigent circumstances previously identified in the case law, police officers may not enter a private premises without a warrant even if they have probable cause to believe that evidence or contraband is contained therein and are in the process of obtaining a warrant. I believe that this is the law.

Indeed, in Segura v. United States, 468 U.S. 796 (1984), six members of the United States Supreme Court indicated in separate opinions that they regarded it as settled that “an entry in the absence of exigent circumstances is illegal.” Id. at 812 (separate opinion of Burger, C.J.), 820 (Stevens, J., dissenting). No member of the Court suggested a contrary view. See Coolidge v. New Hampshire, 403 U.S. 443, 478 (1971) (“searches and seizures inside a man’s house without a warrant are per se unreasonable in the absence of some one of a number of well defined ‘exigent circumstances’ ”); Vale v. Louisiana, 399 U.S. 30, 34-35 (1970) (absent a demonstrable threat of imminent destruction of evidence, the authorities may not enter a residence without a warrant in order to preserve that evidence).

I do not read the opinion of the Supreme Judicial Court in Commonwealth v. Blake, 413 Mass. 823 (1992), as establishing any different rule. Indeed, the court explicitly noted in Blake that, unlike the circumstances existing in the present case, the police had not used any of the observations made at the time of their initial entry into the defendant’s home to subsequently obtain a warrant to search the home. 413 Mass. at 830. This circumstance would have been irrelevant if the initial entry had been lawful. See Commonwealth v. Alvarez, 422 Mass. 198, 210-211 (1996).

*536Chief Justice Burger did state in Segura that “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 either the dwelling or its contents.” Segura v. United States, 468 U.S. at 810 (opinion of Burger, C.J.). He also indicated (in a part of his opinion for the court which was joined, by only one other Justice) that, for purposes of this rule, it should make no difference that the police had secured the building from within rather than from without. Id. at 811. Contrast Illinois v. McArthur, 531 U.S. 326 (2001) (temporary seizure of private premises from outside pending the attaining of a warrant is not prohibited by Fourth Amendment). The Chief Justice made these statements, however, only in the context of the circumstances of that case, where a defendant was claiming that an initial warrantless seizure of his home required the suppression of all items subsequently obtained from the home, regardless of whether the police had made any observations of contraband during such initial seizure, or had thereafter used such observations to obtain a warrant to search the premises. The Chief Justice nowhere suggested that, if the police had made any such observations while making their warrantless seizure from within without exigent circumstances, the observations would not have constituted an unlawful search (as distinct from an unlawful seizure) requiring a suppression of all the fruits of that search. To the contrary, as noted above, the Chief Justice specifically recognized in Segura that “an entry in the absence of exigent circumstances is illegal.” Id. at 812. See Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (“police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home”); LaFave, Search and Seizure § 6. 5(c), at 366-367 (3d ed. 1996).

In the present case, the Commonwealth made no sufficient showing that there were exigent circumstances justifying the initial warrantless entry of the defendant’s apartment. Nor did it even contend that the information contained in the affidavit subsequently submitted to obtain a warrant was sufficient, absent the observations made during the initial warrantless entry, to *537establish probable cause.1 Nor did the judge find that Trooper O’Neil would have sought the warrant even if he had not made the improper observations, which is an additional prerequisite to a finding that the warrant was not “tainted” by the initial unlawful entry. See Murray v. United States, 487 U.S. 533, 542-544 (1988). In these circumstances, I conclude that the motion to suppress was properly allowed.

In fact, other than the observations made in the defendant’s apartment, Trooper O’Neil’s affidavit included only Graciano’s statements to the effect that the defendant was the source of Graciano’s cocaine and that Graciano had met the defendant on various prior occasions at 7 Lynch Street, where the defendant lived, and a brief, elliptical reference to “information” obtained from a “[cjonfidential [rjeliable [ijnformant” regarding a “cocaine distribution operation at 7 Lynch Street, floor 3, Lawrence, MA.” Even if the Commonwealth had argued the point, I would conclude that this is not enough, by itself, to establish probable cause for a search of the defendant’s apartment. See Commonwealth v. Chongarlides, 52 Mass. App. Ct. 366, 371 (2001) (affidavit was inadequate to establish probable cause to search defendant’s home where it contained no specific evidence tying the home to illegal drug transactions other than that the defendant lived there). See also Commonwealth v. Warren, 418 Mass. 86, 88 (1994) (affidavit containing information received from confidential informant cannot establish probable cause in search absent some indication of basis for informant’s knowledge and reason for believing that informant is reliable).