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01/20/78 COMMONWEALTH v. ROSEMARIE BOSWELL (AND

January 20, 1978

COMMONWEALTH
v.
ROSEMARIE BOSWELL (AND THREE COMPANION CASES *FN1



Suffolk. Indictments found and returned in the Superior Court on February 25, 1977. A pre-trial motion to suppress evidence was heard by Dimond, J. The cases were reported by Wilkins, J., following his allowance of the Commonwealth's motions for interlocutory appeals in the Supreme Judicial Court for the county of Suffolk.

Hennessey, C.j., Braucher, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Arrest. Probable Cause. Constitutional Law, Arrest, Probable cause.

The opinion of the court was delivered by: Braucher

Although police officers, after ascertaining that surveillance photographs taken during a robbery provided a good representation of the robbers, had probable cause to arrest the persons shown in the photographs, they were not required to obtain "Jane Doe" warrants for the arrest of these persons before investigating an anonymous tip giving the names and addresses of the robbers. [267-268]

Police who had received an anonymous tip giving the names and addresses of participants in a robbery did not have probable cause to arrest the named individuals nor to search for them at the given addresses until policemen went to one of the addresses and recognized the person answering the door from photographs taken during the robbery. [268-269]

For the purposes of the rule prohibiting a warrantless entry into a dwelling to arrest in the absence of sufficient justification for the failure to obtain a warrant, entry into the hallway of an apartment building was not an entry into a dwelling. [269-270]

When probable cause to arrest is in doubt, the prohibition against a warrantless entry into a dwelling to arrest in the absence of sufficient justification for the failure to obtain a warrant does not prevent the police from knocking on the door of a dwelling in the hope that a suspect will appear, nor does it prevent them from arresting the suspect in the dwelling upon probable cause and exigent circumstances even though the exigency is foreseeable. [270-271]

Three women robbed a store, and surveillance cameras took their photographs. Later an anonymous telephone informant gave the police their names and addresses. The police went to the addresses without warrants, identified the defendants as two of the women shown in the photographs, and arrested them. A Judge of the Superior Court ruled that the arrests were unlawful under Commonwealth v. Forde, 367 Mass. 798 (1975), and that statements made by the defendants soon after their arrests should be suppressed under Wong Sun v. United States, 371 U.S. 471 (1963), notwithstanding the "diligence and good faith and conscientiousness of the police." We reverse.

The defendants were indicted for armed robbery and for assault and battery by means of a dangerous weapon. Before trial the Judge made the suppression orders in question. A single Justice of this court allowed the Commonwealth's applications for interlocutory appeals, and reported the appeals to this court for hearing. The two appeals were consolidated.

We summarize the evidence produced at the hearing on the motions to suppress. The store is a combination florist shop and post office in Roxbury. About 2:30 p.m. on February 1, 1977, a saleswoman admitted three women. One, who was carrying a shotgun, told her to lie on the floor, and she did. She was then struck on the back of the head and knocked out.

Photographs of the robbers were taken by surveillance cameras in the store, and were shown to the saleswoman a few days later. She said the photographs were a good representation of the three women who entered the store. On February 2, 1977, a postal inspector identified one of the women in the surveillance photographs as Cassandra Alexander, whom he had previously arrested. But he apparently did not so inform the police, who were unable to identify any of the three women. In the afternoon of February 9 the investigating Boston police officer received an anonymous telephone tip giving names and addresses of the three robbers: Cassandra Kincaid and Tracey Toney at 14 Townsend Street, and Rosemarie Boswell at 64 Holworthy Street, apartment 5.

About 9 a.m. on February 10 four or more police officers and postal inspectors went to 14 Townsend Street without a warrant. They went through an open outer door and knocked on the door of the second floor apartment of the defendant Toney. She opened the door, the investigating officer recognized her from the surveillance photographs, and he identified himself and told her she was under arrest for the robbery. About 9:30 a.m. the officers went to the Holworthy Street address without a warrant. They went through open doors on the first floor and knocked on the door of the defendant Boswell's apartment upstairs. A boy about fifteen years old opened the door, the investigating officer saw and recognized the defendant Boswell, and he identified himself and told her she was under arrest for the robbery. The defendant Boswell, however, testified that the officer did not see her until after he entered the apartment.

Within an hour after the arrests, the defendants were given Miranda warnings at the police station, and they made the statements ...


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