Heard: June 7, 2016.
found and returned in the Superior Court Department on April
pretrial motion to suppress evidence was heard by Kenneth J.
Fishman, J., and the cases were tried before Raymond J.
Crane for the defendant.
Alford, Assistant District Attorney, for the Commonwealth.
Present: Cypher, Grainger, & Kinder, JJ.
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 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.
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.,  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
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
principles." Commonwealth v.
Cassino, 474 Mass. 85, 88 (2016) (quotation
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
February 7, 2012, Brookline police received information about
a breaking and entering at a Cambridge residence, where a
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.
February 9, 2012, police officers arrived at the apartment
where Johnson and the defendant were living, purporting to
have warrants for their arrest. 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 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.
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. 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.
defendant argues that the judge erroneously omitted the first
of a two-step independent source inquiry mandated by
Murrayv.United States, 487 U.S.
533 (1988), by failing to determine whether police
officers' decision to seek the warrant was influenced ...