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Commonwealth v. Alexis

Supreme Judicial Court of Massachusetts, Essex

December 14, 2018

COMMONWEALTH
v.
JEAN ALEXIS.

          Heard: September 5, 2018.

         Indictments found and returned in the Superior Court Department on June 27, 2016. A pretrial motion to suppress evidence was heard by James F. Lang, J.

         An application for leave to prosecute an interlocutory appeal was allowed by Kafker, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him.

          Emily R. Mello, Assistant District Attorney, for the Commonwealth.

          Emily A. Cardy, Committee for Public Counsel Services, for the defendant.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          CYPHER, J.

         The defendant, Jean Alexis, was charged with numerous crimes stemming from an armed home invasion in Lynn.[1]The day after the home invasion, and following an investigation, the police arrested the defendant inside his dwelling without an arrest warrant. The defendant moved to suppress evidence that (1) the police observed during a protective sweep of his dwelling after he was arrested and (2) the police gathered after they obtained a warrant to search his dwelling.[2] A judge in the Superior Court allowed the defendant's motion to suppress because the police created the exigency that prompted their warrantless entry into the defendant's dwelling. A single justice of this court allowed the Commonwealth's application for leave to pursue an interlocutory appeal and reported the case to the full court.

         We have held that "where the exigency is reasonably foreseeable and the police offer no justifiable excuse for their prior delay in obtaining a warrant, the exigency exception to the warrant requirement is not open to them." Commonwealth v. Forde, 367 Mass. 798, 803 (1975) (analyzing warrantless search under Fourth Amendment to United States Constitution). See Commonwealth v. Molina, 439 Mass. 206, 211 (2003). In Kentucky v. King, 563 U.S. 452, 462 (2011), the United States Supreme Court held that where "the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed." The Commonwealth urges us to follow the jurisprudence of the Supreme Court when examining a warrantless search of a dwelling under art. 14 of the Massachusetts Declaration of Rights. Adopting such an approach would render all of the evidence obtained after the defendant's arrest admissible. The defendant argues that, notwithstanding the Supreme Court's decision in King, under art. 14 the police cannot create the exigent circumstances used to justify a warrantless entry to a home, even if they engaged in lawful action, such as approaching a house to knock on a door. He also contends that the Commonwealth waived the argument that probable cause remained for the subsequent search warrant, even if the impermissibly viewed evidence is redacted from the affidavit.

         We interpret art. 14 to provide greater protection than the Fourth Amendment where the police have relied on a reasonably foreseeable exigency to justify the warrantless entry into a dwelling. Therefore, we conclude that the judge did not err in allowing the defendant's motion to suppress evidence that was found in plain view during a protective sweep because the officers' entry into his home was not justified based on exigent circumstances. We also conclude that the Commonwealth waived the argument regarding whether, if the impermissible observations from the affidavit were redacted, the search warrant was based on probable cause.

         Background.

         We recite the motion judge's factual findings supplemented by the uncontroverted evidence at the motion hearing that is consistent with the judge's findings. Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). "[O]ur duty is to make an independent determination of the correctness of the [motion] judge's application of constitutional principles to the facts as found" (citation omitted). Commonwealth v. Campbell, 475 Mass. 611, 615 (2016). On the morning of June 14, 2016, Lynn police officers responded to a report of a home invasion. Shortly thereafter, Detective Stephen Pohle arrived at the scene. Upon arrival, Pohle spoke with the victim, Shomar Garcia, who lived at the apartment with his wife and two children. Garcia conveyed that earlier that morning, while he was leaving for work, three African-American males forced their way into the apartment, one of them struck him in the face with a silver handgun, and they "forced their way into the bedroom, where his wife and two children were." The men restrained Garcia with duct tape and took his jewelry and wallet. Before leaving the house, the man with the silver handgun struck Garcia's six month old baby in the face with the gun.

         Garcia recognized the man with the silver handgun as someone with whom he had attended high school. Later that afternoon, Garcia went to the police station in an attempt to identify the perpetrator. After looking through a "few hundred photos," Garcia saw a photograph of the defendant and stated with "[one hundred] percent" certainty that the photograph was of one of the men who had broken into his home and was the one who had hit him and his baby.

         Pohle wrote an incident report and filled out an arrest warrant application. Because it was late in the afternoon and his shift had ended, Pohle placed the warrant in the "court box" for the next day.[3] Pohle testified that although the nature of the investigation -- an armed home invasion -- justified an after-hours warrant, the decision not to seek one was within his discretion.[4]

         Early the next morning, before he began his shift, Pohle telephoned the supervisor of the Lynn police department's warrant task force, Sergeant Michael Kenny. Pohle informed Kenny, who was on his way to the police station, that the defendant had been identified as the perpetrator of the home invasion who brandished a handgun and struck the baby with the gun. Pohle also informed Kenny that he was in the process of getting an arrest warrant.

         At approximately 7 A.M., Kenny arrived at the police station and reviewed the department's "hot sheet."[5] Kenny recognized the defendant's name on the "hot sheet" as a person with whom he had recently spoken while investigating another matter. Kenny also knew where the defendant lived.

         Without an arrest warrant, but believing that there was probable cause to arrest the defendant and that exigent circumstances existed, Kenny and four other members of the warrant task force proceeded to the defendant's address. The officers were dressed in plainclothes and had their badges displayed.[6] Because of the information available to Kenny at the time -- the defendant's identification being fresh, the violent nature of the home invasion, the defendant's role in it, his possession of a firearm, the involvement of two accomplices, and the possibility that they might flee -- he believed that immediate action was required.[7]

         Upon arriving at the defendant's address, Kenny and two officers approached the front door, while two other officers went to the side of the house to secure a perimeter.[8] Kenny understood that the officers' presence might prompt the defendant to flee or destroy evidence. Kenny's plan was to knock on the door to determine if the defendant was home, question him, and, if the opportunity arose, arrest him. As Kenny ascended the front porch steps, the defendant saw the officers through the glass front door. The defendant turned around and ran toward the back of the house. One of the officers who was setting up a perimeter observed the defendant climbing through a window in the back of the house. The officer shouted at the defendant to show his hands. Instead, the defendant retreated into the house, out of the officer's view. Because of the volatile situation and the nature of the crimes involved, the officers forced their way through the front door. As they entered, they noticed the defendant coming toward them from the back of the home. The officers ordered the defendant to the ground and handcuffed him in the hallway.

         After the defendant had been restrained, the officers conducted a protective sweep of the house and secured the premises. During the protective sweep, Kenny made a plain view observation of some jewelry on top of a refrigerator in the defendant's room ...


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