Commonwealth v. Catanzaro

Spina, J.

The Commonwealth was granted leave to appeal from an order of a judge in the Superior Court suppressing over twenty-eight grams of cocaine seized from the purse of the defendant’s girl friend, Meredith Gravina. Police seized the evidence during a search of the couple’s apartment pursuant to a warrant that expressly authorized police to search “any person present.” Police had detained the defendant and Gravina in the driveway outside their apartment building in Hyannis, shortly after they saw them leave through the front door. During their conversation with the officers, both the defendant and his girl friend acknowledged that the apartment was theirs. After showing them the warrant, reading them both their Miranda rights, and placing the defendant in handcuffs for safety purposes, police walked the pair back to the apartment for the ensuing search.

The motion judge, relying on Michigan v. Summers, 452 U.S. 692 (1981), determined that the detention of Gravina outside the apartment did not violate the Fourth Amendment to the United States Constitution. He concluded, however, that art. 14 of the Massachusetts Declaration of Rights required the police, when applying for a search warrant, to obtain judicial authority to detain people encountered outside as well as inside the premises. Finding that the police failed to request such authority, the judge ruled that the detention of Gravina was illegal, and suppressed the evidence seized from her purse.1

A single justice allowed the Commonwealth’s application under G. L. c. 278, § 28E, and Mass. R. Crim. P. 15 (a) (2), as *48 appearing in 422 Mass. 1501 (1996), to pursue an interlocutory appeal from the order granting the motion to suppress, and the appeal was reported to the full court. We affirm the judge’s decision as to the Fourth Amendment, and because we conclude that the police acted reasonably in the circumstances, conform-ably with art. 14, we vacate the order for suppression and remand the case to the Superior Court for entry of an order denying the motion to suppress.

1. Facts. We recount the facts as found by the motion judge, supplemented by uncontroverted testimony from the hearing on the motion. See Commonwealth v. Watson, 430 Mass. 725, 726 n.5 (2000). In September, 2000, Detective Sean E. Balcom of the Barnstable police department began investigating the defendant after an informant reported that the defendant sold cocaine out of the apartment he shared with his girl friend.2 Another informant, who had provided information in the past resulting in another individual’s conviction of trafficking in cocaine, also told Barnstable police that the defendant sold cocaine out of his apartment. This informant additionally reported that the defendant had purchased a handgun for protection after he was robbed at gunpoint by other drug dealers. The robbery was verified by Barnstable police department records.

Following two controlled purchases of cocaine from the defendant using an informant, the Cape Cod drug task force obtained a “no-knock” warrant to search the defendant’s apartment for cocaine. The warrant, which permitted police to conduct the search at night as well as to enter the premises without announcement, also authorized them to search the defendant specifically and “any person present who may be found to have such property [cocaine] in his or her possession or under his or her control or to whom such property may have been delivered.”

Balcom testified that on October 5, 2000, he and other members of the task force arrived in the vicinity of the apartment building with the search warrant at approximately *49 4:15 p.m. They set up surveillance to determine whether anyone was inside. The apartment was on the lower level of a two-story, multi-unit building located behind a restaurant on Main Street in Hyannis. An alley or driveway approximately one hundred feet long runs alongside the restaurant and ends in a parking area in front of the apartment building.

Balcom further testified that at approximately 4:50 p.m., he saw the defendant and a woman, later identified as Meredith Gravina, the defendant’s girl friend, leave the apartment. The two were on the front step “for a short period of time,” according to Balcom, and then began walking toward Main Street.3 After Balcom radioed the other officers, he and two lieutenants approached the pair when they were about one-half to three-quarters of the way down the driveway, just “[ajbout three minutes” after they left the apartment, according to the judge.4

The motion judge found that as Balcom, Lieutenant John Allen of the State police, and another lieutenant converged on the defendant and Gravina, Allen immediately informed the pair that police had a warrant to search apartment no. 5. Gravina “blurted out” that it was her apartment. Allen testified that he then showed the search warrant to the defendant and Gravina, and read them both their Miranda rights. At that time, the defendant (but not Gravina) was patted down and handcuffed for safety reasons.5

Gravina told the officers she had a puppy inside the apartment and expressed concern about the police going in, according to the officers’ testimony. Allen testified that he asked her to accompany them back to the apartment and she agreed to do so. The group, which now included three more police officers, began making its way up the driveway. Balcom and a State *50 trooper led the defendant, while Gravina, Allen, and two other officers walked behind them. As they walked, Allen asked Gravina for a key to the apartment, which she produced. Allen unlocked the door and the group, led by one of the officers, entered the apartment.

Once inside, Balcom testified that he and another officer took the defendant into the bathroom to be searched more thoroughly, while other officers interviewed Gravina in the kitchen. Balcom found $108 in cash and a plastic bag of marijuana on the defendant and placed him under arrest. Balcom testified that he then asked the defendant “where the cocaine was.” He replied that it was in Gravina’s purse, but that it belonged to him and “she had no idea about his drug dealing.” As a result of the disclosure, officers searched Gravina’s purse, where they discovered two bags containing over twenty-eight grams of cocaine. A further search of the premises turned up $1,170 in cash in a bedroom closet and $2,174 inside an envelope in a bureau drawer.

The defendant was charged with trafficking in cocaine, G. L. c. 94C, § 32E (b) (2), and possession of marijuana, G. L. c. 94C; § 34.6 He filed a motion to suppress the evidence, arguing that police lacked probable cause to detain Gravina and search her purse. The defendant also claimed in a supplemental memorandum that he and Gravina were illegally detained under Massachusetts law.

2. Discussion. When reviewing a motion to suppress evidence, we adopt the motion judge’s subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge’s application of constitutional principles to the facts as found. See Commonwealth v. Haas, 373 Mass. 545, 550 (1977), S.C., 398 Mass. 806 (1986), and cases cited. See also Commonwealth v. Eckert, 431 Mass. 591, 592-593 (2000).

The motion judge found, and the Commonwealth does not dispute, that Gravina was seized outside the apartment for purposes of the Fourth Amendment and art. 14 of the Mas *51 sachusetts Declaration of Rights.7 The Commonwealth argues that upholding the detention of Gravina under the principles articulated in Michigan v. Summers, 452 U.S. 692 (1981), would not offend art. 14. The defendant, on the other hand, argues that the judge erred in ruling that under Michigan v. Summers, supra, the seizure did not violate the Fourth Amendment.8 We address each issue separately.

a. Fourth Amendment. The motion judge ruled that because Gravina was an occupant of the apartment, her detention while police executed the search warrant did not violate the Fourth Amendment. See Michigan v. Summers, supra at 705. Contrary to the defendant’s claim, the judge did not err in finding that Gravina was an occupant.9 Black’s Law Dictionary 1106 (7th ed. 1999) defines “occupant” as “[o]ne who has possessory rights in, or control over, certain property or premises.” Webster’s Third New International Dictionary 1560 (1993) defines “occupant” as “one who takes possession under title, lease, or tenancy at will” and “one who occupies a particular place or premises: TENANT, RESIDENT.”10 On learning of the search warrant, Gravina stated, “That’s my apartment,” and the *52 defendant does not challenge that Gravina made that statement.11 Thus, the judge’s finding that Gravina was an occupant of the apartment is supported by the record.

The United States Supreme Court has held that “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Michigan v. Summers, supra at 705. In Michigan v. Summers, supra at 693, police officers who were about to execute a warrant to search the defendant’s home for narcotics encountered the defendant going down his front steps. They asked him to let them in, and detained him while they searched the home. Id. On discovering drugs in the basement, the police arrested the defendant and searched him, finding an envelope containing heroin in his pocket. Id.

The Court stated that both the law enforcement interests and the nature of “articulable facts” to support the detention of the occupants are relevant in evaluating the seizure. Michigan v. Summers, supra at 702. The government has an interest in preventing flight by the occupants, minimizing the risk of harm to the officers, and facilitating the orderly completion of the search. See id. at 702-703. As for the nature of file articulable *53 facts, the Court asserted that the detention of an occupant is only an “incremental intrusion” on his or her liberty when police have a valid search warrant. Id. at 703. Further, the very existence of the warrant objectively justifies the detention, because a neutral magistrate has determined there is “probable cause to believe that someone in the home is committing a crime.” Id. Thus, the Court reasoned that the occupant’s connection to the home gives police an “easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant.” Id. at 704. The Court concluded that it is constitutionally reasonable to require persons to remain on the premises while police execute a valid warrant to search their home. Id. at 705.

Here, the defendant and Gravina had walked fifty to seventy feet down the driveway when the police stopped them, “as soon as practicable” after they had left the apartment. United States v. Cochran, 939 F.2d 337, 339 (6th Cir. 1991), cert. denied, 502 U.S. 1093 (1992). Contrast United States v. Boyd, 696 F.2d 63, 65 n.2 (8th Cir. 1982), cert. denied, 460 U.S. 1093 (1983) (holding Summers unavailing when police stopped resident several blocks from his home to effect search warrant). The detention of Gravina just outside her apartment comported with the requirements of the Fourth Amendment.12 See Michigan v. Summers, supra at 705. There was no error. *54 b. Article 14. The Commonwealth contends the judge based his ruling on clearly erroneous findings of fact, and erred as a matter of law when he ruled that the detention of Gravina outside the apartment building violated art. 14 of the Massachusetts Declaration of Rights. It argues that the legitimate law enforcement interests that justified the stop upheld in Michigan v. Summers, supra, do not conflict with art. 14, and moreover, that art. 14 was not offended here because the police acted reasonably in obtaining the search warrant and subsequently detaining Gravina.13

*55 We agree with the Commonwealth that the judge premised his ruling on clearly erroneous findings of fact. First, the judge found that the task force “had reason to believe that [the defendant] and Gravina would be present” at the apartment. Although the affidavit in support of the application for the search warrant states that a confidential informant had told investigators that the defendant lived at the apartment with his girl friend,14 the affidavit did not identify or describe Gravina. There was also no testimony at the hearing to support the judge’s finding. On the contrary, Balcom testified only that “[w]e didn’t even know if they were home.” Second, the judge found that “[t]he police planned to watch [the apartment building] for the departure of [the defendant], to detain him outside of the premises, and to bring him back to the premises for the purpose of gaining entry and having him present while the Task Force executed the warrant.” Again, the evidence fails to support this finding. Balcom testified only that part of the purpose of setting up surveillance was “to find out if anyone was there.” Furthermore, the police had a no-knock warrant; they did not need the defendant (or Gravina, for that matter) to let them into the apartment.

We must now inquire whether the detention of Gravina was permissible under art. 14. In certain circumstances we have concluded that art. 14 provides greater protection against searches and seizures than the Fourth Amendment. See Commonwealth v. Rodriguez, 430 Mass. 577, 582, 584 n.7 (2000). A warrantless search or seizure violates art. 14 only if it is unreasonable. See Landry v. Attorney Gen., 429 Mass. 336, 348 *56 (1999). There is no ready test for reasonableness except by balancing the need to search or seize against the invasion that the search or seizure entails. See id., quoting Commonwealth v. Shields, 402 Mass. 162, 164 (1988). The reviewing court “must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Commonwealth v. Thomas, 429 Mass. 403, 407 (1999), quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979). See K.B. Smith, Criminal Practice and Procedure § 153 (2d ed. 1983 & Supp. 2003).

The Commonwealth asserts that the police had legitimate interests in detaining Gravina outside the building. The police had information that the defendant lived with his girl friend, and they saw him leave the apartment with an unknown woman. It was Gravina who, on learning of the search warrant, voluntarily blurted out that it was her apartment, without any prior questioning by police. At that point, the Commonwealth claims, the State had an interest in preventing her from fleeing in the event that they found incriminating evidence inside; in minimizing the risk of harm to officers (who had probable cause to believe that the defendant owned a firearm); and in completing the search in an orderly fashion, with minimal delay and damage. See Michigan v. Summers, supra at 702-703.

The intrusiveness of the detention, by the same token, was minimal. The defendant and Gravina were intercepted shortly after they walked out the door, when they were one-half to three-quarters of the way down the driveway. At that time the police admittedly had no information that Gravina had committed a crime, and were not concerned that she was armed. She was neither pat frisked nor handcuffed. Balcom testified that most of the conversation during the initial encounter that took place among the defendant, Gravina, and the three police officers who first approached them, was a “collective conversation.” After volunteering that the apartment was hers, and expressing concern about the police entry, Gravina agreed to accompany the group back to the apartment so the officers could execute the warrant.

Under our art. 14 jurisprudence, the police needed reasonable suspicion that Gravina was committing, had committed, or was *57 about to commit a crime, to justify detaining her and bringing her back to the apartment. See, e.g., Commonwealth v. Eckert, 431 Mass. 591, 599 (2000). See also J.A. Grasso & C.M. McEvoy, Suppression Matters Under Massachusetts Law § 4-2(e) (2003). Gravina’s spontaneous acknowledgment that it was her apartment provides such a basis, because a neutral, detached magistrate had already determined there was probable cause to believe narcotics were being sold there.15 See Michigan v. Summers, supra at 703. “The connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant” while the police search the home pursuant to a valid warrant. Id. at 703-704.

Although Gravina was not inside the apartment but some fifty to seventy feet away when police detained her, her detention at that point was incremental and barely, if at all, more intrusive than if it had originated inside. See Michigan v. Summers, supra at 702 n.16. Moreover, it is reasonable to “assume that most citizens — unless they intend flight to avoid arrest — would elect to remain in order to observe the search of their possessions.” Id. at 701. We think that for purposes of art. 14, like the Fourth Amendment, “it is constitutionally reasonable to require [a] citizen to remain while officers of the law execute a valid warrant to search his home.” Id. at 705.

The motion judge faulted the police for failing to request and obtain authorization from the magistrate “to seize [the defendant] and any other occupant of Apt. 5” outside the premises, despite their “anticipation” that the defendant would be present. His reliance on Commonwealth v. Scalise, 387 Mass. 413, 420-423 (1982), however, is misplaced, because that opinion imposes no such requirement on police. Moreover, there is no challenge to the validity of the no-knock warrant in this case. The warrant application did seek permission to search both the defendant and “any person present” inside the apart *58 ment and the warrant commanded police to do so.16 See Commonwealth v. Smith, 370 Mass. 335, 348, cert. denied, 429 U.S. 944 (1976) (explaining in what circumstances an “any person present” clause authorizes a valid search). On their arrival, the police did what they were supposed to do: “[M]ake a threshold reappraisal of the actual threat of the destruction of evidence” to determine whether an unannounced entry was necessary. See Commonwealth v. Scalise, supra at 421. While they were doing so, they unexpectedly encountered Gravina and the defendant in the driveway.17 For the purposes of our analysis, it is unimportant how we label the encounter. See 4 W.R. LaFave, Search and Seizure § 9.1(c), at 10 (3d ed. 1996) (“It is the reasonableness of the officer’s conduct, not what the state chooses to call it, which is in issue”). We conclude that the police acted reasonably under the circumstances, and therefore their conduct did not offend either the Fourth Amendment or art. 14.18

We vacate the order of suppression and remand the case to the Superior Court for entry of an order denying the motion to suppress.

So ordered.

The judge correctly noted that, because possession of cocaine was an essential element of the charge against the defendant, he had automatic standing to contest the legality of both the search and seizure of evidence from Gravina’s purse, see Commonwealth v. Amendola, 406 Mass. 592, 596-601 (1990), *48 and the detention of Gravina that made the search possible. See Commonwealth v. Santaliz, 413 Mass. 238, 240 n.5 (1992).

The affidavit for the search warrant did not identify the girl friend by name.

Detective Balcom testified that he recognized the defendant but not Gravina.

Balcom testified that it was “a couple of minutes.”

Although the defendant challenged the validity of his detention in his motion to suppress, the motion judge confined his analysis to the detention of Gravina, and the defendant does not raise the issue on appeal. The police had probable cause to arrest him in any event, based on the information gathered in their investigation. See Commonwealth v. Crawford, 417 Mass. 40, 41 (1994).

The case against Gravina was disposed of in the District Court.

The judge concluded that because of the “substantial” police presence in the driveway, the giving of Miranda warnings, the display of the search warrant, and the restraint of the defendant, a reasonable person would have believed she was not free to leave. See Commonwealth v. Stoute, 422 Mass. 782, 789 (1996); Commonwealth v. Borges, 395 Mass. 788, 791 (1985).

The defendant did not file a cross appeal from the judge’s ruling on the Fourth Amendment issue, but merely sets forth another ground on which to sustain the suppression order. See Commonwealth v. Mottola, 10 Mass. App. Ct. 775, 781 (1980). To avoid the “possibility of continuing controversy over the same evidence,” Commonwealth v. Boswell, 374 Mass. 263, 267 (1978), we will permit him to raise the propriety of the seizure “under the umbrella of the government’s appeal.” Commonwealth v. Mottola, supra at 782, quoting United States v. Moody, 485 F.2d 531, 534 (3d Cir. 1973).

The defendant also claims the judge erroneously found Gravina was “the subject” of the search warrant. Even if the defendant is correct, the finding has no bearing on our analysis. See Michigan v. Summers, 452 U.S. 692, 694-695 (1981) (warrant’s authority to search persons on premises fails to justify detention outside premises).

Professor LaFave argues against interpreting “occupant” to mean “visitor” when applying the rule of Michigan v. Summers:

“Especially because the Court elsewhere refers to the category of persons covered as ‘residents’ who would ordinarily ‘remain in order to observe the search of their possessions,’ it would seem that the word *52 ‘occupants’ is not to be loosely construed as covering anyone present, but instead is to be interpreted literally.”

2 W.R. LaPave, Search and Seizure § 4.9(e), at 650 (3d ed. 1996).

The defendant also does not challenge the judge’s finding that Gravina identified herself as an occupant before police displayed the search warrant and informed her of her Miranda rights, and before they handcuffed and pat frisked the defendant, all of which factored into the judge’s conclusion that Gravina had been seized for purposes of constitutional review. Contrary to Justice Cowin’s dissent, the finding is supported by the record and therefore is not clearly erroneous. Post at 63 n.2 (Cowin, J., dissenting). It is up to the motion judge to determine the weight and credibility of the oral testimony given at the hearing. See Commonwealth v. Eckert, 431 Mass. 591, 592-593 (2000), citing Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990). “Even if the statements had been conflicting, it would have been for the fact finder to determine which version to believe, absent an affirmative election between the versions by each witness.” Anthony’s Pier Four, Inc. v. Crandall Dry Dock Eng’rs, Inc., 396 Mass. 818, 827 (1986). See Commonwealth v. Geisler, 14 Mass. App. Ct. 268, 273-274 n.6 (1982). Moreover, even if the officers did read Gravina her rights and inform her of the search warrant before they knew her identity, they should not be penalized for doing so.

Although the judge did not pinpoint the moment at which the encounter turned into a seizure of Gravina for constitutional purposes, see, e.g., Commonwealth v. Torres, 424 Mass. 153, 163 n.8 (1997), we find the reasoning of People v. Taylor, 41 P.3d 681, 687-689 (Colo. 2002), persuasive in upholding the reasonableness of the police conduct in first approaching her.

In the Taylor case, police spotted a suspect for whom they had an arrest warrant riding in a car which the defendant was driving. Id. at 683. They ordered the defendant, who had not committed any traffic violations and was not suspected of committing any other crime, to pull over so they could arrest the passenger. Id. at 683-684. After placing her under arrest, the police asked for the defendant’s driver’s license, and had him get out of the car so they could search it (incident to the arrest of the passenger). The search turned up a small black case containing drug paraphernalia and cocaine, which the defendant acknowledged was his. Id. at 684. Police then arrested him as well.

The Taylor court determined that, while ordering the defendant to pull over so police could arrest the passenger constituted a seizure, the “traditional method of ascertaining the reasonableness of Fourth Amendment seizures — analyzing whether officers had probable cause justifying an arrest of an *54 individual or reasonable suspicion justifying an investigatory stop of an individual — is too rigid a framework” to resolve the question. Id. at 687. The facts, it decided, presented one of those “rare situations” referred to in Delaware v. Prouse, 440 U.S. 648, 654-655 (1979), which recognized the existence of encounters “in which the balance of [Fourth Amendment] interests precludes insistence upon ‘some quantum of individualized suspicion,’ ” i.e., reasonable suspicion or probable cause to believe an individual has engaged in criminal activity. See People v. Taylor, supra at 688. In such situations, “other safeguards are generally relied upon to assure that the individual’s reasonable expectation of privacy is not ‘subject to the discretion of the official in the field.’ ” Delaware v. Prouse, supra at 655, quoting Camara v. Municipal Court, 387 U.S. 523, 532 (1967). The Taylor court held that probable cause to arrest the passenger, coupled with the necessity of stopping the car to effect the arrest, sufficiently safeguarded the driver’s liberty interest from the unfettered discretion of police officers in the field. See People v. Taylor, supra at 688, citing Delaware v. Prouse, supra at 655. Balancing the public interest against the individual’s, the court concluded that the seizure was reasonable. People v. Taylor, supra at 688. See 4 W.R. LaFave, Search and Seizure § 9.2, at 7 (Supp. 2004) (noting that People v. Taylor, supra, illustrates situation where person may be temporarily seized even absent reasonable suspicion).

Here, as in the Taylor case, the initial encounter with Gravina was neither an arrest nor an investigatory stop. See id. at 687. The police explained to both her and the defendant why the defendant was being detained (and therefore unable to continue in Gravina’s company), an intrusion on Gravina that was at least as minimal as ordering a driver to pull over. Cf. People v. Taylor, supra. The public interest in detaining the defendant, whom the police had probable cause to arrest, warranted the incidental intrusion on Gravina, who happened to be with him. See People v. Jackson, 39 P.3d 1174, 1185 (Colo. 2002). Events unfolded rapidly thereafter and Gravina blurted out that the apartment was hers, providing police with a basis to bring her back while they searched the premises. See Michigan v. Summers, supra at 705. The police acted reasonably in the circumstances, and the defendant does not suggest that they could have done anything differently.

We believe that the case of Commonwealth v. Pellier, 362 Mass. 621 (1972), on which Justice Ireland’s dissent partly relies, is distinguishable from *55 the instant case. See post at 59-60 (Ireland, J., dissenting). The defendants in the Pellier case were arrested outside their apartment building after identifying themselves as occupants of that address. See id. at 624. Here, Gravina was not arrested but merely detained after blurting out that it was her apartment. Also, the Pellier briefs make no art. 14 argument in that case, and in any event, the court upheld the search of the defendant as incident to a lawful arrest. Id. at 626. Finally, we point out that Michigan v. Summers, supra, was decided nine years after Commonwealth v. Pellier, supra.

During the hearing on the motion to suppress, the judge had sustained objections to questions concerning whether an informant had told Balcom “whether anybody else lived there with him.” Nevertheless, the judge found that the informant “stated that [the defendant] was residing at Apt. 5 with his girlfriend.”

We do not, as Justice Ireland suggests, hold that merely being in the company of the defendant constituted “suspicious conduct” that justified the detention of Gravina. See post at 61 (Ireland, J., dissenting).

While Justice Ireland correctly points out, post at 60 (Ireland, J., dissenting), that the “any person present” clause of a search warrant did not support the arrest of the defendant in Commonwealth v. Pellier, 362 Mass. 621, 625 (1972), our holding here in no way relies on this clause of the warrant.

The record, however, does not support the judge’s finding or the assertion in the dissent that three minutes elapsed before police approached the pair in the driveway. See post at 59 (Ireland, J., dissenting).

We leave for another day the question whether art. 14 may provide greater protection than the Fourth Amendment where an occupant is detained at a significant distance from the premises to be searched, rather than merely fifty to seventy feet away.