MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendants were convicted of home invasion, in violation of G. L. c. 265, § 18C; armed robbery, in violation of G. L. c. 265, § 17; carrying a firearm without a license, in violation of G. L. c. 269, § 10 (a); and carrying a loaded machine gun, in violation of G. L. c. 269, § 10 (n).
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The defendants raise similar issues in their respective appeals. Specifically, they argue that their motions to suppress evidence seized on the night of their arrest should have been allowed, and that the judge should have allowed the jurys request to replay during their deliberations a recording of a jail house telephone call. We affirm.
1. Motions to suppress evidence. “In reviewing a ruling on a motion to suppress evidence, we accept the judges subsidiary findings of fact absent clear error and leave to the judge the responsibility of determining the weight and credibility to be given oral testimony presented at the motion hearing.” Commonwealth v. Wilson, 441 Mass. 390, 393 (2004), citing Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990). We may “supplement a judges finding of facts if the evidence is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witnesss testimony.” Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). “We review independently the application of constitutional principles to the facts found.” Wilson, supra, citing Commonwealth v. Eckert, 431 Mass. 591, 593 (2000). We are “free to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings.” Commonwealth v. Jones-Pannell, 472 Mass. 429, 438 n.7 (2015), quoting Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997). The Commonwealth bears the burden of demonstrating that the actions of the police officers were within constitutional limits. Commonwealth v. Meneus, 476 Mass. 231, 234 (2017), citing Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007).
We summarize the facts as found by the motion judge, supplemented by certain facts from the record that the motion judge implicitly credited. Just after midnight on December 10, 2017, police responded to a report of a home invasion on Mansfield Street in Springfield. Two witnesses on the second floor of the building reported that three armed, masked men had entered their apartment and attacked them. The assailants were described as a larger man in a hooded sweatshirt and blue jeans who was armed with an assault rifle, and two men in masks armed with handguns. One of the second-floor witnesses stated that the assailants appeared to be surprised when they entered the apartment, and that it was his impression that the assailants realized they had entered the wrong apartment. The assailants then left.
A witness from a third-floor apartment gave a similar description of the assailants. He said the three men had held him at gunpoint and demanded all his belongings; he gave the assailants two laptop computers, two cell phones, about $1,000 in cash, and a North Face backpack in which these other items were placed. The third-floor witness said the assailants then left and got into a black sedan, which he thought was an Infiniti, that was waiting for them outside. A witness from the first floor also told officers she had seen a man leave the apartment building with a backpack and meet up with two other men who were waiting for him outside, one of whom had a rifle.
The witness from the third-floor apartment told officers on the scene he had another cell phone with a “find my phone” application that could track one of the cell phones that had been taken from his apartment by the assailants. According to the application, the stolen phone was stationary near the center of Bryant Street, about two miles away from Mansfield Street. Officers went immediately to Bryant Street.
It was a snowy night, and a black Honda was parked on Bryant Street; unlike all the other cars on the street, the Honda had no snow on it. The hood of the car was warm to the touch, indicating it had been parked shortly before. The officers could see a large amount of cash stuffed in the map pocket of the passengers side door of the car. The Honda was parked about one-third of the way up Bryant Street toward Belmont Street; the stolen phone was shown as being in the center of Bryant Street, between Belmont Avenue and Sumner Avenue. Three sets of footprints in the snow led from the car to the front porch of a multifamily dwelling at 15-17 Bryant Street.
The building at 15-17 Bryant Street is two stories tall with four apartments; there are covered porches at the front and rear, and a set of stairs from the rear porch to the ground. The building is surrounded by chain-link fencing in the front and on the sides, and an approximately six-foot tall wooden stockade fence in the rear. Officers could not observe the rear of the building from the street.
Believing that the home invasion suspects were inside the building, officers entered the yard of 15-17 Bryant Street to secure the building and to prevent the suspects’ escape. As the officers reached the back of the building, they saw a woman, subsequently identified as Jocelyn Negron, descending the back stairs while carrying a rifle bag marked “Smith & Wesson” in one hand, and a black backpack in the other. Officers frisked the rifle bag, felt an assault-type rifle inside of it, and took the bag from Negron. Negron said, “Its not mine, its my friends’ ․ theyre upstairs.” After Negron acknowledged that she did not have a license to carry a firearm, she was placed under arrest. An officer asked Negron where her keys were, and then removed Negrons keys from her back pocket. Negron, the rifle bag, and backpack were brought to the front of 15-17 Bryant Street.
The sergeant then made the decision to enter Negrons apartment, believing that the home invasion suspects were inside and possibly armed. The sergeant and a group of officers went to Negrons upstairs apartment, knocked and announced themselves, and then, hearing no response, used Negrons keys to enter the apartment. The defendants and another man, Anthony Martinez, were apprehended in the apartment and placed under arrest. While they were in the apartment, the officers observed items that might have been stolen from the occupants of the apartment on Mansfield Street.
While this was going on, another officer searched the rifle case and backpack Negron had been carrying. The rifle case contained an assault-type rifle; the backpack contained two loaded handguns, masks, and heroin. The black Honda, which was registered to Negron, was seized, towed, and inventoried. Police applied for a search warrant to search Negrons apartment for the items stolen from the apartment on Mansfield Street; the warrant issued and was executed later the same morning.
The defendants argue that the police acted unconstitutionally when they entered the curtilage
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of 15-17 Bryant Street in order to prevent its occupants from fleeing and, therefore, that all evidence obtained thereafter should have been suppressed. Contrary to the defendants’ contention, the conduct at issue here constituted a seizure -- not a search -- because the police entered the curtilage to secure the premises, not to gather information.
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A seizure involves “some meaningful interference with an individuals possessory interests” in the property seized, whereas a search infringes upon an individuals reasonable expectation of privacy in the property searched. United States v. Jacobsen, 466 U.S. 109, 113 (1984). See 1 W.R. LaFave, Search and Seizure § 2.1(a), at 579-593 (6th ed. 2020). “The sanctity of the home is not to be disputed. But the home is sacred in Fourth Amendment terms not primarily because of the occupants’ possessory interests in the premises, but because of their privacy interests in the activities that take place within. ‘[The] Fourth Amendment protects people, not places.’ ” Segura v. United States, 468 U.S. 796, 810 (1984), quoting Katz v. United States, 389 U.S. 347, 351 (1967). Because “a seizure affects only possessory interests, not privacy interests,” the “heightened protection we accord privacy interests is simply not implicated where a seizure of premises, not a search, is at issue.” Segura, supra.
It is well settled that “police may impound premises from the outside without a warrant or exigent circumstances.” Commonwealth v. DeJesus, 439 Mass. 616, 622 (2003). See Segura, 468 U.S. at 810 (“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”); Commonwealth v. Blake, 413 Mass. 823, 829-830 (1992) (“Police officers may secure an area to be searched before a warrant is procured as long as the search does not commence before issuance of the warrant”); Yesilciman, 406 Mass. at 743.
Here, the officers had probable cause to secure the building. One of the stolen cell phones was tracked to Bryant Street; also on Bryant Street, police saw a car similar to the getaway car described by one of the victims; the car was the only one on the street not covered in snow, and the hood was warm to the touch; the victims described the assailants as three armed men, and three sets of footprints led from the car up to the porch of 15-17 Bryant Street; there was a large amount of cash stuffed into the compartment of the passenger-side door. The building was surrounded by fencing, and the officers could not see all of its exits without entering the curtilage. The footprints gave police reason to believe the home invasion suspects were inside; police knew the suspects had been armed shortly before, and they could not prevent the suspects from fleeing without securing the rear of the building. Police officers’ entry into the curtilage to secure the building from the outside was therefore reasonable. See DeJesus, 439 Mass. at 622.
In light of this conclusion, it follows that we reject the defendants’ argument that the arrest of Negron and search of the rifle bag and backpack she was carrying were invalid because the police were not in a place they could lawfully be when they questioned and arrested her. In addition, the officers had probable cause to arrest Negron.
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When officers saw Negron coming down the back stairs, she was carrying a rifle bag away from a location where there was probable cause to believe the home invasion suspects had gone after the crime.
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An assault rifle had been used in the home invasions. Negron acknowledged she did not have a firearms license. Together, these facts gave the officers more than sufficient probable cause to believe Negron was unlawfully carrying a firearm in violation of G. L. c. 269, § 10 (a) (1). See Commonwealth v. Williams, 422 Mass. 111, 119 n.11 (1996) (“Probable cause to arrest exists where the facts and circumstances in the arresting officers knowledge and of which he or she has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in believing that an offense has been or is being committed”).
Because Negron was lawfully arrested, the officers’ search of the rifle bag and backpack she was carrying was valid as well. Commonwealth v. Madera, 402 Mass. 156, 161 (1988) (“The police are entitled to a bright line rule that permits them, even in the absence of exigent circumstances, to search a bag carried by a person whom they lawfully arrest on probable cause, or otherwise, where there is also probable cause to believe that the bag contains evidence of the crime for which the arrest was made”). The frisk of Negrons rifle bag, though it preceded her formal arrest, was valid as well. Commonwealth v. Johnson, 413 Mass. 598, 602 (1992). See Commonwealth v. McCoy, 59 Mass. App. Ct. 284, 287 (2003) (“The fact that the defendant was not formally arrested until after the search is not material so long as probable cause existed to arrest at the time the police made the search for weapons or contraband”).
After Negron was arrested, her car -- which police reasonably believed was the getaway car used in the home invasions -- was towed to the police station, photographed, and searched. The defendants argue this was improper because it flowed from what they contend was the impermissible conduct of the police that preceded it. This argument fails for the reasons we have previously discussed. In addition, police officers may impound and conduct an inventory search of an arrestees car without running afoul of the State or Federal constitutions.
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South Dakota v. Opperman, 428 U.S. 364, 369-371 (1976). Commonwealth v. Matchett, 386 Mass. 492, 510 (1982). Furthermore, when officers observe evidence of a crime while conducting an inventory search of a car, they have probable cause to conduct an investigatory search of the car. See Commonwealth v. Baptiste, 65 Mass. App. Ct. 511, 520 (2006) (officers conducting inventory search of car who saw “white powder” spilling from a storage compartment near drivers seat had probable cause to conduct investigatory search of car).
We turn now to the officers’ entry into Negrons apartment, which the defendants also challenge. There is “a fundamental difference between securing or controlling the perimeter of a dwelling from the outside and the entry and physical surveillance of a dwelling from the inside.” DeJesus, 439 Mass. at 621. “The right of police officers to enter into a home, for whatever purpose, represents a serious governmental intrusion into ones privacy. It was just this sort of intrusion that the Fourth Amendment [and art. 14 were] designed to circumscribe by the general requirement of a judicial determination of probable cause.” Commonwealth v. Forde, 367 Mass. 798, 805 (1975). Accordingly, “[i]n the absence of a warrant, two conditions must be met in order for a nonconsensual entry to be valid: there must be probable cause and there must be exigent circumstances.” DeJesus, supra at 619. See Payton v. New York, 445 U.S. 573, 589-590 (1980). “Factors which would have tended to support a finding of exigency include a showing that the crime was one of violence or that the suspect was armed, a clear demonstration of probable cause, strong reason to believe that the suspect was in the dwelling, and a likelihood that the suspect would escape if not apprehended. Additional considerations testing the reasonableness of police conduct are whether the entry is peaceable and whether the entry is in the nighttime.” Forde, 367 Mass. at 807. Danger to police officers or others, the possibility that evidence might be destroyed, and the “prospect that a further crime may be committed” are also exigencies that can justify a warrantless entry and arrest. Commonwealth v. Midi, 46 Mass. App. Ct. 591, 594 (1999).
As we have set out above, the officers had probable cause to believe that the suspects they had pursued from the home invasions on Mansfield Street were inside the building at 15-17 Bryant Street. The officers’ encounter with Negron added to the calculus when she stated that the rifle she was carrying belonged to her “friends,” who were upstairs in the apartment. She also identified which apartment of the four in the building was hers. See Commonwealth v. Hason, 387 Mass. 169, 174 (1982).
As to exigency, almost all of the factors our courts have looked to when determining whether exigent circumstances existed were present. There was reason to believe that the suspects had shortly before committed two armed home invasions; it was not unreasonable to believe the suspects could still be armed; there was a clear demonstration of probable cause that the suspects were inside Negrons apartment; and police had reason to believe that evidence would be hidden or destroyed if immediate action was not taken -- indeed, when police secured the outside of the building, they came upon Negron trying to dispose of inculpatory contraband. Furthermore, the judge credited the sergeants testimony that he believed the officers were in a vulnerable position because Negrons failure to return would alert the suspects to the police presence, and the suspects were in a position to fire on police from the second-floor porch of the apartment. In these circumstances, exigent circumstances existed that justified the officers’ warrantless entry into Negrons apartment.
This case is distinguishable from Commonwealth v. Tyree, 455 Mass. 676 (2010), on which the defendants rely. In Tyree, the police went to the defendants residence more than an hour and forty-five minutes after the armed robbery the defendant was suspected of committing had occurred, police saw no activity at the defendants residence, there was no indication (such as the encounter with Negron here) that the defendant was trying to dispose of or hide evidence, there was no indication that the defendant was aware of the police presence, and the police were not in danger. See id. at 679, 685-689. Here, police arrived at 15-17 Bryant Street only a few minutes after responding to the home invasions on Mansfield Street, and “[s]peed ․ was essential” to ensure that “police had control of all weapons which could be used against them or to effect an escape.” Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 299 (1967). As long as the officers were in a position to be fired upon, it was impracticable for them to wait to obtain a warrant before arresting the suspects. “The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.” Id. at 298-299.
In light of our determination that the police acted reasonably in securing the premises at 15-17 Bryant Street, arresting Negron, and entering Negrons apartment, the defendants’ argument that the search warrant later obtained for Negrons apartment is invalid because its application was based on information obtained via an unconstitutional search and seizure necessarily fails as well.
2. Jurys request to hear recording of jail house call. The defendants argue that the judge abused his discretion in denying the jurys request to replay a recording of a portion of a telephone call Martinez (another suspect who testified as a Commonwealth witness pursuant to a cooperation agreement) made from jail to his mother.
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See Commonwealth v. Richenburg, 401 Mass. 663, 675 (1988) (“A judge has discretion to determine whether to allow the examination of a transcript of a witnesss testimony upon request by the deliberating jury”); Commonwealth v. Mandeville, 386 Mass. 393, 405-406 (1982). During cross-examination, in order to impeach Martinezs credibility, defense counsel had played a portion of the call in which Martinez expressed concern about his cooperation agreement. However, the recording was not admitted in evidence.
The trial judge has broad discretion to read back or play back portions of witness testimony to the jury at their request, but “such discretion should be exercised with caution,” because the reading or playing back of testimony “may indeed overemphasize certain aspects of the case.” Mandeville, 386 Mass. at 405. It is appropriate for the jury to “resort to their collective memories” in resolving ambiguities about witness testimony. Commonwealth v. Fitzpatrick, 18 Mass. App. Ct. 106, 109 (1984). The trial judge in this case was clearly aware of his discretion in this area; he heard argument from counsel on the jurys request, and drafted a written reply to the jury, instructing them that their recollection of the evidence should control. This was an appropriate course of action, particularly since the recording had not been admitted.
Order denying motions to suppress affirmed.
Judgments affirmed.
FOOTNOTES
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. The jury acquitted both defendants of trafficking in less than 200 grams of heroin, in violation of G. L. c. 94C, § 32E (c), and possessing a firearm while committing a felony, in violation of G. L. c. 265, § 18B. Defendant Portee was acquitted of an additional charge of possession of a controlled substance with intent to distribute (subsequent offense), in violation of G. L. c. 94C, § 32E (b). At the time of sentencing, the judge dismissed charges of assault by means of a dangerous weapon, in violation of G. L. c. 265, § 15B (b), against both defendants.
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. The protection accorded to the home stands at the “very core” of the Fourth Amendment to the United States Constitution, Silverman v. United States, 365 U.S. 505, 511 (1961), and the curtilage is regarded as “part of the home itself for Fourth Amendment purposes.” Commonwealth v. Leslie, 477 Mass. 48, 54 (2017), quoting Florida v. Jardines, 569 U.S. 1, 6 (2013). The Supreme Judicial Court has held that the porches and side yards of multifamily apartment houses may be considered as part of the curtilage. Leslie, supra.
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. A “search” occurs, for constitutional purposes, when “the Government obtains information by physically intruding” on a constitutionally protected area. Jardines, 569 U.S. at 5, quoting United States v. Jones, 565 U.S. 400, 406-407 n.3 (2012). A search of the curtilage “must be justified by probable cause and a warrant or exigent circumstances.” Leslie, 477 Mass. at 57, citing Jardines, supra.
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. “It has long been the law of this Commonwealth that an officer may arrest a person without a warrant if [the officer] has reasonable grounds for believing that that person has committed a felony.” Commonwealth v. Hason, 387 Mass. 169, 173 (1982). See Commonwealth v. Holmes, 344 Mass. 524, 525 (1962); Commonwealth v. McLaughlin, 12 Cush. 615, 618 (1853). A felony is defined by statute as a “crime punishable by death or imprisonment in the state prison.” G. L. c. 274, § 1. Carrying a firearm without a license to do so fits this definition. G. L. c. 269, § 10 (a) (5) (6).
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. The defendants argue the police officers committed an illegal search of Negron by shining a flashlight on her to illuminate the rifle bag. However, “[t]he mere use of a flashlight ․ does not magically transmute a non-accusatory visual encounter into a Fourth Amendment search. When the circumstances of a particular case are such that the police officers observation would not have constituted a search had it occurred in daylight, then the fact that the officer used a flashlight to pierce the nighttime darkness does not transform [the officers] observation into a search.” Commonwealth v. Pietrass, 392 Mass. 892, 901 n.12 (1984), quoting Marshall v. United States, 422 F.2d 185, 189 (5th Cir. 1970).
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. The defendants do not argue that the search was not a permissible inventory search.
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. Because the defendants objected to the judges decision, we review any claim of error for prejudice to the defendants. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).