MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case is again on appeal after a hearing in the Superior Court following remand by the Supreme Judicial Court. See Commonwealth v. Pearson, 486 Mass. 809, 816 (2021). The Supreme Judicial Court directed the remand judge to determine whether the independent source exception to the exclusionary rule required denial of the defendants motion to suppress. Id. The judge held that it did. As the defendant does not claim that the judge erred in his decision on remand, we affirm.
The underlying facts are presented in detail in the opinion of the Supreme Judicial Court. See Pearson, 486 Mass. at 810-811. Briefly, the defendant was prosecuted in Norfolk and Middlesex Counties for offenses related to a series of residential burglaries. In both cases, the defendant sought to suppress evidence obtained during the execution of a search warrant. He argued that the affidavit supporting the search warrant application relied on observations that police had made during an unlawful entry into the defendants residence. A Superior Court judge sitting in Norfolk County agreed, in part. The judge found that police had arrested the defendant in his residence before an arrest warrant had properly issued, and thus the entry was unlawful. However, the judge also found -- after excising from the affidavit what police had observed during the unlawful entry -- that the search warrant was nevertheless supported by probable cause.
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A Superior Court judge sitting in Middlesex County then relied on that order to deny the defendants motion to suppress in the subsequent proceeding. A jury convicted the defendant of all the offenses charged in the Middlesex County case.
This court affirmed the defendants Middlesex County convictions, holding, inter alia, that the challenged evidence was admissible under the independent source doctrine. See Commonwealth v. Pearson, 96 Mass. App. Ct. 299, 303-306 (2019). The Supreme Judicial Court granted further appellate review and held that the independent source exception to the exclusionary rule requires the Commonwealth to show that: “(1) the officers’ decision to seek the search warrant was not prompted by what they observed during the initial illegal entry, and (2) the affidavit supporting the search warrant application contained sufficient information to establish probable cause, ‘apart from’ any observations made during the earlier illegal entry.” Pearson, 486 Mass. at 813. The Supreme Judicial Court agreed with the motion judge that the second prong of the test was satisfied but remanded the case for an evidentiary hearing to determine whether the search warrant application was prompted by the officers’ observations during the illegal entry.
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Id. at 816.
In a comprehensive memorandum of decision, the remand judge determined that the Commonwealth presented evidence sufficient to satisfy the first prong. He found that the police fully intended, before their illegal entry and resultant improper observations, to search the defendants residence for evidence pertaining to the burglaries. The judge concluded that this intention was objectively reasonable because the testifying officers “stated reason for seeking the warrant [was] plausible.”
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The judge also concluded that the totality of the attendant circumstances indicated that the police had identified the address where the defendant was living with sufficient certainty prior to “actually observing the defendant himself in that location.”
On appeal from that order, the defendant contends for the first time that the initial entry into his residence was an illegal confirmatory search. He contends that the current formulation of the independent source doctrine in Pearson “incentivizes confirmatory searches” and urges us to “close the loophole” by revising the first prong, despite conceding that we are bound by the standard set out by the Supreme Judicial Court in that case. See Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003). This we decline to do.
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The defendant raises no claim of error made by the judge in his decision on remand; we therefore affirm the Decision and Order After Remand. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
Decision and order after remand affirmed.
FOOTNOTES
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. The Norfolk County prosecution resulted in the defendants conviction for four counts of breaking and entering and four counts of larceny over $250. This court affirmed his convictions in Commonwealth v. Pearson, 90 Mass. App. Ct. 289 (2016).
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. The first prong involves both a subjective and objective inquiry, that is, a determination as to the officers’ subjective motivations for seeking the search warrant as well as an objective assessment of “the ‘totality of the attendant circumstances’ to ascertain whether the officers’ stated reasons for seeking the warrant are ‘implausible.’ ” Pearson, 486 Mass. at 815, quoting United States v. Dessesaure, 429 F.3d 359, 369 (1st Cir. 2005).
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. The officer testified that he believed that there was a “high probability” that the clothes the defendant and his accomplice were wearing on surveillance video, as well as some of the items reported stolen during the burglaries, would likely be found in the defendants residence.
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. In any event, the record is clear that the police sought an arrest warrant for the defendant because they intended to arrest him at his residence, and that they did so with some urgency because of their “strong concern” that the defendant possessed a firearm. That the police were mistaken in their belief that an arrest warrant had properly issued at the time that they entered the defendants residence has no bearing on their motivation for doing so. See Murray v. United States, 487 U.S. 533, 540 n.2 (1988) (“[T]here is no basis for pointing to the present case[ ] as an example of a ‘search first, warrant later’ mentality”).