Opinion
19-P-1398
12-21-2020
COMMONWEALTH v. ADRIANO BURGO LIMA, JR.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, along with an accomplice, has been charged in connection with an armed robbery that occurred in Boston on October 16, 2017. A Superior Court judge suppressed two items found during a search of the defendant's person later that same evening -- a face mask (mask) and a stolen watch -- after the judge concluded that a previous search of the defendant's person had been conducted without probable cause. The Commonwealth appeals, and we now reverse the suppression order, concluding that the watch and mask would have been inevitably discovered by lawful means.
Background. The motion judge found the following facts. On October 16, 2017, the victim was walking down Burrell Street in Boston sometime around 6:20-6:25 P.M., when he was approached by two men armed with handguns. The men took from the victim his wallet, two cell phones, a silver chain, and a silver watch with the inscription "You're an angel"; they then fled in a motor vehicle. Within minutes of the incident, the victim was picked up by his girlfriend and his brother in a car, and together the three of them tracked one of the stolen phones using the "Find My iPhone" application (app). They tracked the phone to a location nearby, the app indicating that the phone was inside a gold car at that location. The victim's girlfriend "approached" the car and saw a male in the driver's seat, and a black male standing outside the window of the car. The black male outside the car had with him a black mask with buttons.
It is unclear from the testimony at the motion hearing whether the mask was being worn at the time, or whether it was otherwise on display such that the victim's girlfriend was able to see it.
Shortly thereafter, at approximately 6:30 P.M., someone in the victim's group "frantically" flagged down Officer Michael O'Rourke of the Boston Police Department on Dudley Street. The victim's girlfriend told Officer O'Rourke that two men dressed all in black had taken the victim's iPhone at gunpoint, "five to ten minutes prior." She did not mention any other stolen items at that time. The victim's brother was continuing to use the app to locate the stolen iPhone, and advised the officer that the iPhone was then at 42 Langdon Street, an address a couple of blocks away.
Officer O'Rourke called in the iPhone's location, and another group of officers responded to 42 Langdon Street, where they observed the defendant at the top of the front steps of the residence and another individual, later identified as one Mr. Lopes, at the bottom of the steps. Both the defendant and Lopes began to walk away but the officers stopped them. The officers placed the two men in handcuffs and then located the stolen iPhone a short distance from where the defendant had been standing, on the top step of the front stoop.
The officers thereafter conducted a "bring back" identification procedure. The victim was first driven past Lopes, who had been uncuffed and lined up with plain-clothes officers of "Black and Spanish" ethnicity. The victim identified Lopes as one of his assailants. This process was then repeated with the defendant, but the victim failed to make an identification. Lopes was arrested and transported back to the police station, but the defendant was not arrested at this time. Instead, despite the failed identification, Officer O'Rourke "[filled] out a thorough FIO and then . . . gave [the defendant] a thorough search for any -- any possible property from the victim." During this "thorough" search, Officer O'Rourke located the black mask with buttons and the engraved watch; however, at the time of this search O'Rourke had been told about the stolen phone but did not know that a watch had been taken as well. He accordingly did not appreciate the importance of what he had found. The defendant was released and allowed to retain both items.
Separately, the victim and his girlfriend were brought to the Area B-2 police station, where they provided further details to detectives. During this interview the officers learned of the other stolen items. Additionally, the victim's girlfriend recounted how the app had led the group to the first encounter with two men and the gold car, minutes after the robbery -- and that one of those men had a black mask with buttons on it. The officers then conducted a photographic array identification procedure, during which the victim's girlfriend identified the defendant as the man she had seen standing outside the gold car, with the black mask.
Coincidentally, approximately forty-five minutes to an hour after the defendant had been searched by O'Rourke and released, the defendant arrived at the Area B-2 police station, seeking to retrieve a cell phone from Lopes. Officer O'Rourke and another officer approached the defendant and asked whether he still had the silver watch. The defendant replied that he did, and the officers seized the watch and placed the defendant under arrest.
The defendant moved to suppress, among other things, the watch and the black mask. Following an evidentiary hearing, the motion judge concluded that after the failed bring back identification, Officer O'Rourke did not have probable cause to perform the search of the defendant that first located the watch and mask. The judge accordingly concluded that the watch and the mask had to be suppressed, because they were the fruits of the unlawful search.
The judge ruled that the identification by the victim's girlfriend and any other subsequent evidence seized was not fruit of the poisonous tree, and excluded only the mask and the watch.
Discussion. Both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights prohibit unreasonable searches and seizures. Commonwealth v. Anderson, 406 Mass. 343, 345-346 (1989). Here, the defendant does not contest that the officers who first arrived at 42 Langford Street had reasonable grounds to stop the defendant and Lopes, and reasonable grounds to subject them to a bring back identification procedure. See Commonwealth v. Crowley, 29 Mass. App. Ct. 1, 4-5 (1990), citing Commonwealth v. Salerno, 356 Mass. 642, 646-647 (1970). Rather, the focus of the defendant's challenge is the search of the defendant that Officer O'Rourke performed, after the victim had failed to identify the defendant. Officer O'Rourke needed probable cause to conduct a "thorough" search of the defendant's person at that time, see Commonwealth v. Keefner, 461 Mass. 507, 517-518 (2012); as noted, the motion judge ruled that probable cause was lacking.
On appeal, the Commonwealth argues (1) that Officer O'Rourke had probable cause to search the defendant's person, even after the victim failed to identify him, and (2) that even if Officer O'Rourke's search was improper, the watch and the mask should not have been suppressed because they inevitably would have been discovered as a result of actions untainted by the improper search, once the defendant was arrested at the police station. As discussed below, here we need not decide whether Officer O'Rourke had probable cause to search the defendant after the failed identification, because in our view the inevitable discovery doctrine applies to the seizure of the watch and the mask at the police station. See Commonwealth v. Cassino, 474 Mass. 85, 89-90 (2016).
In reviewing the grant of a motion to suppress, we defer to "the motion judge's findings of fact unless they are clearly erroneous, . . . and assess the correctness of the judge's legal conclusions de novo." Commonwealth v. Bell, 473 Mass. 131, 138 (2015).
As a general rule, the exclusionary rule prohibits the admission of evidence obtained as a result of an illegal search. Commonwealth v. Gray, 465 Mass. 330, 345 (2013). There are exceptions to this rule, however; in particular, "evidence initially discovered as a consequence of an unlawful search may be admissible if later acquired independently by lawful means untainted by the initial illegality." Commonwealth v. DeJesus, 439 Mass. 616, 624 (2003). The Supreme Judicial Court has recognized two doctrines that embody this principle; the so-called "independent source" and "inevitable discovery" doctrines. While the doctrines are related, they are not identical: "[t]he significant difference between the tests is that under the independent source rule the inquiry is whether the government did in fact acquire certain evidence through an untainted source, while under the inevitable discovery rule the inquiry is whether evidence found because of a constitutional violation would inevitably have been discovered lawfully." Commonwealth v. Benoit, 382 Mass. 210, 217 (1981). See Commonwealth v. Estabrook, 472 Mass. 852, 865 n.23 (2015).
Here we are of the view that the watch and mask "would inevitably have been discovered lawfully." Benoit, 382 Mass. 217. To establish that the inevitable discovery doctrine applies, the Commonwealth must show "that discovery of the evidence by lawful means was certain as a practical matter, [that] 'the officers did not act in bad faith to accelerate the discovery of the evidence, and [that] the particular constitutional violation is not so severe as to require suppression'" (citation omitted). Commonwealth v. Hernandez, 473 Mass. 379, 386 (2015). In evaluating whether discovery by lawful means was inevitable, the case law asks two questions: (1) were there sufficient grounds for the officer to perform the search or seizure at issue, without the tainted information, and (2) would the officers in fact have conducted the search or seizure at issue, had they not known of the tainted information. See Murray v. United States, 487 U.S. 533, 542 (1988); United States v. Dessesaure, 429 F.3d 359, 369 (1st Cir. 2005); Commonwealth v. Pearson, 90 Mass. App. Ct. 289, 292 (2016). Here, by the time the defendant voluntarily entered the police station, the totality of facts known to the police, from untainted sources, amounted to probable cause to arrest the defendant, and an objectively reasonable police officer would have arrested the defendant when he entered the station even if the officer had not known of the watch and mask. See Pearson, supra (applying objectively reasonable officer standard).
Taking the probable cause issue first, the untainted facts known as of the time that the defendant came to the station included:
(1) The robbery was performed by two men. One of the items stolen was an iPhone.
(2) Within five minutes of the robbery, the Find My iPhone app located the stolen iPhone in or next to a gold car. There were two persons in or near the car. The victim's girlfriend identified the defendant as one of those two persons, when she was shown a photographic array at the police station.
(3) A few minutes after the defendant was seen beside the gold car, the Find My iPhone app located the same stolen phone at 42 Langdon Street, a few blocks from where the robbery occurred. When the police arrived at 42 Langdon Street, they again found two men near the stolen phone. One was the defendant. The other was identified by the victim as one of the robbers.
These facts provided probable cause to arrest the defendant for armed robbery at the time that he voluntarily came to the police station. All the above facts were known to the police by that time, and all the above facts were obtained independently of Officer O'Rourke's challenged search. Notably, the facts known to police at the time the defendant came to the station included facts not known at the time of O'Rourke's search -- in particular, the information provided by the victim's girlfriend at the station. That information identified the defendant as being very near the stolen phone within minutes of the robbery, at a location different than 42 Langdon Street.
Furthermore, an objectively reasonable police officer with knowledge of the above, untainted facts, would have arrested the defendant when he arrived at the police station. With the exception of the failed identification, all the other evidence pointed to the defendant as one of the two culprits, and the evidence was quite strong. The police had two data points placing the defendant near the stolen property in the immediate aftermath of the robbery, and he was found at one of those locations with another man who was identified as one of the robbers. And once the defendant was arrested, a lawful search incident to arrest would have discovered the watch and the mask.
In Pearson, 90 Mass. App. Ct. at 292, this court confirmed that under our Declaration of Rights, the Massachusetts courts apply an objective test when answering the question whether the police "would have" performed the challenged search or seizure even without the knowledge gained from an illegal search. The United States Supreme Court has applied a subjective test under the Fourth Amendment, which asks whether the particular officers still would have conducted the challenged search absent the tainted information. See Murray, 487 U.S. at 542; Dessesaure, 429 F.3d at 369. The defendant has not argued that the subjective standard was not satisfied here, and in our view both standards are satisfied, in light of the officers' active and ongoing investigation at the station, the information known to the officers, and the seriousness of the crime.
In suppressing the watch and the mask the motion judge did not address the inevitable discovery doctrine, although the Commonwealth had argued that the doctrine applied. The doctrine applies here, even though the officers used their knowledge of the watch when they approached the defendant at the station. As the Supreme Judicial Court recognized in Benoit, 382 Mass. at 217, the inevitable discovery doctrine does not require that the actions of the officers were completely independent of their tainted knowledge; rather, what is required is that the evidence "would inevitably have been discovered" even absent the tainted knowledge. See Murray, 487 U.S. at 538-539 (inevitable discovery doctrine can apply to same evidence previously discovered unlawfully). As demonstrated above, that is the case here.
The other requisites of the Massachusetts inevitable discovery doctrine also are met here. Assuming that Officer O'Rourke's initial search was improper (an issue we do not decide), there is no suggestion that the search was conducted in bad faith, or that the alleged constitutional violation was particularly severe. Hernandez, 473 Mass. at 386.
On appeal, the defendant argues that in evaluating inevitable discovery we cannot consider the photograph identification provided by the victim's girlfriend, because the Commonwealth failed to show that the identification procedure employed was reliable. This argument was not made to the motion judge, and is accordingly waived. Commonwealth v. Silva, 440 Mass. 772, 781-782 (2004). Passing that point, the defendant cites no authority for the proposition that the Commonwealth was required, for probable cause purposes, to establish the reliability of the photographic array identification procedure. As has been said many times, probable cause is a practical, common sense concept; it is not bounded by the strict evidentiary rules of the trial setting. See Brinegar v. United States, 338 U.S. 160, 174-175 (1949); Commonwealth v. Ortiz, 376 Mass. 349, 354 (1978). Moreover, even in the trial context the burden is on the defendant to challenge the procedures employed in an out-of-court identification. Commonwealth v. Warren, 403 Mass. 137, 139 (1988). The testimony of Officer O'Rourke that the victim had identified the defendant in a photographic array was not challenged at the motion hearing or in the defendant's written materials. The photographic array identification is properly considered together with the other untainted evidence listed above, which provided probable cause to arrest.
Accordingly, the order allowing the motion to suppress is reversed, insofar as it suppressed the watch and the mask.
So ordered.
By the Court (Henry, Sacks & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 21, 2020.