Warrantless Entry


I’m not in the habit of second-guessing the Massachusetts Appeals Court, but a recent decision of the Court disturbs me. The case is Commonwealth v. Komnenus, and it was decided on June 30, 2015.

The case involved an appeal of a cocaine trafficking conviction that resulted after the police entered the Defendant’s Everett apartment without a warrant and then stood over the Defendant (who was seated at his kitchen table), making a call for a search warrant (which they should have applied for earlier).

The background is that an arrestee in possession of cocaine in Somerville had just told the police that he had very recently purchased cocaine from the Defendant at his apartment in Everett, specifically at the Defendant’s third-floor apartment in a brown house with a particular sign out front.

After running the Defendant’s criminal record, and taking other actions to verify that the Defendant indeed resided at that address, the police – rather than applying for a search warrant – tricked the Defendant into coming outside with a ruse (they told the Defendant that his car had been hit). Once the Defendant was outside, on the street, the police admitted to their ruse, told the Defendant that they suspected him of selling cocaine from inside his apartment, and then read him his rights.

In response, the Defendant inquired as to whether he was under arrest. The police told him that he wasn’t, but that they were going to go upstairs to his apartment to secure it while they applied for a search warrant. The Defendant walked upstairs to his apartment, and the police entered it.

At this point, the Defendant isn’t under arrest, he hasn’t consented to police entry into his home, and there is no exigent circumstance, e.g., risk of destruction of evidence, that wasn’t created by the police themselves when they approached the Defendant before getting a warrant.

It gets worse: when the police entered, they did a protective sweep the entire apartment, and found nothing incriminating in plain sight. Then, with the Defendant seated at his kitchen table, and the police lording over him in his kitchen, the police made a telephone call in which they discussed their intention to immediately apply for a search warrant.

It was only then that the Defendant “blurted out” an admission as to cocaine possession. The Appeals Court credited the motion judge’s finding that the Defendant’s “spontaneous disclosure that he had cocaine in the apartment was made knowingly and voluntarily, at a time when he was not in custody and not in response to questioning by police.” After making the admission, the Defendant then consented to a search of his apartment, resulting in the discovery of, inter alia, cocaine in the apartment.

The Appeals Court correctly ruled that the warrantless entry was unconstitutional, because unconsented to: “[i]n the circumstances, the defendant’s failure to object to [the police] declaration of intent to enter his apartment, with or without him, suggests nothing more than ‘mere acquiescence to a claim of lawful authority.’”

The Defendant argued that his blurting out an admission, and the discovery of cocaine in his apartment, were “fruits of the poisonous tree” that should be suppressed as products of police misconduct. I tend to agree with the Defendant on this point (“[w]hen consent to search is obtained through exploitation of a prior illegality, . . . the consent has not been regarded as freely given”) , but the Appeals Court did not. Rather, after acknowledging that evidence obtained by “compromised consent is considered tainted by the illegality,” the Court ruled that because the Defendant spontaneously blurted out an admission and then gave his consent to search in his kitchen, therefor the connection between the police misconduct and the discovery of the cocaine was too attenuated to require suppression. The Court held thusly “the evidence obtained by police from the defendant’s apartment was not the result of any exploitation by police of their unlawful entry, but instead resulted from the defendant’s spontaneous disclosure. His subsequent written consent to search the apartment was, as the motion judge also found, voluntary and free of coercive influence by the police.” Amazingly, the Court found that the police officer’s “telephone call in the defendant’s presence [standing over the Defendant in his kitchen] in furtherance of his intention to obtain a search warrant does not bear heavily on the voluntariness of either the defendant’s spontaneous statement or his subsequent consent to search the apartment.”

We’ll have to keep an eye on this one. I wouldn’t be surprised if the SJC took it up. In my opinion, this decision means that police can enter your home without a warrant and then hang around until you start making admissions. Even after they make a protective sweep and find nothing illegal in plain sight in your home. They can make telephone calls for you to overhear, which telephone calls lead you to believe that the police are going to sit in your home until a search warrant can be obtained.

The police are supposed to get the search warrant before they enter your home. And unless some emergency renders that impracticable, then to do otherwise is repugnant to the US Constitution and the Massachusetts Declaration of Rights.

Attorney Kevin D. Quinlan, Uxbridge, Massachusetts

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