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16-P-1098                                               Appeals Court

              COMMONWEALTH    vs.   BENJAMIN B. SAYWAHN, JR.


                              No. 16-P-1098.

             Hampden.      April 13, 2017. - June 15, 2017.

            Present:    Kafker, C.J., Grainger, & Kinder, JJ.


Firearms. Search and Seizure, Protective sweep.         Constitutional
     Law, Search and seizure.


     Complaint received and sworn to in the Springfield Division
of the District Court Department on February 4, 2016.

     A pretrial motion to suppress evidence was heard by William
P. Hadley, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Francis X. Spina, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by him to the Appeals Court.


     David L. Sheppard-Brick, Assistant District Attorney, for
the Commonwealth.
     Thomas C. Maxim for the defendant.


    KAFKER, C.J.        During a protective sweep of the home of the

defendant, Benjamin B. Saywahn, Jr., conducted during the

execution of a warrant for his arrest, police discovered a
                                                                     2


firearm.    The defendant was subsequently charged with possession

of a firearm and ammunition without an identification card,

G. L. c. 269, § 10(h), improper storage of a firearm, G. L.

c. 140, § 131L(a) & (b), and receiving stolen property, G. L.

c. 266, § 60.1    The defendant moved to suppress "the fruits of

the sweep" on the ground that the protective sweep was not

justified by the officers' reasonable belief that a dangerous

individual in the home posed a threat to the officers.     The

motion judge agreed and granted the motion.     The Commonwealth

appeals pursuant to Mass.R.Crim.P. 15(a)(2), as appearing in 422

Mass. 1501 (1996), claiming that the protective sweep was

justified.2    We affirm.

     Background.     "We summarize the pertinent facts from the

judge's findings on the motion to suppress, supplemented where

appropriate by uncontroverted testimony from the suppression

hearing."     Commonwealth v. Matos, 78 Mass. App. Ct. 156, 157

(2010) (quotation omitted).     On February 1, 2016, a warrant

issued in the State of Connecticut for the defendant's arrest.

Because the defendant resided in Springfield, a member of the

Windsor, Connecticut police department contacted Detective


     1
       The defendant was also considered to be a fugitive from
justice, G. L. c. 276, § 20A.
     2
       A single justice of the Supreme Judicial Court ordered the
case to be considered by this court. See Mass.R.Crim.P.
15(a)(2).
                                                                      3


Christopher Bates of the Springfield police department with

regard to the warrant.    Detective Bates learned that the

defendant was wanted in connection with a shooting that had

occurred during the course of a marijuana sale in Windsor.       He

learned that the victim, the defendant, and an unidentified

third person were involved in the shooting, that the victim had

been shot in the face, and that no firearm had been recovered.

     At approximately 2:30 P.M. on February 3, 2016, Detective

Bates and six to seven other members of the Springfield police

department went to the defendant's home to execute the arrest

warrant.   All of the officers were armed, with their weapons

holstered, and in uniform or wearing police insignia.    The

officers knocked, and the defendant answered the door after

twenty or thirty seconds.    Four to five officers entered the

home; the other officers went to the rear and sides of the home.

The officers immediately recognized the defendant from his

photograph.3   The officers asked the defendant whether he was the

person named in the warrant, and he responded, "Yes, I am."       The

officers then placed the defendant in handcuffs just inside the

front door.    The defendant did not resist or attempt to flee.



     3
       Detective Bates obtained the defendant's photograph from
the registry of motor vehicles using the biographical
information he had received about the defendant. Detective
Bates had a copy of the photograph with him during the execution
of the arrest warrant.
                                                                    4


     Detective Bates patted down the defendant for weapons and

found none.   Lieutenant Steven Kent then asked the defendant

whether anyone else was in the home.   The defendant did not make

eye contact and mumbled something inaudible.    Lieutenant Kent

asked him again whether anyone else was in the home.   The

defendant hesitated and then said, "[N]o."

     Based on the defendant's mumbled response and hesitation,

Lieutenant Kent decided to conduct a protective sweep to ensure

that there was no one else in the home who might pose a danger

to the officers.4   Lieutenant Kent proceeded to the second floor

of the home and opened the door to a bedroom.   As he looked

under the bed, he noticed a firearm protruding from between the

box spring and mattress.   He completed the sweep of the home

and, after determining that the defendant was not licensed to

possess a firearm, secured a search warrant.    The police later

returned with the warrant and recovered the firearm.

     Standard of review.   In reviewing the grant "of a motion to

suppress, we accept the judge's subsidiary findings of fact

absent clear error and accord substantial deference to the

judge's ultimate findings."   Commonwealth v. Carr, 458 Mass.

295, 298 (2010) (citation and quotation omitted).   The ultimate

     4
       One of the officers who participated in the sweep
testified that the officers had learned that the home was a
foster home, and that the defendant lived there with his foster
family. The officers did not know, however, how many people
lived in the home.
                                                                    5


legal conclusions to be drawn from the findings, however, are

matters for review by this court.   Id. at 299.

    Discussion.    "While executing an arrest warrant, police may

conduct a protective sweep, 'a quick and limited search of the

premises' to protect the officers' safety, if they have a

reasonable belief based on 'specific and articulable facts' that

the area [to be swept] could harbor a dangerous individual."

Matos, 78 Mass. App. Ct. at 159, quoting from Maryland v. Buie,

494 U.S. 325, 327, 334 (1990).   Among the factors to be

considered are (1) "the violence implicit in the crime for which

the defendant is sought and the violence implicit in his

criminal history," Commonwealth v. DeJesus, 70 Mass. App. Ct.

114, 119 (2007); (2) the location of the arrest in relation to

the area to be swept, Commonwealth v. Colon, 88 Mass. App. Ct.

579, 581-582 (2015); (3) the defendant's resistance or

cooperation at the time of arrest, Commonwealth v. McCollum, 79

Mass. App. Ct. 239, 251 (2011); and, of course, (4) the

presence, or at least the suspicion of the presence, of other

individuals, including those known to be dangerous, in the area,

Commonwealth v. Nova, 50 Mass. App. Ct. 633, 634-636 (2000).

Finally, the sweep must last "no longer than is necessary to

dispel the reasonable suspicion of danger and in any event no

longer than it takes to complete the arrest and depart the

premises."   Buie, 494 U.S. at 335-336.
                                                                    6


    In the present case, we conclude that the protective sweep

of the bedroom on the second floor of the defendant's home was

not justified, despite the violent crime for which the defendant

was arrested, when the defendant was immediately handcuffed and

secured in the front doorway of his home in a peaceful manner,

and there was no indication of anyone else present in the home.

    We begin by recognizing that the defendant was wanted in

connection with a shooting, which "clearly justifies caution."

Colon, 88 Mass. App. Ct. at 581.   This is obviously an important

factor, as "[t]he risk of danger in the context of an arrest in

the home is as great as, if not greater than, it is in an on-

the-street or roadside investigatory encounter."   DeJesus, 70

Mass. App. Ct. at 119, quoting from Buie, 494 U.S. at 333.    This

factor must, however, be considered along with others.     "[W]hile

the charge to which the warrant relates is generally a relevant

factor bearing on our consideration of the appropriate conduct

of arresting officers, it must be viewed in context."    Colon,

supra.   In the instant case, the nature of the crime for which

the defendant was wanted is more difficult than usual to

evaluate:   although the defendant was allegedly present, along

with another unidentified suspect, at a marijuana sale during

which someone was shot, the officers did not know what role the
                                                                   7


defendant played in the shooting or his criminal history.5

Compare DeJesus, 70 Mass. App. Ct. at 120 (protective sweep

justified by arrest warrant for armed carjacking and known

record of "violent felonies and firearm possession charges");

Matos, 78 Mass. App. Ct. at 159 (same; arrest warrant for drug

distribution and "prior arrests related to firearms offenses").

     Other factors cut against the need for the protective

sweep.   The defendant was already handcuffed and secured at the

front door when the officers went upstairs to conduct the sweep.6

At this point, the arrest had been completed, and the officers

could have easily removed the defendant via the front door

safely, without needing to enter a bedroom on the second floor.

See Colon, 88 Mass. App. Ct. at 581-582 (sweep not justified

where defendant opened door, said, "{L]et's go," and attempted

to leave, yet officers brought him back inside home, handcuffed

him, and conducted sweep).   See also Nova, 50 Mass. App. Ct. at

634-636 (sweep not justified where officers returned to

apartment after chasing defendant through apartment and

apprehending him at rear of building).   Here, the defendant

     5
       Lieutenant Kent testified that he had "nothing to do with
the Connecticut investigation whatsoever." Defense counsel
argued in closing that "there was no testimony whatsoever about
the history of [the defendant]" and whether the officers knew
whether the defendant had a record of any "violent felonies."
     6
       Detective Bates testified that the defendant was placed in
handcuffs in the "living room area" of the home, "right when you
enter the doorway."
                                                                    8


appeared, by all accounts, completely compliant and cooperative

throughout the interaction.   He answered the door promptly,

admitted to being the person named in the warrant, and did not

resist or attempt to flee.    See Colon, 88 Mass. App. Ct. at 581

(officers had "achieved their objective without conflict and in

fairly short order").

    Importantly, there was no objective indication of anyone

else in the home and no facts suggesting that the officers

needed to secure the bedroom on the second floor to protect

themselves.   See DeJesus, 70 Mass. App. Ct. at 116, quoting from

Buie, 494 U.S. at 334 ("to 'look [beyond] closets and other

spaces immediately adjoining the place of arrest from which an

attack could be immediately launched[,] . . . there must be

articulable facts which . . . would warrant a reasonably prudent

officer in believing that the area to be swept harbors an

individual posing a danger to those on the arrest scene'").    As

the motion judge explained, "[T]he police made no observations

of individuals entering or leaving the home, and they heard no

sounds coming from any other location in the home."   Thus,

"[b]eyond Lieutenant Kent's concern that the defendant was not

being truthful, there was no direct or circumstantial evidence

to support an inference that anyone but the defendant was home

or posed a danger to the police."   In these circumstances, the

defendant's mumbled initial response to questions about whether
                                                                      9


anyone else was present was not sufficient to justify a sweep

for other individuals.7    See Commonwealth v. Wren, 391 Mass. 705,

708 n.2 (1984) (attempt to avoid contact with police "not enough

in itself to justify a suspicion").     See also Nova, 50 Mass.

App. Ct. at 635 (sweep not justified where "there were no

articulable facts to support an inference that anyone was in the

apartment at the time of the sweep -- let alone anyone who posed

a danger to the police" [quotation omitted]); Colon, 88 Mass.

App. Ct. at 582 ("there was no evidence of danger to be expected

from the apartment").     Compare Commonwealth v. Walker, 370 Mass.

548, 552, 556-557, cert. denied, 429 U.S. 943 (1976) (officers

heard noises and saw individual peering from window); DeJesus,

70 Mass. App. Ct. at 115-116 (officers saw two women in living

room and learned that defendant's father was upstairs and

another person was in cellar).

     In sum, "any perception of a threat to officers was simply

too speculative here to meet constitutional requirements" for a

protective sweep of an upstairs bedroom, Nova, 50 Mass. App. Ct.

at 635, when the defendant, the only person posing a potential

danger to the police in the home, appeared by all objective

     7
       We further note that the defendant eventually answered
"no" in response to this question. Also, although there was
another suspect involved in the crime for which the defendant
was arrested, the shooting had occurred in Connecticut, not
Massachusetts, and had taken place at least two days before the
sweep, thus diminishing any concern that the other suspect might
be found with the defendant.
                                                               10


evidence to be home alone, and was handcuffed and peacefully

secured at the front door.   We therefore affirm the order

allowing the motion to suppress.

                                   So ordered.
