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18-P-1302                                           Appeals Court

             COMMONWEALTH    vs.   WASHINGTON PEARSON.


                            No. 18-P-1302.

        Middlesex.     May 14, 2019. - October 28, 2019.

            Present:   Blake, Henry, & McDonough, JJ.


Burglary. Intimidation of Witness. Witness, Intimidation.
     Arrest. Constitutional Law, Arrest, Search and seizure,
     Assistance of counsel. Search and Seizure, Arrest,
     Warrant, Fruits of illegal search. Practice, Criminal,
     Motion to suppress, Warrant, Assistance of counsel.


     Indictments found and returned in the Superior Court
Department on October 25, 2012, and December 10, 2013.

     Pretrial motions to suppress evidence were heard by
Elizabeth M. Fahey, J.; the cases were tried before Douglas H.
Wilkins, J., and a motion for a new trial, filed on January 8,
2018, was heard by him.


     Edward Crane for the defendant.
     Timothy Ferriter, Assistant District Attorney, for the
Commonwealth.


    BLAKE, J.   Following a crime spree in Middlesex and Norfolk

Counties, the defendant, Washington Pearson, was indicted for

multiple breaking and entering and related offenses in both
                                                                    2


counties (we refer hereafter to these offenses as burglary-

related crimes).1   He was first tried and convicted by a Superior

Court jury in Norfolk County.2   He appealed, contending that his

motion to suppress was erroneously denied.   We affirmed the

Norfolk convictions in Commonwealth v. Pearson, 90 Mass. App.

Ct. 289 (2016) (Pearson I).

     Meanwhile, the defendant was tried and convicted by a

Superior Court jury in Middlesex County of burglary-related

crimes and intimidation of a witness.3   Then, after a jury-waived

trial in Middlesex County, the defendant was found to be a

habitual criminal on three of the burglary-related convictions

and on the intimidation of a witness conviction.   The defendant

filed a motion for a new trial on the intimidation conviction,

which was denied after a nonevidentiary hearing.   The

defendant's appeal from the judgments on the burglary-related

indictments and his appeal from the order denying his motion for


     1 Jenell Johnson, the codefendant, became a cooperating
witness, as discussed infra, and is not a party to this appeal.

     2 The Norfolk County convictions included multiple counts of
breaking and entering in the daytime with the intent to commit a
felony.

     3 In Middlesex County, the defendant was convicted of two
counts of breaking and entering in the daytime with intent to
commit a felony, two counts of larceny over $250, four counts of
identity fraud, four counts of improper use of a credit card,
and one count of attempting to break and enter in the daytime.
He was also convicted of intimidation of a witness, Jenell
Johnson.
                                                                        3


a new trial on the indictment charging intimidation were

consolidated in this court.       We affirm.

    Background.      1.    The burglaries.     Between January 31 and

February 8, 2012, a series of burglaries occurred in Brookline

and Cambridge resulting in the theft of jewelry, credit cards,

and electronics.     While investigating a burglary that occurred

in Brookline on February 6, 2012, Brookline Police Detective

Matthew McDonnell learned that one of the stolen credit cards

was used to make a series of fraudulent purchases at multiple

retail stores.    Surveillance video from some of the stores

depicted a Hispanic woman in her thirties making the purchases.

She was accompanied by an African-American man.

    On February 8, 2012, Brookline police learned of a home

burglary in Cambridge, where the victim found a driver's license

in the name of Jenell Johnson, a person unknown to the victim.

Using Johnson's name, Detective McDonnell found booking

photographs from a 2011 breaking and entering involving Johnson

and the defendant.    The photographs matched the physical

description of the suspects as seen in the surveillance video

from the retail stores.

    2.      The arrests.   Detective McDonnell applied for arrest

warrants for the defendant and Johnson based on the Brookline

burglary.    At approximately 12:30 A.M. on February 9, 2012, a

clerk-magistrate of the Brookline Division of the District Court
                                                                    4


Department determined that there was probable cause to arrest

the defendants, authorized the issuance of arrest warrants, and

signed the applications for complaints.

    That same day, at approximately 6:30 A.M. in a coordinated

effort by the Brookline, Cambridge, and Lynn police departments,

officers went to the Lynn apartment shared by the defendant and

Johnson, purporting to have warrants for their arrest.   Although

the officers had applied for arrest warrants, they had not yet

been issued.

    Johnson opened the door, was taken into custody, and was

advised of the Miranda rights.   When asked about the location of

a pair of boots she had purchased, Johnson directed officers to

a bedroom, where they saw items matching the description of

items fraudulently purchased using the Brookline burglary

victim's credit card.   The officers found the defendant hiding

in the third-floor bathroom and arrested him.

    After the defendant and Johnson were arrested and

transported to the police station, officers remained at the

apartment to secure it while a search warrant was obtained.

During that time, police spoke with the owner of the house, who

identified himself as Johnson's stepfather.   He confirmed that

the defendant and Johnson had been staying there for a number of

weeks.   He told the officers that he had discovered a shopping

bag in a trash can at the back of the house that contained a
                                                                    5


prescription bottle in the name of the Brookline burglary

victim, silverware, blue velvet Tiffany jewelry bags, and

assorted costume jewelry.

     3.   Norfolk County case.   The defendant was first indicted

in Norfolk County, where he chose to represent himself.    He

filed a motion to suppress statements made to police during and

after his arrest, as well as evidence obtained through the

execution of search warrants of the apartment and two cars.

Following an evidentiary hearing, the motion judge issued an

order dated January 13, 2013, allowing in part and denying in

part the defendant's motion (Norfolk order).    The judge found

that the police did not have valid arrest warrants for the

defendant or Johnson when the officers entered the apartment.4

Accordingly, the judge ordered the suppression of statements

made at the times of the arrests.   He then excluded from the

search warrant affidavit all information obtained during the

arrests and found that the subsequent search of the residence

was untainted by the initial illegality, as the remainder of the

affidavit established probable cause.    Finally, he denied the


     4 The judge who issued the Norfolk order found that the
clerk-magistrate checked the boxes on the applications for
complaints that stated, "[P]robable cause found for listed
offenses" and "warrants to issue." The Commonwealth argued to
the motion judge that this effectively satisfied the warrant
requirement. The motion judge found that the formalities of
Massachusetts statutory and constitutional law preclude such a
finding.
                                                                   6


portion of the motion seeking to suppress postarrest statements

made by the defendant.   The defendant was convicted on all of

the Norfolk County indictments.

     4.   Middlesex County case.   Meanwhile, the defendant was

indicted in Middlesex County on other burglary-related charges,

and he once again elected to represent himself.   After a

colloquy that the defendant does not claim was involuntary,

uninformed, or defective, a Superior Court judge determined that

the defendant waived his right to counsel, and the judge

appointed Attorney Scott Matson to act as standby counsel.

     The defendant filed motions to suppress,5 and on January 16,

2014, he orally requested an evidentiary hearing.6   The judge

ruling on the motion "incorporated [the findings of fact in the

Norfolk order] by reference . . . for the purpose of deciding

whether an evidentiary hearing is required in the present case."

The judge determined that, because the issue whether the warrant

was otherwise supported by probable cause is an analysis that

"begins and ends with the four corners of the affidavit," there




     5 The defendant did not include copies of the motions in the
record appendix.

     6 The transcript of the hearing at which the defendant
orally requested an evidentiary hearing is not included in the
record appendix, and the occurrence of this hearing is not
listed in the docket, but it is referenced in the order dated
January 21, 2014, denying the request for an evidentiary
hearing.
                                                                    7


was no need for an evidentiary hearing on that matter.     The

judge further concluded that "[t]he court will hear argument on

whether or not there was probable cause to issue the search

warrant with the unlawfully obtained information removed from

the affidavit submitted in support of the application for the

search warrant," and he outlined the information the court would

consider at such hearing, and the information that would be

excluded.   A different judge held that hearing, denied the

defendant's motions to suppress, and ordered that the Norfolk

order "remain[] in effect."   Notably, and as conceded by defense

counsel at oral argument before this court, the defendant never

specifically raised the question whether the police officers

would have applied for a search warrant if the initial entry

into the apartment was not illegal.

    On December 10, 2013, another Middlesex County indictment

was returned against the defendant for intimidation of a

witness, stemming from his communication with Johnson while the

two were held on bail pending trial.   At his arraignment on this

indictment, the defendant did not waive his right to counsel and

explicitly requested the appointment of counsel other than

Attorney Matson "due to [his] involvement in the related
                                                                    8


matter."7   Attorney Matson was appointed for the arraignment.     In

2014, the Commonwealth's motion to join the burglary-related and

witness intimidation indictments for trial was allowed, and the

defendant's motion to sever was denied.8

     Over a series of court hearings, issues related to Attorney

Matson's representation of the defendant on the intimidation

indictment were raised.    It is this representation that serves

as the basis of the defendant's claim of ineffective assistance

of counsel.

     Discussion.    1.   The Middlesex burglary-related

convictions.   The defendant asks us to overrule Pearson I, 90

Mass. App. Ct. at 292, contending that the court there adopted a

version of the independent source doctrine that provides him

with less protection than what is required under Federal law.

See Murray v. United States, 487 U.S. 533 (1988).     In the

alternative, the defendant asks us to remand the case to the

Superior Court for an evidentiary hearing on his motion to

suppress.   We decline to overrule Pearson I or to remand the

case.    This case is controlled in all material respects by


     7 The Commonwealth objected, contending that Attorney Matson
should be appointed because of his familiarity and involvement
in the burglary-related indictments.

     8 The defendant filed another motion to suppress on June 18,
2014, which was also denied. The defendant did not include a
copy of this motion in the record appendix; however, we obtained
a copy of the motion from the Superior Court.
                                                                    9


Commonwealth v. DeJesus, 439 Mass. 616, 627 n.11 (2003) (where

defendant was already under arrest for involvement in sale of

300 grams of cocaine, and had been identified as regular

supplier, court concluded that "[t]here can be no doubt that the

police were committed to an investigation of the defendant's

cocaine dealing before seeing additional cocaine in his kitchen,

and would have sought the search warrant with or without that

observation").   Here, as in DeJesus, the police were committed

to an investigation of the defendant before the illegal entry,

and had, in fact, applied for arrest warrants before the illegal

entry.   Moreover, a clerk-magistrate had determined that there

was probable cause to arrest the defendant before the illegal

entry.

    In DeJesus, the court recognized that Murray "extended the

independent source doctrine to apply to 'evidence initially

discovered during, or as a consequence of, an unlawful search,

but later obtained independently from activities untainted by

the initial illegality.'"   DeJesus, 439 Mass. at 627 n.11,

quoting Murray, 487 U.S. at 537.   Pursuant to Murray, the

independent source doctrine requires a two-pronged analysis:

(1) whether the police officers would have decided to seek a

search warrant without the evidence obtained from an illegal

search; and (2) whether there was sufficient probable cause to

obtain a search warrant without the tainted information.      See
                                                                     10


United States v. Silva, 554 F.3d 13, 19 (1st Cir. 2009), citing

Murray, supra at 542.9    Under the analysis used by the United

States Court of Appeals for the First Circuit, "determination of

police officers' intent to seek a warrant is framed as a

subjective inquiry."     See United States v. Dessesaure, 429 F.3d

359, 369 (1st Cir. 2005) (court focused on whether "these

particular police officers [would] have sought the warrant even

if they had not known, as a result of the illegal search," that

evidence sought was present in specified location).    The

officers' subjective intent is to be ascertained by objective

means, based on the totality of the attendant circumstances.

See id.

     In Pearson I, 90 Mass. App. Ct. at 292, we stated that

"[t]he appropriate inquiry under State jurisprudence is . . .

whether it was objectively reasonable for police to seek a

warrant" even without the information obtained through the

illegal search.   This approach, which is based on art. 14 of the

Massachusetts Declaration of Rights, is intended to provide


     9 We are not bound by the analysis of constitutional
principles applied by the United States Court of Appeals for the
First Circuit. See Commonwealth v. Montanez, 388 Mass. 603, 604
(1983) ("Though we always treat their decisions with deference,
we are not bound by decisions of Federal courts except the
decisions of the United States Supreme Court on questions of
Federal law"). Nonetheless, the First Circuit's independent
source doctrine cases, upon which the defendant relies,
highlight the importance of an objective inquiry. See United
States v. Silva, 554 F.3d at 19.
                                                                  11


added protection to a defendant by avoiding the potential for a

judge to find that the first prong of Murray's two-prong test

was satisfied on the basis of police testimony that a search

warrant would have been sought, even if the illegal entry had

not been made, when such testimony would be objectively

unreasonable.   Pearson I, 90 Mass. App. Ct. at 292.

    Here, there is no basis for a finding that the police would

not have applied for a search warrant.    The situation was

rapidly evolving.   Numerous break-ins with the same modus

operandi continued unabated.   Once the police identified the

suspects, they went to a clerk-magistrate in the middle of the

night to obtain arrest warrants.   After arresting the defendant

and Johnson, the police remained on the scene to secure the

residence while a search warrant was obtained.   During this

time, the landlord approached the police and pointed them to

items in a trash can that were consistent with the burglaries,

as well as a prescription bottle bearing the name of one of the

victims.   Given the rash of burglaries spanning two counties,

the police sought to arrest the defendant and Johnson quickly.

They knew that a large amount of property had been stolen or

obtained by use of stolen credit cards.   On this record, there

is no basis for a finding other than the police would have

sought a search warrant, and indeed, they did.   As in DeJesus,

439 Mass. at 627 n.11, the police were "committed" to this
                                                                   12


investigation and would have sought a search warrant with or

without the initial observations.10

     The independent source doctrine is an exception to the

fruit of the poisonous tree doctrine as set forth in Wong Sun v.

United States, 371 U.S. 471, 487-488 (1963).    At the core of

this doctrine is the goal that in gathering evidence of a crime,

the police should not be allowed to benefit by exploiting their

illegal conduct.   On the other hand, "the Commonwealth also may

rely on evidence obtained after the illegal search if it can

show that the evidence was independently obtained.   Holding

otherwise would contravene the principle of the independent

source doctrine that the interest of society in deterring

unlawful police conduct and the public interest in having juries

receive all probative evidence of a crime are properly balanced

by putting the police in the same, not a worse, position [than]

they would have been in if no police error or misconduct had

occurred" (quotations and citations omitted).   Commonwealth v.

Estabrook, 472 Mass. 852, 868 n.26 (2015).   See Commonwealth v.

Cassino, 474 Mass. 85, 91 n.4 (2016).   Here, the police did not


     10The judge did not abuse his discretion in denying the
request for an evidentiary hearing on the motion to suppress.
"[A] judge's discretionary decision constitutes an abuse of
discretion where we conclude the judge made a clear error of
judgment in weighing the factors relevant to the decision, such
that the decision falls outside the range of reasonable
alternatives" (quotation and citation omitted). L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
                                                                   13


benefit from the illegal search.    The Middlesex judge properly

concluded that what remained in the search warrant affidavit

after exclusion of the tainted evidence was more than enough to

establish probable cause, and thus the defendant's motion to

suppress was properly denied.   This is precisely what is

required by Commonwealth v. Tyree, 455 Mass. 676, 692 (2010),

and then reaffirmed in Estabrook, supra at 868.

    2.   The intimidation conviction.    The defendant filed a

motion for a new trial on the intimidation indictment, claiming

that he received ineffective assistance of counsel during trial

on that charge.   "We review the denial of a motion for a new

trial 'only to determine whether there has been a significant

error of law or other abuse of discretion.'"    Commonwealth v.

Sullivan, 469 Mass. 621, 629 (2014), quoting Commonwealth v.

Grace, 397 Mass. 303, 307 (1986).   "To prevail on a motion for a

new trial claiming ineffective assistance of counsel, a

defendant must show that there has been a 'serious incompetency,

inefficiency, or inattention of counsel -- behavior of counsel

falling measurably below that which might be expected from an

ordinary fallible lawyer,' and that counsel's poor performance

'likely deprived the defendant of an otherwise available,

substantial ground of defence.'"    Commonwealth v. Millien, 474

Mass. 417, 429-430 (2016), quoting Commonwealth v. Saferian, 366

Mass. 89, 96 (1974).   "A strategic or tactical decision by
                                                                  14


counsel will not be considered ineffective assistance unless

that decision was 'manifestly unreasonable' when made."

Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting

Commonwealth v. Adams, 374 Mass. 722, 728 (1978).

     Despite the defendant's protestations about Attorney

Matson's appointment as standby counsel on the burglary-related

charges, and his appointment as counsel on the intimidation

indictment, the defendant did not appeal the propriety of this

"bifurcated" representation.   In fact, when Attorney Matson

informed the judge that in his professional view this was not a

good way to proceed, the defendant interjected, "Your Honor, I

will agree, I will help [the assistant district attorney] and

the [c]ourt, I will agree with what the [c]ourt has said, and I

will put as much forward as I can."   Indeed, one could say he

acquiesced to this arrangement.

     In any event, the defendant's sole claim is that he was

prejudiced by Attorney Matson's decision to not cross-examine

Johnson.11   The defendant supported his motion for a new trial

with an affidavit from Attorney Matson but did not file an

affidavit of his own.   After a nonevidentiary hearing, the

motion judge, who was also the trial judge, denied the motion,




     11At trial, Attorney Matson gave an opening statement on
the intimidation indictment. He did not cross-examine Johnson
and did not give a closing argument.
                                                                  15


concluding that Attorney Matson "exercised his professional

judgment on [the defendant's] behalf in the circumstances" and

that Attorney Matson's chosen strategy at trial was a "tactical

decision."   The judge also noted that there was "little to be

gained by . . . intervention [on Attorney Matson's part] and

something to be lost. . . .   Attorney Matson acted entirely

reasonably in declining to compromise the effectiveness of [the

defendant's] own representation.   His decision necessarily

accepted some imperfections in [the defendant's] examination or

argument to achieve the greater benefit of [the defendant's]

total performance. . . .    His decisions were not 'manifestly

unreasonable when made.'"   In addition, the judge concluded that

the defendant was not prejudiced by Attorney Matson's inaction

because the defendant fully presented his own defense such that

"further participation by Attorney Matson would not likely have

achieved anything for the defense."

    The defendant relies on United States v. Cronic, 466 U.S.

648, 658-660 (1984), to argue that we must presume prejudice on

these facts.   He cites the second of three classes of

ineffective assistance to support his argument that there is a

presumption of prejudice.   Specifically, he claims that "counsel

entirely fail[ed] to subject the prosecution's case to

meaningful adversarial testing," Commonwealth v. Velez, 77 Mass.

App. Ct. 270, 277 (2010), quoting Cronic, supra at 659-660, and
                                                                     16


that a reasonably competent attorney could have done a better

job testing the Commonwealth's case.     However, that is simply

not enough, as the Cronic holding has limited application.      In

Bell v. Cone, 535 U.S. 685, 696-697 (2002), the United States

Supreme Court clarified that the presumed prejudice described in

the second class of ineffectiveness outlined in Cronic requires

a complete failure to test the government's case.     See

Commonwealth v. Alvarez, 62 Mass. App. Ct. 866, 872 (2005)

("unless counsel entirely fails to subject the prosecution's

case to meaningful adversarial testing[,] . . . a finding of

ineffectiveness without a demonstration by the defendant of

specific errors and resulting prejudice is inappropriate"

[quotation and citation omitted]).     That did not happen here.

The Commonwealth's theory of the case was thoroughly tested.

While Attorney Matson did not in fact examine the witness or

deliver a closing argument, the defendant comprehensively cross-

examined Johnson and explored all viable defenses.12    Additional

participation by Attorney Matson would not likely have achieved

a better outcome.   The judge did not abuse his discretion in

denying the motion for new trial.

                                     Judgments affirmed.




     12The defendant cross-examined Johnson about her
cooperation agreement, criminal history, and communications
while the two were in custody.
    HENRY, J. (dissenting in part).     I agree with the majority

that this case is controlled by Commonwealth v. DeJesus, 439

Mass. 616 (2003), "in all material respects."    Ante at   .   In

DeJesus, the court rightly acknowledged and applied the

subjective test required by the United States Supreme Court

under the Fourth Amendment to the United States Constitution.

However, our decision in Commonwealth v. Pearson, 90 Mass. App.

Ct. 289 (2016) (Pearson I), does not.    Pearson I conflicts with

controlling Supreme Court precedent and departs from DeJesus.

Massachusetts courts cannot provide less protection from

unlawful searches than the Supreme Court mandates.    Accordingly,

I dissent as to the issue of the defendant's request for an

evidentiary hearing on his motion to suppress.

    Our case law seems to have strayed because of a footnote --

or rather, because later case law overlooked that footnote.    As

explained by the Supreme Judicial Court in a footnote, DeJesus,

439 Mass. at 627 n.11:

         "In Murray v. United States, 487 U.S. 533 (1988), the
    Supreme Court extended the independent source doctrine to
    apply to 'evidence initially discovered during, or as a
    consequence of, an unlawful search, but later obtained
    independently from activities untainted by the initial
    illegality.' Id. at 537. Accordingly, the Murray Court
    held that, under the Fourth Amendment, bales of marijuana
    first discovered by Federal law enforcement agents during
    an illegal warrantless search of a warehouse may, when
    later rediscovered and seized pursuant to a warrant to
    search the warehouse, have an independent source in the
    warrant, provided that neither the decision to seek that
    warrant nor the decision to issue it was influenced by the
                                                                  2


    earlier illegal entry and observation of the bags. See id.
    at 541-543. Because the District Court judge had made no
    clear findings as to whether the agents would have sought a
    warrant had they not earlier entered the warehouse, the
    Murray Court remanded the case to the trial court for a
    determination whether there was, in fact, an independent
    source for the challenged evidence. See id. at 543-544.

         "Our decision in this case is grounded on art. 14 [of
    the Massachusetts Declaration of Rights]. Cognizant that
    we are not free to impose less restrictive standards under
    State constitutional analysis than are required under the
    Fourth Amendment, we nevertheless conclude that it is not
    necessary to remand this case to the trial judge. The
    defendant raises no claim that the police officers would
    not have sought a warrant had they not earlier entered the
    apartment and appears to concede that the initial entry,
    albeit illegal, was made with the intent thereafter to
    obtain a warrant. The defendant was already under arrest
    for his involvement in a sale of approximately 300 grams of
    cocaine, and had been identified by [a witness] as a
    regular supplier of cocaine. There can be no doubt that
    the police were committed to an investigation of the
    defendant's cocaine dealing before seeing additional
    cocaine in his kitchen, and would have sought the search
    warrant with or without that observation. With respect to
    the independent source issue, the defendant asserts only
    that the affidavit in support of the warrant was
    insufficient to support a finding of probable cause without
    the description of cocaine and drug paraphernalia observed
    during the initial illegal entry. (The defendant
    undoubtedly does so because, unlike in the Murray case, the
    supporting affidavit on its face indicates that a
    warrantless entry was made and that at least some of the
    evidence listed on the warrant application had been
    observed in plain view). Our determination in this case
    that the search pursuant to the warrant was a genuinely
    independent source of the evidence at issue is, on the
    record established by the parties, purely one of law."

In other words, the Supreme Judicial Court in DeJesus

acknowledged that Murray requires a two-prong inquiry to

determine whether (1) the particular police officers would have

sought a search warrant without the evidence obtained from an
                                                                    3


illegal search, and (2) there was sufficient probable cause to

obtain a search warrant without the tainted information.     The

court also acknowledged that in some cases, the first Murray

prong requires an evidentiary hearing into the subjective intent

of the particular police officers involved in the illegal search

-- inquiring whether they would have sought a warrant without

the tainted information.   In DeJesus, the defendant did not

raise a first prong challenge.   The Supreme Judicial Court found

the two-prong Murray test satisfied.

    Subsequently, however, the Supreme Judicial Court, in

Commonwealth v. Tyree, 455 Mass. 676 (2010), omitted the

requirement of a hearing into the subjective intent of the

particular police officers.   The court wrote:

          "Evidence obtained during a search pursuant to a
    warrant that was issued after an earlier illegal entry and
    search is admissible as long as the affidavit in support of
    the application for a search warrant contains information
    sufficient to establish probable cause to search the
    premises 'apart from' observations made during the initial
    illegal entry and search. Commonwealth v. DeJesus, 439
    Mass. 616, 625 (2003). In such circumstances, the search
    pursuant to a valid warrant provides an independent source
    for the challenged evidence 'untainted by information
    discovered during the initial [illegal] entry.' Id. at
    627."

Tyree, supra at 692.   In other words, without any discussion,

the court in Tyree dropped the subjective inquiry into the

police officers' motivations, essentially removing the first

Murray prong.
                                                                    4


    Then, in Pearson I, 90 Mass. App. Ct. at 292, this court

materially changed the first Murray prong into an objective

inquiry as to "whether it was objectively reasonable for police

to seek a warrant" even without the information obtained through

the illegal search.   This reframing deprives the defendant of

the opportunity to challenge whether the particular police

officers would have sought a warrant had they not earlier

entered the home illegally.   Indeed, this reframing collapses

the two prongs of the Murray test, because if probable cause

existed without the illegally obtained information, it would be

objectively reasonable for police to seek a search warrant.

    In Pearson I, 90 Mass. App. Ct. at 292, this court stated

that the new objective standard provides defendants with more

protections than Federal law.   Indeed, in many cases, if not the

overwhelming majority, the outcome of using a subjective versus

objective inquiry for the first Murray prong will be a

distinction without a difference.   But because we cannot say

with certainty that in every case the objective Pearson I

standard will provide a defendant with greater protection, we

are not following binding Supreme Court precedent.   Thus, under

Pearson I, Massachusetts courts are not determining that there

was, in fact, an independent source for the challenged evidence.
                                                                 5


That is not our prerogative.   Numerous cases from around the

country recognize this difference.1   We should correct our error.


     1 See, e.g., United States v. Rose, 802 F.3d 114, 123-124
(1st Cir. 2015), cert. denied, 136 S. Ct. 2418 (2016) (referring
to first prong as "subjective inquiry" that "turns on whether
the particular officer would have still sought the warrant
absent the unlawfully-obtained information"); United States v.
Hill, 776 F.3d 243, 252 (4th Cir. 2015) (remanding for factual
determination on officer's intent to seek warrant); United
States v. Markling, 7 F.3d 1309, 1317-1318 (7th Cir. 1993)
(remanding for factual finding whether actual officer involved
would have sought search warrant absent illegal search); United
States v. Restrepo, 966 F.2d 964, 972 (5th Cir. 1992) ("unlike
the objective test of whether the expurgated affidavit
constitutes probable cause to issue the warrant, the core
judicial inquiry before the [D]istrict [C]ourt on remand is a
subjective one: whether information gained in the illegal
search prompted the officers to seek a warrant"); United States
v. Herrold, 962 F.2d 1131, 1141 (3d Cir.), cert. denied, 506
U.S. 958 (1992) (first prong satisfied where District Court
heard evidence that officers intended to seek search warrant
prior to unlawful entry); State v. Gulbrandson, 184 Ariz. 46, 59
(1995), cert. denied, 518 U.S. 1022 (1996) (focusing on
detective's subjective intent when applying Murray); Fultz v.
State, 333 Ark. 586, 594 (1998) ("the warrant can be defeated if
the officer’s motivation for the warrant arose from evidence
discovered during the illegal search"); People v. Weiss, 20 Cal.
4th 1073, 1079 (1999) (Murray requires "a finding that the
police subjectively would have sought the warrant even without
the illegal conduct"); People v. Schoondermark, 759 P.2d 715,
719 (Colo. 1988) ("the People must bear the burden of
establishing by a preponderance of the evidence that the
officers would have sought the warrant even absent the
information gained by the initial illegal entry"); Evans v.
United States, 122 A.3d 876, 884 (D.C. 2015) (recognizing that
first prong of Murray requires factual findings whether actual
officer involved would have sought search warrant absent illegal
entry); People v. Carter, 284 Ill. App. 3d 745, 752-753 (1996)
(finding first prong not met because officers testified that
they only decided to seek warrant after their unlawful entry);
Kamara v. State, 205 Md. App. 607, 627-628 (2012) (looking to
subjective intent of officers when applying first prong); State
v. Lieberg, 553 N.W.2d 51, 57-58 (Minn. Ct. App. 1996)
(recognizing that Murray requires factual determination about
                                                                   6


     As for whether the issue was preserved, it is undisputed

that the defendant requested an evidentiary hearing.2   The

Middlesex motion judge denied the request based on the wrong

legal standard.   Citing Commonwealth v. O'Day, 440 Mass. 296,

297 (2004), the motion judge determined that the only question

was "whether or not the warrant was supported by probable

cause."   O'Day, however, is wholly inapplicable because it did



subjective intent of officers); State v. Jurgens, 235 Neb. 103,
106 (1990) (remanding for further findings on specific officer's
intent to seek search warrant); State v. Holland, 176 N.J. 344,
364-365 (2003) (looking to officers' subjective intent and
decision-making in applying first prong); People v. Marinez, 121
A.D.3d 423, 424 (N.Y. App. Div. 2014) (ordering new trial where
evidence demonstrated unlawful search prompted officer to seek
search warrant); State v. Winkler, 567 N.W.2d 330, 334 (N.D.
1997) ("Murray instructs us to determine what actually motivated
the search and what was the intention of the officers in the
specific case. This results in a subjective, rather than
objective test"); State v. Krukowski, 100 P.3d 1222, 1227-1228
(Utah 2004) (recognizing that first Murray prong requires
credibility determination when officer asserts that he would
have sought warrant regardless of illegal entry); State v.
Hilton, 164 Wash. App. 81, 92 (2011), cert. denied, 568 U.S. 914
(2012) ("the question is whether the process of obtaining the
derivative evidence was tainted by an earlier illegality. This
factual problem necessarily looks to what the police were doing
and what motivated them to take the action they did"); State v.
Lange, 158 Wis. 2d 609, 626-627 (App. Ct. 1990) (reviewing
officer's testimony about his subjective intent to determine
whether first prong was satisfied).

     2 I disagree with the majority's reliance on defense
counsel's statements at oral argument to conclude that the
defendant did not preserve the issue. Ante at     . See
Commonwealth v. Johnson, 481 Mass. 710, 726 n.14 (2019), quoting
Commonwealth v. Wojcik, 358 Mass. 623, 631 (1971) ("Statements
in a brief or oral argument cannot be used as a means of placing
before this court any facts which are not included in the record
on appeal").
                                                                         7


not involve an illegal search.      The issue there was whether

there was sufficient probable cause to search the defendant's

home (as opposed to his workplace).       Id.   Thus, where the motion

judge here entertained the defendant's request for an

evidentiary hearing and then made an error of law, the judge's

denial of the defendant's request was an abuse of discretion.3

     Moreover, I disagree with majority's holding that "there is

no basis for a finding that the police would not have applied

for a search warrant."    Ante at     .   We cannot hold this as a

matter of law, and it is not our function to decide issues of

fact.    We know that the police did not seek a search warrant

based on the information they possessed prior to the illegal

entry.    However, the current record does not reveal why.      That

is a question Murray requires these officers to answer.4       The

evidence may support a conclusion that the police officers would

have decided to seek a search warrant without the evidence

obtained from an illegal search.      It may support the contrary

conclusion.   The defendant was denied the opportunity to develop




     3 The Middlesex judge's independent error of law is not
nullified because a different judge subsequently adopted the
Norfolk order without an evidentiary hearing.

     4 It is worth noting that the facts may not be identical to
the Norfolk case because the parties there did not litigate the
independent source doctrine. That issue was raised by the judge
sua sponte in the order denying the motion to suppress, so the
Norfolk case did not include a hearing on this issue.
                                                                      8


that record at an evidentiary hearing.   Without an evidentiary

hearing and findings of fact, we are speculating.

    The defendant does not seek a reversal of the judgments on

this issue.   He seeks what the Supreme Court has held is due:

an evidentiary hearing on the officers' subjective intent.     The

defendant's request for a hearing should have been granted.      We

should overrule Pearson I and resume following the Supreme

Court's two-prong test in Murray.   Respectfully, I dissent.
