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14-P-1525                                             Appeals Court

                 COMMONWEALTH   vs.   ROBERT COLON.


                           No. 14-P-1525.

       Essex.      September 22, 2015. - October 26, 2015.

            Present:   Berry, Grainger, & Sullivan, JJ.


Search and Seizure, Protective sweep, Warrant. Firearms.
     Controlled Substances. Constitutional Law, Search and
     seizure.



     Complaint received and sworn to in the Lynn Division of the
District Court Department on February 19, 2013.

     A pretrial motion to suppress evidence was heard by Matthew
J. Machera, J.

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


     Scott F. Gleason for the defendant.
     Quentin Weld, Assistant District Attorney, for the
Commonwealth.


    GRAINGER, J.   The defendant appeals from the denial of his

motion to suppress evidence obtained during a warrantless search
                                                                   2


of his apartment conducted at the time of his arrest on an

outstanding warrant.1    A judge of the District Court concluded

that the search was permissible as a "protective sweep."

     The facts found by the motion judge after an evidentiary

hearing are undisputed for purposes of our consideration of the

motion to suppress.     The salient findings are these:2   The


     1
       A single justice of the Supreme Judicial Court allowed the
defendant's motion to file an interlocutory appeal.
     2
       Trooper Babbin was the only witness to testify at the
suppression hearing. Neither the arrest warrant nor any other
documentary evidence was introduced. The judge recited his
findings in full as follows:

          "On February 15, 2013, [m]embers of the Massachusetts
     State Police, led by Sgt. Timothy Babbin, along with
     members of the Lynn Police Department, executed an arrest
     warrant for one Robert Colon at 159A Essex Street in Lynn,
     Massachusetts. Sgt. Timothy Babbin, a highly experienced
     trooper with over twenty years of experience in a variety
     of roles within the state police, led the arrest. When the
     officers arrived, they knocked on the front door. The[]
     officers could hear the voice of a man and a woman in
     conversation. The officers continued to knock and
     announced their office without any response from the
     occupants inside. The officers continued to knock and at
     some point heard running water and heard people moving
     about the apartment. The officers waited several minutes
     while continuing to knock and announce their office. At
     one point, a female voice told police that she had to get
     dressed before opening the door. After a significant
     delay, the door to apartment 159A opened, revealing the
     defendant, full[y] dressed. The officers asked the
     defendant who he was and he answered that his name was
     Robert Colon. The officers immediately smelled a strong
     odor of fresh marijuana. The defendant appeared anxious
     and nervous and stated to the police 'let's go' and
     attempted to walk out of the apartment. The officers
     directed the defendant back into the apartment and cuffed
     him. After speaking to the defendant, the officers could
                                                                     3


officers were made to wait several minutes after they knocked

and announced their presence.    During that time they heard a man

and woman in conversation, running water, and a woman's voice

informing them she needed to get dressed.    The defendant opened

the door and the officers "smelled a strong odor of fresh

marijuana."    The defendant said "let's go" and attempted to

leave with the officers, who instead brought him back inside the

apartment, handcuffed him, and conducted the protective sweep.

    Discussion.     Both United States Supreme Court and

Massachusetts cases have recognized that a limited protective

sweep of premises may be conducted incident to an arrest in

order to ensure the safety of the arresting officers if they can

demonstrate a "reasonable belief based on 'specific and

articulable facts' that the area could harbor a dangerous

individual."    Commonwealth v. Matos, 78 Mass. App. Ct. 156, 159

(2010), quoting from Maryland v. Buie, 494 U.S. 325, 327, 334




    not say with certainty that his voice was the voice that
    they heard while they were waiting for the apartment door
    to open. Based on the significant delay in opening the
    door, the smell of fresh marijuana, the sound of running
    water, the sound of people moving about[,] and not knowing
    if the voice heard was that of the defendant, the officers
    decided to conduct a protective sweep. Inside one of the
    bedrooms, the officers observed three large bags of
    suspected marijuana located on a shelf inside an open
    closet. Also found during the protective sweep of the
    apartment were drug paraphernalia and US currency."
                                                                        4


(1990).      We conclude that the evidence in this case falls short

of that standard.

       We are unpersuaded by the Commonwealth's argument, based on

facts not found by the judge,3 that the warrant-related charge,

illegal possession of a firearm with a defaced serial number,

describes a "prior violent felony" that justified entry and

search of the apartment under these circumstances.       Illegal

possession of a firearm is certainly troubling, and clearly

justifies caution.       But possession alone is not per se a violent

act.       See, e.g., Commonwealth v. DeJesus, 70 Mass. App. Ct. 114,

120 (2007) (articulable facts justifying protective sweep can be

found in a defendant's "record of violent felonies and firearm

possession charges" [emphasis supplied]).       Accordingly, while

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.

       As stated, here the defendant opened the door, said, "let's

go," and attempted to leave with the officers.       The only

individual claimed to represent a threat was cooperating with

the police, had submitted to custody and, from all appearances,

was completely compliant.       The police had achieved their

       3
       The arresting officer was asked by the prosecutor, "Do you
know whether [the underlying] charges were tried or untried?"
and replied, "I don't." The judge's findings (see note 2,
supra) refer only to an "arrest warrant." See Commonwealth v.
Jones-Pannell, 472 Mass. 429, 436-438 (2015).
                                                                     5


objective without conflict and in fairly short order.     For this

reason it would be irrelevant to our consideration even had the

judge made the findings about the warrant-related charge

asserted by the Commonwealth.    In sum, the Commonwealth's claim

that a danger posed by the charge of previous illegal possession

of a firearm justified entering the premises after the defendant

had surrendered, and then conducting a search, does not

withstand scrutiny.

    A comparison with Commonwealth v. Matos, supra, and

Commonwealth v. DeJesus, supra, is useful.     In Matos the

suspect, who the police knew had been previously arrested for a

firearms offense, ran into a bedroom and shut the door when they

arrived to execute an arrest warrant on drug distribution

charges.   78 Mass. App. Ct. at 157.    A divided panel of this

court concluded that, under those facts, officers on the third

floor of the house "could reasonably continue" a protective

sweep while the defendant was in the custody of officers on the

second floor.    Id. at 159.   In DeJesus, the arrest on a warrant

for armed carjacking likewise occurred inside the apartment.

"An ambush in a confined setting of unknown configuration is

more to be feared than it is in open, more familiar

surroundings."   DeJesus, 70 Mass. App. Ct. at 119, quoting from

Maryland v. Buie, 494 U.S. at 333.     Here, by contrast, the

defendant made it unnecessary to effectuate the arrest in the
                                                                   6


apartment and there was no evidence of danger to be expected

from the apartment.

     The motion judge obviously could infer from the evidence

that the defendant's cooperation with the police and his

eagerness to be taken away from the premises was intended to

avoid discovery of the marijuana in the apartment.   But the

Commonwealth's argument on appeal is explicitly limited to the

protective sweep exception; consequently we do not address the

exception to the warrant requirement based on preventing the

imminent destruction of evidence of a crime.4

                                   Order denying motion to
                                     suppress evidence reversed.




     4
       For this reason we also do not address whether the strong
smell of fresh marijuana in particular would have justified a
protective sweep to preserve evidence of a crime after the
enactment of G. L. c. 94C, §§ 32L-32N. Cf. Commonwealth v.
Pacheco, 464 Mass. 768 (2013); Commonwealth v. Rodriguez, 472
Mass. 767 (2015).
    BERRY, J. (concurring).    The only reason I concur in this

decision reversing the denial of the suppression motion

concerning the protective sweep is that the motion judge entered

only limited and inchoate findings of fact.   The abbreviated

findings concerning what would constitute specific and

articulable facts to justify a protective sweep were as follows:

    "the significant delay in opening the door, the smell of
    fresh marijuana, the sound of running water, the sound of
    people moving about[,] and [the police] not knowing if the
    voice heard was that of the defendant[]."

These limited findings do not support the protective sweep in

this case.   Therefore, the majority, with which I concur,

reverses the denial of the suppression motion.

    I write separately, however, because I believe there was

additional and uncontroverted testimony by the officer that

might very well have justified the protective sweep.     However,

under Commonwealth v. Jones-Pannell, 472 Mass. 429, 436-438

(2015), an appellate court is constricted in supplementing the

motion judge's findings of fact with uncontroverted testimony.

In this case, there was such uncontroverted testimony, not

addressed in the findings of the motion judge.   For example, the

arresting officer's testimony included the following:

    Prosecutor: "All right. Do you remember the nature of the
    warrant for [the defendant]?"

    Trooper Babbin: "Yes. It was a WNS warrant for illegal
    possession of a firearm, possession of a firearm with a
    defaced serial number; I believe it was distribution of
                                                                  2


    [c]lass A; and possession with intent to distribute of
    class B. . . ."1

The defendant's memorandum in support of his motion to suppress

describes the warrant as relating to a probation violation.

Furthermore, Trooper Babbin testified that there was a

"Mass[achusetts] probation parole officer" present at the time

of the warrant execution.   However, none of this warrant

background appears in the findings, which refer only to an

"arrest warrant" without particularization.   This is important

because knowledge of a defendant's "record of violent felonies

and firearm possession charges" may yield a reasonable and

articulable basis supporting a protective sweep.   Commonwealth

v. Matos, 78 Mass. App. Ct. 156, 159 (2010), quoting from

Commonwealth v. DeJesus, 70 Mass. App. Ct. 114, 120 (2007)




    1
       When the prosecutor asked Trooper Babbin whether he was
aware of the disposition of the underlying charges, Trooper
Babbin acknowledged that he did not know whether the charges
were "tried or untried." However, that it was a probation
violation warrant is indicated in the defendant's memorandum
supporting his motion to suppress: "On February 15, 2013, the
Lynn police appeared at 159A Essex Street to execute an arrest
warrant for [the defendant] (probation violation)." It should
also be noted that defense counsel indicated the following at
the motion hearing: "the record will reflect that the warrant
which issued in this case is a warrant that was issued in -- and
I'd ask you to take judicial notice of that -- of that probation
record -- would indicate that the warrant was issued in 2011."
Motion counsel went on to state that the officer "had knowledge
of there being an issue of violence regarding older charges, as
you will note, and charges which had already been adjudicated in
your review of the record."
                                                                     3


("[A]n objective concern for [officers'] safety [can be] rooted

in the articulable facts of the defendant's criminal history").

    Again applying the Jones-Pannell rule, not to be considered

in appellate review is the uncontroverted testimony of the

officer that reflects other aggravating factors which may have

justified the protective sweep.   By way of example, the motion

judge's findings only vaguely recounted that the officers heard

the voices of a man and a woman following a significant delay

before the defendant opened the door and came out.    The findings

do not address any risk that the woman within the apartment may

have posed and do not address the possibility of a second,

unaccounted-for man, where the officer testified that the police

did not recognize the male voice as that of the defendant (whose

voice they would have heard when the defendant came out of the

apartment).

    A protective sweep affords officers an invaluable tool to

protect their safety when effectuating an arrest in the home, a

place where "[t]he risk of danger . . . is as great as, if not

greater than, it is in an on-the-street or roadside

investigatory encounter."   Maryland v. Buie, 494 U.S. 325, 333

(1990).   "Moreover, unlike an encounter on the street or along a

highway, an in-home arrest puts the officer at the disadvantage

of being on his adversary's 'turf.'   An ambush in a confined
                                                                   4


setting of unknown configuration is more to be feared than it is

in open, more familiar surroundings."   Ibid.

    Given the important safety concerns that may underlie a

protective sweep such as in this case, I join the majority in

reversing the denial of the suppression motion, but do so only

because the motion judge's findings of fact fail to reflect

additional, and key, aggravating factors set forth in the

uncontroverted testimony -- which falls outside appellate review

under Jones-Pannell.
