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13-P-1457                                               Appeals Court

                COMMONWEALTH   vs.   WALTER KOMNENUS.


                          No. 13-P-1457.

       Middlesex.      November 13, 2014. - June 30, 2015.

            Present:   Green, Wolohojian, & Blake, JJ.


Controlled Substances. Practice, Criminal, Motion to suppress,
     Required finding, Instructions to jury. Consent. Search
     and Seizure, Consent, Fruits of illegal search, Protective
     sweep. Constitutional Law, Search and seizure.




     Indictment found and returned in the Superior Court
Department on November 15, 2011.

     A pretrial motion to suppress evidence was heard by
Elizabeth M. Fahey, J., and the case was tried before Kimberly
S. Budd, J.


     Julie A. Baker for the defendant.
     Matthew Bailey, Assistant District Attorney, for the
Commonwealth.


    GREEN, J.   On appeal from his conviction of trafficking in

cocaine in violation of G. L. c. 94C, § 32E(b)(1), the defendant

claims error in the denial of his motion to suppress evidence
                                                                    2


seized from his apartment following a warrantless entry by

police.    We conclude that the motion judge correctly denied the

defendant's motion to suppress, and affirm the judgment.1

     Background.2   At approximately 8:15 P.M. on August 3, 2011,

Detective Robert Hall of the Everett police department received

a call from Sergeant James Hyde of the Somerville police

department.   Sergeant Hyde reported that he had just arrested

two individuals on cocaine-related charges and that one of the

individuals told Hyde that he had, within the previous thirty

minutes, purchased cocaine from the defendant.    That arrestee

also said that the sale occurred in the defendant's third-floor

apartment of a brown three-family home on Broadway in Everett,

which he described as having a sign reading "Sonny and Sons

Construction" (or words to that effect), and that the defendant

had a criminal history, including a Federal cocaine trafficking

offense.




     1
       As discussed below, we reject the defendant's claim that
the evidence at trial was insufficient to support his
conviction, and discern no merit in his claim that the judge
erred in declining the defendant's request for a Bowden
instruction. See Commonwealth v. Bowden, 379 Mass. 472, 485-486
(1980).
     2
       We relate the facts as found by the motion judge,
supplemented by uncontroverted evidence presented at the motion
hearing and apparently credited by the motion judge. See
Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450
Mass. 818 (2008).
                                                                   3


     Detective Hall ran the defendant's board of probation (BOP)

record, which contained more than eighty entries, and confirmed

that the defendant had a Federal cocaine trafficking offense on

his record.   Though the BOP reflected a Boston residence for the

defendant, an internal Everett police department database and

the defendant's registry of motor vehicles record both listed

his Everett residence at 171 Broadway, third floor.   Detective

Hall, in plain clothes, drove to that address and confirmed that

it was a two and one-half story brown home.   On arrival, he

observed that the third-floor lights were on,3 and ran the

records for a Honda Accord automobile parked on the street and

found that it was registered to the defendant.   Detective Hall

then drove to a nearby McDonald's where he spoke with four other

police officers, some in uniform and some in plain clothes.

     After discussing a plan, the five officers drove to the

vicinity of 171 Broadway and parked near, but out of sight of,

the residence.   At the request of Detective Hall, Officer

Anthony DeNuccio, who was in uniform, rang the doorbell and,

when the defendant answered the door, informed him (falsely)

that his car had been in an accident.   DeNuccio then asked the

     3
       We recite the description of the building (as having "[two
and one-half] stories") and the defendant's apartment (as
located on the "third" floor) as set forth in the motion judge's
findings. Neither party has challenged the judge's findings
concerning the physical characteristics of the building or the
location of the defendant's apartment.
                                                                    4


defendant to come outside.   Once the defendant and Officer

DeNuccio were on the sidewalk near the defendant's car,

Detectives Hall, now wearing a jacket that said "police" on it,

and Richard Connor, who was in uniform, approached.    Detective

Hall informed the defendant that his car had not actually been

in an accident but that Hall instead was conducting an

investigation into the distribution of cocaine, and had

information that cocaine was being sold from the defendant's

apartment.

    Detective Connor read Miranda warnings to the defendant,

who responded that he understood the warnings.    The defendant

asked if he was under arrest.   Detective Hall told the defendant

that he was not under arrest and that he was free to leave or

stay, but that the officers were going to go upstairs to the

defendant's apartment to secure it, pending application for, and

issuance of, a warrant to search the apartment.    Detective Hall

told the defendant that "he could come up or he could stay

down," but he did not ask the defendant at that time for consent

to enter or search the apartment.   Detective Connor then pat

frisked the defendant, and four or five officers went upstairs

to his apartment, accompanied by the defendant.    The motion

judge found that the defendant went with the police to his

apartment "voluntarily, notwithstanding some anxiety."
                                                                         5


    When the police and the defendant reached the apartment,

the police entered it, calling out "police" in order to alert

any occupants who might have been inside.      Upon entering, the

officers observed that the apartment was small; it consisted of

only a kitchen, a bedroom, a combination bedroom-living room,

and a bathroom.    The officers "peeked" into each room for a few

seconds, and determined that the apartment was unoccupied.         The

defendant sat down at the kitchen table while the officers stood

in the kitchen.    Within the defendant's hearing, Detective Hall

telephoned Sergeant Hyde of the Somerville police.      He informed

Sergeant Hyde that he was in the defendant's home with the

defendant and that he needed Sergeant Hyde to provide the

information that he had in order for Detective Hall to prepare

the warrant affidavit.    While Detective Hall was still engaged

in his telephone conversation with Sergeant Hyde, the defendant

"blurted out" (without having been asked any question), "I have

some stuff.    Can I talk to you?"    When asked what he meant, he

responded, "I have [fourteen] grams of cocaine as I get high

sometimes with my lady friend."      This was within five to ten

minutes after the police entered the apartment with the

defendant.    The motion judge found 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.
                                                                   6


     The defendant informed the officers that the cocaine was in

the room off the kitchen.   The defendant and Detective Hall

walked into that room, where the defendant showed the officers a

small box containing rocks of what looked to be crack cocaine.

Detective Hall asked the defendant if there were any more drugs

in the house, and the defendant responded that there were none.

Shortly thereafter, Detective Connor read a consent to search

form to the defendant, which the defendant signed at

approximately 9:43 P.M.   The police then searched the apartment

(excluding a bedroom the defendant said was his daughter's).

They found and seized a box of sandwich bags, scissors, a

digital scale, pre-cut baggies, two police scanners, some bank

statements in the defendant's name and address, and $1,660 in

cash.4   The officers then arrested the defendant.

     Discussion.   1.   Motion to suppress.   "In reviewing a

ruling on a motion to suppress, we accept the judge's subsidiary

findings of fact absent clear error 'but conduct an independent

     4
       In response to a question about additional money in the
apartment, the defendant stated that there was some in the
mattress. Detective Hall recovered $3,000 from the mattress,
but then returned it to the defendant. In her order, the motion
judge stated that she did "not credit" the reasons given by
Detective Hall to explain his return of the money to the
defendant, or his "executive decision" to do so. However, her
comment appears to leave intact her finding that Detective Hall
in fact retrieved that sum from the mattress and returned it to
the defendant; his reasons for returning the money to the
defendant are immaterial to the question of suppression of the
evidence seized from the apartment.
                                                                     7


review of [her] ultimate findings and conclusions of law.' . . .

The judge determines the weight and credibility of the

testimony.   '[O]ur duty is to make an independent determination

of the correctness of the judge's application of constitutional

principles to the facts as found'" (citations omitted).

Commonwealth v. Scott, 440 Mass. 642, 646 (2004).

    We agree with the defendant that the officers' warrantless

entry into his apartment was unlawful.   The record does not

support the finding of the motion judge that the defendant

consented to the entry.   "Although consent may be implicit, see

Commonwealth v. Voisine, [414 Mass. 772, 783 (1993)], and the

police need not utter any 'magic words' of request before

entering, the Commonwealth must establish that the occupant's

words or conduct amounted to something other than mere

acquiescence to a claim of authority or simple resignation to

the perceived power of uniformed officials."   Commonwealth v.

Rogers, 444 Mass. 234, 237-238 (2005).   In the present case, the

police did not request the defendant's consent to enter his

apartment, and the defendant did not indicate by words or action

that the police were welcome to do so.   Compare the cases

described in Commonwealth v. Rogers, supra at 240-241.    Instead,

Detective Hall simply notified the defendant of the officers'

intention to enter his apartment for the purpose of securing it

from within, and advised him that he could accompany them or
                                                                      8


not.       In the circumstances, the defendant's failure to object to

Detective Hall's declaration of intent to enter his apartment,

with or without him, suggests nothing more than "mere

'acquiescence to a claim of lawful authority,'" Commonwealth v.

Tyree, 455 Mass. 676, 695 (2010), quoting from Commonwealth v.

Sanna, 424 Mass. 92, 97 (1997), insufficient to establish his

voluntary consent to allow police to enter and search the

apartment.      See Commonwealth v. Gray, 465 Mass. 330, 344 (2013).5

       That said, the illegal entry itself, and the protective

sweep that immediately followed, yielded no evidence.      Instead,


       5
       The entry likewise cannot be justified on the alternative
ground of probable cause and exigent circumstances, as suggested
by the Commonwealth on appeal. In assessing whether exigent
circumstances justify a warrantless entry to prevent destruction
of evidence, "[f]irst we consider whether sufficient basis
existed just prior to the police approach to the premises, . . .
If not, we shift our inquiry to the time when the police
interacted with the defendant at his door." Commonwealth v.
McAfee, 63 Mass. App. Ct. 467, 473 (2005). Before Officer
DeNuccio knocked on the defendant's door, no exigent
circumstances justified the officers' entry into the defendant's
apartment. There was no evidence of a "specific threat that
drugs inside the apartment were in imminent danger of being
destroyed or that a police presence outside the apartment until
a warrant could be obtained would not have prevented any such
destruction." Commonwealth v. DeJesus, 439 Mass. 616, 620 n.3
(2003). Moreover, even after the initial interaction by police
with the defendant, but prior to their entry into his apartment,
there was no apparent threat that the defendant would destroy
evidence within the apartment; the defendant was outside the
apartment and, in any event, the police had probable cause to
arrest him based on the information provided by his arrested
customer regarding a recent purchase of drugs from him. There
was likewise no evidence to support an objectively reasonable
belief that anyone other than the defendant was in the
apartment. See Commonwealth v. Gray, supra at 345.
                                                                     9


the evidence that was the subject of the motion to suppress was

either volunteered by the defendant or the product of a search

conducted after obtaining his consent.    The defendant

nonetheless argues that the evidence should be suppressed as

"fruit of the poisonous tree."   See Wong Sun v. United States,

371 U.S. 471, 487-488 (1963).    "When consent to search is

obtained through exploitation of a prior illegality, . . . the

consent has not been regarded as freely given."    Commonwealth v.

Midi, 46 Mass. App. Ct. 591, 595 (1999); Commonwealth v. Yehudi

Y., 56 Mass. App. Ct. 812, 817 (2002).    "Evidence gathered

during a search brought about by such compromised consent is

considered tainted by the illegality and is, therefore,

inadmissible. . . .   If, however, there is an attenuation

between the prior illegality and the consent, the consent is

cleansed of the effect of the prior illegality and is deemed

valid. . . .   We take this to mean that the consent is valid if

it can rationally be determined that it did not come about by

virtue of the prior illegality, but rather was given for reasons

independent of the earlier unlawful act or event."    Commonwealth

v. Kipp, 57 Mass. App. Ct. 629, 633 (2003).

    In the present case, the record supports the finding of the

motion judge that the defendant's spontaneous disclosure of the

presence of crack cocaine in his apartment was made knowingly

and voluntarily, so that the evidence obtained by police from
                                                                  10


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.

     As a threshold matter, as we have observed, the entry in

the present case, and the brief protective sweep that

immediately followed it, did not reveal any incriminating

evidence and did not contribute in any identifiable way to the

discoveries that followed.   See Commonwealth v. Ocasio, 71 Mass.

App. Ct. 304, 310 (2008).6   The defendant had been advised of his

Miranda rights, and had been told he was not under arrest.     The

defendant disclosed the presence of cocaine in the apartment

spontaneously and not in response to interrogation or prompting

by the police.   See Commonwealth v. Ferrer, 68 Mass. App. Ct.

544, 546-547 (2007).7   Detective Hall's telephone call in the

defendant's presence in furtherance of his intention to obtain a


     6
       The case accordingly is unlike Commonwealth v. Midi, supra
at 595, in which the discovery of marijuana and bullets during a
preliminary (albeit unlawful) search of the defendant's
apartment prompted police to request consent for a more thorough
search.
     7
       In that regard, the present case stands in contrast to
Commonwealth v. Porter P., 456 Mass. 254, 275 (2010), in which
the juvenile had been arrested and handcuffed, following seizure
of a firearm during an unlawful warrantless search, at the time
he spontaneously made an incriminating statement to police.
                                                                    11


search warrant does not bear heavily on the voluntariness of

either the defendant's spontaneous statement or his subsequent

consent to search the apartment.     See Commonwealth v. Deeran,

364 Mass. 193, 196 (1973); Commonwealth v. Harmond, 376 Mass.

557, 561 (1978).   Moreover, the defendant had extensive

experience with police, as his BOP record revealed; indeed, his

impulse to reveal that he possessed cocaine for personal use

suggests an awareness of the distinction between possession and

trafficking, and a desire to mitigate the consequences he

anticipated would follow the issuance of a warrant for the

search of his apartment.     The motion judge found that the

defendant's disclosure that he had cocaine in the apartment was

free and voluntary.   In short, though the entry (and therefore,

the continued presence by police in the defendant's apartment)

was unlawful, in the totality of the circumstances the police

cannot be said to have exploited the illegality of their entry

into the apartment to obtain the evidence the defendant seeks to

suppress, because the illegality bears no apparent causal

relationship to the defendant's spontaneous disclosure of his

possession of cocaine.     That disclosure, in turn, stands as an

"intervening circumstance" attenuating any connection between

the unlawful entry and the defendant's subsequent written

consent to the further search of his apartment.     Commonwealth v.
                                                                   12


Fredette, 396 Mass. 455, 460 (1985).    The motion to suppress was

properly denied.

    2.   Sufficiency of the evidence.   We reject the defendant's

separate contention that he is entitled to dismissal of the

indictment because the evidence at trial was insufficient to

establish his intent to distribute the drugs found in his

apartment.   Viewing the evidence in the light most favorable to

the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671,

677 (1979), the quantity of crack cocaine found in his apartment

(16.78 grams), combined with the absence of smoking

paraphernalia in the apartment and the presence of a digital

scale, two police scanners, and small plastic bags with cut-off

corners, sufficed to establish the defendant's intent to

distribute, as further explained by expert testimony at trial.

See, e.g., Commonwealth v. Wilson, 441 Mass. 390, 401 (2004);

Commonwealth v. Miller, 17 Mass. App. Ct. 991, 991 (1984);

Commonwealth v. Rivera, 31 Mass. App. Ct. 554, 555-556 (1991).

    3.   Bowden instruction.   Finally, there is no merit to the

defendant's contention that the trial judge erred in refusing

his request for a so-called Bowden jury instruction.    The

defendant did not object to the instructions as administered; we

accordingly review his claim for a substantial risk of a

miscarriage of justice.   See Commonwealth v. Bolling, 462 Mass.

440, 452 (2012).   No such risk is apparent.   As a threshold
                                                                    13


matter, a judge is not required to instruct a jury on any

"claimed inadequacy of a police investigation."     Commonwealth v.

Boateng, 438 Mass. 498, 507 (2003).     Bowden instead holds only

that a judge "may not remove the issue from the jury's

consideration."   Ibid., quoting from Commonwealth v. O'Brien,

432 Mass. 578, 590 (2000).   In any event, the defendant did not

develop evidence, by cross examination or otherwise, in support

of the theory on which he based his requested instruction:     that

police mishandled the cocaine seized from the defendant's

apartment, resulting in inaccuracies in its weight.    Moreover,

though the judge imposed no limitation on the defendant's

ability to argue claimed inadequacies by the police in his

closing, defense counsel made no argument that police mishandled

the cocaine or failed to follow proper procedures.    We discern

no substantial risk that justice miscarried.

                                      Judgment affirmed.
