Hey, there! Log in / Register
Somerville drug suspect to get new trial because police searched his apartment without a warrant
By adamg on Wed, 09/01/2010 - 10:46am
The Massachusetts Appeals Court today threw out a Somerville man's coke-distribution conviction because part of the evidence consisted of cocaine seized from his apartment without a warrant.
Police rushed to Joshua Bookman's apartment after his 2006 arrest when they feared his one phone call was to somebody who would remove the evidence.
The appeals court, however, ruled that even though police had been following Bookman as a suspected dealer for some time, they did not have enough evidence linking his apartment to the drugs for probable cause and that there was no emergency to warrant a warrantless search:
That a person is guilty of drug offenses does not necessarily constitute probable cause to search his residence. Nor does the fact that a defendant drives from his home to the location of a drug transaction with no other facts connecting the residence to drug sales establish probable cause. ...
In the present case, there was only one occasion, April 14, 2006, that the defendant was seen leaving his residence and engaging in two or possibly three drug transactions. [FN2] That he hid his name and address and tried not to be followed is consistent with his criminal activity; it does not indicate a nexus of drugs to the apartment. The purpose of his request for a telephone call is unclear--he may have intended to call his lawyer. In any event, even if he wanted to have someone dispose of the drugs, his desire to use the telephone does not suggest the location of the drugs. Notably absent is any specific information from any quarter placing illegal drugs or drug transactions in the apartment.
The ruling means the drugs from his apartment cannot be used as evidence in a new trial.
Neighborhoods:
Free tagging:
Ad:
Support Universal Hub
Help keep Universal Hub going. If you like what we're up to and want to help out, please consider a (completely non-deductible) contribution.
Comments
It'd be good if policemen could master the concepts of
fourth amendment rights, the related statues and precedent becuase then they would know what actions they can take to obtain and keep evidence necessary for a conviction, without violating the rights of citizens or losing key evidence for a conviction.
Because I'm sure you would be the master of warrant protocols.
This one seemed like a tough call. The defendant could have called his girlfriend up when he was being booked and have her hide, remove or destroy the evidence. Police officers have the right to enter a house without a warrant in order to protect the scene untill a warrant is obtained. The cops in this case went to the house, entered and found drugs in plain view which kind of screwed up their time tables. At this point it would have been too late to secure the scene and obtain a warrant because they already saw the drugs in plain view and it would have appeared to a judge or clerk like they asked for the warrant just because they saw the drugs.
The officers in this case believed that there was probable cause to be drugs in the apartment, so they went to secure the scene without a warrrant (which happens all the time), and then get a warrant once they see all evidence is secure.
It sounds like all the other stuff that went on added up to be less than probable cause for the judge that there were drugs in the apartment, so maybe the cops wouldn't have gotten a warrant anyway?
What would you have done anonymous? (besides acting like the cops aren't as smart as you and should have looked at page 455 in the police book and made a perfect arrest)
How often ....
... does the SJC step in and reverse in cases of this sort?
Maybe Jake Wark can fill us in.
But I believe it would be up to the DA's office to appeal it to the SJC. It happens though often enough.
In the end they still have him for the charge of selling the cocaine, but the trafficing might have to be thrown out. It seems like they might have a chance at another appeal though.
Procedurally, it's on the
Procedurally, it's on the losing party in a decision of this nature to seek further appellate review. The government can't appeal an acquittal the way a defendant can appeal a conviction, but it can appeal a reversal by the Appeals Court.
Sometimes, with a particularly novel set of facts, the SJC can take a case on its own initiative, but that didn't happen here. For the record, this is a Middlesex case and I have no knowledge of any party's intentions.
How many cops does it take to
How many cops does it take to screw up a drug bust?
generally, crossing threshold of a home needs a warrant...
True, police can secure the scenes of crimes, but the home wasn't the scene of the crimes they saw. And there was no emergency inside. Speculation that he could have called someone to destroy evidence exists in pretty much any case. If I'm an iphone thief/ bank robber/serial killer, and I leave my home prior to my theft/ robbery/serial killing, police could speculate that there's evidence at my home, but except for limited conditions, they can't go in without a warrant. Even if they think I had the chance to call someone to destroy any evidence found at my house. I might have just been calling my lawyer.
Here, they took the guys keys, knocked, there was no answer, they confirmed the key fit, establishing the address. Then they opened the door. They didn't hear toilets flushing, which might have given support to the argument evidence was being destroyed, and allowed them to secure the home while a search warrant sought. Nor did they simply close the door when they saw the drugs...they entered, and then found the minor girlfriend hiding in a bedroom.
Yeah, this guy was a scumbag, but guess what - police have to follow the rules. Otherwise, they could show up on any doorstep and bust in because a suspect might live on your street, and if your street, why shouldn't they check your house? So yeah...they needed a warrant.
Mr. Nice, I generally agree with your realistic POV, but here, yes, the officers should have consulted a handbook before trespassing into a home.
Generally they do need a warrant.
But lets remember here, a judge initially denied the defendents motion to throw out the 'illegal' search because a judge thought there was enough exigent circumstances to enter the house without a warrant. The most important thing here is to realize that there is not "manual" for police officers where they can just open it up and find all the answers. These "manuals" would really be what you would find in any law library. Millions of pages of search and seizure cases which have been ruled one way or another, and this case was ruled one way by one judge, and another way by another judge. We have to remember that. We can agree with one judge/opinion and not with another, but we can not say clearly someone is "wrong or right" as easy as we can say 1+1=2. That is my main issue here.
Now without knowing whether or not the police believed there was a minor in the house, that is a key issue. It seems like they were following this guy for a month and may have had some suspicion that a minor may have been in contol of drugs, especially from reading this small court ruling, the arresttee had a sophisticated counter-intelligence ring going on with his drug dealing.
But speaking of "handbooks", this is where the tough part come in. In one of the most common criminal procedure books which I have (over 1000 pages). And we should be clear that there are no anwers in this book or any criminal procedure book. Criminal procedure just isn't that simple. There are several factors where police can enter a house without a warrant.
The Supreme Judicial Court has suggested several factors determinte whether the police cannot wait for an arrest or search warrant:
(there are 9)
-Awareness of factual or potential of the police in area (suspect had reason to believe the cops could find evidence of crime)
-Felony and presence inside (was a felony but no presence inside of suspect, but there was of minor whom Im not sure was charged or if the police knew about)
-potential destruction of evidence (potentially yes)
-potential to enter peacefully (probably they had a key)
-violent situation (probably not but we do not know if they thought or knew anyone was inside)
-dangerous to delay that may cause harm to officers (probably not)
-potential escape (no)
-nightime situation (I don't think so)
Comm vs. Forde (1975) says that courts will look to these and other factors to determine whether the warrantless entry were necessitated by the exigencies of the situation.
Comm vs. Disanto (1979) stated that each and every one of these factors need not be present
Now Comm vs. Hall (1979) was a case where officers knew no one was in the apartment and the entry without a warrant was found unreasonable because it went against many of the factors above.
Also a big drug/warrantless search case was a Puerto Case in 1994 (US vs. Wilson) were cops followed suspected drug dealers into an apartment and entered the house because they suspected drugs in an bag even though they knew everyone was out of the apartment and could have waited but the court actually upheld this conviction.
Look, as anonymous has pointed out, I am no expert. But I have seen hundreds of warrantless searches in homes upheld by judges and courts for less reasons than this case (we all have to admit we don't know all the facts in this case, just the second courts opinion and a local news article.)
it's not about me Pete
its about the drug dealer whose conviction was overturned because the police acted without knowledge of the law.
It was pretty basic stuff too. They needed a warrant to search his apartment and seize the illegal narcotics. A warrant. You do know that's written into the Constitution.
You call it a close call as if anyone could get it wrong. I think they should be able to do their jobs better and not get it wrong. We pay them to get it right.
I still don't understand why the DA's office does not have a liaison to the police department so officers can get a quick consult in situations like this, if they need it.
So anonymous the initial judge was wrong too?
The one that denied the initial motion to suppress? Did that judge not have knowledge of the law? If the next judge overturns this, does the second judge have it wrong? How could that first judge not get "basic stuff" like you want to call it? I mean, doesn't the judge just open up to page 2 of his Constitution and find the answer to this simple case?
Police Deparments do have liasons with the DAs office in cases like this and it could have happened here. Maybe they advised them to enter as soon as possible while they work on a warrant. I mean, the facts do tell us that there actually was someone inside the apartment that could have destroyed this evidence. Nowhere in what you and I have read do we know what the DA or police knew or did not know regarding who was in the apartment.
And thank god it isn't about you anonymous. We would all be in a lot of trouble.
Not having knowledge of the
Not having knowledge of the law and having a different interpretation of the law are two different things. If a cop acts egregiously then his/her case won't make it past District Court (and you will have never heard of the case). In order for a case to have made it to the SJC, it has already been decided on at least two to three times by different judges, most times with differing opinions. I know people love to bash cops, and sometimes with just cause, but the SJC decisions you guys love to pick apart have usually been made it through numerous constitutional tests. Calling the cops dumb may be fun for you guys but is not always accurate.
It would be Nice if
Pete Nice could just once stop making excuses for poor and ineffective police work, and instead make thoughtful suggestions about how law enforcement could do their jobs better.
His intransigence points to a second problem in police ranks that can be described as extreme resistance to reconsidering methods and procedure in order to improve outcomes.
Probable cause is precisely what law enforcement needed to obtain a warrant to enter a person's home (since they were unlikely to obtain consent.)
This case, Anonymous, made it
This case, Anonymous, made it to the SJC. It passed numerous judicial hurdles and resulted in an initial conviction. To call it poor and ineffective police work shows your lack of understanding of the judicial process. It certainly wasn't a case of the police making an egregious error (as is sometimes the case) but a difference of opinion on how the police, grand jury, prosecutors, motion judge, trial judge and the SJC interpret exigent circumstances. Decisions by the SJC and Supreme Court often result in case law that guide police, prosecutors and judges in future cases of legal grey area.
There simply is no use talking to anonymous anymore.
Ever. He simply doesn't get it. But I'll ask one more question.
Anon, what would you have said if the police waited to obtain a warrant, and during the defendents phone call, he called the girlfriend and gave her a code word and she got rid of the drugs. Then the police got a warrant and were too late, the drugs were already gone? REMEMBER THAT AT LEAST ONE JUDGE ALREADY DECIDED THAT THE POLICE DID MEET THE REQUIREMENTS FOR A WARRANT EXCEPTION.
This goes to your phoney point about me always defending cops. I stated simply in my first post here that this was a tough call. In fact A JUDGE SAW IT ONE WAY, THEN ANOTHER JUDGE SAW IT ANOTHER WAY. That is something I wouldn't say is really black and white is it?
Christ who am I kidding, you didn't even know that you could enter a house without a warrant at all. It's pointless talking to you anymore.
Somerville Police Departmentin the news
I think we can all agree that we would prefer if the evidence was not thrown out as "fruit of a poison tree," an illegal search and seizure. Justice has not prevailed in this case.
I think most people would also agree they would prefer the knife-wielding lady who died as a result of a shot from a policeman a few months ago were still alive today. Justice did not prevail in this case either.
These two incidents point to room for improvement in the ranks of the Somerville Police Department.