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15-P-896 Appeals Court

COMMONWEALTH vs. WASHINGTON PEARSON.

No. 15-P-896.

Norfolk. June 7, 2016. - September 20, 2016.

Present: Cypher, Grainger, & Kinder, JJ.

Arrest. Search and Seizure, Arrest, Securing of premises, 

Fruits of illegal arrest, Warrant, Affidavit. Evidence, 

Result of illegal arrest. Practice, Criminal, Motion to 

suppress, Warrant, Affidavit.

Indictments found and returned in the Superior Court 

Department on April 12, 2012.

A pretrial motion to suppress evidence was heard by Kenneth 

J. Fishman, J., and the cases were tried before Raymond J. 

Brassard, J.

Edward Crane for the defendant.

Pamela Alford, Assistant District Attorney, for the 

Commonwealth.

CYPHER, J. A jury convicted the defendant, Washington 

Pearson, of four counts of breaking and entering in violation of 

G. L. c. 266, § 18, and four counts of larceny over $250 in 

violation of G. L. c. 266, § 30(1). On appeal, he argues that 
2

the motion judge erred in denying his motion to suppress 

evidence seized pursuant to a search warrant obtained following 

a warrantless arrest. We find no error by the motion judge.

Following a pretrial hearing, the motion judge determined 

that warrants did not validly issue for the arrest of Jenell 

Johnson and the defendant in their apartment and, consequently, 

he allowed their motions to suppress statements made at the time 

of the arrests.1,2 He concluded, however, that evidence seized 

pursuant to the subsequently secured search warrant was 

untainted by the initial illegality and therefore admissible. 

The defendant claims that his motion to suppress should have 

been allowed in full because the search warrant was tainted by 

his prior unlawful arrest, and therefore could not constitute a 

genuinely independent source for the challenged evidence.

"In reviewing a decision on a motion to suppress, 'we 

accept the judge's subsidiary findings of fact absent clear 

error but conduct an independent review of his ultimate findings 

and conclusions of law.'" Commonwealth v. Keefner, 461 Mass. 

507, 515 (2012), quoting from Commonwealth v. Scott, 440 Mass. 

642, 646 (2004). "We make an independent determination of the 

correctness of the judge's application of constitutional 

 

1 The Commonwealth does not challenge the suppression of 

statements made at the time of the arrests.

2 Johnson subsequently pleaded guilty and testified as a 

cooperating witness against the defendant at trial.
3

principles." Commonwealth v. Cassino, 474 Mass. 85, 88 (2016)

(quotation omitted).

We recite the facts found by the motion judge after an

evidentiary hearing, and supplement where necessary with 

undisputed testimony implicitly credited by the judge.

Commonwealth v. Oliveira, 474 Mass. 10, 11 (2016). Between 

January 31, 2012, and February 8, 2012, Brookline police 

responded to five incidents of residential breaking and 

entering. Victims reported missing various valuable items, 

including jewelry, electronics, and credit cards. On February 

6, 2012, one victim reported that a credit card reported stolen 

from his apartment had been fraudulently used at four local 

retail stores. Surveillance footage from three of the stores 

depicted a Hispanic female in her mid-to-late thirties, wearing 

blue jeans, a white fleece jacket, and a hat, making the 

fraudulent purchases. Surveillance footage from a fourth store 

depicted a woman with similar appearance, but wearing a white 

coat and black boots that matched the description of items 

previously purchased using the stolen credit card. An employee 

at one of the stores told police that the woman had been

accompanied by a dark-skinned black male, estimated to be in his 

mid-to-late thirties.

On February 7, 2012, Brookline police received information 

about a breaking and entering at a Cambridge residence, where a
4

driver's license belonging to Johnson was found. That victim

told officers that she did not know Johnson. Based on the 

information on the driver's license, the police found booking 

photographs from a 2011 breaking and entering incident, for 

which Johnson and the defendant were both arrested while 

attempting to flee in the defendant's vehicle. The police 

determined that the booking photographs of Johnson and the 

defendant matched the physical characteristics of the suspects 

depicted in the surveillance footage from the retail stores.

When presented with a photographic array, an employee at one of 

the stores identified Johnson and the defendant as the customers 

who had made purchases using the stolen credit card.

On February 9, 2012, police officers arrived at the 

apartment where Johnson and the defendant were living, 

purporting to have warrants for their arrest.3 When Johnson 

answered the door, she was taken into custody and advised of her 

Miranda rights. The officers then asked her where they could 

locate some of the items allegedly purchased with the stolen 

credit card. She directed them to a bedroom on the second 

floor, where they observed items matching the description of 

 

3 The motion judge found that properly executed applications 

for criminal complaints filed by the police, signed by the 

clerk-magistrate who determined that there was probable cause to 

arrest the defendant and Johnson and authorized the issuance of 

arrest warrants, were not sufficient to satisfy the warrant 

requirement where the police did not have the arrest warrants in 

hand at the time they went to the apartment.
5

fraudulently purchased merchandise and stolen goods in plain 

view. The officers asked Johnson, whom they had escorted to the 

second floor, for consent to search the apartment, which she 

declined to give, saying that it was not her house and things 

found there may not belong to her. The officers apprehended the 

defendant in the bathroom on the third floor.

After Johnson and the defendant had been arrested and 

transported to police headquarters, police remained at the house

to secure the premises while a search warrant was prepared.

4

While securing the premises, police officers spoke with the 

owner of the house, who identified himself as Johnson's 

stepfather and told the officers that the defendant had been 

staying in the residence for the past five or six weeks. The 

owner notified police that he had discovered a shopping bag

containing silverware, jewelry bags, and a prescription bottle 

bearing the name of a victim of one of the burglaries, in a 

trash can outside the house.

The defendant argues that the judge erroneously omitted the 

first of a two-step independent source inquiry mandated by 

Murray v. United States, 487 U.S. 533 (1988), by failing to 

determine whether police officers' decision to seek the warrant 

 

4 The defendant does not claim that the police improperly 

secured the premises.
6

was influenced by their observations in the course of the 

warrantless entry and arrest.

The defendant bases his argument on the independent source 

analysis articulated by the United States Court of Appeals for 

the First Circuit (First Circuit) in United States v. 

Dessesaure, 429 F.3d 359 (1st Cir. 2005). Under that approach, 

determination of police officers' intent to seek a warrant is 

framed as a subjective inquiry.5 See id. at 369; United States

v. Siciliano, 578 F.3d 61, 69 (1st Cir. 2009). Cf. United 

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

in totality of circumstances, reasonable officer would seek 

warrant). Because Massachusetts courts may provide greater 

protection against search and seizure under art. 14 of the 

Massachusetts Declaration of Rights than is secured by the 

Fourth Amendment to the United States Constitution, see

 

5 Although the First Circuit frames the first Murray prong

as a subjective test ("would these particular police officers 

have sought the warrant?"), it instructs Federal District Courts 

to ascertain officers' subjective intent by objective means, 

based on the totality of attendant circumstances. United States

v. Dessesaure, 429 F.3d at 369. Since Murray, the United States 

Supreme Court has eschewed the use of subjective intent in the 

context of the Fourth Amendment to the United States 

Constitution. See Whren v. United States, 517 U.S. 806, 812-816 

(1996); Devenpeck v. Alford, 543 U.S. 146, 153-156 (2004). The

First Circuit "did not reach this question in Dessesaure because 

it was unnecessary for the resolution of the case. We again 

decline to reach the question, though for a different reason. 

The Supreme Court has repeatedly instructed lower courts that 

only it has the prerogative to overrule its own decisions."

United States v. Siciliano, 578 F.3d 61, 69 n.5 (1st Cir. 2009).
7

Commonwealth v. Blevines, 438 Mass. 604, 607 n.4 (2003), they

are not required to follow the First Circuit's analysis of 

officer intent. Instead, when judging the propriety of police 

conduct, Massachusetts courts apply "a standard of objective 

reasonableness without regard to the underlying intent or 

motivation of the officers involved." Commonwealth v. Ceria, 13 

Mass. App. Ct. 230, 235 (1982) (quotation omitted). The 

appropriate inquiry under State jurisprudence is, therefore, 

whether it was objectively reasonable for police to seek a 

warrant under the circumstances. See Commonwealth v. Santana, 

420 Mass. 205, 208 (1995). On this record, we conclude that it 

was reasonable for police to secure a search warrant for which 

they had probable cause.

To demonstrate probable cause, "[a]n affidavit must contain 

sufficient information for an issuing magistrate to determine 

that the items sought are related to the criminal activity under 

investigation, and that the items reasonably may be expected to 

be located in the place to be searched at the time the search 

warrant issues." Commonwealth v. DeJesus, 439 Mass. 616, 626 

(2003). "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'
8

observations made during the initial illegal entry and search."

Commonwealth v. Tyree, 455 Mass. 676, 692 (2010), quoting from 

Commonwealth v. DeJesus, 439 Mass. at 625. The defendant argues

that the motion judge erred in taking statements made by the 

owner of the house into account as part of the probable cause 

analysis because that information was the product of officers' 

unlawful entry and arrest. He asserts that, without the owner's 

statement that the defendant had been living at the apartment, 

the affidavit failed to establish a connection between the items 

sought and the place to be searched, and therefore the police 

lacked probable cause to search the apartment.

The owner of the house spoke to police officers while they 

were lawfully securing the premises. Although the nature of the 

owner's interaction with officers is not clear, "[t]he record is 

devoid of anything to suggest that the police did anything to 

solicit, provoke, or tempt [the owner] into making [his]

disclosures, and thus devoid of anything suggesting police 

misconduct." Commonwealth v. Brandwein, 435 Mass. 623, 631 

(2002). In this case, where there is no indication that police 

engaged in serious, "distinctly egregious" conduct toward the 

owner, the defendant does not have target standing to challenge 

the owner's statements to police. See Commonwealth v. Santiago, 

470 Mass. 574, 578 (2015) (recognizing, but declining to adopt,
9

target standing where police conduct was not "distinctly

egregious").

As for the defendant's contention that the owner's 

statements constitute the fruit of unlawful police conduct 

toward himself (as opposed to misconduct toward the owner), we 

agree with the motion judge's implicit finding that the 

statements were an independent and intervening act, giving rise 

to probable cause to search the apartment. "The 'crucial 

question' regarding whether a particular statement must be 

suppressed as the fruit of the initial illegal [entry and 

arrest] is whether that statement 'has been come at by 

exploitation of . . . [the primary illegality] or instead by 

means sufficiently distinguishable to be purged of the primary 

taint.'" Commonwealth v. Estabrook, 472 Mass. 852, 860 (2015), 

quoting from Commonwealth v. Bradshaw, 385 Mass. 244, 258 

(1982). "In determining whether the connection between an 

illegal arrest and [] subsequent [third party statements] has 

become so attenuated as to dissipate the taint of the 

illegality, we consider the following: (1) the temporal 

proximity of the arrest to the [statements]; (2) the presence or 

absence of intervening circumstances; and (3) the purpose and 

flagrancy of the misconduct in the context of the circumstances 

of the arrest." Commonwealth v. Borges, 395 Mass. 788, 795-796 

(1985).
10

As noted above, the owner of the house spoke to police 

while they were acting with lawful authority to secure the 

premises, and after the defendant had already been arrested and 

transported to police headquarters. See Commonwealth v. Blake, 

413 Mass. 823, 829 (1992) ("Securing a dwelling, on the basis of 

probable cause, to prevent the destruction or removal of 

evidence while a search warrant is being sought is not itself an 

unreasonable seizure of the dwelling or its contents"). Thus, 

the temporal proximity between the unlawful arrest and the 

owner's statements was attenuated. Moreover, the owner's 

statements to police were an intervening act that occurred after 

the arrest had already concluded, not "in direct and immediate 

response to the illegal police action." Commonwealth v. Borges, 

395 Mass. at 796. Finally, we do not regard the warrantless 

arrest, although unlawful, as flagrant misconduct where police 

had probable cause to arrest the defendant and proceeded to 

procure a warrant before commencing to search the apartment. 

Accordingly, the owner's disclosure to police that the defendant 

resided at the apartment to be searched was sufficiently 

distinguishable from the defendant's unlawful arrest "to be 

purged of the primary taint." Commonwealth v. Estabrook, 472 

Mass. at 860. See Commonwealth v. Brandwein, 435 Mass. at 631-

632 ("the target of the exclusionary rule is official 

misconduct, and the rule is not intended to discourage citizens 
11

from aiding to the utmost of their ability in the apprehension 

of criminals" [quotation omitted]).

Because the search warrant supported by probable cause 

constituted an independent source of the challenged evidence, it 

follows that the motion judge did not err in denying, in part, 

the defendant's motion to suppress.

Judgments affirmed.