MEMORANDUM AND ORDER
The United States Attorney has chosen to prosecute the defendant, EarlDessesaure ("Dessesaure"), for an offense that was investigated andprepared entirely by the Boston Police Department, and apparentlypresented to federal prosecutors after Boston Police had arrestedDessesaure and searched his apartment. While the federal governmentobviously has a right to bring federal charges in areas in which federaland state authorities have concurrent jurisdiction, and to rely entirelyon the professional work of the Boston Police rather than federal lawenforcement agencies, in the instant case there were serious problems.For example: The officer, on whom the government principally relied,testified about the observations of certain "confidential sources" tojustify the arrest of Dessesaure, but had destroyed any notes of hisencounters with them that he had taken before Dessesaure was arrested.Thus, when he represented that these informants were initially "carded"by the Boston Police, and then released from that status ("dis-carded,"if you will), before Dessesaure's arrest, as to one source he had no ideawhy the status had changed. Was the informant no longer carded because hewas not considered reliable? Without notes, how could the officercredibly testify about the information he received ten months before thehearing, especially when he agreed that he had investigated hundreds ofcases in between?
And after Dessesaure had been arrested, the officer testified that heand others entered Dessesaure's apartment, to "freeze" the scene, all thewhile ostensibly waiting for a warrant. "Freezing," according to theofficer, did not mean that officers waited at the threshold of theapartment until a warrant was obtained, or detained defendant'sgirlfriend, to make certain that no one destroyed evidence. Rather, itmeant that more than a half-dozen police officers physically entered theQuincy apartment, and looked around (and according to defendant'sgirlfriend, searched drawers and closets). Instead of passively waitingfor a warrant, they used their illegal observations in drafting thesearch warrant affidavit. The argument that they had a right to freezethe scene in this manner was legally preposterous, and improbably,adopted by government counsel. If courts accepted it, it would make amockery of the Fourth Amendment.
During the hearing, after the Court expressed concerns about thelegality of the "freeze" in the absence of exigent circumstances, the officer testified that Dessesaure had made astatement at his arrest which could be interpreted as asking someone toget rid of the evidence. The statement, "call my peeps!" or "call mypeople!" was allegedly shouted to someone in the crowd surrounding thedefendant. It was not in any police report, not confirmed by the secondofficer who was on the scene (the testifying officer was not), not arguedin the government's papers, and frankly, not credible.
I held an evidentiary hearing over three days on Dessesaure's motion tosuppress. The defendant and the government submitted briefs both beforeand after the hearings. Based only on the evidence that I found credible,and discounting the rest, I conclude that the only search that was validwas the one incident to Dessesaure's arrest; the subsequent search of hisQuincy apartment was not valid under any theory. Dessesaure's Motion toSuppress [document # 15] is GRANTED in part and DENIED in part.
II. FINDINGS OF FACT
Dessesaure is charged with (Count I) being a felon in possession ofammunition, (Counts II and III) possession with intent to distributeheroin), and (Count IV) possession of a firearm in furtherance of a drugtrafficking crime. The evidence challenged consists of evidence seized bythe Boston Police during a post-arrest search of Dessesaure at the policestation (finding heroin, money, a cell phone, and a beeper), and a post-arrestsearch of his Quincy apartment pursuant to a warrant (heroin,narcotics paraphernalia, a gun, and bullets).
A. The Pre-Stop Investigation
Dessesaure was stopped while driving his vehicle on MassachusettsAvenue in Boston at around noon on February 24, 2003.
Boston Police from the Drug Control Unit ("DCU") began surveillance ofdefendant early that same morning (at approximately 5:45 a.m.), inresponse to information "from different sources" that the defendant wasselling packaged heroin in the Roxbury, South Boston, and Dorchesterareas of Boston.
To justify the warrantless stop and arrest of Dessesaure, OfficerBroderick ("Broderick") provided testimony regarding two sources.
a. Source One
Source One told Broderick that he knew a black male named "Smooth,"whom the source knew to be Earl Dessesaure, and who delivered heroin inhalf-gram and gram quantities. Source One said Dessesaure lived at 270Quarry Street in Quincy, often had flashy jewelry, and drove a maroonCadillac Escalade with license plate 5887WR, which he used to deliver the heroin, and madearrangements for sales using a beeper and cell phone.1
Broderick's testimony was sloppy, inconsistent, and worse, notcredible. In response to the Court's question about what he knewconcerning Source One's reliability, Broderick noted only that the Sourceprovided him with information on "at least two occasions" that led to"arrests and convictions," and that the Source had dealt directly withthe defendant.2 There were, he noted, perhaps "a half a dozenoccasions" when Source One had engaged in such transactions with thedefendant. He did not give any specific information about therelationship between Source One and Dessesaure — no times, nodates, no locations. Nor did Broderick offer any indication of how recentor stale Source One's information was. At first Broderick said thatSource One told him that he dealt with Dessesaure on "at least ahalf-dozen different occasions" within the six months prior to thesurveillance, then a few questions later he changed his testimony to"perhaps" 60 days before. The Court interjected again: "Before you came here, did you review yournotes?" Broderick answered "the notes I had I did review, yes." "Do youstill have those notes?" the Court asked. He answered: "I do not." "Whathappened to them?" the Court asked. Broderick responded, ". . . theoriginal notes I discarded. But those notes were just essentially what Ijust testified to." Counsel for the government asked when, relative tothe federal charges, had he "discarded" his notes: "well before" heanswered.3 Somehow then, the witness had reviewed notes before he came to Court,4 ostensibly so as to be able totestify about the Source with even the limited details he gave, but atthe same time he had discarded the notes before the February 24 search.
Then the Court asked how many cases Broderick had had in the ten monthsor so between the time he had apparently discarded his notes, and thetime of the suppression hearing, "Oh hundreds" was his response. TheCourt inquired how, without the aid of notes and given the numbers ofcases between the Dessesaure investigation and his testimony, the officercould possibly remember this one. The answer was not responsive.
Even more problematic was Broderick's testimony about the fact thatSource One had been a "carded Boston Police informant" between 1996 and1997. He noted that Source One had been "deactivated" at the time he gaveBroderick information regarding Dessesaure. According to Broderick, aninformant is "carded" when they are authorized to work as a confidentialinformant and have signed a working agreement. When that occurs, theirphotograph and information are taken and put into a file, where thehistory of their involvement in different cases is recorded.5 The government submitted Source One's redacted card, indicating he was"carded" between 1996 and 1997, but nothing in the document indicated whySource One had been deactivated. More importantly, Broderick did not knowand suggested that a source could be deactivated for any number ofreasons — ranging from the informant simply choosing not to act inthat capacity any longer, to the informant being removed for wrongdoing,such as lying. Broderick could not even testify with any certainty as towhen Source One had been deactivated, although he estimated itwas between six-months to one year before Dessesaure's arrest. In fact,according to the redacted card entered into evidence by the government,Source One had been deactivated for more than five years before February24, 2003 — the date of Dessesaure's arrest.
Although Broderick testified he felt "very strongly [Source One'scontrol officer] would not have referred" Source One to him if he hadbeen deactivated for lying, that was small comfort to the Court.Broderick knew little to nothing about Source One's history, and coulddocument even less. The one thing he was apparently sure of was thatSource One was not paid for the information regarding the defendant, buthe could not remember what reason Source One had for giving him the information relevantto this case.6
b. Source Two
Source Two gave Broderick information that was nearly identical toSource One and similarly vague: He knew Dessesaure as "Smooth," and thathe drove a maroon Escalade. He also provided Dessesaure's license plateinformation, and that Dessesaure was selling heroin to people in theDudley triangle and Lennox Street area. Broderick did somewhat better onthe question of whether Source Two's information was stale. He estimated— because that is all he could do — that Source Two hadprovided him with the information 30 days prior to February 24.
However, as with Source One, Broderick testified that Source Two toldhim he had purchased heroin "on occasions" from Dessesaure, but couldgive literally no details of their encounters or verify that they hadactually taken place.
Source Two had been a carded informant in the past, and, like SourceOne, had been deactivated at the time he gave the information relating tothe defendant, but had since been reactivated. Here, Broderick at leastknew — or claimed to know
— the reason for the deactivation. Source Two had been deactivated for "dropping out of touch," information not reflectedon Source Two's card. Broderick testified that Source Two had been a paidinformant in the past (but was not paid for the information relating toDessesaure) and had provided other officers with information that had ledto seizures of narcotics and individuals "on at least two differentoccasions," but could not be more specific.7
Again, Broderick had no notes, no documentation, no corroboration. Andyet again, the only thing Broderick corroborated was that a maroonEscalade with the license plate number provided by both sources wasregistered to Dessesaure at the 270 Quarry Street address.
According to the government, the DCU's surveillance of Dessesaure beganat approximately 5:45 a.m. on February 24, 2003, when officers from theBoston Police drug unit began monitoring 270 Quarry Street.Significantly, other officers besides Broderick were involved in thissurveillance.
At 9:00 a.m., Officer Paul Quinn ("Quinn") observed Dessesaure come outof the back door of 270 Quarry Street and throw a garbage bag in adumpster. Quinn retrieved the garbage bag and, among other things, founda cellular phone bill with the name of Earl Dessesaure, a plastic bag that had a white residueinside it which he "believed" was consistent with heroin, and a plasticbag that had been tied up and cut off.
Significantly, however, neither Quinn nor any other officer did a fieldtest to determine whether the white residue was in fact heroin, althoughBroderick testified that the officers have the ability to conduct such atest. The failure to test the bag is striking given that there were asignificant number of officers involved in the day's surveillance ofDessesaure and the surveillance took several hours — a finding thatthe white residue was in fact heroin would have provided officers withsupport for a search of Dessesaure's apartment, something which they didnot have based on the two sources, who mentioned only Dessesaure's carand dealings within it.8
Officers followed Dessesaure as he drove in the maroon Escalade intothe City of Boston, where he stopped at 48 Ridgewood Street inDorchester. At 48 Ridgewood Street, Dessesaure grabbed a black shoulderbag from the back seat, and entered the residence. He exited theresidence and returned to the Escalade approximately two minutes later.One minute later, a female (later identified as his girlfriend —Tina Tate) exited the residence and also entered the Escalade.Significantly, Broderick testified that police had no information Tate wasinvolved in the sale of heroin or any other illegal activity, and theydid not believe her to be involved in drug trafficking. For all theyknew, Dessesaure picked up his girlfriend to drive her to an errand. Infact, officers continued to follow Dessesaure — now with Tate— as they stopped at Brigham and Woman's Hospital, where Tate wentinto the hospital for approximately ten minutes and then came out andreentered defendant's car.
The surveillance continued into Dorchester, from where, after losingsurveillance for a time, at 11:15 a.m. officers followed the pair back to270 Quarry Street in Quincy, Dessesaure's apartment. Broderick testifiedthat during this trip (defendant took Route 93 and exited in Quincy)Dessesaure did not take the most direct route, but rather made repeatedturns — behavior Broderick believed to be consistent with drugtrafficking. The testimony made no sense; Dessesaure was presumablyreturning to his own home after he picked up his girlfriend to take herto Brigham and Woman's Hospital.
Once at 270 Quarry Street, Dessesaure and Tate entered the apartment.Approximately twenty minutes later, Dessesaure came out by himself, andreentered the Escalade.
Officers then followed Dessesaure back into Boston, this time to theSouth End. On Huntington Avenue, in front of the Back Bay MBTA station(near the intersection with Dartmouth St.), Dessesaure pulled over, and aBlack male (later identified as Nelson Boyd ("Boyd")) entered the Escalade. Dessesaure and Boyddrove West on Huntington Avenue, driving 20-30 miles per hour and havinga conversation, according to Officer Seoane ("Seoane"). Seoane testifiedhe could not see the men exchange anything as they drove. After driving afew blocks to the corner of Massachusetts Ave. and Huntington Ave., Boydexited the Escalade and began walking North on Massachusetts Ave.
Dessesaure drove South, and began driving "erratically" and at a "highrate of speed," according to Seoane. Seoane testified the erratic drivingwas, in his experience, the way people usually drive after conducting adrug sale to make sure they are not being followed, although he onlydescribed Dessesaure as "cutting cars off, [and] going at a high rate ofspeed through traffic."
While some DCU officers continued to follow Dessesaure's Escalade,others (including Broderick) stopped Boyd. Boyd lied about ever havingbeen in the Escalade. He told the officers that he had walked from theBack Bay MBTA station. The officers searched him and recovered ahalf-gram plastic bag of heroin. While Seoane testified that Boyd did notappear to be carrying anything when he entered the Escalade, the bag wassmall and would not necessarily have been apparent to the surveillingofficers.
B. The Stop Having relayed the information that heroin was found on Boyd, theofficers following Dessesaure had a marked police car stop the defendantand Dessesaure was placed under arrest. Seoane made clear that when hestopped Dessesaure, he had already decided to arrest him. A pat-frisk ofDessesaure and a search of the car during his arrest revealed nocontraband.
However, Seoane testified that as he approached the driver's side doorof the Escalade, he could see that Dessesaure's zipper was open and hisshirt was protruding from his zipper. According to Seoane, in hisexperience it is common for people in the possession of drugs to attemptto hide them in their rectum to avoid police detection.
Broderick (who was with Boyd, not Dessesaure at this time) testifiedthat Seoane later told him Dessesaure had yelled "call my peeps!" orwords to that effect, to "somebody standing on the street" where thearrest took place. It was this statement that, according to Broderick,provided the justification for the "freeze" of the apartment. Brodericktestified that the officers felt it necessary to "freeze" the apartmentprior to obtaining a warrant because "[w]e were afraid — we hadstrong belief that the girlfriend was still in the apartment, that thisperson, that somebody would have a way of contacting that person andessentially destroy any evidence that was at 270 Quarry St." Broderick presented this critical testimony — which appearednowhere in his police report or warrant affidavit, nowhere in thegovernment's papers before the hearing — only after the Court madeit clear that the officers' concept of a "freeze" — a warrantlesssearch with officers inside the premises — is illegal under theFourth Amendment in the absence of exigent circumstances.9 (As Inoted above, Broderick's misperception is exceeded perhaps only by thegovernment that took the same position in its initial filings. SeeGovernment Opposition to Motion to Suppress [document # 25].)Significantly, Seoane, who unlike Broderick was actually present whenDessesaure was arrested and the statement was supposedly made, testifiedonly that the defendant "requested very loudly to make a phone call," astatement made to the officer and not the crowd.10
The conclusion is unavoidable that Broderick fabricated the allegedstatement when he knew the warrantless entry was being challenged and he needed to come up with some exigency to justifyit.
C. The Search of Dessesaure in the Station House
The government alleges that when defendant was brought to the policestation and at the booking desk, Seoane followed up on what he hadearlier observed — that defendant's fly was open and his shirt hadbeen partially pulled through the zipper area. Seoane testified that hetook Dessesaure to a confined place in order to conduct a strip search,during which time defendant voluntarily "reached into his rectum" andsurrendered a plastic bag containing five plastic bags approximatelyone-half-gram in size and another plastic bag approximately one full gramin size. All bags contained a powder believed to be heroin. Seoane alsorecovered $7 from defendant's right pants pocket, and $60 from his shirtpocket.
Seoane testified that Dessesaure later told him he was selling the bagsof heroin for $60.00. This statement was not recorded in any policedocument.
D. The Statements Allegedly Made to BroderickPost-Arrest
According to Broderick, Dessesaure waived his Miranda rights and made anumber of statements to them regarding the existence of heroin at hisapartment at 270 Quarry Street, including specific amounts and locationswithin the apartment. Dessesaure denied that such statements were made. As discussed above, Broderick was simply not a credible witness. Whatis more, his story regarding Dessesaure's alleged station housestatements simply does not make sense.
According to the Broderick, Dessesaure gave him all of this informationbecause they told him they were already going to "freeze" his apartment,they knew his girlfriend was there and they would charge her foreverything in the apartment, but would be lenient with her if hewillingly gave them information. Broderick, however, had earliertestified that the police never believed Dessesaure's girlfriend to beinvolved at all in drug trafficking.11
After Broderick threatened to arrest and charge defendant's girlfriend,Dessesaure became very cooperative and began giving him details about thequantity and location of drugs in the apartment. Broderick claimedDessesaure was not giving him this information reluctantly — quitethe opposite, he was eager to resolve the situation in a way that wouldkeep his girlfriend out of trouble.
Broderick, however, offers no explanation for why Dessesaure'sstatements were not recorded in any way; written, video, or audio.Dessesaure was not asked to sign a statement that reduced his so-calledadmission to writing. Nor does Broderick offer any explanation for why no officer had him sign aMiranda waiver.12
Taking into account his entire testimony, I give no credit toBroderick's claims that defendant made statements about drugs in hisapartment.13
E. The Preliminary Apartment Search — the"Freeze"
Taking keys for the Quincy apartment from Dessesaure, Boston and QuincyPolice Officers proceeded to defendant's apartment at 270 Quarry Streetfor the stated purpose of "freezing" it. Using defendant's keys, theyopened the door to the apartment and announced "Boston Police." They hadno warrant.
At least six to ten officers14 were actually inside the apartment— not on the threshold. Once there, the officers observed Tate, whohad been in the car with Dessesaure. They did not simply take Tate— the only person in the apartment — outside and wait for awarrant, although obviously that is all that would have been necessary toavoid any potential destruction of evidence.15 Instead, they continued to make observations,observations that were then included in the warrant.
Allegedly during a "protective sweep" and in plain view, Brodericktestified they saw 16 "bundles" of glassine bags, five loose glassinebags, a large plastic bag containing a powder they believed to be heroin,and a variety of drug paraphernalia.16 According to Broderick, Tatestated that the stuff on the table was her boyfriend's, and the officersobserved numerous photographs of Dessesaure around the apartment.
Broderick, who was one of the officers at the apartment, claims he thencalled Seoane at the station and told him what they found. Seoane thenasked Dessesaure about the drugs that had been in the apartment andDessesaure allegedly gave more specific information about the locationand description of the drugs. I do not find Seoane's account ofDessesaure's statements credible.17 In any event, if the first searchwere illegal as I find it to be, confronting the defendant with the fruits of anillegal search arguably taints any subsequent statements made.
F. The Warrant and Second Search of the Apartment
After making observations within the apartment, Broderick left and wentto the Norfolk County District Attorney's Office in Quincy, where hebegan to prepare an application for a search warrant. Broderick'saffidavit in support of the search warrant included 1) information he hadreceived from the sources prior to February 24, 2) observations he madeinside the 270 Quarry St. apartment, as well as 3) a description of thesurveillance,18 4) the stop, 5) the search of Dessesaure in thestation house, and 6) the alleged statements regarding drugs in theapartment. However, Broderick made no mention of the fact that bothsources had been deactivated, or that the information from the sourceswas months old.
Officer McNeil of the Quincy Police Department also filed an affidavitin support of an application for a search warrant for defendant'sapartment. McNeil's affidavit offered no new information — itconsisted of generalities about how drug distribution networks"typically" operate, and a summary of what Broderick had told him aboutthe investigation of Dessesaure. That search warrant was granted, and thepolice seized further property from the apartment: the gun, bullets, more heroin and drugparaphernalia, money, and assorted documents.
III. CONCLUSIONS OF LAW
A. Evidence From Dessesaure's Person
1. The Arrest
Dessesaure argues the police lacked probable cause to arrest him. It isa close case, filled with less than credible statements by OfficerBroderick. Nevertheless, looking solely at the observations made byofficers other than Broderick I find there was sufficient probable causeto arrest Dessesaure.
Police have probable cause to make a warrantless arrest when they haveknowledge of facts and circumstances sufficient to warrant a belief by aprudent person that an offense has been committed by the person to bearrested. See Beck v. Ohio, 379 U.S. 89, 91 (1964); Carroll v. UnitedStates, 267 U.S. 132 (1925) (warrantless arrest permissible when probablecause exists to believe defendant has committed a felony).
I give very little credit to Broderick's account of his sources, givenhis lack of credibility. However, I do credit the observations made byothers during the surveillance — that Dessesaure was drivingevasively before and after his interaction with Boyd, the fact that Boydlied about having been in Dessesaure's car, and most significantly, theheroin found on Boyd upon exiting Dessesaure's Escalade after driving with him foronly a few blocks. These facts create a set of inferences just enough toconstitute probable cause to believe Dessesaure was the source of Boyd'sheroin, and to justify defendant's arrest.
Significantly, however, the existence of probable cause at this pointrelated only to Dessesaure's person and his car.
2. The Search of Dessesaure in the StationHouse
Having found that the police had probable cause to arrest thedefendant, I also find that the police were justified in conducting asearch incident to arrest at the station that led to the discovery of sixsmall bags of heroin, $67, a cell phone, and a beeper. See e.g. UnitedStates v. Robinson, 414 U.S. 218 (1973); New York v. Belton, 453 U.S. 454(1981); Michigan v. DeFillippo, 443 U.S. 31 (1979).
Again, however, the right to search Dessesaure extended at this pointonly to his person and his car.
B. Evidence From Dessesaure's Apartment
The search of Dessesaure's apartment is another matter. It isundisputed that officers entered and searched defendant's apartment priorto receiving a search warrant. It is also undisputed that informationobtained during that illegal entry was used in obtaining the warrant. 1. Exigency
Putting aside for a moment the question of whether probable causeexisted for the officers to search defendant's apartment at all, thegovernment asserts that the officers' "freeze" of the apartment wasjustified because exigent circumstances existed based on a statement"call my peeps!" Dessesaure supposedly made to the crowd.
It is, of course, true that a warrantless entry into a person's home isjustified when exigent circumstances exist. See e.g., United States v.Moore, 790 F.2d 13, 15 (1st Cir. 1990); United States v. Edwards,602 F.2d 458, 467-69 (1st Cir. 1979).
But, I do not find Broderick's testimony in this regard to have beeneven slightly credible. As such, there were no exigent circumstances thatwould excuse the officers' warrantless entry into and search ofdefendant's apartment.
2. Absent Exigent Circumstances, "Freezing" an Apartment by Entering it Without a Warrant Violates the Fourth Amendment
There is no question that the police had no right to "freeze" theQuincy apartment where that meant entering it, looking around, searching,all the while ostensibly waiting for someone to get a warrant. Nothing inFirst Circuit or Supreme Court case law remotely justifies such a step.Nor should it. Searching without a warrant, on the assumption that themagistrate will no doubt agree with the officers that there is probable cause to search that location at that time, makes amockery of Fourth Amendment protection. The warrant, and the review itrequires, is reduced to a technicality.
All of the cases dealing with this issue focus on the question ofremedy — what a court is to do with evidence obtained after thesearch pursuant to a warrant, how far does the exclusionary rule go. Nonedoes what the government tries to do here — namely, claim theofficers' conduct in searching before they had the warrant in hand wascorrect, lawful or constitutional.
In Segura v. United States, 468 U.S. 796 (1984), there was no questionthat officers illegally entered private premises, and remained therewhile a warrant was obtained. And there, the officers arguably didnothing but wait. They did not search, or make observations that thenbecame part of the affidavit. The only question was whether the Courtshould suppress evidence subsequently discovered at those premises whenexecuting a search warrant (not evidence that they had observed whilewaiting for the warrant) obtained on the basis of information whollyunconnected with the illegal entry. The Court concluded that evidencepursuant to the warrant had been obtained through an "independentsource."19 In United States v. Murray, 487 U.S. 533 (1988), the Courtdealt with a related question — where the officers initiallyobserved criminal evidence during an illegal entry, and then seized thesame evidence during a search pursuant to a warrant. Federal officersentered a warehouse, after surveilling the defendant driving a tractortrailer rig out of it, found to contain marijuana. They saw bales ofmarijuana in plain view, left and prepared a search warrant neithermentioning the prior illegal entry nor the observations during it. Whenthey returned, they seized the same bales they had observed. Again, therewas no question that the first search was illegal. Nor was there anyquestion that the search warrant affidavit, which did not refer to anytainted sources, established probable cause. The only question was: whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.487 U.S. at 542. Put otherwise, would the officers have bothered getting a warrant ifthey had come up with nothing on their initial illegal entry? If theywould not have, if they were simply searching first to determine whetherthe warrant was worth their while, the fruits of the warrant search wouldbe suppressed. The Court remanded the case to the district court to makethis determination.20
Since there is absolutely no question that the Boston Police officershere had no right to enter Dessesaure's apartment, and search it, all thewhile waiting for a warrant, and no question that the search warrantaffidavit reflected tainted observations, the only issue is remedy— what flows from the illegal search.
3. The Search Pursuant to a Warrant
The standard for reviewing whether an affidavit provides sufficientsupport to justify the issuance of a search warrant is as follows: In determining the sufficiency of an affidavit, we consider whether the totality of the circumstances stated in the affidavit demonstrates probable cause to search the premises. We examine the affidavit in a practical, common-sense fashion and accord considerable deference to reasonable inferences the issuing justice may have drawn from the attested facts. Under the probable cause standard, the totality of the circumstances disclosed in the supporting affidavits must demonstrate a fair probability that contraband or evidence of a crime will be found in a particular place. In a doubtful or marginal case, the court defers to the issuing magistrate's determination of probable cause.United States v. Barnard, 299 F.3d 90, 93 (1st Cir. 2002)(citations and internal punctuation omitted).
As written, the affidavits submitted in support of the Quincy apartmentsearch would establish probable cause if the observations taken within270 Quarry Street of drugs, etc., before the search was obtained, andDessesaure's alleged station house comments, were included. But neitherpieces of evidence should be considered. First, as noted above, thesearch that led to the apartment observations was blatantly unlawful. Anyobservations derived from it that found their way into the search warrantaffidavit may not be considered.
Second, the statements allegedly attributed to Dessesaure at thestation house must also be excised. I conclude that Broderick's testimonyin this regard is not credible, that they were material misrepresentations under the authority of Franks v.Delaware, 438 U.S. 154, 172 (1978)21 and cannot be considered.22
What remains in the affidavit are the following facts: vagueinformation from sources without any description of their basis ofknowledge, observations of Dessesaure's interaction with Boyd and hiserratic driving afterwards, and the heroin recovered from Boyd andDessesaure. Those facts simply do not suffice to create probable cause toconclude that Dessesaure kept drugs in his apartment, or anywhere elsebesides his car.23
Indeed, the government's theory (as well as the information from itssources and observations) was that the defendant's practice was to deal drugs out of his car. They had no information— apart from the incredible statements and tainted observations,that linked Dessesaure's drug dealing to a particular address to obtain awarrant to search that address. See United States v. Modlin etal., No. Ol-cr-10314-MLW, slip op, at 8 (D.Mass. January 6, 2003)citing generally 2 Wayne R. LaFave, Search and Seizure: ATreatise on the Fourth Amendment § 3.7(d) (1996 & Supp.2003) (collecting cases).
Officer Broderick's behavior in this case demonstrates not only amisunderstanding of and a disrespect for Fourth Amendment law and therights of citizens to be free from unreasonable searches and seizures,but a willingness to provide testimony before this Court that was lessthan credible. The only reason that any portion of these charges stand isbecause the observations of other officers support Dessesaure's arrestand the contraband recovered from his person.
Without the tainted or the contrived information, there was no basis tosearch Dessesaure's house — no "independent source" for the searchwarrant affidavit, no "inevitable discovery" of its contents. Indeed,from the record I can conclude with confidence that if the officers hadcome up empty-handed during the Quincy apartment freeze, they would never have bothered to goany further.
In fact, the only issue is the one with which this decision began— why did the government bring this case given the obvious problemswith the search and the record keeping — but that issue is beyondthe jurisdiction of this Court.
Accordingly, Dessesaure's Motion to Suppress the evidence recoveredfrom his person is DENIED, and evidence recovered from hisapartment is GRANTED.
SO ORDERED. [EDITOR'S NOTE: THIS PAGE CONTAINED PUBLISHER INFORMATION]
1. It must be noted that the account of what Source One and SourceTwo told the officer was nearly identical — vague, no dates, nodetails.
2. The government did produce the names of three individuals aboutwhom Source One had provided tips which led to the seizure of contrabandand convictions years before (1996-1998), although none of thatinformation was reflected on Source One's card or on any documentationsupplied by Broderick. In any event, however many convictions the Sourcehad engendered, as described above, at the time of Dessesaure1s arrest,he was no longer a "carded" informant — and no one could saywhy.
3. It is not at all clear whether the United States Attorney'soffice knew that Broderick had discarded his notes long before federalcharges had been brought, but nevertheless decided to proceed with thefederal prosecution. Had the case been brought by federal law enforcementofficers, or even a joint federal state task force, law enforcement wouldhave been bound by Rule 116.9 of the Local Rules of the United StatesDistrict Court for the District of Massachusetts, dealing with the"preservation of notes." U.S. Dist. Ct. Rules D. Mass.,Rule 116.9 provides: (A) All contemporaneous notes, memoranda, statements, reports, surveillance logs, tape recordings, and other documents memorializing matters relevant to the charges contained in the indictment made by or in the custody of any law enforcement officer whose agency at the time was formally participating in an investigation intended, in whole or in part, to result in a federal indictment shall be preserved until the entry of judgment unless otherwise ordered by the Court. (B) These Local Rules do not require the preservation of rough drafts of reports after a subsequent draft of final report is prepared. (C) These Local Rules do not require modification of a government agency's established procedure for the retention and disposal of documents when the agency does not reasonably anticipate a criminal prosecution. Since the Boston Police conducted the investigation on their own, andthe federal government just embraced it at the end, these obligationsarguably do not apply directly. However, whether or not Broderick had tokeep the notes by law or rule, the Court can surely consider theirdestruction, and his testimony with respect to it in evaluating hiscredibility.
4. It is possible that Broderick is referring here to two sets ofnotes — one during the course of the investigation, pre-search, anda second set of notes he used to prepare his testimony. Either way— none were produced; none were preserved.
5. Documenting informants is particularly important as a way ofavoiding abuse. See, e.g. Commonwealth v. Lewin, 542 N.E.2d 275 (Mass.1988) (police officer cited to an informant in a search warrant affidavitwho did not exist). See also, Tony Locy, Bungled Raid Raises Questions onReliability of Police Informants, Boston Globe, March 27, 1994.
6. Broderick did not know whether Source One had been a paidinformant, a defendant informant, or both when he provided theinformation which led to the arrests and convictions referenced in Note2, supra.
7. The government again provided the names of three individualsabout whom Source Two had given information which led to the seizure ofcontraband and convictions, but this information was nowhere documentedby Broderick, and was not on the "card."
8. Indeed, in the search warrant affidavit Broderick does not evenspeculate about what the substance might be. He calls it "residue of anunknown powder substance."
9. The officers' "freeze" concept is discussed in greater detailbelow.
10. Seoane did note that a crowd had gathered on the sidewalk nearthe arrest scene and that it was a "high area of heroin buyers and heroinusers," but did not contend that there was a particular individual withwhom Dessesaure was attempting to communicate. In fact, Seoane did nottestify that defendant made the comment to anyone other than Seoanehimself. To be sure, Seoane also embellished his testimony. While Seoane'spolice report stated only, "Mr. Dessesaure told officers that he neededto make a phone call and he didn't understand why he was being arrestedat this time," in Court Seoane added that it had been "very loudly," andthat there had been people within earshot he might have known. WhileSeoane's testimony was not as blatant an attempt to create exigency asBroderick's, the addition ten months later of important details absentfrom the police report created on the day of the arrest was againnotable.
11. If Broderick made the statement to the defendant, itwould have been a misrepresentation, surely casting a cloud over anyargument that the statements were voluntarily given. See Note20 infra.
12. Seoane actually testified that Dessesaure did sign a Mirandawaiver, but none was produced by the government, and no explanation givenfor why a signed waiver form would not have been produced. The inevitableconclusion is that it simply never existed.
13. Because Broderick conveniently did not submit his warrantaffidavit until after having been part of the group of officers who"froze" the apartment, there is no way to tell definitively whetherBroderick knew the facts in that affidavit from Dessesaure, or from hisown illegal observations inside 270 Quarry Street.
14. Broderick testified there were between six and ten officers,although he could not remember exactly how many. Tate testified therewere between 10 and 15.
15. This fact is significant only in that it bears on thecredibility of Broderick's claim that the officers entered the apartmentwithout a warrant only to secure it, and not to search for evidence.
16. There is some dispute as to exactly what the police did insidethe apartment — Tate testified the officers went through cabinets,drawers, and the trash; the government described a more perfunctory"sweep." As is discussed below, if the police had no right to enter theapartment and make observations at all, and they admit to doing that,whether they also opened cabinets and drawers is immaterial.
17. In any event, if the first search were illegal, as I find it tobe, confronting the defendant with the fruits of an illegal search could,depending on the circumstances, taint any subsequent statements made. Seee.g. United States v. Ceccolini, 435 U.S. 268 (1978).
18. The search warrant affidavit did not state that the powdersubstance was believed to be heroin.
19. The "independent source" rule was intended to put the police "inthe same, not a worse, position than they would have been if no policeerror or misconduct had occurred." Nix v. Williams, 467 U.S. 431, 443(1984). Thus, the Court concluded that "[w]hen the challenged evidencehas an independent source, exclusion of such evidence would put thepolice in a worse position than they would have been in the absence ofany error or violation." "Inevitable discovery" is a related concept,assuming that the evidence initially obtained illegally would have beenobtained through "independent" and lawful sources. United States v.Murray, 487 U.S. 533, 549 (1988).
20. Likewise, in United States v. Silvestri, 787 F.2d 736 (1st Cir.1986), decided after Segura and before Murray, the Court agreed that thepolice officers had unlawfully searched a residence and discovered largequantities of drugs in the garage. Two other officers, who were notinvolved in the unlawful search, prepared the search warrant affidavitand application without any knowledge of the illegal search. They foundthe same drugs. Asking whether the legal means were "truly independent"of the illegal, and the discovery of the contraband truly "inevitable,the Court declined to suppress the evidence. While the Court did not askthe question the Supreme Court asked in Murray — would the officershave sought a search warrant if the illegal search had come up empty— the findings arguably cover that contingency.
21. Even if I did believe Dessesaure had made the statements, Iwould have significant concerns regarding their voluntariness. Brodericktestified that the police never believed Tate was at all involved withillegal activity, yet he threatened to arrest her and charge her ifDessesaure did not cooperate. I do not believe statements made underthose circumstances would be voluntary. See United States v. Finch,998 F.2d 349, 356 (6th Cir. 1993) (citing Rogers v. Richmond,365 U.S. 534 (1961) (statements not voluntary where defendant's wife hadnothing to do with the crime and suffered from arthritis — officertold him he would be "less than a man" if he allowed her to be broughtin); Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (threats to adefendant mother, unsophisticated in criminal law, that state financialaid to her infant children would be cut off and her children taken awayfrom her if she failed to cooperate rendered her confessioninvoluntary)). See Note 11 supra.
22. Under Franks, I am required to eliminate from anyconsideration of the warrant affidavit allegations which I find to be"the result of carelessness or reckless disregard of the truth," and tovoid the warrant and exclude the fruits of the search if the remainingcontent is insufficient to establish probable cause. Id.
23. As stated above, the warrant affidavit did not even include aspecific suggestion that the police found evidence of heroin in theplastic bag Dessesaure threw on top of the dumpster. The affidavitreferenced a "plastic bag containing residue of an unknown powdersubstance, one plastic bag that had been tied up and cut off," but didnot report that the police believed the powder substance to be heroin, oreven that it was white. My substantial concerns about the fact thatpolice failed to run a test on the substance thus need not even figureinto the analysis here.