MA: While PC for a no-knock warrant wasn’t shown, GFE otherwise applies to no-knock

The affidavit for the search warrant included a no-knock request, but the fact that powder cocaine was sought wasn’t shown to be enough to justify a no-knock. Probable cause of a likelihood of destruction is required under Massachusetts law. Defendant doesn’t claim bad faith, and the officers were shown to otherwise have acted in good faith. Thus, the good faith exception also applies here to the knock-and-announce requirement. Commonwealth v. Perez, 2015 Mass. App. LEXIS 39 (April 15, 2015):

While the warrant application in this case contains statements that drugs in powder form are easy to destroy or discard, it fails to provide “probable cause to believe that the evidence will be destroyed, based on other factors uniquely present in the particular circumstances.” Scalise, supra at 421. We consider the specific references to the fact that the “apartment was small, private and confined” and that the defendant keeps the door locked, admitting only individuals whom he knows, to be relevant, but ultimately insufficient. The limited size of the premises is as likely to aid the police in securing the evidence of criminality as to enable its disposal “during the short delay occasioned by the knock and announce requirement.” Commonwealth v. Macias, 429 Mass. 698, 702, 711 N.E.2d 130 (1999). As described in the application, the defendant’s security measures are equally likely to be precautions against robbery, and do not provide probable cause that he would bar the door to police who announce their presence. See id. at 703 (window overlooking street, which could allow defendant to “spot the police coming,” without more, did not establish probable cause); Commonwealth v. Santiago, 452 Mass. 573, 577-578, 896 N.E.2d 622 (2008) (“mere assertion that the owner of a residence to be searched owns a dog, even of a breed commonly known to be aggressive, would, standing alone, be insufficient to meet the probable cause standard”).

We therefore consider whether the evidence seized by the police must be suppressed as a result of the failure to knock and announce their presence in this case. “[A]s a general rule, the mere fact that an unlawful search and seizure has occurred should not automatically result in the exclusion of any illegally seized evidence.” Commonwealth v. Gomes, 408 Mass. 43, 46, 556 N.E.2d 100 (1990) (applying general rule “to violation of the ‘no-knock’ rule”). See Commonwealth v. Sheppard, 394 Mass. 381, 391, 476 N.E.2d 541 (1985); Commonwealth v. Rutkowski, 406 Mass. 673, 676 n.5, 550 N.E.2d 362 (1990). Two factors govern the result: (1) “the degree to which the violation undermined the … governing rule of law,” and (2) the extent to which exclusion will serve as a deterrent in the future. Commonwealth v. Gomes, supra. These two factors are interdependent to the extent that (even where constitutional rather than, as here, common law principles are implicated), “[b]ad faith of the police … will be relevant in assessing the severity of any constitutional violation.” Commonwealth v. O’Connor, 406 Mass. 112, 118, 546 N.E.2d 336 (1989).

Applying these principles to the present circumstances, we conclude that suppression is not warranted. The police did not act unilaterally; they properly applied for a warrant, requested a no-knock provision and submitted an affidavit setting forth all the available and relevant facts known to them. While we conclude as a matter of law that they did not ultimately provide sufficient basis for the issuance of the warrant in that form, the police did not act in bad faith, and the defendant makes no such claim. Having obtained the warrant, they observed its strictures. See Commonwealth v. Grimshaw, 413 Mass. 73, 79-80, 595 N.E.2d 302 (1992) (suppression unwarranted in case of nighttime search authorization where police acted “lawfully in obtaining the warrant and, except as to time, had engaged in no misconduct in executing it”). Contrast Commonwealth v. Gomes, 408 Mass. at 47 (suppression warranted where officer who prepared affidavit “had actual knowledge that [it] contained no particularized facts which would have shown probable cause”). Under these particular circumstances and given the detailed nature of the application, we find not only an absence of any police misconduct but also no indication that the pertinent rule of law was undermined.