MA: Police misconduct was “thuggish” but did not lead to issuance of the search warrant here

The officers unlawfully entered defendant’s property and stayed there seven hours before the search warrant arrived. Removing anything from the application for the warrant that came from the illegal entry left enough for the warrant to issue. The first officer’s outlandish conduct in the illegal entry did not taint the warrant. Commonwealth v. Webster, 75 Mass. App. Ct. 247, 913 N.E.2d 890 (2009). An interesting view:

The defendant does not claim that the affidavit had an insufficient independent basis to support the search warrant. Instead, he contends that the fruits of the search should be suppressed because of egregious police misconduct. The misconduct consisted of illegally entering the apartment and staying there for approximately seven hours while waiting for the warrant, all the while restraining the occupants from movement and from answering the telephone. Officer Fabiano, in addition, searched the apartment before the warrant issued and discovered hidden pornographic videos and paraphernalia which he then discussed with Ms. Webster in front of her friend, and, in the words of the defendant’s counsel, “befouled before [Ms. Webster’s] eyes [her home with] the revolting spectacle of [his] spitting tobacco juice into the kitchen sink.”

Officer Fabiano’s behavior, in particular, was thuggish, wholly unworthy of a professional who was sworn to protect the citizens of Boston. The motion judge rightly observed that his behavior “should be reported to his superiors for their review. Whether he be disciplined or subject to additional training is a function of the police department. Even young officers should know a search without the warrant is a violation of the constitutional rights of the citizenry.”

The question, though, is whether the police misconduct warrants suppression of the mattress pistol even if, as the judge found, no fruits of the misconduct were used in the application for the search warrant and there was probable cause for the warrant’s issuance. Relying principally on United States v. Madrid, 152 F.3d 1034 (8th Cir. 1998), the defendant argues that it does.

. . .

Here, although the police misconduct was similar to, and in some respects more outlandish than, the misconduct in Madrid, the warrant application was sufficient after removing any product of the misconduct. Because the application was sufficient, we have no need to explore whether the inevitable discovery rule validates the search or whether that rule is inapplicable in the face of improprieties like those that plagued this case.

. . .

Here, the mattress pistol was not obtained in violation of the defendant’s constitutional rights, and its use as evidence had no adverse impact on the law’s integrity. Suppression of the mattress pistol, therefore, was not warranted. The remedy for unconstitutional police conduct lies in departmental discipline, a civil action, or, ultimately and if sufficiently durable and widespread, the voting booth.