COMMONWEALTH OF MASSACHUSETTS THE TRIAL COURT HAMPDEN, SS. SUPERIOR COURT DEPT COMMONWEALTH ) DOCKET NOS: 14-728 ) 14-729 v. ) 14-730 ) 14-731 SANDRO TAVERO-MORA ) ) COMMONWEATH ) ) v. ) ) JUAN MUNOZ-VASQUEZ ) COMMONWEALTH ) ) SOMEDEN cou ERIOR IN ve ; FILED OT JOSE ARIEL MUNOZ- ) MAR 4 ALMANZUR, ) : 08 COMMONWEALTH ) ) v. ) ) FABIEN MONEGRO. ) FINDINGS OF FACT, MEMORANDUM AND DECISION ON DEFENDANTS’ MOTIONS TO SUPPRESS EVIDENCE Each of the Defendants, Juan Munoz-Vasquez, Jose Ariel- Munoz-Almanzur and Fabien Monegro have been indicted for Trafficking in a Controlled Substance, to wit Heroin, (200+ Grams) in violation of G.L. . 94C, §32E(c)(4) and Conspiracy to Violate the Controlled 1Substance Laws in violation of G.L. ¢. 94C, § 40. The Defendant, Sandro Tavero-Mora, the has been indicted for Trafficking in a Controlled Substance, to wit Heroin, (200+ Grams) in violation of G.L. c. 94C, §32K(c)(4), Trafficking in a Controlled Substance, to wit Heroin, (18-36 Grams) in violation of G.L, ¢. 94C, §32E(6)(1) and Conspiracy to Violate the Controlled Substance Laws in violation of G.L. e. 94C, § 40. ‘The Defendants’ Motions to Suppress were heard on March 3, 2014 and March 6, 2014. ‘The various Motions address the legality of the search incident to Mr. Tavero-Mora’s arrest, the warrantless search of the premises at issue, and the search warrant at issue. Each of the Defendants has joined in the arguments set forth in their Co-Defendants Motions to Suppress and the Memoranda in support thereof. I. EINDINGS OF FACT Based upon the preponderance of the credible evidence adduced at hearing, I find as follows: Springfield Police Officer, Detective Kalish has been a member of the Springfield Police Department for over seventeen years, Detective Kalish has extensive training and experience in narcotics investigations and arrests. Detective Kalish’s experience includes identification of narcotics and work with confidential informants. He has worked with confidential informants on the Street Crimes Unit of the Springfield Police Department, Since he joined the Narcotics Unit in 2010, Detective Kalish has worked with a confidential informant on at least a weekly basis. Springfield Police Officer, Lt. Stephen Kent has been a member of the Springfield Police Department for approximately twenty-three years. Lt. Kent has extensive training and experience in narcotics investigations and arrests. ‘During the week preceeding June 12, 2014, Detective Kalish was working with a confidential informant (hereinafter referred to as the “Confidential Informant”) in regard to a narcotics investigation centered around the premises located at 108 Groveland Street, 2d floor,Springfield (hereinafter referred to as the “Premises”)!, 108-110 Groveland Street is a multi- family house with a driveway on the left and a garage in the rear, The first floor of the Premises is 110 Groveland Street, ‘The first floor resident was the homeowner at the time at issue, The second floor is 108 Groveland Street, There is a door on the right side of the house which leads up to the second floor. ‘There is a door on the left side of the house which leads up through a common staircase to a second floor Janding and, then, up to a third floor area. The Premises is located on the second floor and does not include the third floor space. It is unknown whether the third floor constituted an attic or a separate finished unit on June 12, 2014. Detective Kalish had worked with the Confidential Informant prior to the June 12, 2014 investigation. In particular, the Confidential Informant had provided Detective Kalish. information pertaining to other narcotics investigations, The information the Confidential Informant supplied to Detective Kalish those occasions led to narcotics and firearm seizures which resulted in four arrests. Of those four arrests, three led to convictions. In the case of Commonwealth y. Hector Rosario, Hampden Superior Court Docket No. 13-771 there was an arrest based upon the information that Confidential Informant supplied. “There was no conviction as a result of the prosecution of Mr. Rosario whereas the Court (Josephson, J.) allowed Mr. Rosario’s Motion to Suppress.* During the week prior to June 12,2014, the Confidential Informant advised Detective Kalish that a Dominican male known as “Laureano” resided at the Premises and was using the Premises as a distribution location for the sale of heroin from the Premises and in the area of the Premises, The Confidential Informant described “Laureno” as a 40-45 years old dark-skinned Hispanic man approximately five feet four inches to five feet six inches in height, The Confidential Informant, Detective Kalish and Lt. Kent identified Mr. Tavero-Mora as “Laureno. ‘The Confidential Informant told Detective Kalish that Mr. Tavero-Mora has a select group of individuals with whom he worked to move his supply of heroin, The Confidential Informant further stated that Mr, Tavero-Mora worked with those persons in order to not bring ® Detective Kalish did not recall the precise date of his initial contact with the Cl regarding the Premises, 2 Phe Defendants assert that Judge Josephson’s Decision and Order in Mr. Rosario's case establish the Confidential Informant’s unreliability. The facts in Mr. Rosario’s case are sufficiently distinguished from those presented herein.attention to himself and the Premises, The Confidential Informant did not supply the specific names of individuals working with Mr. Tavero-Mora. ‘The Confidential Informant stated that he had met with Mr. Tavero-Mora in the past in order to purchase of heroin and had observed Mr. Tavero-Mora return from the Premises with heroin for sale, The Confidential Informant told Detective Kalish that Mr. Tavero-Mora was. distributing heroin by meeting customers on foot as well as by bicycle in the area of the Premises. The Confidential Informant told Detective Kalish that the Confidential Informant was present inside the Premises where he saw large amounts of heroin being sold. The police did s. There not ask the Confidential Informant to provide a description of the interior of the Premi was no information from the Confidential Informant that there were weapons in the Premises. Detective Kalish and Detective Bruno investigated the individuals residing at 108 Groveland Street and found that Mr. Tavero-Mora lived at the Premises on the 2™ floor. A field interview of Mr. Tavero-Mora confirmed that address. The police further learned from The Department of Homeland Security that “Laureno” was not Mr. Tavero-Mora’s true name. Early on June 12, 2014, Detective Kalish and the Confidential Informant drove to the vicinity of the Premises. Utilizing binoculars, the Confidential Informant identified Mr. Tavero- ‘Mora as an individual who was exiting 108-110 Groveland Street. Mr. Tavero-Mora matched Kalish, the description the Confidential Informant had provided to Detes During the afternoon hours on June 12, 2014, at approximately 2:45 PM, the Confidential Informant contacted Detective Kalish and advised that Mr. Tavero-Mora would be delivering a large amount of heroin to an unidentified subject between 3:45 PM and 4:15 PM on that day at the intersection of Dickinson Street and Shawmut Street, Springfield. The Confidential Informant did not provide the exact amount of heroin to be delivered. The Confidential Informant advised Detective Kalish that the Confidential Informant was present during a phone conversation with Mr, Tavero-Mora, that same day, when the narcotics transaction was arranged. In response to the Confidential Informant’s information, Detective Kalish and Detective Bruno alerted other officers. In fact, Detective Bruno, the lead investigator relating to the Premises had been investigating Mr. Tavero-Mora and the Premises prior to June 12, 2014. Detective Templeman went to 108-1 10 Groveland Street where, at 3:55 PM, he observed a male 4‘wearing a blue t-shirt, blue jeans, carrying a small grocery bag, exit 108-110 Groveland Street from a door on the left side of the house alongside a driveway, lock the door behind him, mount a bicycle and proceed down Groveland Street in the direction of Dickinson Street and Shawmut Street, Detective Kalish and the Confidential Informant immediately proceeded to Groveland Street in an unmarked police motor vehicle. As they drove down Groveland Street, they both identified Mr. Tavero-Mora from a distance of approximately fifty feet. Mr. Tavero-Mora was ‘wearing blue jeans, a blue t-shirt riding a bicycle and carrying a grocery bag. There were no other individuals matching that description on Groveland Street at the time, Detective Kalish advised Detective Templeman that the individual Detective Templeman observed was Mr. ‘Tavero-Mora. On June 12, 2014, Lt. Kent was involved in the investigation of the Premises. On that date, Detective Kalish and Detective Bruno advised Lt. Kent they had information that at 4:00 PM on that day Mr. Tavero-Mora was going to deliver a significant amount of heroin in the area of Shawmut Street and Dickinson Street and that the delivery would originate from the Premises. Detective Kalish and Detective Bruno further informed Lt. Kent that they were working with a confidential informant, and that they had information that Mr. Tavero-Mora and others were packaging heroin at the Premises. Lt. Kent conferred with other officers and directed Detective Bruno to place the Premises under surveillance, Lt, Kent and Detective Bigda were to remain at the scene as a take-down_ ‘vehicle along with other arrest officers on the scene. Detective Templeman was assigned to surveillance of the Premises, Lt. Kent and Detective Bigda proceeded to the vicinity of ‘Shawmut Street and Dickinson Street shortly prior to 4:00 PM. In all, nine to twelve officers joined in surveillance and arrest. None were at the intersection of Shawmut Street and Dickinson Street, That intersection was busy with traffic at the time. The area at issue is thickly settled with residential and commercial buildings. Detective Templeman radioed that he observed a heavy set medium or dark skinned anic male wearing a blue shirt on a bicycle carrying a plastic bag leaving 108-110Groveland Street and proceeding on Groveland Street toward Shawmut and Dickinson. There 1g that description in the area. ‘were no other individuals fit Lt. Kent and Detective Bigda confirmed with Detective Templeman that Mr, Tavero- Mora was the same person Detective Templeman described as leaving the Premises and who Detective Kalish and the Confidential Informant confirmed was Mr. Tavero-Mora. Near the intersection of Shawmut Street and Dickinson Street, Lt. Kent and Detective Bigda pulled in front of Mr. Tavero-Mora in their unmarked police vehicle. They were five to six hundred feet from the Premises. ‘The Premises is not visible from that location. ‘As Lt. Kent exited the unmarked police vehicle, Mr. Tavero-Mora drew back, his eyes opened wide. Lt. Kent was wearing a badge and identified himself as police officer. Lt. Kent quickly took Mr. Tavero-Mora off the bicycle and down to the ground. Mr. Tavero-Mora was not free to leave and under arrest. While Lt. Kent secured Mr. Tavero-Mora on the ground, Detective Bigda seized the plastic grocery bag, Inside the bag the police found 1400 bags (14 bundles of 100 bags) of heroin stamped with an apple logo. ‘The police believed such amount to be consistent with distribution based upon the amount and manner of packaging as well as the information the Confidential Informant provided, The police likewise recovered two cell phones from Mr. “Tavero-Mora’s pocket as well as a key. Both phones were ringing when they stopped Mr. ‘Tavero-Mora and during the approximately three to four minutes they interacted with Mr. ‘Tavero-Mora. There were no weapons on Mr. Tavero-Mora’s person, Lt. Kent handcuffed Mr. Tavero-Mora, placed him in the unmarked police vehicle and drove around the corner whereas the police did not want to alert any potential coconspirators that Mr. Tavero-Mora was placed into custody [At the scene of the artest, an unspecified number of people came out of their homes and traffic slowed down. There were approximately five to six additional police vehicles on the scene. At least one police vehicle had its blue lights activated. not speak English. He speaks Spanish. Accordingly, the police Mr. Tavero-Mora had a Spanish-speaking officer, Detective Rosario, speak with Mr. Tavero-Mora. DetectiveRosario showed up once they tumed around the comer from Shawmut onto Dickinson Street, Detective Rosario asked Mr. Tavero-Mora his name and where he lived. Mr. Tavero-Mora responded giving his name, Jose Tavero-Mora and stating he lived at the Premises. The police did not administer Miranda warnings to Mr, Tavero-Mora prior to those questions being posed. ‘When asked if there were any other individuals at the Premises, Mr, Tavero-Mora stated that there was no one else at the Premises at that time. Lt. Kent believed Mr. Tavero-Mora was telling the truth regarding the presence of others at the Premises. Mr, Tavero-Mora was transferred to another police vehicle. LA. Kent and Detective Bigda drove to the Premises and advised the other officers they were doing so to continue the investigation. From the time they seized Mr. Tavero-Mora to the me they arrived at 109-110 Groveland Street five to seven minutes had elapsed. Another minutes elapsed before they entered the Premises, In light of Mr. Tavero-Mora’s statement, Lt, Kent was not expecting anyone to be at the Premises. Lt. Kent and Detective Bigda went to the left side door on the driveway side because that is where Detective Templeman saw Mr. Tavero-Mora exit the Premises. They noticed surveillance cameras on the driveway side. The key the police seized from Mr. Tavero-Mora fit into the exterior door on the left side of 108-110 Groveland Street, At approximately 4:10 PM, Lt. Kent and Detective Bigda entered a stairwell that leads to the second floor as well as the third floor of 108-110 Groveland Street. Lt. Kent knocked on the door to the Premises. ‘Someone from inside the Premises yelled something in Spanish. Sgt. Kent continued to knock and mumbled something unintelligible under his breath. He was surprised that the Premises were occupied. After he mumbled something again, the individual continued to yell in . Lt. Kent continued to mumble, and an individual, later identified as Mr. Munoz- Spanis ‘Vasquez, opened the door voluntarily. He looked alarmed. ‘The front door opened to an area adjacent to the kitchen, No narcotics or other contraband were visible from the front door.Lt, Kent displayed his badge saying, “Police, Police.” His weapon was not drawn, Mr, ‘Munoz-Vasquez was yelling in Spanish. Lt. Kent could not understand what he was saying and was fearful there were other individuals in the Premises, Mr, Munoz-Vasquez backed into the kitchen. Lt. Kent grabbed Mr. Munoz-Vasquez. As Lt. Kent was holding onto Mr, Munoz- Vasquez, a door to the kitchen opened and someone in the living room leaned into the kitchen. Lt. Kent told Detective Bigda there was someone in the other room and told Det. Bigda to secure the other individual, Detective Bigda went into the other room and encountered two other subjects later identified as Mr. Almanzar and Mr. Monegro. Mr. Almanzar and Mr. Monegro stood up from a table covered with a large amount of heroin, cutting agents scale and baggies. Lt. Kent handcuffed Mr. Munoz-Vasquez and brought him into the living room. The three men were pat {risked for weapons with negative results. Mr. Almanzar and Mr. Monegro were handcuffed, and back-up officers arrived. Mr. Munoz-Vasquez, Mr. Almanzar and Mr. Monegro were searched and unspecified currency was taken seized from them. Lt, Kent and Detective Bigda left the Premises while other officers remained in order to secure the Premises and preserve the evidence. Detective Bruno signed the Affidavit and an Application for the Search warrant at 6:35 PM and the Search Warrant was issued at 7:33 PM. Detective Bruno executed a Supplemental Affidavit at 11:42 PM. The two Affidavits differ insofar as the Supplemental Affidavit includes “Addendum A,” which describes the Premises, That description was contained within the body of the earlier Affidavit, Lt. Kent returned to the Premises with other officers and executed the search warrant at 7:33 PM on June 12, 2014. When they returned to the Premises, nothing was removed or added from the Premises. The officers seized approximately 230 grams of unpackaged heroin, approximately 4,800 bags of packaged heroin, heroin packaging materials, cash and unspecified paperwork. Springfield Police Officer, Detective Kalish has been a member of the Springfield Police Department for over seventeen years, Detective Kalish has extensive training and experience innarcotics investigations and arrests. Detective Kalish’s experience includes identification of informants. He has worked with confidential informants on narcotics and work with confidenti the Street Crimes Unit of the Springfield Police Department. Since he joined the Narcotics Unit in 2010, Detective Kalish has worked with a confidential informant on at least a weekly basis. I, RULINGS OF LAW. A. ‘The Confidential Informant ‘The police relied upon the Confidential Informant for both their warrantless search of the Premises as well as in their search warrant application and affidavit. In both instances, Article 14 requires facts establishing the following: (1) some of the underlying circumstances from which the informant concluded that the contraband was where he claimed it was (the basis of knowledge test), and (2) some of the underlying circumstances from which the affiant concluded that the informant was ‘credible’ or his information ‘reliable’ (the veracity test). Commonwealth v. Upton, 394 Mass. 363, 375 (1985) (quoting Aguilar v. Texas, 378 U.S. 108, 114 (1964); Spinelli v. United States, 393 US. 410, 415 (1969). Each element of this test “must be satisfied or supplemented in some way.” Id. at 376, Independent police corroboration may remedy a deficiency in either or both, See Commomwealth v. Wilson, 441 Mass. 390, 395 (2004). As to the veracity prong, many considerations are relevant. “The test may be satisfied by demonstrating that the informant has provided information in the past which has proved to be accurate.” Commonwealth v. Perez-Baez, 410 Mass. 43, 45 (1991). In addition to past information, officers’ knowledge of the informant’s identity and whereabouts, although not enough in itself, “is a factor that weighs in favor of reliability.” Commonwealth v. Alfonso, 438 Mass. 372, 376 n. 4 (2003). The amount of detail provided by the informant also tends to support reliability. See Id. at 375. As to the basis of knowledge test, it is well settled that an informant’s personal observations are sufficient to satisfy this prong. See Commomweaith v. Spano, 414 Mass. 178, 185 (1993); Commonwealth v. Carrasco, 405 Mass. 316, 321 (1989). However, casual rumors or hearsay are inadequate, See Commonwealth v. Reddington, 395 Mass. 315, 324 (1985).‘The Commonwealth has satisfied the basis of knowledge prong of the Aguilar-Spinelli test. Three factors denote the Confidential Informant’s firsthand knowledge: 1. The Confidential Informant was present with Mr. Tavero-Mora during one drug transaction that was recent in time to Mr. Tavero-Mora’s arrest; 2. The Confidential Informant observed a large quantity of heroin being distributed from the Premises; 3. The Confidential Informant presented detailed predictive information pertaining to Mr. Tavero-Mora and his activities relating to the distribution of heroin. That information included a precise description of Mr. Tavero-Mora, his mode of narcotics distribution, and Mr. Tavero-Mora’s planned activities, including, time and location, which led to Mr. Tavero-Mora’s arrest on June 12, 2014; and 4. Mr. Tavero-Mora was arrested at the time and location the Confidential Informant provided shortly after the Confidential Informant provided the tip to the police. See Commonwealth v. Rosario, 34 Mass.App.Ct. 914, 914-915 (2002)(detailed tip plus corroboration by the police provided basis of knowledge to arrest the defendant). ‘The Commonwealth has satisfied the veracity prong of the Aguilar-Spinelli test. Detective Kalish had worked with the Confidential Informant prior to the June 12, 2014 investigation. In particular, the Confidential Informant had provided Detective Kalish information pertaining to other narcotics investigations. The information the Confidential Informant supplied to Detective Kalish on those occasions led to narcotics and firearm seizures which resulted in four arrests. Of those four arrests, three led to convictions. Were there any deficiencies in the Confidential Informant’s veracity, independent police corroboration in the within matter compensated for any such deficiency. See Commonwealth v. “Alfonso A., 438 Mass. 372, 377 (2003); Commonwealth v. Toledo, 66 Mass.App.Ct. 688, 691- 692 (2006); Commonwealth v. Barros, 435 Mass. 171, 176 (2001); Commonwealth v. Lyons, 409 Mass, 16, 19 (1990). In fact, the police corroborated virtually every detail of the Confidential Informant’s tip regarding Mr.Tavero-Mora. Such independent police corroboration gave the police enough knowledge to meet both prongs of the Aguilar - Spinelli standard. See Commonwealth v. Welch, 420 Mass. 646, 652 (1995). 10B. The Arrest of Mr. Tavero-Mora “The information the Confidential Informant provided was credible, reliable, and sufficient to establish probable cause to arrest Mr. Tavero-Mora. This is so particularly in light of the officers’ corroborative observations, “Probable cause [sufficient to justify a warantless arrest) is information ‘sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.” Commonwealth v. Pietrass, 392 Mass. 892, 897-898 (1984), quoting Beck v. Ohio, 379 U.S. 89, 91 (1964). See Commonwealth v. Banville, 457 Mass, 530, 583 (2010) (“Probable cause requires evidence that establishes a ‘substantial basis,’ -to believe ‘that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues’ [internal citations omitted] quoting Commonwealth v. Cinelli, 389 Mass. 197, 213 (1983)). C. The Search Incident to the Arrest of Mr. Tavero-Mora Whereas the police lawfully arrested Mr. Tavero-Mora, heroin, cell phones, a key and other evidence seized from Mr. Tavero-Mora were the result of a lawful search incident to arrest. See GL. ¢. 276, §1; Commonwealth v. Dessources, 74 Mass.App.Ct. 232 (2009)(“When making an arrest, the police may permissibly search a lawfully arrested individual for weapons or for evidence of the crime for which he is being arrested . .. [NJothing in the statute bars the admission of evidence so seized” Id. at 236.) 1D. Warrantless Entry and Search of the Premises 1, Entry Through the Locked Side Door ‘The Defendants have failed to meet their burden in establishing a reasonable expectation of privacy to the common stairwell which extended from the left side driveway first floor entrance to the second floor landing up to the third floor. See Commonwealth v. Montanez, 410 Mass. 290 (1991) citing Commonwealth v. Panetti, 406 Mass. 230, 234 (1989). Lt. Kent established that the driveway side door leads to a common stairway that goes to the second floor u.. A further staircase wraps around the second floor landing where there is a door to the Premis common area and goes up to the third floor. The police were unaware whether or not access to the third floor area was locked or not. Absent evidence that the Defendants manifested: 1. subjective expectation of privacy in the common stairwell at issue; and 2. society's willingness to recognize that expectation as reasonable, the police lawdully entered the left side driveway first floor entrance utilizing the key seized from Mr. Tavero-Mora. See Montanez, supra at 301 citing California v. Ciraolo, 476 U.S. 207, 211 (1986); Panett, supra at 231; and Commonwealth v. Mamacos,409 Mass. 635, 638 (1991). 2, Entry Into the Premises ‘The warrantless entry into the Premises is more problematic. The lawfulness of a ‘warrantless entry must be evaluated under the standards stated in Maryland v. Buic, 494 US. 325 (1990); and Commonwealth v, DeJesus, 439 Mass. 616, 619-21(2003), “In the absence of a ‘warrant, two conditions must be met in order for a nonconsensual entry to be valid: there must be probable cause ... and there must be exigent circumstances.” Id, 439 Mass. at 619-21, See ‘also Commonwealth v. Forde, 367 Mass. 798, 806 (1975); Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 226 (1992), quoting Commonwealth v. Pietrass, 392 Mass. 892, 897 (1984). “A reasonable belief as to the potential loss or destruction of evidence may create exigent circumstances permitting a warrantless search and seizure of evidence. Dejesus, supra at 620. ‘The nonconsensual entry into the Premises prior to execution of the search warrant was invalid. While the Confidential Informant provided sufficient probable cause to believe narcotics were present in the Premises, the Commonwealth has not met its burden in demonstrating the requisite exigent circumstances justifying a warrantless search of the Premises. ‘The Commonwealth beats the burden of establishing the existence of exigent circumstances, Commonwealth v. Hamilton, 24 Mass. App. Ct. 290 (1987) citing, Commonwealth v, Hall, 366 Mass. 790, 801-802 (1975); Commonwealth v. Donahue, 23 Miass.App.Ct. 103, 108 (1986). “Under the exception for exigent circumstances, there must be a showing that it was impracticable for the police to obtain a warrant, and the standards as to 2exigency are strict.” Commonwealth v. Ford, 367 Mass. 798, 800 (1975). Here, the ‘Commonwealth has not met its burden in demonstrating the existence of exigent circumstances which would excuse the failure of the police to have obtained a search warrant. ‘The circumstances surrounding Mr. Tavero-Mora’s arrest do not support the Commonwealth’s assertion that exigent circumstances existed. ‘The location where Mr. Tavero- ‘Mora was arrested was not within sight of the Premises rendering any argument that occupants of the Premises may have been alerted to Mr. Tavero-Mora’s arrest speculative. Traffic not constitute an exigency. Importantly, the police disruption in the vicinity of the arrest believed that the Premises was unoccupied at the time they arrested Mr. Tavero-Mora, In particular, Lt. Kent accepted as true Mr. Tavero-Mora’s assertion that no one was at Premises. Lastly, there was no credible evidence that any individuals which the Confidential Informant alluded to as Mr. Tavero-Mora’s associates were present at the Premises at the time of Mr. ‘Tavero-Mora’s arrest. In sum, any exigency the police suspected was born of speculation and, hence, outside of this court’s consideration. ‘The facts presented are likened to those set forth in Hamilton, supra, and Commonwealth ¥. Huffman, 385 Mass. 122 (1982). In Hamilton, the Court held there was no exigency where officers knocked on a motel room door announcing themselves, the defendant opened the door, the police observed narcoties in plain view inside the room, and then entered the room without a warrant, Hamilton, 24 Mass, App. Ct. at 294-295. Notably, the police already had reason to believe there were drugs in the motel room before they knocked on the door. Jd. at 292. Hence, the Court found that there was no exigency because there was no indication the occupant was aware of police presence in the corridor outside the room before the police knocked and announced police presence. Id, at 293-294, Instead of seeking a warrant, the police “ignored the warrant requirement and proceeded to create their own exigency.” /d. at 295. (Emphasis supplied.) As in Hamilton, the police proceeded to create their own exigency when they arrived at the Premises. Were there an exigency relating to the potential destruction of contraband and other evidence in this case, it did not exist until the police had created it. An exigency which is created under such circumstances is insufficient to justify a warrantless search, BAs the Court concluded in Hamilton, supra, and Huffman, the police could have sought a ‘warrant to search the Premises before Mr. Munoz-Vasquez opened the door on June 12, 2014. Det, Bruno, the lead investigator, relating to the Premises had been investigating Mr. Tavero- Mora and the Premises prior to June 12, 2014. Ata minimum, the police had sufficient information in the morning hours of June 12, 2014, based upon the Confidential Informant’s, conversation with Det. Kalish to render the application for a search warrant practicable at such time, See Forde, supra at 800 citing McDonald v. United States, 335 U.S. 451, 454-456 (1948), Asin Forde, supra, “the failure of the Commonwealth to offer any explanation why no effort was made to obtain a warrant in the . . . hours prior to [Mr. Tavero-Mora’s arrest] is fatal to its claim of exigency.” Id. at 82. Contrary to the Commonwealth’s argument, the exigency analysis does not take root when Mr. Munoz-Vasquez opened the door to the Premises. The analysis starts, rather, with an inquiry into whether exigent circumstances existed at the time of Mr. Tavero-Mora’s arrest. ‘There is no evidence that the individuals present at the Premises were aware of police presence ‘until the moment Lt. Kent knocked on the door and Mr. Munoz-Vasquez opened the door. Ultimately, the facts established “fall{] short of the specific evidence of imminent destruction of property necessary to satisfy the exception to the warrant requirement for evidence that is about to be destroyed.” Id. at 294 citing Huffnan, supra at 125-126; Commonwealth v. Forde, 367 Mass. 798, 801 (1975) ‘Asa result of the unlawful search of the Premises at approximately 4:10 PM on June 12, 2014, reference to all that occurred after Lt. Kent seized Mr, Munoz-Vasquez in the Premises up to and including when the police left the Premises upon such initial search is excised from the ‘two Search Warrant Affidavits, Such excision excludes the fact that Mr. Munoz- Vasquez initially opened the door to the Premises and includes police observations of Mr. Almanzur and ‘Mr, Monegro during such time period. ‘The Commonwealth Has Failed to Demonstrate Proper Justification for ducting A Broad Protective Sweep ‘The Commonwealth has failed to provide articulable facts which justified a protective sweep. A protective sweep is a “quick and limited search of Premises, incident to arrest and 14conducted to protect the safety of police officers or others,” and limited to a “cursory visual inspeotion of those places in which a person might be hiding.” Maryland v. Buie, 494 US. 325, 327 (1990). As set out in Maryland v. Buie, supra, a protective sweep is constitutional if the searching officer “possessed a reasonable belief based on specific and articulable facts, which taken together with the rationale inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officers and others.” None of the factors requisite to establish a protective sweep are present herein. E, Search of the Premises Pursuant to Execution of the Search Warrant ‘An improper pre-warrant entry does not necessarily result in suppression of the evidence obtained in the later search under a search warrant, That is the case herein. Ifthe affidavit in support of the warrant contains probable cause without considering observations in the illegal entry, then the evidence obtained in the search pursuant to the warrant should not be suppressed. DeJesus, 439 Mass, at 627. Mindful of the excision ordered herein, there remained sufficient facts to support the issuance and execution of the search warrant. In particular, the search warrant application and affidavit lawfully relied upon the Confidential Informant’s reliable and credible information supplied to the police. “[OJur inquiry as to the sufficiency of the search warrant application always begins and ends with the ‘four comers of the affidavit.” Commonwealth v.Villella, 39 Mass.App.Ct. 426, 428 (1995). In looking at the four comers of the search warrant application and supporting affidavit, the question is whether the Commonwealth has established probable cause to believe that evidence of criminal activity existed at the location in question at the time of the search, ‘The Commonwealth has met its burden mindful of the excisions ordered herein. 15Il. ORDER For the reasons set forth above, the Court enters the following Orders: 1. So much of the Defendants? Motions to Suppress as address the search incident to the arrest of Mr. Tavero-Mora is DENIED. 2. So much of the Defendants’ Motions to Suppress as address the Defendants’ Motions to Suppress the warrantless entry into the driveway side door is DENIED. 3. So much of the Defendants’ Motions as address the warrantless search of the Premises is, ALLOWED. 4, So much of the Defendants’ Motions as address the search of the Premises pursuant to the search warrant is DENIED. March 16, 2015, \ fark D Mason Justice of the Superior Court 16