# Commonwealth v. Marmolejos

> Massachusetts Appeals Court · July 15, 1993 · 35 Mass. App. Ct. 1

URL: https://www.frixlaw.com/law-library/cases/9724163

## Case

- **Full name:** Commonwealth vs. Guarionex Marmolejos
- **Court:** Massachusetts Appeals Court
- **Decided:** July 15, 1993
- **Citations:** 35 Mass. App. Ct. 1; 615 N.E.2d 949; 1993 Mass. App. LEXIS 726
- **Precedential status:** Published
- **Opinion:** Concurrence by Dreben
- **Judges:** Brown, Dreben, Fine
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9724163

## Opinion text

Dreben, J.
(concurring). At trial Trooper Alejandro testified that Villanueva had opened the door for him to enter, had stood “right in front of the door,” and “was surprised.” He also testified, on cross-examination, that as he got to the door he had his “firearm out” and “when [he] came to the threshold of the door,” he announced, “State police.” In these circumstances I do not consider the evidence at trial of consent to the second entry to be as unambiguous as do the majority of the panel. I note that at the hearing on the motion to suppress, Alejandro did not mention that he had his gun drawn when he approached the apartment. He also explicitly testified at that hearing that he made the announcement of “State police” after his entry into the apartment.
It is, however, unnecessary in my view to determine whether the evidence at trial contradicted the evidence at the suppression hearing which supported the conclusion that the second entry was consensual. The trial judge’s refusal to reconsider the pretrial motion to suppress is supported on the ground briefly mentioned in note 6 of the majority opinion, namely that the police had probable cause to make the second entry into the apartment and that the circumstances were exigent.
On the occasion of the original entry, which the defendant concedes was consensual, Alejandro, acting in an undercover capacity, had been shown samples of the drugs he had shown an interest in purchasing. After rejecting one sample and indicating satisfaction with another, he left the apartment for the ostensible purpose of obtaining money from his car. Had Alejandro not promptly reappeared on the second floor, having stated that he was satisfied with the sample examined by him, the occupants would have become alarmed and would likely have destroyed or removed the evidence. Because there *6 was not time to obtain a warrant, the trial judge acted correctly in not reconsidering the pretrial motion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9724163. Public record. Not legal advice.