|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. DiGeronimo,
38 Mass.App.Ct. 714 (1995)
Appeals Court of Massachusetts, Worcester.
Argued
Decided
John A. Bosk,
James P. McKenna, Asst. Dist. Atty., for the Com.
Before DREBEN, GILLERMAN and LAURENCE, JJ.
LAURENCE, Justice.
The
underlying issue in this case is the validity of a warrantless
police entry into the private residence
[38 Mass.App.Ct. 715] of a suspected drunk driver who had recently caused an
accident. As a result of that entry, the
police obtained overwhelmingly incriminating evidence that led to the
conviction of Vincent DiGeronimo for operating his
vehicle under the influence of intoxicating liquor.
Background facts. (FN1) In
Neither
driver was physically injured.
DiGeronimo drove to his apartment, which was in a building
only a short distance away. His car's
crumpled front fender had by this time so gouged his tire that he could no [38 Mass.App.Ct.
716] longer move the vehicle. From his apartment, he telephoned the police
station to report the accident. During
the conversation, DiGeronimo used obscenities, and
his speech was slurred. (FN2) He then
waited in his apartment because he thought the police might be coming to
question him. (FN3) After a while, he
ate the corned beef sandwich, drank (so he testified) one or two glasses of
wine, turned on the television, and fell asleep in a chair in front of the
television set.
Meanwhile,
a police cruiser had arrived at the accident scene. It was followed, at approximately 10:45 P.M.,
by uniformed Leominster police officer Deshod (or Ducharm‑‑the record is inconsistent), who had
received a radio report of the accident.
After observing the scene and speaking with Eagan (who opined that the
driver who had rear‑ended him had been drunk), Deshod
called the police station to "run" the license plate of the other
car, which Eagan had given him. Deshod was soon informed of DiGeronimo's
ownership of the suspect vehicle and nearby address. He remained at the scene for approximately
fifty minutes until the road, which was still slippery, was salted, and Eagan's
car was towed. At this point (so the judge
found), the officer had probable cause to believe DiGeronimo
had been operating a motor vehicle under the influence of alcohol.
At
approximately 11:35 P.M., Deshod drove to the address
he had been given. He found the car
described by Eagan parked in front of the apartment building. He was allowed entrance into the common hallway
of the building by a security guard and proceeded to DiGeronimo's
apartment, accompanied by the guard.
There he knocked repeatedly and vigorously on the door for several
minutes, announcing as loudly as he could that he was a police officer. No response came from within, but Deshod could hear the sound of a television set through the
door. Deshod
concluded (in good [38 Mass.App.Ct. 717]
faith, the judge found) that DiGeronimo was inside
and possibly in need of assistance. (FN4)
He radioed the police station and asked the dispatcher to call DiGeronimo's number.
The dispatcher reported receiving a busy signal. Deshod next asked
his patrol supervisor whether he should enter the apartment "to check on
the welfare of the owner of the second vehicle." Upon
being told he should, he entered the apartment, using the security guard's
passkey, (FN5) and immediately identified himself as a police officer.
Deshod saw DiGeronimo sitting in
a chair in front of the television set in his underwear. DiGeronimo (who
testified that the opening of the door wakened him) looked at Deshod in surprise and stood up. Deshod told DiGeronimo to put some clothes on. As DiGeronimo
walked about the room, Deshod noticed that he was
unsteady on his feet and swayed. As DiGeronimo approached after getting dressed, Deshod detected a strong odor of alcohol on his breath and
observed that his eyes were bloodshot and glassy. Deshod asked DiGeronimo if he had been involved in an accident. In slurred but comprehensible speech, DiGeronimo responded affirmatively, stating that the
vehicle he struck had "backed down the hill" into him. Deshod then asked
if DiGeronimo had been drinking. DiGeronimo said he
had drunk two beers [38 Mass.App.Ct. 718]
at Donnelly's. Deshod
saw no bottles, glasses, or containers of any sort in the apartment, and DiGeronimo unsolicitedly stated
that there was no alcohol anywhere in the apartment. At some point DiGeronimo
turned and left without explanation to go to the bathroom.
Deshod concluded from his observations that DiGeronimo was under the influence of alcohol, placed him
under arrest, handcuffed him, and transported him to the police station. After being booked for operating under the
influence and being advised of his rights, DiGeronimo
elected to take a breathalyzer test. The
test yielded two reliable readings of 0.15, well above the blood alcohol level
that leads to license suspension under G.L. c. 90, § 24N. During the booking and testing procedure, two
officers watched DiGeronimo for more than twenty
minutes and noted the strong odor of alcohol on his breath, the unsteadiness of
his gait, and the glassy redness of his eyes.
Ultimately
charged with the misdemeanor of operating under the influence, second offense, DiGeronimo was found guilty after trial before a jury of
six in November, 1993. He was sentenced
to two years in the Worcester County house of correction, with nine months to
serve and the balance suspended. In
February, 1994, he filed a late notice of appeal and a motion for a new trial,
arguing that he had received ineffective assistance from trial counsel because
of counsel's failure to file a motion to suppress all evidence obtained from
and after the illegal police entry into his apartment.
After a
hearing, the trial judge denied the new trial motion. He ruled that Officer Deshod
had probable cause to believe that DiGeronimo had
been responsible for a motor vehicle accident while driving under the influence
of alcohol. The judge also found that
exigent circumstances existed to validate Deshod's warrantless, but restrained and peaceable, entry into the
apartment. Those circumstances were (a)
the need to check whether DiGeronimo might be injured
as a result of the accident, and (b) the need to determine whether he was under
the influence of alcohol, a determination that might have been frustrated by
delays caused by DiGeronimo's[38 Mass.App.Ct. 719] apparent attempt to avoid
detection and necessarily attendant to police efforts to obtain a warrant. The judge concluded that any motion to
suppress would, therefore, have been denied, so that trial counsel's failure to
have made such a futile motion could not be faulted.
[1] [2] Summary conclusion. DiGeronimo has
reiterated on appeal his "ineffective assistance" contentions based
on the failure of counsel to file a suppression motion. While recognizing both the good faith‑‑indeed,
the commendable intent‑‑of the police in this case, as well as the
deplorable social problem caused by "the continuing slaughter upon our
Nation's highways, a good percentage of which is due to drivers who are
drunk," Welsh v. Wisconsin, 466
U.S. 740, 755, 104 S.Ct. 2091, 2100, 80 L.Ed.2d 732
(1984) (Blackmun, J., concurring), we are constrained
to agree with DiGeronimo. The warrantless
police entry into his apartment was presumptively illegal, and in the
circumstances, fell within no recognized exception to the constitutional
warrant requirement. A motion to
suppress the evidence improperly obtained from that entry, upon which DiGeronimo's conviction was substantially based, should
have succeeded. Trial counsel's failure
to file such a motion very likely deprived DiGeronimo
of a substantial ground of defense. (FN6)
His conviction must therefore be reversed.
[38 Mass.App.Ct.
720] The law of warrantless entry.
The law applicable to the issue at hand is well established but, as our
Declaration of Rights admonishes, (FN7) warrants periodic recapitulation:
" 'It is clear ... that
the notion that the warrantless entry of a man's
house in order to arrest him on probable cause is per se legitimate is in
fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man's house
without warrant are per se unreasonable in the absence of some one of a number
of well defined "exigent circumstances." ' [Coolidge
v. New Hampshire, 403 U.S. 443, 477‑478, 91 S.Ct.
2022, 2044, 29 L.Ed.2d 564 (1971).] The right of police officers to enter into a
home, for whatever purpose, represents a serious governmental intrusion into
one's privacy. It was just this sort of
intrusion that the Fourth Amendment was designed to circumscribe by the
general requirement of a judicial determination of probable cause.... The distinction between an entry to search
and an entry to arrest is slight, for the latter may well be characterized as
simply a search for a person rather than a search for things.... Moreover, it can be argued that an entry to
arrest is a far greater intrusion than an entry to search. [38 Mass.App.Ct.
721] Coolidge v. New Hampshire,
supra, at 479‑480 [91 S.Ct. at 2045.] The exigencies which would excuse the lack of
an arrest warrant may differ from those supplying the excuse for the lack of a
search warrant. In any event, the police are required to
demonstrate that exigency. In
short, we believe that the Fourth Amendment prohibits a warrantless
entry into a dwelling to arrest in the absence of sufficient justification for
the failure to obtain a warrant...."
(Emphasis supplied.)
Commonwealth v. Forde,
367 Mass. 798, 804‑806, 329 N.E.2d 717 (1975). (FN8) The circumstances that have been recognized as justifying failure to obtain a
warrant have been severely circumscribed by the courts as being both few, Katz v. United States, 389 U.S. 347,
357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967), and
exceptional, G.M. Leasing Corp. v. United
States, 429 U.S. 338, 352‑353, 358, 97 S.Ct.
619, 628‑29, 631, 50 L.Ed.2d 530 (1977).
The Supreme Court of the United States has also observed that the few
exceptions are "jealousy and carefully drawn," Jones v. United States, 357 U.S. 493, 499, 78 S.Ct.
1253, 1257, 2 L.Ed.2d 1514 (1958), and that the government's "heavy
burden" in such cases, Welsh v.
Wisconsin, 466 U.S. at 749‑750, 104 S.Ct.
at 2097, is to show that, even within the few, narrow exceptions, proceeding
without a warrant was "imperative." McDonald v. United States,
335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948).
[3] [38 Mass.App.Ct.
722] The Supreme Judicial Court has
underscored the necessity, within these stringent Fourth Amendment guidelines,
of subjecting warrantless searches of private
residences to strict constitutional scrutiny.
The government has the heavy burden of clearly demonstrating an urgent
need to effect entry in the particular case even within a recognized category
of exceptional circumstances. Selectmen of Framingham v. Municipal Ct. of
the City of Boston, 373 Mass. 783, 785‑786, 369 N.E.2d 1145 (1977).
[4]
[5] The "emergency" exception
to the warrant requirement. The
judge below and the Commonwealth here have relied upon two of the narrow
exceptions that have been recognized by the courts (FN9) to justify the warrantless police breach of DiGeronimo's
castle. (FN10) The first is the so‑called
"emergency" doctrine, which authorizes warrantless
entry when a police officer (or other public safety official) reasonably
believes that a person within the dwelling is in need of immediate [38 Mass.App.Ct.
723] assistance because of an
imminent threat of death or serious injury, or that prompt intervention is
necessary to prevent a threatened fire, explosion, or other destructive
accident. See Commonwealth v. Marchione, 384 Mass. 8,
11‑12, 422 N.E.2d 1362 (1981); Commonwealth v. Bates, 28 Mass.App.Ct. 217, 219‑220, 548 N.E.2d 889 (1990);
Commonwealth v. Hurd, 29 Mass.App.Ct. 929, 930, 557 N.E.2d 72 (1990). (FN11)
Police
action in such situations is to be viewed under a reasonableness standard in
light of the circumstances in the field, not by "Monday morning
quarterbacking." (FN12) Nonetheless,
we fail to find in this record the requisite compelling reasons, supported by
specific and articulable facts, see Mincey v.
Arizona, 437 U.S. 385, 392‑394, 98 S.Ct.
2408, 2413‑14, 57 L.Ed.2d 290 (1978), that could have led officer Deshod reasonably to believe that DiGeronimo
was in dire, life‑threatening distress and in need of immediate
assistance.
[6]
Eagan did not tell Deshod that DiGeronimo
was injured, only that he appeared drunk.
Eagan himself revealed that he was uninjured. DiGeronimo's driving
off from the accident scene suggested lack of incapacitating injury. DiGeronimo's
telephone call to the police gave no hint that he was ailing, only profane and
possibly inebriated. Deshod's
lingering at the accident scene for almost an hour, knowing that DiGeronimo lived only yards away and with a police cruiser
standing nearby, reflected a belief that no pressing reason required prompt
attention to DiGeronimo.
[38 Mass.App.Ct.
724] No alarming signs confronted Deshod as he stood outside DiGeronimo's
apartment (such as a trail of blood,
Commonwealth v. Young, 382 Mass. 448, 454, 457, 416 N.E.2d 944 [1981]; shots heard from within, Mincey v. Arizona, 437 U.S. at 387, 98 S.Ct. at 2410‑11;
moaning sounds coming from inside,
Commonwealth v. Kingsbury, 7 Mass.App.Ct. 51, 53‑54,
385 N.E.2d 1020, id., 378 Mass. 751,
393 N.E.2d 391 [1979]; a badly wounded
person on the threshold, Commonwealth v. Cricones, 12 Mass.App.Ct. at
953‑954, 426 N.E.2d 728; or
flammable and explosive materials on the floor, Commonwealth v. Marchione, 384 Mass. at
12, 422 N.E.2d 1362). Although DiGeronimo's telephone was reported to be emitting a busy
signal, no effort appears to have been made to determine whether it was the
signal of a telephone being used or of one off the hook. When Deshod
ultimately gained entry into the apartment, he made no inquiry whether DiGeronimo was injured or required assistance, only whether
DiGeronimo had been involved in an accident. Deshod's initial
command to DiGeronimo to dress himself implicitly
assumed DiGeronimo's ability to do so.
Finally,
the record contains no evidence suggesting that either Deshod
or his supervisor ever considered, let alone reasonably concluded, that
obtaining a warrant (which is available "at any time," G.L. c. 218, §
35; G.L. c. 276, § 3A, as amended by
St.1962, c. 328, from an after‑hours duty judge or a magistrate on call,
either directly or through the State police) would entail so great a delay as
to increase any apprehended danger to DiGeronimo's
life or limb. See Commonwealth v. Bates, 28 Mass.App.Ct.
at 221, 548 N.E.2d 889. Contrast Commonwealth v. Bradshaw, 385 Mass.
244, 256, 431 N.E.2d 880 (1982) (Where,
in the circumstances of that case, "the Commonwealth ha[d] shown, as
required by our cases, that it was impracticable for the police to obtain a
warrant"). Indeed, as just
discussed, the known facts surrounding the accident indicate that no such
consideration could reasonably have entered into their calculations.
In
sum, Deshod's subjective good faith belief that DiGeronimo might be in need of assistance did not justify
either the entry or the subsequent search and arrest. See
Illinois v. Rodriguez, 497 U.S. 177, 185, 110 S.Ct.
2793, 2799‑2800, 111 L.Ed.2d 148 (1990), quoting from Hill v. [38 Mass.App.Ct. 725]
California, 401 U.S. 797, 803‑804, 91 S.Ct.
1106, 1110, 28 L.Ed.2d 484 (1971). The
objective circumstances did not reasonably support a genuine concern on Deshod's part that DiGeronimo
might have been so severely injured in the accident as to be in a life‑threatening
situation requiring immediate, warrantless entry and
assistance. The judge's finding in that
respect was clearly erroneous. The
circumstances presented to the officer were not remotely analogous to the
factual urgencies of the cases in which the emergency exception has been held
to apply. (FN13)
The "destruction of evidence"
exception to the warrant requirement.
The only other exception cited by the judge and [38 Mass.App.Ct. 726] proffered by the Commonwealth as validating the warrantless entry is that recognized‑‑particularly
in illegal drug cases‑‑when entry was reasonably believed to be
necessary to prevent the imminent destruction or removal of incriminating
evidence. See Commonwealth v. Hall, 366 Mass. 790, 800‑804, 323 N.E.2d 319
(1975);
Commonwealth v. Amaral, 16 Mass.App.Ct. 230, 233‑234, 450 N.E.2d 656 (1983).
(FN14)
The
judge observed that "[t]here was some urgency in locating [DiGeronimo] ... to determine if he was under the influence
and was avoiding detection. In such
matters, time delays are critical...."
The Commonwealth's brief glosses this generalized concern by positing
that "Officer Deshod knew that the alcohol in
the defendant's system was dissipating and that any delay would decrease the
evidentiary value of any observations of the defendant's physical
condition."
[7]
The "destruction of the evidence" exception to the warrant
requirement does not, however, apply here for several reasons. First, the record does not support it. Deshod's and his
supervisor's only expressed rationale for entering the apartment was "to
check on [DiGeronimo's] welfare." Nothing in his or any other testimony or
exhibit raises the possible loss of evidence of intoxication as an objective
motivation for the entry. To the contrary,
the almost hour‑long delay (between the time Deshod
discerned at the scene that DiGeronimo might have
caused the accident while driving under the influence of alcohol and the time Deshod arrived at DiGeronimo's
apartment) belies the formation of any such police determination in this
regard. Either Deshod
or the police cruiser that had preceded him to the scene could have immediately
proceeded to DiGeronimo's nearby apartment had there actually
existed police apprehension over the "dissipation" of evidence of the
apparent offense.
[8]
Such an unexplained delay, "in the absence of additional facts explaining
why it was 'impracticable for the police to
[38 Mass.App.Ct. 727] obtain a warrant' ... precludes a finding ... justifying the warrantless entry into the apartment.... No such additional facts were
adduced...." Commonwealth v. Bates, 28 Mass.App.Ct. at 221, 548 N.E.2d 889. See also
Commonwealth v. Forde, 367 Mass. at 807, 329
N.E.2d 717. No "exigency"
sufficient to exonerate the extraordinary act of warrantless
police intrusion into a private dwelling exists when the eventual juncture was
a reasonably foreseeable result of earlier police inaction. See id.
at 803, 329 N.E.2d 717; Commonwealth v. Sergienko,
399 Mass. 291, 297, 503 N.E.2d 1282 (1987); Commonwealth v. Wigfall,
32 Mass.App.Ct. 582, 587‑588, 595 N.E.2d 327
(1992).
[9]
[10] The court's and the Commonwealth's assumptions about Deshod's
unarticulated desire to obtain imminently evanescing evidence may appear
plausible. (FN15) However, the finding
of such an exigency cannot rest on an after‑the‑fact discovery of a
justification that never occurred to, nor was mentioned by, the police but is
subsequently imputed to them in an effort to salvage a well‑intentioned
but flawed prosecution‑‑any more than a rejection of exigent
circumstances should be [38 Mass.App.Ct. 728]
based upon "leisured retrospective analysis." Commonwealth v. Young, 382
Mass. at 456, 416 N.E.2d 944. The
required exigency can only be founded upon a reasonable conclusion reached by
the police at the time of the entry, on the basis of the information then
available to them, that there was a specific threat of imminent loss or
destruction of important evidence. See Commonwealth v. Hall, 366 Mass. at 802,
323 N.E.2d 319; Commonwealth v. Huffman, 385 Mass. 122,
126, 430 N.E.2d 1190 (1982); Commonwealth v. Amaral,
16 Mass.App.Ct. at 233, 450 N.E.2d 656;
Commonwealth v. Garcia, 34 Mass.App.Ct. at
394, 612 N.E.2d 674. The instant record
contains nothing demonstrating that Deshod or his
supervisor had made that crucial determination.
"We cannot speculate or go outside of the record to justify the warrantless entry into a private residence."
Commonwealth v. Huffman, 385 Mass. at 127, 430 N.E.2d 1190. See also
Commonwealth v. Garcia, 34 Mass.App.Ct. at 394‑395,
612 N.E.2d 674.
Neither
the Commonwealth's brief nor the judge's new trial ruling cited a single
Massachusetts or Federal authority justifying warrantless
intrusion into a suspected drunk driver's home because of the possible loss or
destruction of evidence of his inebriation.
We view the limited pertinent authority as pointing to an opposite
conclusion. As the United States Supreme
Court has stated:
"... a warrantless home arrest cannot be upheld simply because
evidence of [the appellant's inebriation] might have dissipated while the
police obtained a warrant. To allow a warrantless home entry on these facts would be to approve
unreasonable police behavior that the principles of the Fourth Amendment will not
sanction." (FN16)
[38 Mass.App.Ct. 729] Welsh v. Wisconsin, 466 U.S. at 754,
104 S.Ct. at 2100.
Accord Patzner
v. Burkett, 779 F.2d 1363 (8th Cir.1985).
Such a result is especially appropriate in this Commonwealth, where the
police cannot constitutionally compel a suspect to take a field sobriety,
breathalyzer, or blood test, nor can the prosecution introduce evidence of a
defendant's refusal to take such tests. Commonwealth v. McGrail,
419 Mass. 774, 777‑780, 647 N.E.2d 712 (1995). Contrast
City of Orem v. Henrie, 868 P.2d 1384, 1388‑1392
(Utah 1994). For this particular
offense, Massachusetts police can have no reasonable expectation that a warrantless entry will enable them to obtain or preserve
such evidence, even if, unlike the present situation, they consciously intend
their entry for that purpose. (FN17)
[11] [12] The
ineffectiveness of counsel.
Evidence obtained as the proximate result of unjustified, warrantless police entry into private quarters, in
substantial (and not merely technical) violation of the Fourth Amendment, is
subject to the exclusionary rule. The
direct evidentiary fruits of such an entry are subject to suppression as
inadmissible evidence, see Mapp v. Ohio, 367 U.S. 643, 654‑655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961) (but see United States v. Leon, 468 U.S. 897,
922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 [1984] ),
at least in Massachusetts under art. 14.
See Selectmen of Framingham v.
Municipal Ct. of the City of Boston, 373 Mass. at 786‑788, 369 N.E.2d
1145;
Commonwealth v. Ford, 394 Mass. 421, 425‑427, 476 N.E.2d 560 [38 Mass.App.Ct.
730] 1985); Commonwealth v. Conway, 2 Mass.App.Ct. 547, 553‑554, 316 N.E.2d 757
(1974). Cf. Commonwealth v. Rutkowski, 406 Mass.
673, 676‑677, 550 N.E.2d 362 (1990).
Here, that evidence comprised officer Deshod's
observations of DiGeronimo and the breathalyzer test
results indicating prima facie intoxication.
None of that evidence would have been obtained but for the unlawful
entry.
Had that evidence been suppressed, the Commonwealth's case
against DiGeronimo would have rested on the lay
opinion of the other driver, Eagan, that DiGeronimo
appeared drunk, and on the tape of DiGeronimo's
telephone call to the police. Although
that evidence would have been sufficient to submit the case to the jury, it
hardly constituted an overwhelming or even compelling demonstration of the
defendant's culpability. We are unable
to say that the tainted fruits of the illegal entry‑‑a police
officer's authoritative testimony and opinion regarding DiGeronimo's
inebriated condition and, in particular, breathalyzer test results enjoying an
aura of scientific reliability, if not conclusiveness‑‑were without
effect on the jury and did not contribute to the guilty verdict. Cf.
Commonwealth v. Gilday, 382 Mass. 166, 178, 415
N.E.2d 797 (1980).
A motion to suppress that significant, possibly outcome‑determinative,
illegally obtained evidence would clearly have represented "better work
[that] might have accomplished something material for the defense." Commonwealth
v. Satterfield, 373 Mass. 109, 115, 364 N.E.2d 1260 (1977). The unopposed allowance in evidence of those
fruits of the improper entry, therefore, constituted ineffective assistance of
counsel. It directly resulted in a
constitutional error that cannot be deemed (nor has the Commonwealth attempted
to meet its burden of proving that it was) harmless beyond a reasonable
doubt. See Commonwealth v. Marini, 375 Mass. 510,
520‑521, 378 N.E.2d 51 (1978); Commonwealth v. Sinnott,
399 Mass. 863, 872 n. 8, 507 N.E.2d 699 (1987).
Contrast Commonwealth v. Colon‑Cruz,
408 Mass. 533, 558, 562 N.E.2d 797 (1990); Commonwealth v. Garcia, 34 Mass.App.Ct. at 390‑[38 Mass.App.Ct. 731] 612 N.E.2d 674. DiGeronimo's new trial motion should have been allowed, and
a new trial will be in order. (FN18)
Order denying motion for
new trial reversed.
Judgment reversed.
Verdict set aside.
FN1.
The facts are taken from the District Court judge's findings and uncontested
testimony.
FN2.
The tape recording of DiGeronimo's telephone call to
the police was played for the jury but is no longer available. There is no evidence in the record indicating
that DiGeronimo also called his invalid mother, who
was presumably waiting for both him and the corned beef sandwich.
FN3.
It is unclear from the record whether DiGeronimo gave
the police his name and address when he called.
FN4.
The judge also found that Deshod believed that DiGeronimo was "refusing to acknowledge the
officer," but nothing in the record supports this finding or the
conclusion that part of Deshod's motivation in
entering DiGeronimo's apartment was "to
determine if he was under the influence and was avoiding detection."
FN5.
The security guard, who did not enjoy common or joint access, use, or control
of the apartment with DiGeronimo, had no authority to
consent to a warrantless entry or search. See
Chapman v. United States, 365 U.S. 610, 617, 81 S.Ct.
776, 780, 5 L.Ed.2d 828 (1961); Stoner v. California, 376 U.S. 483, 489,
84 S.Ct. 889, 893, 11 L.Ed.2d 856 (1964);
United States v. Matlock, 415 U.S. 164, 171 & n. 7, 94 S.Ct. 988, 992 & n. 7, 39 L.Ed.2d 242 (1974). No argument was made below that DiGeronimo's telephone call to the police and his apparent
expectation that the police might arrive to question him, constituted implied
consent to the eventual police entry. We
do not, therefore, address the issue, but note that the few cases that have
recognized such implied consent involved murder investigation scenarios in which
the guilty defendant notified the police in an apparent effort to throw them
off his trail. See Commonwealth v. Beldotti, 409 Mass. 553,
555‑556, 567 N.E.2d 1219 (1991).
See also State v. Fleischman,
157 Ariz. 11, 754 P.2d 340 (1988); Brown v. State, 856 S.W.2d 177
(Tex.Ct.App.1993).
FN6.
The standard for evaluating a claim of ineffective assistance of counsel is
based upon the two‑part test classically described in Commonwealth v. Saferian, 366 Mass. 89,
96, 315 N.E.2d 878 (1974): "whether
there has been serious incompetency, inefficiency, or
inattention of counsel‑‑behavior of counsel falling measurably
below that which might be expected from an ordinary fallible lawyer‑‑and,
if that is found, then, typically, whether it has likely deprived the defendant
of an otherwise available, substantial ground of defence." In practice, the ineffectiveness
determination frequently emanates from a one‑factor analysis. The focus of appellate consideration is on
the "prejudice" rather than the "performance" prong of the
test: i.e., whether, on the basis of
facts known to or reasonably ascertainable by the defendant's counsel, counsel
might have acted in a manner that could have afforded the defendant a
substantial ground of defense, such that the counsel's failing so to act was
"manifestly unreasonable."
See, e.g., Commonwealth v. Rondeau, 378 Mass. 408, 413, 392 N.E.2d 1001 (1979);
Commonwealth v. Harris, 387 Mass. 758, 762, 443 N.E.2d 1287 (1982);
Commonwealth v. Griffith, 404 Mass. 256, 262, 534 N.E.2d 1153
(1989);
Commonwealth v. Montanez, 410 Mass. 290, 295, 571 N.E.2d 1372
(1991);
Commonwealth v. Medina, 20 Mass.App.Ct.
258, 259, 479 N.E.2d 738 (1985); Commonwealth v. Garcia, 34 Mass.App.Ct. 386, 391, 612 N.E.2d 674 (1993). (Indeed, the United States Supreme Court has
indicated that courts need not evaluate counsel's performance at all when they
can determine ineffective assistance claims on the ground of prejudice alone.
Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct.
2052, 2069‑70, 80 L.Ed.2d 674 [1984].)
When the record reveals that, notwithstanding an over‑all high
quality of work at trial, defense counsel's conduct or failure to act in a
particular instance was so serious a lapse as to enhance significantly the
chance of a defendant's conviction, then the defendant's burden under the
ineffective assistance test is satisfied.
See Commonwealth v. Rossi, 19 Mass.App.Ct. 257, 259‑260, 473 N.E.2d 708 (1985);
Commonwealth v. Frisino, 21 Mass.App.Ct. 551, 555‑556, 488 N.E.2d 51 (1986). Consequently, our analysis concentrates on whether
the warrantless police entry, which produced the bulk
of the incriminating evidence against DiGeronimo, was
so vulnerable to challenge by means of a motion to suppress that DiGeronimo's counsel's failure to file the motion was
manifestly unreasonable, notwithstanding counsel's otherwise able
representation.
FN7.
"A frequent recurrence to the fundamental principles of the constitution
... [is] absolutely necessary to preserve the advantages of liberty, and to
maintain a free government."
Massachusetts Declaration of Rights, art. XVIII.
FN8.
The Commonwealth is free to develop its own law of search and seizure under
art. XIV of our Declaration of Rights
(insuring the "right to be secure from all unreasonable searches and
seizures") to meet the needs of local law enforcement. Commonwealth v. Matthews,
355 Mass. 378, 380, 244 N.E.2d 908 (1969).
However, the Commonwealth may not "authorize police conduct which
trenches upon Fourth Amendment rights." Sibron v. New York,
392 U.S. 40, 61, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917
(1968). Consequently, the validity of warrantless entries and arrests is typically evaluated, as
the parties have here acknowledged and as our jurisprudence reflects, by Fourth
Amendment standards as enunciated by the Federal courts, particularly since a warrantless intrusion that falls afoul of the Fourth
Amendment will certainly violate the presumptively more stringent requirements
of art. XIV. See
Selectmen of Framingham v. Municipal Ct. of the City of Boston, 373 Mass.
783, 787‑788, 369 N.E.2d 1145 (1977); Commonwealth v. Ortiz, 376 Mass. 349,
358, 380 N.E.2d 669 (1978); Commonwealth v. Douzanis,
384 Mass. 434, 437 n. 7, 425 N.E.2d 326 (1981); Commonwealth v. Assad, 393 Mass. 418, 422‑423, 471 N.E.2d 1290
(1984);
Commonwealth v. Ford, 394 Mass. 421, 426, 476 N.E.2d 560 (1985).
FN9. Commonwealth v. Skea,
18 Mass.App.Ct. 685, 693 n. 12, 470 N.E.2d 385
(1984), provides a convenient summary of the exceptions, only two of which are
urged upon us here. Each accepted
exigency requires, as a precondition to sanctioning the warrantless
activity, that the police have probable cause to believe that the defendant has
committed a crime, see id. at 692‑693,
695, 470 N.E.2d 385; Commonwealth v. Pietrass,
392 Mass. 892, 897, 467 N.E.2d 1368 (1984), unless it is a "pure"
emergency where entry was effected solely to avert a dangerous situation that
threatened life or safety, in which case any incriminating evidence within
plain view may legitimately be seized. Commonwealth v. Marchione,
384 Mass. 8, 12, 422 N.E.2d 1362 (1981).
We agree with the judge that Officer Deshod
had probable cause to believe that DiGeronimo had
been operating a motor vehicle under the influence of alcohol, based upon the
observed circumstances of the accident, the information provided by Eagan, and DiGeronimo's telephone call to the police. Cf. G.L. c. 90, § 21 (authorizing a police
officer to arrest without a warrant any person who the officer has probable
cause to believe has operated a motor vehicle under the influence, whether or
not the offense was committed in the officer's presence). Probable cause to arrest, however, does not
alone legitimate warrantless entry into the suspect's
home to effect the arrest in the absence of consent or a showing of recognized exigent
circumstances. See Welsh v. Wisconsin, 466 U.S. at 748 n. 9, 749 & n. 11, 104 S.Ct. at 2096 n. 9, 2097 & n. 11.
FN10.
The home as a citizen's metaphoric castle and refuge has been an axiom of our
common law for almost four centuries.
See Semayne's
Case, 77 Eng.Rep. 194 (K.B.1604) ("[T]he
house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his
repose").
FN11.
There is a question as to the applicability of the emergency exception in this
case, since several authorities have indicated that it cannot be invoked when
the entry was also motivated by an intent to discover incriminating evidence,
which the judge explicitly attributed to the police here. See
Commonwealth v. Cricones, 12 Mass.App.Ct.
953, 954, 426 N.E.2d 728 (1981); Commonwealth v. Bates, 28 Mass.App.Ct. at 219, 548 N.E.2d 889. Since we conclude that this exception is
unavailable to sustain the entry in the instant circumstances, we need not
resolve the question.
FN12.
"[W]hether an exigency existed, and whether the
response of the police was reasonable and therefore lawful, are matters to be
evaluated in relation to the scene as it could appear to the officers at the
time, not as it may seem to a scholar after the event with the benefit of
leisured retrospective analysis." Commonwealth v. Young, 382 Mass. 448,
456, 416 N.E.2d 944 (1981).
FN13.
Contrast Commonwealth v. Young, 382
Mass. at 454‑457, 416 N.E.2d 944 (police entered after discovery of
brutally murdered body in basement and trail of blood leading to the entered
apartment, where they believed the suspect was lurking); Commonwealth v. Marchione, 384 Mass. at 9‑12, 422 N.E.2d 1362
(entry justified where building owner discovered that defendant tenant's cellar
floor was covered with fuel oil and that gasoline was stored in open containers
near a homemade incendiary device and oil burner); Commonwealth v. Paniaqua, 413 Mass. 796, 797‑798, 604 N.E.2d 1278
(1992) (entry lawful into apartment from which police reasonably believed
gunshots had been fired into a public area moments before); Commonwealth v. Kingsbury,
7 Mass.App.Ct. at 54, 385 N.E.2d 1020 (forced entry
justified when officers searching for a missing teenager heard moaning sounds
coming from suspect's apartment); Commonwealth v. DiSanto,
8 Mass.App.Ct. 694, 696‑698, 397 N.E.2d 672
(1979) (entry lawful into apartment of persons suspected of just committing
armed robbery and murder and who were believed to possess several weapons,
including a submachine gun); Commonwealth v. Fiore, 9 Mass.App.Ct. 618, 620, 403 N.E.2d 953 (1980) (where the
dwelling had obviously been broken into, entry was justified in order to avert
the possibility of danger to an occupant from the continued presence of the
intruder); Commonwealth v. Cricones,
12 Mass.App.Ct. at 954, 426 N.E.2d 728 (search of
upstairs of house where police found a severely wounded man justified based on
witness who had called for help having muttered "upstairs,"
indicating either the presence of the perpetrator or other clues to the
incident); Commonwealth v. Rexach,
20 Mass.App.Ct. 919, 920, 478 N.E.2d 744 (1985)
(entry into defendant's bedroom reasonable to protect wife where officer
followed defendant into the bedroom after witnessing him threatening wife, who
was screaming and had two black eyes); Commonwealth v. Donoghue,
23 Mass.App.Ct. 103, 104‑106, 499 N.E.2d 832
(1986) (police entry lawful while investigating brutal slashing of a victim who
had indicated defendant as his assailant whom police reasonably believed to be
inside his apartment and armed and dangerous); Commonwealth v. Hurd, 29 Mass.App.Ct. at 930,
557 N.E.2d 72 (police stop at entrance to route 128 of automobile matching
description of one said, by an anonymous caller, to be driven by a drunken
adult with three small children as passengers justified by need to protect life
and prevent serious injury).
FN14.
Interestingly, the Supreme Court of the United States does not appear to have
expressly held that police may enter and search a dwelling without a warrant
for such a purpose. Cf. Ker v.
California, 374 U.S. 23, 27‑29, 35‑37, 40‑41, 83 S.Ct. 1623, 1626‑27, 1631, 1633‑34, 10 L.Ed.2d
726 (1963).
FN15.
While the judge's concern about the dissipation of blood alcohol evidence
within a short period might be correct as a general proposition, the variables
governing rate of dissipation (time, quantity, body weight, age, etc.) do not
appear to be matters that are judicially noticeable (at least we know no case
so holding). The issue is presumably one
that must be determined on the basis of qualified expert testimony rather than
lay opinion. Cf. Commonwealth v. Connolly, 394 Mass. 169, 175, 474 N.E.2d 1106
(1985);
Commonwealth v. Marley, 396 Mass. 433, 439, 486 N.E.2d 715 (1985);
Commonwealth v. Smythe, 23 Mass.App.Ct. 348, 352‑354, 502 N.E.2d 162
(1987). We are aware that the Supreme
Judicial Court has recently described blood and breath test evidence, on the
issue of intoxication in operating under the influence cases, as
"extremely fleeting," so that "time is of the essence in
obtaining the requisite testing." Commonwealth v. Hampe,
419 Mass. 514, 520, 646 N.E.2d 387 (1995).
This observation was merely a variation of the accepted fact, stated in Commonwealth v. Andrade, 389 Mass. 874,
881, 453 N.E.2d 415 (1983), that such evidence "is available for only a
short period of time." Hampe expressed
that truism with somewhat more urgency as a function of the specific context in
that case, the defendant's booking after his arrest, which frequently occurs
well after the last intake of alcohol, the incident giving rise to the arrest,
or even the arrest itself. Hampe's
recognition of the physical fact of dissipation over some short period of time
is, however, too imprecise to satisfy the high degree of specificity and
imminence required before the threatened loss of evidence can justify warrantless entry.
See Commonwealth v. Hall, 366
Mass. at 802, 323 N.E.2d 319.
FN16.
In Welsh v. Wisconsin, supra, the
Supreme Court stated that an important factor in determining whether an
exigency exists is the gravity of the underlying offense for which the arrest
is being made. 466 U.S. at 753, 104 S.Ct. at 2099. One
reason it held that the warrantless, nighttime entry
into the defendant's home to arrest him for operating under the influence
(O.U.I.) violated the Fourth Amendment was that, in Wisconsin, O.U.I. was a
civil, nonjailable traffic offense. Id.
at 754, 104 S.Ct. at 2100. Here, the judge stressed in his analysis of
the exigent circumstances that O.U.I., while not a felony, is nonetheless a
"serious charge." However,
the Welsh opinion observed that
judicial precedent had limited warrantless home
arrests to major felonies, and then only when other identifiable exigencies,
independent of the gravity of the offense, existed at the time of the arrest. Id.
at 752, 104 S.Ct. at 2099. "[N]o exigency is created simply because
there is probable cause to believe that a serious crime has been
committed." Id. at 753, 104 S.Ct.
at 2099.
FN17.
The other factors that the courts have deemed most important in evaluating
claims that exigency supported an intrusion without warrant were also absent
from the present circumstances: the
crime was not one of violence, there was no reason to believe the suspect was armed,
there was no reason to believe that the suspect would attack them or someone
else, there was no reason to believe he might escape if not apprehended, and
the entry was not made in the daytime.
See Commonwealth v. Pietrass, 392 Mass. at 898‑900, 467 N.E.2d
1368. An additional, minor factor
sometimes considered in the calculus of police reasonableness, whether the
entry was peaceable, id. at 898‑899,
467 N.E.2d 1368, existed here but does not appear to have independent
significance or ever to have played a vital part in any adjudicated exigency
determination.
FN18.
While we "regret ... the waste of time and resources invested in the
trial, as well as ... the delay in reaching a final disposition of the
charges," Commonwealth v. Marini, 375 Mass. at 522, 378 N.E.2d 51, that will
necessarily result from our decision, it is the price our society has agreed to
pay in order to put privacy and the integrity of the home beyond the reach of
unwarranted police intrusions. The
community that fails to insist on scrupulous observance of high standards by
its police and prosecutors has lost track of its fundamental purposes, and
courts that approve well‑meaning but unconstitutional conduct by law
enforcement officers, even in the case of undoubtedly guilty defendants, deal
the administration of justice and the integrity of the legal process a greater
blow than when they permit a particular criminal to delay, or sometimes even
wholly to escape, due punishment by insisting on an untainted, constitutionally
correct trial. See Mapp v. Ohio, 367 U.S. at 658‑659,
81 S.Ct. at 1693‑1694; Olmstead v. United States,
277 U.S. 438, 470, 485, 48 S.Ct. 564, 575, 575, 72 L.Ed. 944 (1928) (Holmes and Brandeis dissenting);
Commonwealth v. Kimball, 37 Mass.App.Ct.
604, 608‑609, 641 N.E.2d 1066 (1994).