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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.
Appeals Court of Massachusetts,
Middlesex.
Argued
Decided
Further Appellate Review Denied
Edward L. Toro, Asst. Dist. Atty., for the Com.
Richard Zorza, Committee
for Public Counsel Services, for defendant.
GREANEY, C.J.,
and CUTTER, and KASS, JJ.
GREANEY, Chief Justice.
A judge of
the Superior Court allowed a motion to suppress drugs and drug‑related
items and paraphernalia seized in a warrantless
search by the
The judge
found the following facts. At
approximately
The three
officers went to the motel office and asked the night clerk to identify the
occupant or occupants of room 214. The
clerk responded that the room was registered to Sandra Hamilton. The clerk also reported that he had observed
a male in the room and that the telephone had been "driving him
crazy" throughout the night.
The
officers went up the back stairway and positioned themselves where they could
observe the exterior of room 214 as well as the other rooms off both sides of
the hallway. Shortly thereafter, they
saw a man, later identified as Michael Cronin, leave the room. Cronin walked unsteadily and appeared glassy‑eyed. The officers concluded that he was under the
influence of alcohol, drugs, or both.
Bleeding puncture marks were observed in Cronin's left arm. Based on their collective experience, the
officers concluded that the marks had been caused by needles. (FN2)
Cronin was placed in protective custody.
[24 Mass.App.Ct.
292] Sergeant Ceranna
knocked on the door to room 214 and announced that the police were there. After a delay and a second knock, the door
was opened by the defendant. (FN3) The officers could see the interior of the
motel room. On one bed they saw a small
child. On an adjacent night stand, they
observed a scale, which they recognized as an implement likely to be used in
processing and selling illegal drugs, and a white powder, which they thought
was either cocaine or heroin. The
defendant was arrested and the room searched.
Packages appearing to contain drugs and other drug‑related
paraphernalia were seized. In an
inventory search during the booking procedure, $481 was taken from the
defendant. (FN4)
The judge
ruled that the police had probable cause to believe that narcotics and other
illegal items were present in the room but that no exigent circumstances
existed to excuse the lack of a warrant.
(FN5) Relying principally on the
reasoning in Commonwealth v. Huffman,
385 Mass. 122, 430 N.E.2d 1190 (1982), the judge ordered suppressed the drug
items and paraphernalia seized by the police.
[1] We
need not decide whether the police had probable cause because, even assuming
that they did, we agree with the judge [24
Mass.App.Ct. 293]
that the Commonwealth has not shown the existence of exigent circumstances
which would excuse the failure of the police to obtain a warrant. "Under the exemption for exigent
circumstances, there must be a showing that it was impracticable for the police
to obtain a warrant, and the standards as to exigency are strict."
Commonwealth v. Forde, 367 Mass. 798, 800,
329 N.E.2d 717 (1975). The Commonwealth
bears the burden of establishing the existence of exigent circumstances.
Commonwealth v. Hall, 366 Mass. 790, 801‑802, 323 N.E.2d 319
(1975).
Commonwealth v. Donoghue, 23 Mass.App.Ct. 103, 108, 499 N.E.2d 832 (1986). Each case turns on an analysis of its own
facts, but certain considerations have generally emerged as guidelines for
resolution of the question. (FN6)
[2] The
judge's findings that there was no indication that the defendant was armed,
that he might flee, or that he was aware (until the police knocked on the door)
of the officers' presence in the hallway are warranted by the evidence. See
Commonwealth v. Huffman, 385 Mass. at 125, 430 N.E.2d 1190. The crime was not one of violence, and it
was not shown that there were possible risks to the safety of other residents
of the motel if the officers should fail to act immediately. Indeed, the possibility of violence in the
motel was no greater than that inherent in the surveillance which had taken
place and the subsequent knock and entry by the police.
The judge
also reasonably found that "there [was] no suggestion that [the defendant]
had any reason to destroy the contraband." We consider speculative the Commonwealth's
suggestion that any drugs or drug‑related paraphernalia inside the [24 Mass.App.Ct.
294] room might have been destroyed
after Cronin had received his injection.
There is nothing to show that the defendant was aware of the police
presence in the hallway. The suggestion
falls short of the specific evidence of imminent destruction necessary to
satisfy the exception to the warrant requirement for evidence that is about to
be destroyed. See Commonwealth v. Huffman, 385 Mass. at 125‑126, 430 N.E.2d
1190. See also Commonwealth v. Forde, 367 Mass. at 801,
329 N.E.2d 717 (overheard telephone conversation in which accomplice attempted
to warn search targets). Compare United States v. Davis, 461 F.2d 1026,
1031 (3d Cir.1972) (warning by informant to hurry).
Nothing
was proved to show that there would have been any unusual difficulty in
preventing access to the premises while a warrant was obtained, and there was
no evidence that it would have been impractical to obtain a nighttime
warrant. (FN7) On the facts found by the judge, it appears
that the three officers located in the corridor could have kept watch while a
warrant was sought. If something unusual
occurred in the interim, it might have provided an exigency justifying
immediate entry.
The
Commonwealth argues that the police were entitled to seize the drugs and other
materials because, once the door was opened, they were able to see some likely
contraband from the hallway, where they had a right to be. In the Commonwealth's opinion, "[t]he
discovery and seizure of the drugs and paraphernalia ... fall within the 'plain
view' doctrine and should not be suppressed." The Commonwealth does not contend that the
defendant consented to the entry, a point apparently abandoned because it was
not raised below and, as a result, was not considered by the judge.
[3] The
difficulty with the argument lies in the facts that the police lacked exigent
circumstances and failed to demonstrate
[24 Mass.App.Ct. 295] consent for the search or the seizure. As was recognized by the judge, these factors
subject the case to the reasoning of the
Huffman decision, where the police also had plain view of suspected
contraband but lacked exigent circumstances or consent to enter. (FN8)
In Huffman, it was held
that "in the absence of exigent circumstances, [the] police officers could
not enter Huffman's home without a warrant," 385 Mass. at 124, 430 N.E.2d
1190, even though they had first‑hand knowledge that a crime was probably
there still in progress. On the facts
found by the judge, the same result follows in this case. In circumstances where they were required to
seek a warrant, they ignored the warrant requirement and proceeded to create
their own exigency. Cf. Commonwealth v. Forde,
367 Mass. at 802, 329 N.E.2d 717.
Compare Commonwealth v. Boswell,
374 Mass. 263, 270, 372 N.E.2d 237 (1978).
What has
been said disposes of the contentions as to the items that were seized from the
motel room which were the subject of the judge's order on the motion to
suppress. The police later seized $481
from the defendant in the course of an inventory search during the booking
procedure at the police station. The
judge did not rule on that seizure, which was not expressly covered by the
motion to suppress. It is obvious that
the money must also be suppressed as the "fruit of the poisonous
tree."
The order
suppressing the items described in the attachment to the motion to suppress is
expanded to include the $481 taken from the defendant during the booking
procedure at the police station. As so
expanded the order is affirmed.
So ordered.
(FN1.) The police report on the incident sets
forth the telephone conversation as follows:
"Received
a call: 'Take this for what it's worth. Two assholes are dealing drugs and all kinds
of shit out of the Embassy Motel, Room 214.
They took my brother for all kinds of money.' "
(FN2.) Officer Brown testified that he had had
experience and training in narcotics investigation and had observed persons who
had "injected themselves with needles." Brown believed that Cronin "had just
used a needle."
Officer
Cooper, who had worked at a Malden hospital for eight years and who "was
familiar with intravenous injections, medication and such drugs," was more
specific: he testified that
"[Cronin] had recently received an injection; and, without applying direct pressure, it was
a subcutaneous blood blister which was oozing some blood.... There was a small trickle of blood running
down the arm from the crook of the elbow."
(FN3.) All three officers testified that
Sergeant Ceranna knocked at the door and announced,
in response to an inquiry from within the room asking who was there, that the
Malden police were seeking entry. After
the lapse of about a minute, Ceranna knocked again,
and, in response to the same question, stated that the Malden police were
outside. The defendant then opened the
door.
(FN4.) It was later discovered that Sandra
Hamilton, the defendant's sister, and her young child had been expelled from
their home. As a result, she had
obtained room 214 at the motel with funds from a housing allowance furnished by
the Department of Public Welfare. The defendant
had been living with her for three to four days prior to his arrest on February
27, 1985.
(FN5.) The judge also ruled that the defendant
had standing to challenge the search of the motel room and the seizure of the
items within. The Commonwealth does not
contest that ruling. Of course, a motel
room is an area protected by the Fourth Amendment. See Smith, Criminal Practice and Procedure §
159 n. 5 (2d ed. 1983).
(FN6.) In
Commonwealth v. DiSanto, 8 Mass.App.Ct.
694, 700, 397 N.E.2d 672 (1979), we characterized the considerations as a
"pragmatic check list of factors" and identified them as follows:
"For
present purposes the factors on that list may be enumerated as follows: (1) the crime in question was one of violence
and the suspect had been reported to be armed and dangerous; (2) probable cause to believe that the
suspect has committed a felony and strong reason to believe the suspect is in
the particular dwelling; (3) the entry
has been made peaceably (preferably in the daytime); (4) a likelihood that the delay attendant
upon securing a warrant would facilitate the destruction of evidence or
property; (5) a likelihood that the
suspect would escape if not promptly apprehended; and (6) some showing of a reasonable basis
for believing that delay would subject the officers or others to physical
harm...."
(FN7.) It was not shown that other officers
could not have been located to transport Cronin from the scene. Indeed, there was evidence that several other
officers arrived during the search.
We
also reject as speculative on this record the Commonwealth's contention that it
is harder to guard a door to a motel room than an apartment in a multi‑family
building. There is nothing to show that
this room had more than the exit to the hallway which was being carefully
monitored by the police.
(FN8.) In
Huffman the police observed Huffman's third floor apartment from the third
floor of a nearby factory building.
Through a window in Huffman's apartment, which had no curtain or shade,
the police saw Huffman and two other men packaging an herb which the police
believed was marihauna. The police entered Huffman's apartment
building through an open front door and an unlocked hallway door and went to
the third floor. There, they were able
to look through the partially open door of Huffman's apartment from which
emanated a strong order of marihuana.
Through the open door, the police saw one of the men still bagging the
herb. The police entered, seized the
herb and other materials, and arrested Huffman.
See 385 Mass. at 123‑124, 430 N.E.2d 1190.