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Commonwealth v. Kiser, 48 Mass.App.Ct.
647 (2000)
Appeals Court of Massachusetts, Worcester.
No. 98‑P‑1453.
Argued
Decided
Harry D. Quick, III, Assistant District Attorney,
for the Commonwealth.
Barry L. Pretzel, Worcester, for the defendant.
Present:
JACOBS, SMITH, & GREENBERG, JJ.
GREENBERG, J.
Before
trial on indictments charging trafficking in cocaine, possession of a
controlled substance in a school zone, assault and battery on a police officer,
and possession of [48 Mass.App.Ct. 648]
marijuana, the defendant raised a claim that police had unlawfully entered his
apartment and unlawfully seized items kept in his bedroom.
A Superior
Court judge held an evidentiary hearing on the defendant's motion to suppress
evidence of cocaine, marijuana, and assorted drug‑related paraphernalia
alleged to belong to the defendant and found "in plain view." Thereafter, the judge allowed the
defendant's motion to suppress and issued written findings of fact and rulings
of law in support of his decision. The
Commonwealth brings this interlocutory appeal pursuant to Mass.R.Crim.P.
15, 378
[1] 1. The propriety of the warrantless
entry. At the outset we are asked
to consider whether justification existed for warrantless
entry of the apartment itself. The
applicable principles have been much discussed.
The decisional law generally forbids police entry into a residence
without a warrant. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Commonwealth v. Forde, 367 Mass. 798, 806, 329 N.E.2d 717 (1975).
Commonwealth v. Derosia, 402 Mass. 284,
286, 522 N.E.2d 408, cert. denied, 488 U.S. 980, 109 S.Ct.
528, 102 L.Ed.2d 560 (1988). See Commonwealth v. Huffman, 385 Mass. 122,
124, 430 N.E.2d 1190 (1982); Commonwealth v. Acosta, 416 Mass. 279,
281‑282, 627 N.E.2d 466 (1993) (relying on Payton to justify entry to arrest under Fourth Amendment to United
States Constitution but not passing on whether art. 14 of Declaration of Rights
of Massachusetts Constitution requires more in view of exigent circumstances).
[2] Where
the police have entered a residence without a warrant, the government bears the
burden of showing that the officers' conduct fell within the narrow, jealously
guarded exceptions to the general rule. Commonwealth v. Forde,
367 Mass. at 800, 329 N.E.2d 717. Commonwealth v. DiGeronimo,
38 Mass.App.Ct. 714, 721‑722, 652 N.E.2d 148
(1995).
[3][4][5]
One such exception is where police are confronted with an emergency situation
which, at the time they commenced their warrantless
search, made it impracticable for them to get a warrant. Commonwealth v. Paniaqua, 413 Mass. 796, 797‑799, 604 N.E.2d 1278
(1992).
Commonwealth v. Lopez, 38 Mass.App.Ct.
748,
749, 652 N.E.2d 619 (1995).
Logically, the question whether exigent circumstances exist depends upon
an evaluation of all the circumstances as they appeared to the police at the
time. See Commonwealth v. Collazo, 34 Mass.App.Ct. 79, 83‑84, 607 N.E.2d 418 (1993). Compare
Com monwealth v. Wigfall, 32 Mass.App.Ct.
582, 586‑588, 595 N.E.2d 327 (1992). [48 Mass.App.Ct.
649] In United States v. Cresta, 825 F.2d 538
(1st Cir.1987), cert. denied sub nom.
Impemba v. United States, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d
618 (1988), the court explained the assessment which courts should make in
determining whether "exigent circumstances" exist which authorize
police to make a warrantless entry into a
dwelling. The court stated that the test
"is whether there is such a compelling necessity for immediate action as
will not brook the delay of obtaining a warrant." Id. at
553, quoting from United States v. Adams, 621 F.2d 41, 44 (1st Cir.1980).
See Commonwealth v. Sergienko, 399 Mass. 291, 503 N.E.2d 1282 (1987);
Commonwealth v. Amaral, 16 Mass.App.Ct. 230, 235, 450 N.E.2d 656
(1983). Thus the standards as to
exigency are strict and the burden of showing it is on the government. Vale v. Louisiana, 399 U.S. 30, 34‑35, 90 S.Ct. 1969, 26
L.Ed.2d 409 (1970). Commonwealth v.
Hall, 366 Mass. 790, 801‑803, 323
N.E.2d 319 (1975). Commonwealth v. Forde, 367 Mass. at
800‑801, 329 N.E.2d 717.
We now
apply these principles to the facts found by the motion judge in the case at
hand when he acted on the suppression motion.
See Commonwealth v. Moon, 380
Mass. 751, 755‑756, 405 N.E.2d 947 (1980).
[6]
Sometime after 3:00 A.M. on October 24, 1996, four police officers returning to
their cars from another call were approached by a woman complaining about a
noisy party up the street. The officers
walked toward the building she had indicated and heard loud music coming from
the third floor. They went upstairs and
knocked. The defendant answered the
door, standing on the threshold "neither in the apartment nor in the
hallway." The officers recognized
him as a member of a local gang that had a reputation for narcotics and weapons
violations. One of the officers asked
the defendant to turn the music down, and he responded "yeah,
okay." Just then, an unidentified
male ran from one side of the room to the other, out of the officer's line of
sight. The officer moved forward to get
a better view into the room. The
defendant pushed the officer back, "although not off his feet or backward
any appreciable distance," and tried to close the door. The officers then forcibly pushed the door
open and entered, out of a stated concern for their safety. The officers told everyone who did not live
there to leave and ordered those remaining to put their hands on a nearby pool
table. The defendant did not leave, and
the police asked him for his identification.
At first he refused, but then he said it was in his room and asked
whether he could retrieve it. Two
officers accompanied[48 Mass.App.Ct. 650] him into the room. When they saw contraband on top of his
dresser in plain view, they placed the defendant under arrest.
[7][8][9]
The government claims no warrant was required because the loud music was a breach
of the peace, and the police entered under the authority of G.L.
c. 41, § 98. (FN1) The judge rejected that contention and ruled
that loud‑sounding music was not the sort of riotous behavior that
justified entry under the statute. We
agree with the judge that if any statute permits a warrantless
entry, its application must meet constitutional safeguards. While the Legislature may expand the
authority of police to make warrantless arrests for
certain misdemeanors, it may do so only if minimum standards set out by the
Supreme Court are met. See, e.g., Sibron v. New
York, 392 U.S. 40, 61, 88 S.Ct. 1889, 20 L.Ed.2d
917 (1968); Commonwealth v. Jacobsen, 419 Mass. 269,
272 n. 3, 644 N.E.2d 213 (1995).
Likewise,
in Payton v. New York, 445 U.S. 573, 100
S.Ct. 1371, 63 L.Ed.2d 639 (1980), the police relied
upon a statute authorizing them to enter homes without warrants to make felony
arrests. The crimes at issue were
felonies, i.e., murder and armed robbery. Id. at 576, 578, 100 S.Ct.
1371. The Supreme Court in that case
concluded that statutory authority notwithstanding, "the Fourth Amendment
has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold
may not reasonably be crossed without a warrant." Id. at 590, 100 S.Ct. 1371. See Commonwealth v. Midi, 46 Mass.App.Ct. 591, 594, 708 N.E.2d 124 (1999), quoting from Commonwealth v. Forde,
367 Mass. at 805, 329 N.E.2d 717 ("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"). If a statutory, warrantless arrest for murder requires exigent
circumstances to be constitutional, surely a statutory, warrantless
entry to suppress loud music requires the same.
[10] Commonwealth v. DiSanto,
8 Mass.App.Ct. 694, 700, 397 N.E.2d 672 (1979), cert.
denied, 449 U.S. 855, 101 S.Ct. 150, 66 L.Ed.2d 68
(1980), enunciated several factors to [48
Mass.App.Ct. 651]
consider in determining exigency and the reasonableness of the intrusion: "(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." These criteria clearly do
not support any sort of exigency which would justify bursting into the
defendant's apartment to suppress the loud music he had just agreed to turn
down. Whatever intimidating‑‑and
hence compelling circumstances‑‑the police may have to dispense
with the warrant requirement to enter a dwelling, the judge could find, as he
did, that this was not the case here.
The judge found that the loud music did not amount to a breach of the
peace as contemplated by the statute. As
the Supreme Court put it, "it is difficult to conceive of a warrantless home arrest that would not be unreasonable
under the Fourth Amendment when the underlying offense is extremely
minor." Welsh v. Wisconsin, 466 U.S. 740, 753,
104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). Playing music‑‑even so loudly
that it disturbs the neighbors‑‑is an extremely minor offense.
It is true
that two earlier Massachusetts cases decided in the late nineteenth century
upheld an officer's right to enter a home without a warrant to quell a breach
of the peace, but the noise that precipitated the officers' entries in those
cases was that of violent fighting, with the attendant fear that someone inside
was in physical danger. See Commonwealth v. Tobin, 108 Mass. 426,
426‑427 (1871); Ford v. Breen, 173 Mass. 52, 52‑53,
53 N.E. 136 (1899). The exigency there
is clear, and police intrusion in such circumstances is reasonable. See
Commonwealth v. Forde, 367 Mass. at 804, 329
N.E.2d 717 (stating that brandishing a gun and threatening to kill everyone in
the building is "a classic example of the type of emergency which always excuses
the failure to obtain a warrant"); Commonwealth v. DiGeronimo,
38 Mass.App.Ct. at 722‑723, 652 N.E.2d
148. Nothing of the sort happened in
the instant case. When the police asked
the defendant to turn down the stereo, he replied, "yeah, okay." This situation does not involve the degree [48 Mass.App.Ct.
652] of exigency needed to bypass
the Fourth Amendment's warrant requirement.
(FN2)
[11][12][13]
2. Arrest for assault and battery as
justification for the entry. The
government also claims that the defendant's assault and battery on a police
officer (FN3) justified the officers' failure to obtain an arrest warrant
before going inside the apartment. This
claim fails for two reasons. First,
police officers in the Commonwealth may arrest without a warrant for a
misdemeanor if the misdemeanor (1) involves a breach of the peace; (2) is committed in their presence; and (3) is continuing at the time of the
arrest, "so that the offence and the arrest form parts of one
transaction." Commonwealth v. Jacobsen, 419 Mass. at
272, 644 N.E.2d 213, quoting from
Commonwealth v. Howe, 405 Mass. 332, 334, 540 N.E.2d 677 (1989). Here, the assault and battery occurred when
the defendant pushed the officer back. The
defendant tried to close the door to his apartment, but the officers forced
their way in. They did not arrest him at
that point, but instead dispersed the party.
As indicated earlier, when all of the guests left, they still did not
arrest the defendant, but instead asked him for identification. They followed him into another room while he
got it. There they saw contraband, and
only then did they arrest him. The
assault and battery was completed long before the arrest took place, and it is
clear the two events did not form parts of one transaction. Contrast
Commonwealth v. Howe, 405 Mass. 332, 540 N.E.2d 677 (1989) (warrantless arrest permissible where defendant's driving
under the influence of alcohol in officers' presence continued until they [48 Mass.App.Ct.
653] stopped the vehicle, and the
only intervening event between the stop and his arrest was administration of a
sobriety test).
[14]
Second, as discussed with regard to the breach of the peace claim, it is per se
unreasonable for officers to cross a threshold to effect a warrantless
arrest absent exigency. Other than the
defendant's presence in the apartment, none of the factors discussed in Commonwealth v. DiSanto,
8 Mass.App.Ct. at 700, 397 N.E.2d 672, concerning
exigency and the compelling need to go inside, were present.
After the
police asked the occupants of the apartment to turn down the music, there was
no reason to arrest them. Contrast Commonwealth v. Mullins, 31 Mass.App.Ct. at 954, 582 N.E.2d 562 (police responding to
neighbors' second call found defendant at window shouting obscenities). While it is true that the police knew of the
defendant's membership in a gang, this cannot justify the intrusion. See
Commonwealth v. Amaral, 13 Mass.App.Ct. 238, 241, 431 N.E.2d 941 (1982);
Commonwealth v. Avery, 44 Mass.App.Ct.
781, 783, 694 N.E.2d 40 (1998).
There was
ample time to obtain a warrant to arrest the defendant for assault and
battery. It is a stretch to characterize
the defendant's conduct as violent. Even
the officer who was pushed testified that the defendant was trying to keep him
from looking into the apartment, not that the defendant was attacking him. His perception is bolstered by the fact that
the defendant immediately attempted to close his door. Nothing in the record before the motion judge
indicates the defendant was armed or otherwise dangerous. As the motion judge found, "the police
knew who the defendant was and easily could have posted watch on the
apartment's entrances until a warrant could be obtained, or the police could
have simply applied for a criminal complaint.
Additionally, the police had no concerns regarding the dissipation of
evanescent evidence." See Commonwealth v. Hamilton, 24 Mass.App.Ct. 290, 294, 508 N.E.2d 870 (1987).
Order allowing the motion to suppress
affirmed.
(FN1.) Police officers "shall suppress
and prevent all disturbances and disorder....
They may examine all persons abroad whom they have reason to suspect of
unlawful design, and may demand of them their business abroad and whither they
are going; may disperse any assembly of
three or more persons, and may enter any
building to suppress a riot or breach of peace therein. Persons so suspected who do not give a
satisfactory account of themselves, persons so assembled and who do not
disperse when so ordered, and persons
making, aiding and abetting in a riot or disturbance may be arrested by the
police ...." G.L. c. 41, § 98.
(Emphasis added.)
(FN2.)
On closer facts, Commonwealth v. Mullins,
31 Mass.App.Ct. 954, 582 N.E.2d 562 (1991), involved
an entry and arrest for breach of the peace by reason of loud music. The motion judge was correct to distinguish Mullins, however. The issue there was an ineffective assistance
of counsel claim for failure to argue the illegality of the police entry. The court determined that the defendant was
not deprived of a substantial ground of defense where there was evidence at
trial that the officers had permission to enter, and that even if the arrest
had been ruled illegal and its fruits suppressed, the defendant likely would
have been convicted of breaching the peace with the untainted evidence. Id.
at 954‑955, 582 N.E.2d 562. While
the court there also referred to G.L. c. 41, § 98, it
is clear the case was not decided on that ground. See Old
Colony Trust Co. v. Commissioner of Corps. and Taxn.,
346 Mass. 667, 676, 195 N.E.2d 332 (1964).
(FN3.)
We assume without deciding that the defendant's action was unjustified, and
therefore an assault and battery. If the
officer was attempting to enter the defendant's apartment illegally, however,
the defendant was entitled to use reasonable force to protect himself and his
property from the intrusion. See Commonwealth v. Wright, 158 Mass. 149,
158‑159, 33 N.E. 82 (1893).