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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. Sondrini, 48 Mass.App.Ct.
704 (2000)
Appeals Court of Massachusetts,
No. 98‑P‑1396.
Argued
Decided
Jennifer R. DeFeo,
Joseph A. Pieropan,
Assistant District Attorney, for the Commonwealth.
Present:
GREENBERG, KAPLAN, & RAPOZA, JJ.
KAPLAN, J.
The
defendant appeals from his conviction of manufacturing, distributing, or
dispensing a class D substance, marijuana, in violation of G.L.
c. 94C, § 32C(a). The conviction will be reversed because the
District Court judge erred in failing to suppress the material evidence that
was obtained by means of an unlawful warrantless
search.
We
follow the judge's findings of fact, adding a few unexceptional circumstances
drawn from the hearing on the suppression motion. On the morning of
Chague climbed the fire escape, followed by Therrien. They
looked into a room visible through the open window. The dogs were not there but their barking
continued.
At
this point Chague noticed a "bong" (a pipe‑like
apparatus used to smoke marijuana) on a table in the room. He pointed this out to Therrien. Thereupon Therrien
called the police station and asked for a detective or superior officer to
attend. Meanwhile Chague
and Therrien remained out on the fire escape.
No
detective was available but Sergeant Case made the trip to the scene. Now Sergeant Case, Chague,
and Therrien, in that order (with firefighters
evidently to follow) entered the room through the window. The room is described as
"spare." There were doors
(closed) on either side of a corner of the room, the one on the left smaller
than the other. (FN1) Sergeant Case opened the smaller door, revealing
a closet in which there was an "aquarium" of several marijuana plants
with overhanging heat lamps. Case called
for detective help, it seems from the drug unit. He opened the second door. The dogs were loitering in the hallway off
that door and proved friendly, as had been foretold.
Detective
Joseph Collias, responding to Case's call, took
pictures of the closet and removed the contents.
A
puncture in a waterbed was responsible for the ceiling leak.
No
warrant for the search was applied for or issued. Nor was the defendant Sondrini,
the second‑floor resident, informed of the trouble until he returned home
after his workday.
[1]
1. The motion judge explained his decision simply by quoting the last sentence
of the paragraph in the majority opinion in
Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (5‑4 decision),
(FN2) [48 Mass.App.Ct.
706] that reads as follows:
"Because of the extensive regulation
of motor vehicles and traffic, and also because of the frequency with which a
vehicle can become disabled or involved in an accident on public highways, the
extent of police‑citizen contact involving automobiles will be
substantially greater than police‑citizen contact in a home or
office. Some such contacts will occur
because the officer may believe the operator has violated a criminal statute,
but many more will not be of that nature. Local police officers, unlike federal
officers, frequently investigate vehicle accidents in which there is no claim
of criminal liability and engage in what, for want of a better term, may be
described as community caretaking functions, totally divorced from the
detection, investigation, or acquisition of evidence relating to the violation
of a criminal statute" (emphasis supplied).
We
surmise that the judge reached his conclusion, ostensibly within the Cady formulation, by conceiving that
the police were carrying out a "community caretaking function"
(assisting in the pursuit of the ceiling leak) in the course of which they
happened, accidentally and guilelessly, upon evidence of a crime (marijuana
culture). Indeed, the Commonwealth
propounds such a scenario. This, however, is a misinterpretation of the
facts calculated to evade the standard of the Fourth Amendment to the United
States Constitution which this appellate court is bound to guard and
apply. See Commonwealth v. Alvarado, 420 Mass. 542, 544, 651 N.E.2d 824
(1995);
Commonwealth v. Ramos, 430 Mass. 545, 546, 721 N.E.2d 923
(2000). The police activity at the very
beginning of the episode may as well be viewed as community caretaking. (FN3)
When, however, Officer Therrien sighted the
bong, he regarded [48 Mass.App.Ct. 707]
himself immediately as involved in "the detection, investigation, or
acquisition of evidence relating to the violation of a criminal statute"
(to return to the passage from Cady),
whence followed the call answered by Sergeant Case and so on to a warrantless search that disclosed the drug. Here the police erred. Finding the dogs and the source of the ceiling
leak and curing it could be left to the animal control officer and the
firefighters; to validate the search for
the drugs, the police must apply for and secure a search warrant. (FN4)
To revert again to the Cady
text, here the community caretaking, such as it was, was surely not "totally divorced from the
detection," etc., and thus any privilege inherent in the mere caretaking
was later lost. (FN5)
[2]
2. The Commonwealth departs from the position taken by the motion judge to try
to invoke an "emergency" or "exigency" exception to
legitimate the action of the police. The
facts would not support an "emergency" characterization as that term
is defined for the purpose by the Constitution and the cases, see Commonwealth v. Bates, 28 Mass.App.Ct. 217, 219‑220, 548 N.E.2d 889
(1990): the ceiling leak evidently was
not a miniature Niagara; the actors were
not stirred to make an immediate entry but marked time awaiting reinforcements,
the interval lasting, we are told, not less than an hour. But if this could be called an emergency, it
might legitimate an initial entry, but not the search, as shown supra, point 1.
[3]
We conclude by recalling that warrantless searches
are presumptively illegal, and further:
"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, 19 L.Ed.2d 576] (1967), [48 Mass.App.Ct.
708] and exceptional, G.M. Leasing
Corp. v. United States, 429 U.S. 338, 352‑353, 358[, 97 S.Ct. 619, 50 L.Ed.2d 530] (1977). The Supreme Court of the United States has
also observed that the few
exceptions are 'jealously and carefully drawn,' Jones v. United States, 357 U.S. 493, 499[, 78 S.Ct.
1253, 2 L.Ed.2d 1514] (1958), and that the government's 'heavy burden' in such
cases, Welsh v. Wisconsin, 466
U.S. [740,] 749‑750[, 104 S.Ct. 2091 , 80 L.Ed.2d 732] [1984], 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, 93 L.Ed.
153] (1948)."
Commonwealth
v. DiGeronimo, 38 Mass.App.Ct.
714, 721, 652 N.E.2d 148 (1995).
As the evidence at the bench trial that
followed the suppression hearing consisted only of the evidence at the hearing,
the finding of guilt is set aside, the judgment is reversed, and judgment is to
enter for the defendant.
So
ordered.
(FN1.) The defendant testified that the
smaller door could be recognized from the outside as a closet door.
(FN2.)
Cady involved a vehicle not in custody or on the premises of the owner that
had been taken into lawful custody of police officers; they opened and searched the trunk, believed
to contain a gun and vulnerable to intrusion by vandals. Id. at 447‑448, 93 S.Ct. 2523, 37 L.Ed.2d 706.
(FN3.) There was occasion to discuss the
community caretaking "exception" in Commonwealth v. Leonard, 422 Mass. 504, 506‑509, 663 N.E.2d
828, cert. denied, 519 U.S. 877, 117 S.Ct. 199, 136
L.Ed.2d 135 (1996), and Commonwealth v. Canavan, 40 Mass.App.Ct. 642,
645‑647, 667 N.E.2d 264 (1996).
See United States v. Rodriguez‑Morales,
929 F.2d 780, 784‑787 (1st Cir.1991), cert. denied, 502 U.S. 1030, 112 S.Ct. 868, 116 L.Ed.2d 774 (1992). For purposes of the present case we assume
for the benefit of the Commonwealth that the caretaking, so‑called, can
extend to entrance into a residence, although there is some opinion that its
field of operation is the situations of diminished expectations of privacy,
such as intrusion into automobiles. See United States v. Pichany,
687 F.2d 204, 209 (7th Cir.1982); United States v. Erickson, 991 F.2d 529,
532‑533 (9th Cir.1993), and note the reference to motor vehicles in the
paragraph from Cady quoted in our
text above.
(FN4.) We reserve a doubt whether observing
the presence of the bong would furnish probable cause for the issuance of a
warrant for search of the premises. But
if it would supply probable cause, the police were still required to seek a
warrant, for it is not shown that dissipation of any evidence in the time
involved was threatened or could not be guarded against. See
Commonwealth v. DiGeronimo, 38 Mass.App.Ct. 714, 725‑726, 652 N.E.2d 148 (1995).
(FN5.) Compare our cases on administrative
searches, where once police purposes shift from the original benign object to a
quest for evidence of crime, a warrant on probable cause has to be
obtained. See Commonwealth v. Frodyma, 386 Mass. 434,
445, 436 N.E.2d 925 (1982); Commonwealth v. Tremblay, 48 Mass.App.Ct. 454,
462, 722 N.E.2d 34 (2000).