Commonwealth v. Suters , 90 Mass. App. Ct. 449 ( 2016 )

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15-P-622 Appeals Court
15-P-623
15-P-624
COMMONWEALTH vs. MONIQUE L. SUTERS (and two companion cases1).
Nos. 15-P-622, 15-P-623, & 15-P-624.
Berkshire. May 9, 2016. - October 7, 2016.
Present: Agnes, Massing, & Kinder, JJ.
Search and Seizure, Probable cause, Fruits of illegal search,
Consent, Emergency. Evidence, Result of illegal search.
Constitutional Law, Search and seizure, Probable cause.
Probable Cause.
Complaints received and sworn to in the Northern Berkshire
Division of the District Court Department on January 10 and June
12, 2014.
Pretrial motions to suppress evidence were heard by Michael
J. Ripps, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Francis X. Spina, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by him to the Appeals Court.
Joseph A. Pieropan, Assistant District Attorney, for the
Commonwealth.
1
Commonwealth vs. Whitney L. Suters and Commonwealth vs.
Makenzie L. Suters.
2
James F. Petersen for the defendants.
AGNES, J. In this case we consider the applicability of
the attenuation exception to the exclusionary rule. Under this
exception, evidence that would not have been obtained by the
police but for an unlawful search or seizure is nonetheless
admissible because the connection between the unlawful police
conduct and the evidence seized is separated by an independent
act by the defendant that is sufficient to dissipate the taint
of the initial unlawful search or seizure. See Commonwealth v.
Martin, 457 Mass. 14, 22-23 (2010).2
2
"The suppression of evidence under the exclusionary rule
is a 'judicially created remedy,' whose 'prime purpose is to
deter future unlawful police conduct.'" Commonwealth v. Lora,
451 Mass. 425, 438 (2008), quoting from United States v.
Calandra, 414 U.S. 338, 347, 348 (1974). There are three
established exceptions to the exclusionary rule under both
Federal and State law. The attenuation exception is derived
from Wong Sun v. United States, 371 U.S. 471, 487-488 (1963),
where the Supreme Court observed that "[w]e need not hold that
all evidence is fruit of the poisonous tree simply because it
would not have come to light but for the illegal actions of the
police. Rather, the more apt question in such a case is
whether, granting establishment of the primary illegality, the
evidence to which instant objection is made has been come at by
exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint" (quotation
omitted). Another exception is the independent source doctrine,
whereby evidence obtained unlawfully is nonetheless admissible
if it is obtained later, independently and by lawful means that
are not tainted by the initial illegality. See, e.g.,
Commonwealth v. Cassino, 474 Mass. 85, 90 (2016); Commonwealth
v. Pearson, 90 Mass. App. Ct. 289, 291-294 (2016). Finally,
under the inevitable discovery exception, evidence obtained as a
result of an unlawful search or seizure will be admissible if
the Commonwealth establishes two things: (1) as a practical
3
The cases come to us by interlocutory appeals from the
allowance of the defendants' motions to suppress evidence of
unlawful amounts of raw marijuana and related paraphernalia
discovered in the basement of the defendants' home. For the
reasons that follow, we agree with the motion judge that the
initial entry by the police into the defendants' home without a
warrant was justified based on voluntary consent by an occupant,
as well as the emergency exception. We also conclude, contrary
to the judge's ruling below, that the police were justified in
entering a basement room, where a large quantity of marijuana
was observed, to effect the arrest of one of the defendants for
assault and battery on a police officer. Because the
exclusionary rule should not be applied in such circumstances,
we reverse.
Background. We summarize the facts as found by the motion
judge, supplemented with uncontroverted testimony from the
hearing on the motion to suppress, consistent with the judge's
findings. On January 4, 2014, the State police received a 911
matter, the discovery of the evidence was inevitable, and (2)
the police did not act in bad faith or with the intent to evade
constitutional requirements. See, e.g., Commonwealth v. Ubilez,
88 Mass. App. Ct. 814, 817-819 (2016). See generally Grasso &
McEvoy, Suppression Matters Under Massachusetts Law § 20-3
(2016). There are other circumstances in which a search or
seizure involves a violation of the law that is not of
sufficient magnitude to trigger the application of the
exclusionary rule. See Commonwealth v. Hernandez, 456 Mass.
528, 533 (2010). See generally Grasso & McEvoy, Suppression
Matters Under Massachusetts Law § 20-1.
4
telephone call from 38 East Quincy Street in North Adams, during
which a man and a woman were heard yelling about a water
problem, and then the call was disconnected. The State police
advised the North Adams police, and Officers David Lemieux and
Trevor Manning were dispatched to the house at around 11:30 P.M.
There the officers encountered defendant Monique Suters, who
expressed concern about the possibility of an electrical fire
and asked the officers to follow her adult son, defendant
Makenzie,3 into the basement to assist with turning off the
water. Inside the home, the officers observed water coming
through a ceiling fan in the kitchen. The officers radioed
dispatch to send the fire department and then descended into the
basement.
Immediately upon entering the basement, the officers
smelled "a strong odor of fresh marijuana." There was water
gathering in pools on the floor and coming down the walls.
While the police were looking for the water shut-off valve,
Monique's husband, defendant Whitney Suters, entered the
basement through a door from the outside. He identified
himself, apologized to the officers, and said he knew the
location of the shut-off valve. Whitney then walked past the
officers, opened a door into another room in the basement
3
Because all three defendants share a surname, we refer to
them by their first names to avoid confusion.
5
(second room), walked inside, and closed the door behind him.
Officer Manning directed Officer Lemieux to follow Whitney into
the second room because he "did not feel comfortable with
[Whitney] being in there by himself." Officer Lemieux opened
the door "about half way," and Whitney, from inside the second
room, pushed the door back into Lemieux. Officer Lemieux
grabbed Whitney, and then Officer Manning grabbed him as well.
A "minor scuffle ensued" and the three ended up inside the
second room. Whitney was brought to the floor and handcuffed.
The officers asked Whitney why he had become aggressive
with them, and he answered that he did not want them in his
house. It was not until this point that Officer Manning looked
up and saw a mason jar containing what he believed to be more
than one ounce of raw marijuana. The officers then arrested
Whitney for assault and battery on a police officer and called a
drug investigator, who applied for a search warrant. A
subsequent search of the basement yielded more marijuana and
related paraphernalia.
Whitney was charged five days later with assault and
battery on a police officer, two counts of possession with
intent to distribute a class D substance (marijuana), and
conspiracy to violate drug laws. About five months later,
Monique and Makenzie were charged with similar drug offenses.
All three defendants moved to suppress all of the marijuana on
6
the ground that the officers' warrantless entry into the second
room, where they initially found a criminal amount of marijuana,
was unlawful. After an evidentiary hearing, the motions were
allowed on the ground that the Commonwealth had failed to show
justification for entering the second room.
Discussion. On review of a "ruling on a motion to
suppress, we accept the judge's subsidiary findings of fact
absent clear error 'but conduct an independent review of his
ultimate findings and conclusions of law.'" Commonwealth v.
Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v.
Jimenez, 438 Mass. 213, 218 (2002).
Under the Fourth Amendment to the United States
Constitution and art. 14 of the Massachusetts Declaration of
Rights, the police are not authorized to enter a home unless
they act on the basis of (1) voluntary consent, see Commonwealth
v. Rogers, 444 Mass. 234, 236 (2005);4 (2) probable cause and
exigent circumstances, see, e.g., Commonwealth v. Jewett, 471
Mass. 624, 628-629 (2015); or (3) an objectively reasonable
belief that there is an injured person or a person in imminent
danger of physical harm inside the home who requires immediate
assistance. See, e.g., Commonwealth v. Entwistle, 463 Mass.
4
The Commonwealth has the burden to establish (1) that
consent was given, and (2) that it was voluntary, i.e.,
"unfettered by coercion, express or implied." Commonwealth v.
Harmond, 376 Mass. 557, 561 (1978), quoting from Commonwealth v.
Walker, 370 Mass. 548, 555, cert. denied, 429 U.S. 943 (1976).
7
205, 213 (2012). See also Commonwealth v. Duncan, 467 Mass.
746, 747 (2014) ("[I]n appropriate circumstances, animals, like
humans, should be afforded the protection of the emergency aid
exception").5
a. Initial entry into the home. There is no dispute in
this case whether the initial entry into the defendants' home by
the police was justified. "The question whether consent was
voluntary is a question of fact to be determined in the
circumstances of each case, with the burden of proof on the
government." Commonwealth v. Alleyne, 474 Mass. 771, 783
(2016), quoting from Commonwealth v. Carr, 458 Mass. 295, 302
(2010). The judge found that the police acted on the basis of
voluntary consent by a co-occupant (Monique). See Georgia v.
Randolph, 547 U.S. 103, 109 (2006); Commonwealth v. Rogers,
supra at 237. An occupant's consent is valid as against the
wishes of an absent, nonconsenting co-occupant. See United
5
The Commonwealth urges us to recognize a broader authority
on the part of the police to make warrantless entries into
homes, in the absence of probable cause or consent, when the
police are engaged in a community caretaking function.
Community caretaking functions include public service and public
safety activities performed by the police that are "totally
divorced from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal statute."
Commonwealth v. Evans, 436 Mass. 369, 372 (2002), quoting from
Cady v. Dombrowski, 413 U.S. 433, 441 (1973). This question was
left unanswered in Commonwealth v. Entwistle, 463 Mass. at 219
n.8. Because we rest the result in this case on the
inapplicability of the exclusionary rule, see infra, it is
unnecessary for us to resolve this question, and we decline to
do so.
8
States v. Matlock, 415 U.S. 164, 170 (1974) ("[T]he consent of
one who possesses common authority over premises or effects is
valid as against the absent, nonconsenting person with whom that
authority is shared").6 Moreover, Monique did not state or imply
by her conduct that her consent was in any way limited beyond
the obvious limitation that it was to enable the police to
assist her in turning off the water.
b. Entry into the second room in the basement. The
Commonwealth advances several arguments in support of its
contention that the police had the right to enter the second
room after Whitney arrived on the scene and closed the door upon
entering that room.7
1. Consent. The Commonwealth argues that Whitney's action
in closing the door behind him did not revoke or limit Monique's
earlier consent to enter the home to shut off the water valve,
6
This is not a case in which the police had any reason to
doubt Monique's authority to give them permission to enter the
home. Contrast Commonwealth v. Lopez, 458 Mass. 383, 395
(2010). See generally Commonwealth v. Santos, 465 Mass. 689,
695-696 (2013) (when police obtain consent to enter home from
someone they reasonably believe has actual authority, they are
not required to inquire further).
7
The Commonwealth does not argue that the odor of fresh
marijuana alone established probable cause to enter the second
room. See Commonwealth v. Locke, 89 Mass. App. Ct. 497, 498 n.3
(2016) ("The decisional law of the Supreme Judicial Court makes
clear that the description of the odor as 'strong' or 'very
strong' does not, without more, constitute reasonable suspicion
or probable cause to believe that more than one ounce of
marijuana is present in light of the subjective and variable
nature of the strength of smell").
9
and thus the police had a right to open the door and enter the
second room. The scope of any consent that is granted is
determined on the basis of an objective assessment of the facts.
See, e.g., Commonwealth v. Porter P., 456 Mass. 254, 267 (2010);
Commonwealth v. Lopez, 458 Mass. 383, 393 (2010). "Because a
finding of voluntariness is a question of fact, it should not be
reversed absent clear error by the judge." Commonwealth v.
Carr, supra at 303.
The general rule is that consent for the police to enter a
home or to conduct a search may be withdrawn or limited at any
time. See Commonwealth v. Stewart, 469 Mass. 257, 261-262
(2014), and cases cited. It is also settled that in the absence
of exigent circumstances, when one co-occupant with common
authority over the premises objects to the entry or continued
presence of a guest invited onto the premises by another co-
occupant or co-occupants, the authority of the other co-occupant
to consent is lost. Georgia v. Randolph, supra at 114 ("Since
the co-tenant wishing to open the door to a third party has no
recognized authority in law or social practice to prevail over a
present and objecting co-tenant, his disputed invitation,
without more, gives a police officer no better claim to
reasonableness in entering than the officer would have in the
absence of any consent at all").
10
It is not necessary that a co-occupant with common
authority over the premises, who objects to the entry or
continued presence of a third party such as a guest or a police
officer, state the objection orally. As the Supreme Judicial
Court has explained, "[w]hat, if any, limitations on the consent
are implied by the language or conduct of the consenting party
is a question in the first instance for the judgment of the
police officers to whom the consent is given. The ultimate
question is whether, in light of all the circumstances, a man of
reasonable caution would be warranted in the belief that some
limitation was intended by the consent giver." Commonwealth v.
Cantalupo, 380 Mass. 173, 178 (1980). See Burton v. United
States, 657 A.2d 741, 746–747 (D.C. 1994) ("[C]onduct
withdrawing consent must be an act clearly inconsistent with the
apparent consent to search, an unambiguous statement challenging
the officer's authority to conduct the search, or some
combination of both" [footnotes omitted]).
The evidence supports the judge's conclusion that when
Whitney suddenly entered the basement, informed the police and
others present that he knew where the shut-off valve was
located, and entered the second room closing the door behind
him, a reasonable person in the position of the police officers
would understand that any consent that may previously have been
11
given by Monique with respect to entry into the second room was
withdrawn.
2. Emergency aid exception. The Commonwealth argues in
the alternative that notwithstanding the withdrawal of consent,
the police were justified in opening the door to the second room
under the emergency aid exception. This doctrine authorizes the
police to lawfully enter a home without probable cause or a
warrant "to render emergency assistance to an injured occupant
or to protect an occupant from imminent injury." Brigham City
v. Stuart, 547 U.S. 398, 403 (2006), quoting from Mincy v.
Arizona, 437 U.S. 385, 392 (1978). See Commonwealth v.
Entwistle, 463 Mass. at 213. The Commonwealth argues that the
water leaking onto the pipes, walls, and exposed wiring created
a dangerous situation that, when viewed objectively, required
them to act to protect the defendants as well as themselves.
In order for the emergency aid exception to apply, the
emergency condition must be operative at the time the police
enter the home or building, see Commonwealth v. Kirschner, 67
Mass. App. Ct. 836, 841-842 (2006), and the police are
authorized to remain on the premises only as long as there are
objectively reasonable grounds for the belief that emergency
assistance is still required. See Commonwealth v. Peters, 453
12
Mass. 818, 825-826 (2009).8 "[T]he Commonwealth has the burden
of showing that authorities had a reasonable ground to believe
that an emergency existed and that the actions of the police
were reasonable in the circumstances." Commonwealth v. Knowles,
451 Mass. 91, 96 (2008). "In determining whether entry is
justified under the emergency aid exception, we look solely to
the objective circumstances known to the police at the time of
entry and determine whether those circumstances provide a
reasonable basis for the entry." Commonwealth v. Entwistle,
supra at 214. The officers' subjective motivation is not
relevant. See Michigan v. Fisher, 558 U.S. 45, 47 (2009).
We assume for purposes of this analysis that the conditions
at the time the police first entered the home constituted a
genuine emergency due to the risk of a fire or electrocution.9
The existence of a genuine emergency, judged by an objective
standard, however, is a necessary but not sufficient basis to
justify the seizure or observation of evidence of criminal
8
It should be noted that evidence of criminal activity that
is found in plain view during an emergency entry may be seized
by the police without a warrant under the plain view doctrine.
See Commonwealth v. Ringgard, 71 Mass. App. Ct. 197, 202-203
(2008).
9
In order for the police to enter a home under the
emergency aid exception, "[i]t suffices that there are
objectively reasonable grounds to believe that emergency aid
might be needed." Commonwealth v. Entwistle, 463 Mass. at 214.
The doctrine is not limited in its application to cases in which
the police are aware that someone has suffered a life-
threatening injury or that a crime has been committed. Ibid.
13
activity by the police as they move through a home or building.
Under the emergency aid exception, the police conduct must be
reasonable and limited in scope to the purpose of the
warrantless entry. Commonwealth v. Peters, supra at 823, 825.
For example, in the Entwistle decision, where the victim's
family and friends had not heard from her for two days, the
Supreme Judicial Court explained that a genuine emergency
justified the police making a warrantless entry into the
victim's home, and that it was reasonable for the police to
examine vehicle lease papers that were in plain view on the
kitchen table to learn the vehicle identification number of the
family automobile. Commonwealth v. Entwistle, supra at 216-217.
However, the court reasoned that the police exceeded the scope
of the emergency aid exception when they turned on a digital
camera to determine the dates of the most recent photographs
that were taken. Id. at 217.
In assessing whether the police exceeded their authority
under the emergency aid exception in this case, Commonwealth v.
Sondrini, 48 Mass. App. Ct. 704, 706-707 (2000), is instructive.
There, a neighbor called the fire department to report that
water was leaking into her apartment from upstairs. From a fire
escape outside the second-floor apartment, police officers who
had been called to the scene observed paraphernalia used for
smoking marijuana in plain view on a table. They then entered
14
the second-floor apartment. Although the police observed that
the leaking water was due to a puncture in a water bed, they
opened a closed door and found a closet containing a marijuana
growing operation. Id. at 705. Rejecting the Commonwealth's
argument that the police conduct was justified under the
emergency aid exception, this court noted that even if the
initial entry by the police was justified, their subsequent
conduct, which included a search for evidence of a crime, was
not. Id. at 707.
As it was unnecessary in Sondrini for the officers to open
the closet door, it was not necessary in the present case for
the police to open the door and follow defendant Whitney into
the second room to address the purpose of their original entry.
Whitney stated that he knew where the shut-off valve was located
and then immediately entered the second room and closed the
door. There was no indication that he was incapable of turning
off the water or needed assistance in doing so. Indeed, the
motion judge found that Officer Manning told Officer Lemieux to
follow Whitney into the second room only "to see if he needed
any assistance because he 'did not feel comfortable with him
being in there by himself.'" We conclude, therefore, that the
15
emergency aid exception did not justify the action taken by the
police in opening the door to the second room.10
c. Application of the exclusionary rule. The motion judge
ruled that in the absence of any justification for opening the
door to the second room, the exclusionary rule required the
suppression of the fruits of that unlawful police conduct,
namely the large mason jar filled with raw marijuana.11 The
judge also ruled that the suppression of this evidence did not
affect the prosecution of the defendant for the crime of assault
and battery on a police officer.12
10
The motion judge evaluated the actions taken by the
police under the rubric of the community caretaking function,
and reached essentially the same conclusion, namely that the
police failed to act reasonably when they opened the door to the
second room because there was no evidence that they feared for
their safety because of the leak, or that Whitney needed
assistance. As stated in note 5, supra, we decline to address
whether the community caretaking function authorizes a
warrantless entry into a residence without probable cause or
exigent circumstances.
11
Because the mason jar provided the probable cause for the
search warrant, the execution of which led to the discovery of
more marijuana and related paraphernalia in another room in the
basement, suppression of the mason jar would necessitate
suppression of all of the marijuana and paraphernalia discovered
after the search warrant was obtained. On the other hand, if
the mason jar and its contents were not subject to the
exclusionary rule, neither would be the rest of the marijuana
and paraphernalia.
12
The judge did not expressly address whether this case
falls within the exception to the exclusionary rule based on
attenuation of the taint. While raised by the Commonwealth
below only obliquely, we address the issue for several reasons.
First, the judge's ruling that his suppression order does not
affect the prosecution of the defendant for assaulting a police
16
In determining whether to apply the exclusionary rule to
suppress the fruits of an illegal search or seizure, we do not
apply a "but for" test. Commonwealth v. Lundrin, 87 Mass. App.
Ct. 823, 826-827 (2015). Rather, the question is "whether . . .
the evidence . . . has been come at by exploitation of [that]
illegality or instead by means sufficiently distinguishable to
be purged of the primary taint." Wong Sun v. United States, 371
U.S. 471, 488 (1963). "It is the Commonwealth's burden to
establish that the evidence it has obtained and intends to use
is sufficiently attenuated from the underlying illegality so as
to be purged from its taint." Commonwealth v. Damiano, 444
Mass. 444, 454 (2005).
The attenuation doctrine does not apply merely because the
defendant commits some voluntary act in response to an unlawful
search or seizure. See Commonwealth v. Borges, 395 Mass. 788,
795 (1985). We apply the three-part test developed in Brown v.
Illinois, 422 U.S. 590, 603-604 (1975), and consider the
following: "(1) the temporal proximity of the arrest to the
officer is impliedly based on the attenuation of the taint
doctrine. See Commonwealth v. Gomes, 59 Mass. App. Ct. 332, 337
(2003) ("Neither Fourth Amendment nor art. 14 exclusionary rules
extend to suppression of evidence of crimes that are in reaction
to an illegal search or seizure"). Second, the parties have
fully briefed the issue and our resolution of it does not
require any additional fact finding. Third, in reaching this
issue, we avoid the need to resolve a separate constitutional
question specifically left open by the Supreme Judicial Court.
See note 5, supra.
17
defendant's response; (2) the presence or absence of intervening
circumstances; and (3) the purpose and flagrancy of the [police]
misconduct in the context of the circumstances of the arrest."
Commonwealth v. Borges, supra at 796.
In the present case, the judge was correct in recognizing
the significance of an intervening act that constituted a new
criminal offense, which determines whether the case fits within
the attenuation of the taint exception. For example, in
Commonwealth v. Gomes, 59 Mass. App. Ct. 332, 334 (2003), the
police responded to a call from a tenant who was awakened by a
loud, banging noise below her apartment. An inspection of the
building's exterior led the police to a residence associated
with the adjoining yard. Id. at 335. A uniformed police
officer knocked on the door and identified himself, and the
person who answered opened the door just a crack, was
intoxicated, and refused to identify himself or open the door
any further. Ibid. The officer kept his hand on the door and
placed his foot inside the open space to keep the door from
being closed. The person who had answered the door then shoved
the officer in the chest. Ibid. A melee broke out between the
police and the defendants, and the defendants were subsequently
convicted of assault and battery. Id. at 333-334.
In affirming the convictions, this court rejected the
defendants' argument that the exclusionary rule should prohibit
18
the Commonwealth from relying on any evidence of the assault and
battery because this evidence would not have been obtained but
for the illegal entry by the officer. "Neither Fourth Amendment
nor art. 14 exclusionary rules extend to suppression of evidence
of crimes that are in reaction to an illegal search or seizure."
Id. at 337. See Commonwealth v. King, 389 Mass. 233, 245 (1983)
(defendant could be prosecuted for crimes arising out of firing
gun at police even though shooting did not begin until after
police stopped defendant's motor vehicle without justification);
Commonwealth v. Holmes, 34 Mass. App. Ct. 916, 917-918 (1993)
(although initial police observation of bulge in defendant-
passenger's pocket during unlawful stop of vehicle would not
justify continued detention of vehicle or defendant, defendant's
action in suddenly opening door, slamming it against one of the
officers and fleeing scene "gave rise to an independent
justification for their pursuit" and subsequent seizure of
weapon).
The motion judge recognized this principle because he ruled
that his suppression order did not affect the prosecution of
Whitney for assault and battery on a police officer. However,
by allowing the motion to suppress any evidence of the marijuana
and related paraphernalia, the judge implicitly ruled that the
assault and battery did not attenuate the taint of the unlawful
search. We agree with the Commonwealth that the two rulings are
19
inconsistent, because the judge's findings of fact make clear
that the police did not see the mason jar containing marijuana
until after they lawfully arrested the defendant for the assault
and battery on a police officer. Although this observation was
close in time to the unlawful entry into the second room, it did
not come about by exploiting that unlawful act, but instead was
the result of Whitney's independent act of pushing the door into
the police officer, which established probable cause for
Whitney's arrest. See Commonwealth v. Fredette, 396 Mass. 455,
460 (1985). Applying the exclusionary rule to evidence seized
in plain view while the officers were lawfully present to effect
an arrest would not further the exclusionary rule's purpose as a
deterrent against unlawful conduct. See Commonwealth v. Lett,
393 Mass. 141, 145 (1984).13
13
The result we reach is consistent with the reasoning in
Commonwealth v. Martin, 457 Mass. at 22-23. In Martin, a police
officer unlawfully pat frisked the defendant, who pushed the
officer's hands away and said, "You can't touch me." Id. at 16.
The Supreme Judicial Court rejected the Commonwealth's argument
that the defendant's act was a new, intervening crime
dissipating the causal link between the officer's unlawful
conduct and his subsequent discovery of a firearm. Id. at 22-
23. Martin thus turns on the fact that the defendant's act "did
not influence the decision to seize the defendant, and
accordingly the acts cannot have dissipated the taint of the
original unlawful seizure." Id. at 23. In the present case, on
the other hand, the judge found that the defendant's act in
response to the unlawful entry into the second room established
probable cause for his arrest on a criminal charge that was not
the subject of any earlier police investigation and was not
affected by the unlawful police entry.
20
Moreover, even though the police lacked justification for
opening the door leading into the second room, there is no
evidence of flagrant misconduct or bad faith, especially
considering that they were invited to enter the basement to
assist in mitigating a genuine emergency. See Commonwealth v.
Fredette, supra at 461-463; Commonwealth v. Johnson, 58 Mass.
App. Ct. 12, 14-15 (2003).14,15 In sum, the third factor of the
analysis set forth in Brown v. Illinois, 422 U.S. at 603-604,
which is especially significant because it is tied to the
purpose underlying the exclusionary rule, does not favor
suppression of the evidence. See United States v. Fazio, 914
F.2d 950, 958 (7th Cir. 1990).16
14
Contrast Wong Sun v. United States, 371 U.S. at 482-484
(officer flagrantly violated Fourth Amendment by purposefully
misrepresenting his mission and breaking into residence); Brown
v. Illinois, 422 U.S. at 605 (unlawful arrest had "the
appearance of having been calculated to cause surprise, fright,
and confusion"); New York v. Harris, 495 U.S. 14, 25-26 (1990)
(police knowingly and deliberately violated Fourth Amendment to
acquire evidence not otherwise obtainable); United States v.
Camacho, 661 F.3d 718, 729 (1st Cir. 2011) (officers "accosted"
defendants in absence of reasonable suspicion with "substantial
show of authority" in "flagrant violation" of Fourth Amendment).
15
Although he admitted smelling marijuana, Officer Manning
testified: "To be perfectly honest with you, it was the end of
my shift, the last thing I wanted to do was get involved in
marijuana. I was there for a water break. And I wanted to
clear it up as quickly as I could." He also stated, "I wasn't
looking for marijuana."
16
This case is based on the attenuation of the taint
doctrine that was applied by the United States Supreme Court in
Brown v. Illinois, supra, and that has been followed by the
21
Conclusion. Although Officer Lemieux's entry into the
second room was unlawful, that illegality does not require the
exclusion of evidence concerning the mason jar filled with raw
marijuana, and all that followed from that observation. The
nexus between the unlawful entry and the evidence observed in
plain view during the course of the subsequent lawful arrest was
dissipated by an independent and intervening act of free will by
the defendant. See Commonwealth v. Borges, 395 Mass. at 795.
Order allowing motions to
suppress reversed.
Supreme Judicial Court. See, e.g., Commonwealth v. Damiano, 444
Mass. at 454. The critical facts that warrant application of
the doctrine are an unlawful search that was not a pretext for
the discovery of evidence nor a flagrant violation of the law,
followed by an independent, intervening act committed by the
defendant that established probable cause for his arrest during
which the police discovered evidence of other crimes. We do not
rely on the United States Supreme Court's most recent expression
of the attenuation of the taint doctrine in Utah v. Strieff, 136
S. Ct. 2056 (2016).