Commonwealth v. Arias , 481 Mass. 604 ( 2019 )

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SJC-12510
COMMONWEALTH vs. JOSE L. ARIAS.
Essex. September 7, 2018. - March 15, 2019.
Present: Gants, C.J., Lenk, Gaziano, & Lowy, JJ.
Constitutional Law, Search and seizure, Probable cause. Search
and Seizure, Probable cause, Exigent circumstances,
Emergency, Multiple occupancy building, Protective sweep,
Plain view. Probable Cause. Practice, Criminal, Motion to
suppress, Interlocutory appeal, Appeal by Commonwealth.
Evidence, Informer. Witness, Police informer. Controlled
Substances.
Indictments found and returned in the Superior Court
Department on April 14, 2014.
A pretrial motion to suppress evidence was heard by Mary-
Lou Rup, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Hines, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by her to
the Appeals Court. After review by the Appeals Court, the
Supreme Judicial Court granted leave to obtain further appellate
review.
Esther J. Horwich (Stephen J. Wright also present) for the
defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the
Commonwealth.
2
David R. Rangaviz, Committee for Public Counsel Services,
for Committee for Public Counsel Services, amicus curiae,
submitted a brief.
GAZIANO, J. In this case, we confront the scope of two
exceptions to the warrant requirement that have resulted in some
confusion in previous jurisprudence in the Commonwealth: the
emergency aid exception and the exigent circumstances exception.1
1. Background. a. Facts. We summarize the facts found
by the motion judge following an evidentiary hearing on the
defendant's motion to suppress, supplemented by uncontroverted
and undisputed facts in the record that were implicitly credited
by the judge and that do not detract from the judge's ultimate
findings. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431
(2015). We reserve some details for later discussion.
On the evening of March 4, 2014, the Lawrence police
department received a tip from an unnamed 911 caller.2 The
caller stated that she was "coming down the street" when she saw
two "Spanish guys" "with a gun . . . going up to the building"
located at "7 Royal Street" in a residential neighborhood in
Lawrence. The caller stated that "they . . . had a hat on," and
1 We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services.
2 The record does not contain precise times concerning when
the 911 call occurred or when officers responded to the scene.
Notably, when the officers responded, they were working the
"night shift," which began at 5 P.M. and ended at 1 A.M.
3
were wearing "a jacket and a coat," one of which "was gr[a]y and
the other was black." The caller "heard . . . one of them load
the gun," and saw the men enter the building. The caller said
that "there's always a little movement in that building," and
acknowledged that she was "not really sure what's going on." In
addition, the caller stated that she was new to the
neighborhood, and that she had not seen the men previously. She
provided the dispatcher with her home address, and the
dispatcher indicated to the caller that he was aware of the
caller's telephone number.
A dispatcher subsequently issued the following report:
"Any detective or any available north car [near the specified
address], caller said she saw two Hispanic males enter a house,
one in a gray jacket, one in a black jacket, the male was
loading gun, was loading a cli[p] to a handgun."3
The motion judge credited that, during the general period
in which the 911 call was made, the Lawrence police department
was investigating a "rash" of "home invasions" believed to be
the work of a "crew" from New York. The judge noted, however,
that the evidence did not indicate "how recently or where" the
home invasions had occurred, or if any home invasion had
3 The judge found that both the 911 caller and the police
dispatcher "provided very general descriptions" of the men who
entered the building.
4
"occurred in the immediate vicinity or neighbor[hood] of" the
particular street.
Multiple police officers responded to the dispatch. The
address given was one of two numbers associated with a four-unit
apartment building. The building had a single front door,
marked with the number "5" on the right side of the door and the
number "7" on the left side of the door. The building contained
two apartments on the ground floor, numbered "5A" and "7A," and
two apartments on the upper floor, numbered "5B" and "7B." At
the rear of the building, there was a porch with two entrances.
Sergeant Michael Simard of the Lawrence police department
was the supervising patrol sergeant that evening. He arrived at
the scene in a marked cruiser and was wearing a uniform. Simard
saw no one outside the building. He and a number of other
officers monitored the front entrance.
Sergeant Joseph Cerullo of the Lawrence police department's
special operations division arrived at the scene in a marked
cruiser; he, too, was wearing a uniform and a badge.4 Cerullo
and four other officers, including two members of the canine
unit of the Essex County sheriff's department, moved to the rear
of the building.
4 In his role with the special operations division, Sergeant
Joseph Cerullo was responsible for emergency responses.
5
At the front of the building, Simard spoke to residents of
unit 7A, the first-floor apartment located across the hall from
unit 5A. The residents of unit 7A denied seeing or hearing
anything out of the ordinary, and said that they did not know
who lived in unit 5A. The residents did describe, however, the
"layout of the apartment [at unit 5A] as far as what door leads
to where." Simard commented that the residents of unit 7A were
scared because of the "[fifteen] police officers with their guns
drawn." Simard also stated that, except for the residents of
unit 7A, no residents of the building appeared to be at home.
After obtaining the telephone number of the 911 caller,
Simard spoke with her by telephone.5 The caller told Simard that
5 The judge found that the record did not make clear whether
Sergeant Michael Simard spoke first to the residents of unit 7A
or to the 911 caller. We analyze the judge's findings as to
this point based on the record that was before her, and we do
not address later-discovered evidence that the judge did not
consider. Were we to consider this evidence, it would not
change the result we reach.
At the hearing, the parties stipulated to the admission of
a compact disc (CD) that contained audio recordings captured on
a single audio track. The recordings were of the initial 911
call and the dispatch provided to responding officers. The
judge listened to those recordings; she also was provided a copy
of a CD that contained only those recordings. In its brief to
the Appeals Court, however, the Commonwealth submitted a CD that
contained additional audio recordings of police communications
that had not been before the motion judge, and that were not
transcribed in the filings in the Superior Court or on appeal.
In particular, one of the recordings contains a telephone
conversation between an employee of the Lawrence police
department and the 911 caller that highlights a discrepancy as
to when Simard spoke with the 911 caller. The judge made no
6
she had seen three males whom she did not recognize talking on
the front step of the building located at "5-7" on that street.
The caller stated that she had heard the sound of a "rack" being
pulled back on a semiautomatic handgun,6 a sound she recognized
because she was "from Lawrence." According to Simard, the
caller did not see a firearm. The caller was nervous, and was
aware of recent armed robberies "in the area." The judge found
that the "officers at the scene learned the above-described
information within minutes of their arrival."7
The caller told Simard that the men likely had a key to the
building because they entered the front door "easily." Cerullo
findings as to that discrepancy, evidence of which was not
before her.
6 "Racking" a handgun involves pulling the slide back to
load a round into the chamber. See Commonwealth v. Arias, 92
Mass. App. Ct. 439, 447 n.9 (2017). Although the officers did
not determine whether anyone living in the building was licensed
to carry a firearm, the judge credited testimony that a firearms
license check would have taken a significant amount of time.
7 Cerullo testified that he and Simard "convers[ed] back and
forth" and that Simard shared information he had learned from
the 911 caller. The judge found that "Cerullo and Simard
discussed the information." According to Cerullo, Simard's
"knowledge from the [911] caller was enough for [Cerullo] to
make [his] determination to enter the building" because "[t]he
knowledge of one would be the knowledge of all." It does not
appear, however, that Simard shared all the information he had
learned from the 911 caller. Cerullo testified that he
"possibly heard" that there were "three individuals out front"
of the building, as the 911 caller ultimately told Simard. He
testified also that he was not made aware that those individuals
likely had a key to the building. In any event, Simard, not
Cerullo, ultimately made the decision to enter unit 5A without a
warrant.
7
acknowledged that he and the other officers did not consider
whether the men who allegedly entered the building with a
firearm were residents of the building.
At the rear of the building, Cerullo observed a Hispanic
male leave the building from the left rear door. The man had
facial hair and was "wearing a black and gray sweater." He was
identified at the evidentiary hearing as "Wascar Bievenido
Guerrero Diaz."
With his firearm drawn, Cerullo shouted, "Lawrence Police.
Show me your hands." From the front of the building, Simard was
able to hear Cerullo. Diaz appeared "shocked" and "quickly went
back inside" the building, "closing the door behind him."
Cerullo and another officer attempted to enter the building
through the door Diaz had used, but, as the judge determined,
they "found it locked."8 According to Cerullo, the door was
associated with apartment "number 5." Cerullo did not specify
whether he was referring to apartment 5A, 5B, or both.
Cerullo moved to the front of the building to discuss the
situation with Simard, while four officers remained at the rear
of the building. Focusing their attention on unit 5A, Cerullo
8 The judge did not find that Diaz locked the door to
prevent officers from entering the building.
8
and Simard made the decision to enter that unit without a
warrant.9
Within approximately three to eight minutes after police
arrived at the scene, Cerullo "entered the front door
forcefully," and then led a number of officers through the front
door of the building and into unit 5A. Conducting a "protective
sweep" for any injured persons and the Hispanic male he had seen
earlier at the rear of the building, Cerullo moved through the
living room toward the rear of the building. Other officers
searched different areas of the apartment. They did not find
any people, but they did observe in plain view what appeared to
be illegal narcotics, a scale, and plastic bags strewn on the
floor. The officers did not seize anything at that point.
At the rear of the apartment, Cerullo encountered a door
leading to a hallway outside unit 5A. In the hallway, he saw
another door. The officers believed that this was the door that
Diaz had used minutes earlier. Cerullo also saw a stairway
leading up to unit 5B and down to a basement; a light was on in
the basement. After confirming the absence of any people inside
unit 5A, Cerullo, other officers, and several canine unit dogs
searched the basement; they found and arrested three
9 The judge found that there was no basis for the officers
to have focused their attention on unit 5A. In addition, the
judge noted that the officers were unaware of anyone who lived
in that apartment.
9
individuals. They did not search anywhere else in the building
for the suspected home invaders.
Based on observations made during the warrantless search of
unit 5A, officers obtained a search warrant. Pursuant to the
warrant, they searched unit 5A again and seized items from the
apartment.
b. Procedural history. The defendant filed a motion to
suppress evidence seized pursuant to the warrant, on the ground
that the warrant was predicated on observations made during an
unconstitutional search. Following an evidentiary hearing, a
Superior Court judge allowed the motion.10 The Commonwealth
filed a petition seeking leave to pursue an interlocutory
appeal, and a single justice of this court allowed the appeal to
proceed in the Appeals Court. In a split decision, a panel of
the Appeals Court reversed the motion judge, after concluding
that the warrantless search was permissible under the emergency
aid doctrine. See Commonwealth v. Arias, 92 Mass. App. Ct. 439,
449 (2017). We allowed the defendant's application for further
appellate review.
2. Discussion. "In reviewing a ruling on a motion to
suppress, we accept the judge's subsidiary findings of fact
10Although the judge allowed the motion to suppress as to
the defendant and a codefendant, this appeal pertains only to
the defendant.
10
absent clear error 'but conduct an independent review of [the
judge's] ultimate findings and conclusions of law.'"
Commonwealth v. Cawthron, 479 Mass. 612, 616 (2018), quoting
Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
A "warrantless government search of a home is presumptively
unreasonable under the Fourth Amendment to the United States
Constitution and art. 14 of the Massachusetts Declaration of
Rights." Commonwealth v. Entwistle, 463 Mass. 205, 213 (2012),
cert. denied, 568 U.S. 1129 (2013). See Kentucky v. King, 563
U.S. 452, 459 (2011); Brigham City v. Stuart, 547 U.S. 398, 403
(2006). "The presumption against warrantless searches reflects
the importance of the warrant requirement to our democratic
society." Commonwealth v. Tyree, 455 Mass. 676, 683 (2010).
"Under the exclusionary rule, evidence seized pursuant to an
unreasonable search generally will be suppressed." Commonwealth
v. Tuschall, 476 Mass. 581, 584 (2017). "Warrantless searches
may be justifiable, however, if the circumstances of the search
fall within an established exception to the warrant
requirement." Id.
a. Emergency aid exception. The emergency aid doctrine
establishes one such "narrow exception to the warrant
requirement." See Commonwealth v. Duncan, 467 Mass. 746, 754,
cert. denied, 135 S. Ct. 224 (2014). The emergency aid
exception applies when law enforcement officers enter a dwelling
11
to provide emergency assistance. See Commonwealth v. Snell, 428
Mass. 766, 774, cert. denied, 527 U.S. 1010 (1999) (entry is
reasonable under emergency aid exception when made "not to
gather evidence of criminal activity but rather, because of an
emergency, to respond to an immediate need for assistance"
[citation omitted]).
To fall within the narrowly construed emergency aid
exception, "a warrantless entry and protective sweep must meet
two strict requirements." See Commonwealth v. Peters, 453 Mass.
818, 823 (2009). First, at the time of entry, there must be an
objectively reasonable basis for the officers to believe that an
emergency exists. See Entwistle, 463 Mass. at 213. Second,
after the entry, the conduct of the officers must be reasonable
under the circumstances, id. at 216; in other words, the search
must not exceed the scope of the emergency. See Peters, supra.
"Where these two conditions have been satisfied, warrantless
entry into a home is permissible." Duncan, 467 Mass. at 751.
The "burden rests with the Commonwealth to demonstrate that a
warrantless search . . . fits within the emergency aid exception
to the warrant requirement." Entwistle, supra at 215, quoting
Peters, supra. See Snell, 428 Mass. at 774-775.
i. Objectively reasonable belief. To meet its burden, the
Commonwealth first must demonstrate objectively reasonable
grounds to believe that an emergency existed at the time of
12
entry. See Peters, 453 Mass. at 823. See also Hill v. Walsh,
884 F.3d 16, 19 (1st Cir. 2018) (warrantless entry into dwelling
requires "objectively reasonable basis for believing" that
"immediate aid" is required by someone within [citation
omitted]).
In determining whether a warrantless entry is objectively
justified, we evaluate it "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" (citation omitted). Peters, 453 Mass.
at 825. A reviewing court does not consider officers'
subjective motivations in entering a house. See, e.g.,
Entwistle, 463 Mass. at 214. See also Michigan v. Fisher, 558
U.S. 45, 47 (2009).
The reasonableness of an entry is evaluated under the
totality of the circumstances. Compare Tuschall, 476 Mass.
at 585-588 (warrantless entry was unreasonable when fumes
adversely affected neighbor and her pet, but did not threaten
imminent injury, death, or explosion, and there was no
indication anyone inside dwelling required emergency
assistance), with Commonwealth v. Townsend, 453 Mass. 413, 426
(2009) (warrantless entry was reasonable where dwelling was
victim's last known location, her vehicle was parked outside,
she had not been seen or heard from in days, and she had missed
13
scheduled visits with her children and her roommate). See,
e.g., Entwistle, 463 Mass. at 210, 215-216 (warrantless entry
was reasonable where victim had not been seen or heard from in
days, had uncharacteristically missed multiple appointments with
family and friends, and victim's dog could be heard barking
inside house); Snell, 428 Mass. at 768-769, 775 (warrantless
entry was reasonable where victim's vehicle remained parked
outside house for multiple days, victim had not answered
multiple telephone calls from her children, and victim had not
called to wish her son's wife happy birthday).
Entering officers "do not need ironclad proof of 'a likely
serious, life-threatening' injury," Entwistle, 463 Mass. at 214,
quoting Fisher, 558 U.S. at 49, in order for a warrantless entry
to be reasonable under the circumstances. In addition, because
the entry is made "to prevent harm stemming from a dangerous
condition, not to investigate criminal activity," a reviewing
court "does not require that police have probable cause that a
crime has been committed." Tuschall, 476 Mass. at 585. See
Duncan, 467 Mass. at 750; Hill, 884 F.3d at 23. It is
sufficient where the totality of the circumstances demonstrates
objectively reasonable grounds to believe that emergency
assistance is needed to prevent imminent physical harm, to
provide assistance to one who is injured, or to protect life or,
14
in some circumstances, property.11 See, e.g., Entwistle, supra
at 214, 216.
ii. Reasonableness of police conduct inside the dwelling.
To rely upon the emergency aid doctrine, the Commonwealth also
must demonstrate that the conduct of the officers after they
entered the premises was reasonable under the circumstances.
See Entwistle, 463 Mass. at 216. To be reasonable, the
warrantless conduct of the officers inside the dwelling must be
"strictly circumscribed" by the circumstances of the emergency
that justified entry. See Commonwealth v. Lewin (No. 1), 407
Mass. 617, 622 (1990), quoting Mincey v. Arizona, 437 U.S. 385,
393 (1978). Thus, a protective sweep made pursuant to the
emergency aid exception "must be limited in scope to its
purpose," Peters, 453 Mass. at 823, e.g., to preventing imminent
harm, protecting life or property,12 or providing aid to one who
is injured.
In addition, to be reasonable under the emergency aid
doctrine, the officers' conduct after entry "may not be expanded
11In Michigan v. Tyler, 436 U.S. 499 (1978), the United
States Supreme Court addressed a narrow context in which
protection of property may support warrantless entry pursuant to
the emergency aid exception. There, the Court held that
firefighters who enter a building to extinguish a fire
"require[] no warrant, and that once in the building, [they] may
remain there for a reasonable time to investigate the cause of
the blaze." Id. at 511.
12 See note 11, supra.
15
into a general search for evidence of criminal activity." See
Entwistle, 463 Mass. at 217, citing Arizona v. Hicks, 480 U.S.
321, 325 (1987). See also Lewin (No. 1), 407 Mass. at 622.
Therefore, if, after entry, officers no longer have an
objectively reasonable basis to believe that an emergency
exists, it is unreasonable to continue searching. See Mincey,
437 U.S. at 393 (warrantless search was unreasonable when
conducted after officers had located all persons in dwelling
during prior protective sweep); Commonwealth v. Kaeppeler, 473
Mass. 396, 403 (2015) ("continued police presence in the
defendant's home without his consent after he was transported to
the hospital for medical treatment and the subsequent seizure of
[evidence in plain view] was unreasonable," because emergency
concerning "the defendant's well-being had ended," and evidence
was seized for "an investigative purpose"); Peters, 453 Mass.
at 820 (warrantless search of dwelling was unconstitutional
after protective sweep eliminated objectively reasonable basis
to believe that emergency existed).
After completing a protective sweep, however, if officers
continue to have an objectively reasonable basis to believe that
an emergency exists, a subsequent sweep that is limited to the
scope of the emergency may be justified. See Entwistle, 463
Mass. at 215-219 (two instances of law enforcement entry coupled
with protective sweeps were justified under emergency aid
16
exception, because each was supported by objectively reasonable
bases to believe that emergency existed, and officers' conduct
during each sweep was reasonably limited to scope of emergency
at hand); Peters, 453 Mass. at 825 ("We do not declare a 'one
sweep rule'" . . .).
Undoubtedly, when officers have an objectively reasonable
basis to believe that an emergency exists, and they reasonably
circumscribe the scope of their conduct after entry, "[e]vidence
observed in plain view may be seized," Peters, 453 Mass. at 823,
provided that the officers "have not violated the Fourth
Amendment in arriving at the spot from which the observation of
the evidence is made," King, 563 U.S. at 463; the "incriminating
character" of the evidence is "immediately apparent" (citation
omitted), Kaeppeler, 473 Mass. at 405; and the evidence actually
is in plain view. See, e.g., Hicks, 480 U.S. at 324-325, 328
("a truly cursory inspection -- one that involves merely looking
at what is already exposed to view, without disturbing it -- is
not a 'search' for Fourth Amendment purposes," but disturbing or
moving objects in plain view constitutes "a 'search'" for which
warrant is required); Entwistle, 463 Mass. at 217 (observation
of content of printed bill fell within scope of emergency aid
exception where "[t]he officer did not open a bill still in its
envelope or search for it in a file or drawer; he merely read
17
what was in plain view from an already opened bill that lay on
the kitchen table").
With these considerations in mind, we turn to the search at
issue.
iii. Initial search of unit 5A and basement. The
defendant maintains that the officers who entered unit 5A and
the basement without a warrant lacked objectively reasonable
grounds to believe that an emergency existed. The Commonwealth,
for its part, acknowledges an "absence of precedent" justifying
the officers' warrantless entry under the emergency aid
doctrine.
As the motion judge noted, the "Commonwealth's claim that
the officers had reason for concern that an armed man was
present inside the apartment building is not completely without
merit." "[P]olice need not wait for screams from within in
order to fear for the safety of occupants or themselves."
United States v. Lenoir, 318 F.3d 725, 730 (7th Cir.), cert.
denied, 540 U.S. 841 (2003). Entry into unit 5A pursuant to the
emergency aid exception, however, required an objectively
reasonable basis to believe that an emergency existed. See,
e.g., Fisher, 558 U.S. at 47; Tuschall, 476 Mass. at 585. The
totality of the circumstances at the time of the entry into
unit 5A did not support such a basis.
18
When the officers arrived at the scene in response to the
911 call, they saw and heard no signs of disturbance, and
detected no signs of forced entry. To the contrary, they
observed that the doors to the building, and to unit 5A, were
closed and intact. Moreover, when Simard spoke with the
911 caller, she said that the men had entered the building
"easily," because they likely had a key. The officers
interviewed residents of unit 7A and learned that the residents,
too, had seen and heard nothing suspicious or out of the
ordinary. No one else informed the officers of any commotion,
noises, or sounds coming from unit 5A. As the motion judge
found, the officers had no knowledge of any residents or victims
inside unit 5A, and the only residents of any unit the officers
knew were present were the unharmed residents of unit 7A.
The fact that Diaz was observed at the back of the building
does not transform the situation into an emergency. There was
no indication that he was injured, in need of emergency
assistance, armed, or about to harm others, or that he had
harmed others.
Regardless of whether the officers had sincerely held
beliefs as to the existence of an armed home invasion or hostage
situation, their subjective beliefs at the scene cannot justify
a search under the emergency aid exception. See, e.g., Stuart,
547 U.S. at 404; Entwistle, 463 Mass. at 214. The totality of
19
the circumstances at the time of entry here did not establish a
reasonable basis to believe that an emergency existed in
unit 5A.13 See Tuschall, 476 Mass. at 585-587. Therefore, the
warrantless search was not justified under the emergency aid
exception.
Our analysis does not end there, however. We turn to
consider whether the entry was justified for some other reason,
i.e., under the probable cause and exigent circumstances
exception.
b. Probable cause and exigent circumstances exception.
The judge concluded that, under the exigent circumstances
doctrine, the facts confronting the officers did not establish
the existence of an exigency, or probable cause of an armed home
invasion or hostage situation in progress.
Pursuant to both art. 14 and the Fourth Amendment, the
exigent circumstances doctrine establishes another "well-
recognized," King, 563 U.S. at 460, yet "narrow" exception to
the warrant requirement, see Tyree, 455 Mass. at 691. See also
13As to the second prong of the emergency aid exception,
the reasonableness of the scope of the search, the judge found
that "credible evidence showed that the police conducted only a
limited protective sweep." The defendant argues, however, that
the search of the basement was unreasonable, as the officers had
found no sign of an emergency in unit 5A. Because the officers
lacked an objectively reasonable basis to believe that an
emergency existed anywhere in the building, a protective sweep
was unjustifiable under the emergency aid doctrine, regardless
of the scope of that sweep.
20
Commonwealth v. Young, 382 Mass. 448, 456 (1981) ("Exigencies
which may justify a procedure without warrant are a narrow
category and must be established by the Commonwealth . . .");
Commonwealth v. Forde, 367 Mass. 798, 800 (1975) ("the standards
as to exigency are strict").
"In the absence of a warrant, two conditions must be met in
order for a nonconsensual entry to be valid" under the exigent
circumstances doctrine: (1) "there must be probable cause" and
(2) "there must be exigent circumstances." Commonwealth v.
DeJesus, 439 Mass. 616, 619 (2003). See Figueroa, 468 Mass.
at 211-212. In this way, "[t]he exigent circumstances exception
to the warrant requirement may be more appropriately denominated
the exception for probable cause and exigent circumstances"
(emphasis in original). J.A. Grasso, Jr. & C.M. McEvoy,
Suppression Matters Under Massachusetts Law § 14-1[a] (2017).
See Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (per curiam)
("police officers need either a warrant or probable cause plus
exigent circumstances in order to make a lawful entry into a
home"). Put differently, when probable cause exists to believe
that a crime has occurred, is occurring, or will occur
imminently, warrantless entry is justified only if exigent
circumstances also are present. See Figueroa, supra at 213.
Conversely, without probable cause, the existence of an exigency
21
is insufficient to permit warrantless entry into a dwelling.
See id.
The Commonwealth "bears the burden of proof" to establish
that a warrantless search was proper. See Young, 382 Mass. at
456. See also Tyree, 455 Mass. at 684 ("Given the high value
that our Federal and Massachusetts Constitutions assign to the
warrant requirement, particularly in relation to a dwelling, we
impose a heavy burden on the Commonwealth to justify every
warrantless search: in the absence of consent, the Commonwealth
must prove both probable cause to enter the dwelling and the
existence of exigent circumstances" [footnote omitted]).
When entry is lawful under the exigent circumstances
doctrine, "the police, in accordance with the rule of 'plain
view,' [may] take into their possession material having apparent
evidential connection to the criminal activity they were in
course of investigating" (footnote omitted). Young, 382 Mass.
at 458. See, e.g., King, 563 U.S. at 463 ("[i]t is . . . an
essential predicate to any valid warrantless seizure of
incriminating evidence that the officer did not violate the
Fourth Amendment in arriving at the place from which the
evidence could be plainly viewed" [citation omitted]); Forde,
367 Mass. at 807 ("the police had no legal justification for
being present in the apartment and [therefore] cannot rely on
22
the 'plain view' doctrine for a warrantless seizure of
contraband").
We begin with the question of exigency.
i. Exigency. A warrantless entry is justified only if, in
addition to the existence of probable cause, exigent
circumstances are present. See Figueroa, 468 Mass. at 213. See
also King, 563 U.S. at 470 ("Any warrantless entry based on
exigent circumstances must, of course, be supported by a genuine
exigency"). "[A]bsent exigent circumstances, the firm line at
the entrance to the house . . . may not reasonably be crossed
without a warrant" (quotations and citation omitted). See Kirk,
536 U.S. at 635.
For exigent circumstances to exist, officers must have
"reasonable grounds to believe that obtaining a warrant would be
impracticable under the circumstances." Figueroa, 468 Mass.
at 213. Impracticability arises in the context of the exigent
circumstances doctrine when the delay caused by obtaining a
warrant would create "a significant risk" that "the suspect may
flee," "evidence may be destroyed," or "the safety of the police
or others may be endangered." Id. See Tyree, 455 Mass. at 685-
691.
"In determining whether a warrantless search falls within
the narrow exception of exigent circumstances, we consider 'the
circumstances in their totality' . . ." (citation omitted).
23
Figueroa, 468 Mass. at 212. See King, 563 U.S. at 464. We
review those circumstances objectively. See Young, 382 Mass. at
456. Thus, "whether an exigency existed" is a matter "to be
evaluated in relation to the scene as it could appear to the
officers at the time," not as the scene might appear in
hindsight. Id. See Figueroa, supra; DeJesus, 439 Mass. at 620
n.3. The subjective beliefs or motives of an officer form no
part of this inquiry. See King, supra. See also Commonwealth
v. Washington, 449 Mass. 476, 485 (2007).
In the circumstances here, for the same reasons that the
officers lacked objectively reasonable grounds to believe that
residents of unit 5A were in danger, pursuant to the emergency
aid doctrine, the officers lacked a reasonable basis to believe
that they or others were at risk of imminent harm, pursuant to
the exigent circumstances doctrine. See Figueroa, 468 Mass.
at 213. At the scene, officers encountered no indications of
violence or forced entry. They were unaware of any resident or
victim inside unit 5A. Indeed, the only residents known to
officers, those of unit 7A, were unharmed, and had neither seen
nor heard anything suspicious. In addition, when Diaz was seen
at the rear of the building, there was no indication that he,
the police, or anyone else was at risk of imminent injury. We
therefore agree with the motion judge that there was "nothing
24
indicative of an imminent threat of danger to persons inside the
building or to the officers."
In addition, because the building was surrounded by
officers, there was little risk of a suspect's flight from
within. See Figueroa, 468 Mass. at 213. Further, the record
provides no basis for officers to have believed that evidence of
an armed home invasion or hostage situation was at risk of
destruction. See id. at 214.
The investigation of a crime, even a serious crime such as
an armed home invasion, does not itself establish an exigency.
See Mincey, 437 U.S. at 394 ("We decline to hold that the
seriousness of the offense under investigation itself creates
exigent circumstances of the kind that under the Fourth
Amendment justify a warrantless search"); id. at 393 ("If the
warrantless search of a homicide scene is reasonable, why not
the warrantless search of the scene of a rape, a robbery, or a
burglary? No consideration relevant to the Fourth Amendment
suggests any point of rational limitation of such a doctrine"
[quotation and citation omitted]).
Because officers lacked a reasonable basis to believe that
an exigency existed in unit 5A, the warrantless search was
impermissible. See DeJesus, 439 Mass. at 620. Even had the
officers reasonably believed that an exigency existed, for the
warrantless entry to be permissible, there also had to be
25
probable cause that a crime was being committed inside the
building.
ii. Probable cause. To justify an entry into a dwelling
pursuant to the exigent circumstances doctrine, the Commonwealth
must demonstrate the existence of probable cause. See Tyree,
455 Mass. at 684. "[P]robable cause exists where . . . the
facts and circumstances within the knowledge of the police are
enough to warrant a prudent person in believing that [an]
individual . . . has committed or was committing an offense"
(citation omitted). Washington, 449 Mass. at 481. Accordingly,
"an objective test is used to determine whether probable cause
exists." Commonwealth v. Jewett, 471 Mass. 624, 629 (2015),
quoting Commonwealth v. Franco, 419 Mass. 635, 639 (1995).
"In dealing with probable cause . . . we deal with
probabilities. These are not technical; they are . . .
practical considerations of everyday life, on which reasonable
and prudent [people], not legal technicians, act." Commonwealth
v. Cartright, 478 Mass. 273, 283 (2017), quoting Jewett, 471
Mass. at 629. "Probable cause does not require . . . that
police [have] resolved all their doubts." Cartright, supra,
quoting Commonwealth v. Warren, 418 Mass. 86, 90 (1994).
Rather, probable cause "requires more than mere suspicion but
something less than evidence [that would be] sufficient to
26
[sustain] a conviction." Cartright, supra, quoting Jewett,
supra.
A. Informant's tip. Where, as here, police seek to
establish probable cause based on an informant's tip, they must
show, pursuant to the two-prong Aguilar-Spinelli test, both that
the tip is grounded in a basis of knowledge, and that it is
reliable. See Commonwealth v. Upton, 394 Mass. 363, 375 (1985).
See also Spinelli v. United States, 393 U.S. 410 (1969); Aguilar
v. Texas, 378 U.S. 108 (1964); Commonwealth v. Alfonso A., 438
Mass. 372, 374 (2003). With respect to informant tips, "the
test for determining probable cause is stricter under art. 14
. . . than under the Fourth Amendment." Upton, supra at 364.
In accordance with the Aguilar-Spinelli test, the
Commonwealth first must establish the basis of knowledge
underlying an informant's tip. See Alfonso A., 438 Mass. at
374; Upton, 394 Mass. at 375. In general, the basis of
knowledge prong is satisfied where the information provided
springs from an informant's firsthand observations or knowledge.
See Alfonso A., supra. In addition, where an informant's tip is
sufficiently detailed, a reviewing court reasonably may infer
that the informant had a direct basis of knowledge. Id. at 374-
375.
If an informant's basis of knowledge is established, to
justify the warrantless entry, the Commonwealth then must
27
demonstrate that the tip was credible. See Alfonso A., 438
Mass. at 375; Upton, 394 Mass. at 375. Although a 911 caller's
telephone number may be visible to, or determinable by, the 911
operator, under art. 14, that alone does not demonstrate
sufficiently the reliability of a tip. See, e.g., Commonwealth
v. Depiero, 473 Mass. 450, 454-455 (2016) (in context of
reasonable suspicion, where showing "less rigorous" than
probable cause is permissible, this court was "not
inclined . . . to attribute veracity to all 911 callers").
Rather, "[w]hen assessing the reliability of [private
individuals] who report apparent violations of the law, we
accord more weight to the reliability of those who are
identified . . . by name and address," because they are not
protected "from the consequences of prevarication that anonymity
would afford, and consequently may be subject to charges of
filing false reports and risk retaliation" (citations omitted).
Commonwealth v. Cavitt, 460 Mass. 617, 628-629 (2011). See
Depiero, supra at 455 ("The veracity test is more difficult for
the Commonwealth to satisfy where . . . the caller was
anonymous. Because the caller was anonymous, there could be no
evidence regarding the caller's past reliability or reputation
for honesty" [citation omitted]).
At the same time, "[i]t is important to recognize that
[private individuals] who report criminal activity justifiably
28
may be concerned for their own safety if their identity becomes
known to the persons subsequently investigated or arrested, and
for this reason may wish to remain anonymous." Cavitt, 460
Mass. at 629. Such circumstances "should not stand as an
insurmountable impediment to a favorable assessment of [the
informant's] reliability" (citation omitted). Id. Therefore,
an unidentified informant who nonetheless is "identifiable" by
officers, see id., and who is aware that officers are able to
identify him or her may receive greater credence than a fully
anonymous informant. See, e.g., Depiero, 473 Mass. at 455
("even if the police are able to recover the telephone number
and identity of 911 callers, it proves absolutely nothing unless
. . . the anonymous caller was aware of that fact. It is the
tipster's belief in anonymity, not its reality, that will
control his [or her] behavior" [emphasis in original; quotation
and citation omitted]).
In addition, the reliability of a tip may be adduced from
the extent to which an informant provides factual details. See
Alfonso A., 438 Mass. at 375 ("it is especially important that
the tip describe the accused's criminal activity in sufficient
detail that the [court] may know that [it] is relying on
something more substantial than a casual rumor . . . or an
accusation" [citation omitted]). See also Depiero, 473 Mass.
at 457 ("details provide a level of corroboration beyond that of
29
'innocent' or easily obtainable facts"); Alfonso A., supra
at 376 ("While . . . detail, by itself, does not ordinarily
suffice to establish reliability, . . . it remains a factor in
the over-all assessment of the informant's reliability").
Each prong of the Aguilar-Spinelli test "must be separately
considered and satisfied or supplemented in some way." Upton,
394 Mass. at 375. If an informant's tip fails to satisfy both
prongs, other corroborating evidence, such as independent police
corroboration, may be able to "make up for deficiencies in
either or both prongs." Id. at 376.
B. Analysis. Our inquiry into the issue of probable cause
begins with the 911 call. We are satisfied that the judge's
subsidiary findings are substantiated by the record. Although
this case presents a close question of probable cause, we
conclude, as the judge found, that the circumstances confronting
the officers at the scene did not corroborate the caller's tip.
As to the basis of knowledge prong, we note that the
911 caller informed the Lawrence police dispatcher that she saw
two men "going up to the building" located at the specified
address, and that she heard one of the men load the gun before
he and his companion entered the building. Thus, the basis of
the 911 caller's firsthand knowledge was apparent from the
initial tip itself.
30
Of course, carrying a firearm is not itself a crime in the
Commonwealth. See, e.g., Commonwealth v. Alvarado, 423 Mass.
266, 269 (1996). But loading a handgun in public prior to
entering a residential building does raise valid concerns about
the possibility of imminent criminal conduct. See Commonwealth
v. Haskell, 438 Mass. 790, 793-794 (2003) (under less stringent
standard for reasonable suspicion, as compared to standard for
probable cause, "the act of publicly loading a handgun is an
event that creates a reasonable suspicion that a crime may be
about to take place"). Thus, the 911 caller claimed to have
seen and heard what could have been criminal activity.
The more difficult question, however, is whether the
officers had an adequate basis to conclude that the 911 caller's
tip was reliable. In this regard, the caller provided details
adverse to a determination of probable cause. She commented
that the men talked calmly before entering the building, which
they entered "easily" because they likely had a key. In
addition, although she said that she had never seen the men
before, she acknowledged that she was new to the neighborhood
and was unsure of what the men were doing. The caller also
provided details that, due to their conflicting nature,
undermined her reliability. She initially said that two men
entered the building, but later told Simard that three men had
entered the building. Of course, the details provided by the
31
caller constitute an important aspect of our assessment of her
reliability. See Alfonso A., 438 Mass. at 376. Those details
undercut the reliability of her tip.
Despite remaining unnamed, however, the 911 caller did give
the dispatcher her home address. She therefore was aware that
officers could identify her. See Depiero, 473 Mass. at 455. In
addition, police had the ability to trace the 911 call to the
caller's telephone number. Indeed, the dispatcher informed the
caller that her telephone was associated with an address in
Boston. And Simard ultimately spoke with the caller by
telephone to discuss her observations. The 911 caller was
therefore aware that another important component of her identity
was known to officers. We note, however, that "knowledge of the
informant's 'identity' and 'whereabouts,'" are generally
"not . . . adequate standing alone to confirm the informant's
reliability." See Alfonso A., 438 Mass. at 376.
As indicated, either prong of the Aguilar-Spinelli test may
be supplemented by corroborating evidence. See, e.g., Upton,
394 Mass. at 375. See also Depiero, 473 Mass. at 456 ("the
Commonwealth can . . . establish a caller's reliability through
independent corroboration by police observation or investigation
of the details of the information provided by the caller"
[quotation and citation omitted]). Because the details of the
911 caller's tip undermined her reliability, the establishment
32
of probable cause required independent corroboration. Here,
however, the officers discovered no corroborating evidence of
criminal conduct; when they did not, the absence of probable
cause became clear.
As discussed supra, Simard knew that the residents of
unit 7A were unaware of any suspicious activity in unit 5A.
Moreover, he was aware that the men who entered the building did
so "easily," and that this was most likely because they had a
key. No witness said that there had been any sound or sign of
trouble in unit 5A; and no officer observed any sound or sign of
struggle, violence, forced entry, or damaged property. We agree
with the motion judge that "nothing . . . indicated that the men
who entered" the building "did not reside there."
The judge also found that Diaz, who had facial hair and
left the building dressed in a gray and black sweater, did not
match the 911 caller's "very general descriptions of two
Hispanic men" who had entered the building, one of whom wore a
gray jacket and the other of whom wore a black jacket, and
neither of whom had facial hair. See Commonwealth v. Warren,
475 Mass. 530, 535-536 (2016) ("general description of the
perpetrator and his accomplices" as "two black males
wearing . . . 'dark clothing,' and one black male wearing a 'red
hoodie'" made it unreasonable for police "to target the
defendant or any other black male wearing dark clothing as a
33
suspect"). Except for Diaz's gender and ethnicity, he did not
match the 911 caller's general description of the men who had
entered the multiunit apartment building earlier that evening.
Moreover, while the Commonwealth characterizes Diaz's retreat
into the building as evidence of guilt, "evasive conduct in the
absence of any other information," id. at 538, is insufficient
to support probable cause.
We acknowledge that this case presents a difficult question
of probable cause, and that officers are at times required to
make split-second decisions to avert violence. The racking of a
firearm in public prior to entering a residential building is
indeed a troubling suggestion of possible violent activity. In
the circumstances here, however, given the absence of
independent corroborating evidence, the reliability of the 911
caller's testimony was insufficient to establish probable cause
under art. 14.
Order allowing motion to
suppress affirmed.
LOWY, J. (concurring). I agree with the court that "the
warrantless search was not justified under the emergency aid
exception." Ante at . I also agree that the search was not
justified under the probable cause and exigent circumstances
exception "[b]ecause officers lacked a reasonable basis to
believe that an exigency existed in unit 5A." Id. at . But
unlike the court, I am convinced that the officers had probable
cause to enter the apartment.
"Reasonableness must 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" (quotation omitted). Commonwealth v.
Kaeppeler, 473 Mass. 396, 402-403 (2015), quoting Commonwealth
v. Townsend, 453 Mass. 413, 425-426 (2009). When police act on
information from a private citizen, "the Commonwealth must show
the basis of knowledge of the source of the information (the
basis of knowledge test) and the underlying circumstances
demonstrating that the source of the information was credible or
the information reliable (veracity test)." Commonwealth v.
Depiero, 473 Mass. 450, 454 (2016), quoting Commonwealth v.
Anderson, 461 Mass. 616, 622, cert. denied, 568 U.S. 946 (2012).
Here, the court concedes that "the basis of the 911
caller's firsthand knowledge was apparent from the initial tip
itself." Ante at . However, the court then concludes that
2
the caller's veracity has not been established. Id. at . I
disagree.
The court acknowledges that the caller "was aware that
officers could identify her" and that Sergeant Michael Simard of
the Lawrence police department "ultimately spoke with the caller
by telephone to discuss her observations." Ante at . It
then concludes that "'knowledge of the informant's "identity"
and "whereabouts,"' are generally 'not . . . adequate standing
alone to confirm the informant's reliability.'" Id., quoting
Commonwealth v. Alfonso A., 438 Mass. 372, 376 (2003). But this
is not a situation in which the police merely knew the
informant's identity. Nor is it a situation in which the
informant knew theoretically that the police had the ability to
contact her by telephone. Cf. Commonwealth v. Costa, 448 Mass.
510, 517 (2007) (reliability of caller who knew "that her call
was being recorded, and that the number she was calling from had
been identified, . . . should have been accorded greater weight
than that of an anonymous informant"). Here, police did contact
the informant by telephone, and the informant responded by
continuing to cooperate and by providing significant additional
information. The caller also used a technical term, "racking,"
to describe what she heard, and she explained that she was
familiar with the sound because of personal experience. See
3
Alfonso A., supra (use of detail "remains a factor in the over-
all assessment of the informant's reliability").1
This reliable informant told police that she had observed
two men with a gun enter a building at a specified address, and
she claimed to have heard one of the men load a gun.2 It is
unusual for an individual to load a gun on the threshold of a
private residence. To do so in broad daylight accompanied by
another individual only increases the unlikeliness that the
firearm was being loaded for innocent purposes. As the court
correctly observes, "loading a handgun in public prior to
entering a residential building . . . raise[s] valid concerns
1 I assume for purposes of my analysis, as does the court,
that the conversation Sergeant Michael Simard of the Lawrence
police department had with the caller took place before the
officers entered the apartment. A recording with which we were
provided, but to which the motion judge did not have access,
suggests that this conversation might have occurred after the
warrantless entry. See ante at note 5.
2 The court states that, "[a]ccording to Simard, the caller
did not see a firearm." Ante at . But according to the
motion judge's factual findings, which we must accept unless
clearly erroneous, "[t]he caller reported that while coming down
her street she observed 'two guys with a gun' at 7 Royal
Street." That finding was not clearly erroneous. Although
Simard testified that the caller never said she had observed a
gun, Sergeant Joseph Cerullo of the Lawrence police department
testified that the caller did say she had observed a gun. The
motion judge was free to credit Cerullo's testimony over that of
Simard. Moreover, the 911 recording, which was played in open
court, confirms that the caller said, "I seen two guys with a
gun."
4
about the possibility of imminent criminal conduct." Ante
at .
In addition to having reliable information from the caller
that a gun was being loaded in public, the police also knew
about an ongoing investigation into home invasions in Lawrence.
And when they reached the address that the caller named, a man
emerged from the building, only to retreat inside when an
officer with a drawn gun told him to show his hands. The police
tried to open the door that the man had reentered, but it was
locked. There are many reasons why an individual might flee in
the presence of the police. See Commonwealth v. Warren, 475
Mass. 530, 540 (2016) (observing that black male, "when
approached by the police, might just as easily be motivated by
the desire to avoid the recurring indignity of being racially
profiled as by the desire to hide criminal activity").
Nonetheless, it would seem to be an unusual occurrence when a
person who is told by a police officer with a drawn weapon to
show his hands ignores the command and reenters a residence,
locking the door behind him. The fleeing man here, combined
with the tip that a gun was being loaded in public and the
knowledge of prior home invasions, gave the police probable
cause.3
3 That the caller believed the men had a key to the premises
does not alter my conclusion. It is not unusual for a crime in
5
For the foregoing reasons, I concur.
a home to be perpetrated by individuals who know the victims or
have a means peaceably to enter the premises. See Commonwealth
v. Middlemiss, 465 Mass. 627, 629 (2013) (defendant entered
residence with key); Commonwealth v. Morgan, 460 Mass. 277, 285
(2011) (same). See also Commonwealth v. Phap Buth, 480 Mass.
113, 114, cert. denied, 139 S. Ct. 607 (2018) (defendant, who
had previously bought drugs from resident, entered when resident
opened door for him); Commonwealth v. Doucette, 430 Mass. 461,
462-463 (1999) (defendant, who had been resident's friend,
entered through unlocked door).