Com. v. DiGeronimo, 94-P-630

• Citation: 38 Mass.App.Ct. 714,652 N.E.2d 148
• Decision Date: 13 July 1995
• Docket Number: No. 94-P-630,94-P-630
• Parties: COMMONWEALTH v. Vincent DiGERONIMO.
• Court: Appeals Court of Massachusetts

Page 148

652 N.E.2d 148

38 Mass.App.Ct. 714

COMMONWEALTH v. Vincent DiGERONIMO.

No. 94-P-630.

Appeals Court of Massachusetts Worcester.

Argued Jan. 4, 1995.

Decided July 13, 1995.

John A. Bosk, Fitchburg, for defendant.

James P. McKenna, Asst. Dist. Atty., for the Com.

Before DREBEN, GILLERMAN and LAURENCE, JJ.

LAURENCE, Justice.

The underlying issue in this case is the validity of a warrantless police entry into the private residence of a suspected drunk driver who had recently caused an accident. As a result of that entry, the police obtained overwhelmingly incriminating evidence that led to the conviction of Vincent DiGeronimo for operating his vehicle under the influence of intoxicating liquor.

Background facts. ¹ In Leominster on St. Patrick's Day evening, 1993, snow and misty rain covered the roads in a dark sheen of ice. At approximately 10:30 P.M., DiGeronimo was operating his four-wheel drive Jeep Wagoneer on North Street. He was bringing a corned beef sandwich from Donnelly's Tavern to his invalid mother, whom he had been visiting. At the tavern, he had ordered at least two beers as he waited for the food to be prepared. While traveling at an excessive rate of speed, DiGeronimo rammed the rear of a vehicle being driven by Paul Eagan. Eagan had stopped at the bottom of a hill on North Street because of difficulties that cars ahead of him were having negotiating the slippery incline. The impact of the collision broke Eagan's seat and pushed his car more than thirty feet up the hill, spinning it around and dumping Eagan into his rear seat.

Neither driver was physically injured. Eagan's car was, however, inoperable. DiGeronimo got out of his car and staggered toward Eagan's car. (At trial, DiGeronimo attributed his difficulty walking to the icy conditions.) Eagan observed that DiGeronimo was unsteady on his feet, nervous, and agitated in an angry manner. DiGeronimo was also speaking in so slurred a fashion that Eagan could not understand him. Eagan quickly concluded that DiGeronimo was drunk. Two passersby said that they would notify the police. Eagan then noticed DiGeronimo getting back into his car and driving off without turning on his headlights. (DiGeronimo testified that they had been broken as a result of the collision.) Eagan took down the vehicle's license plate number.

DiGeronimo drove to his apartment, which was in a building only a short distance away. His car's crumpled front fender had by this time so gouged his tire that he could no longer move the vehicle. From his apartment, he telephoned the police station to report the accident. During the conversation, DiGeronimo used obscenities, and his speech was slurred. ² He then waited in his apartment because he thought the police might be coming to question him. ³ After a while, he ate the corned beef sandwich, drank (so he testified) one or two glasses of wine, turned on the television, and fell asleep in a chair in front of the television set.

Meanwhile, a police cruiser had arrived at the accident scene. It was followed, at approximately 10:45 P.M., by uniformed Leominster police officer Deshod (or Ducharm--the record is inconsistent), who had received a radio report of the accident. After observing the scene and speaking with Eagan (who opined that the driver who had rear-ended him had been drunk), Deshod called the police station to "run" the license plate of the other car, which Eagan had given him. Deshod was soon informed of DiGeronimo's ownership of the suspect vehicle and nearby address. He remained at the scene for approximately fifty minutes until the road, which was still slippery, was salted, and Eagan's car was towed. At this point (so the judge found), the officer had probable cause to believe DiGeronimo had been operating a motor vehicle under the influence of alcohol.

At approximately 11:35 P.M., Deshod drove to the address he had been given. He found the car described by Eagan parked in front of the apartment building. He was allowed entrance into the common hallway of the building by a security guard and proceeded to DiGeronimo's apartment, accompanied by the guard. There he knocked repeatedly and vigorously on the door for several minutes, announcing as loudly as he could that he was a police officer. No response came from within, but Deshod could hear the sound of a television set through the door. Deshod concluded (in good faith, the judge found) that DiGeronimo was inside and possibly in need of assistance. ⁴ He radioed the police station and asked the dispatcher to call DiGeronimo's number. The dispatcher reported receiving a busy signal. Deshod next asked his patrol supervisor whether he should enter the apartment "to check on the welfare of the owner of the second vehicle." Upon being told he should, he entered the apartment, using the security guard's passkey, ⁵ and immediately identified himself as a police officer.

Deshod saw DiGeronimo sitting in a chair in front of the television set in his underwear. DiGeronimo (who testified that the opening of the door wakened him) looked at Deshod in surprise and stood up. Deshod told DiGeronimo to put some clothes on. As DiGeronimo walked about the room, Deshod noticed that he was unsteady on his feet and swayed. As DiGeronimo approached after getting dressed, Deshod detected a strong odor of alcohol on his breath and observed that his eyes were bloodshot and glassy. Deshod asked DiGeronimo if he had been involved in an accident. In slurred but comprehensible speech, DiGeronimo responded affirmatively, stating that the vehicle he struck had "backed down the hill" into him. Deshod then asked if DiGeronimo had been drinking. DiGeronimo said he had drunk two beers at Donnelly's. Deshod saw no bottles, glasses, or containers of any sort in the apartment, and DiGeronimo unsolicitedly stated that there was no alcohol anywhere in the apartment. At some point DiGeronimo turned and left without explanation to go to the bathroom.

Deshod concluded from his observations that DiGeronimo was under the influence of alcohol, placed him under arrest, handcuffed him, and transported him to the police station. After being booked for operating under the influence and being advised of his rights, DiGeronimo elected to take a breathalyzer test. The test yielded two reliable readings of 0.15, well above the blood alcohol level that leads to license suspension under G.L. c. 90, § 24N. During the booking and testing procedure, two officers watched DiGeronimo for more than twenty minutes and noted the strong odor of alcohol on his breath, the unsteadiness of his gait, and the glassy redness of his eyes.

Ultimately charged with the misdemeanor of operating under the influence, second offense, DiGeronimo was found guilty after trial before a jury of six in November, 1993. He was sentenced to two years in the Worcester County house of correction, with nine months to serve and the balance suspended. In February, 1994, he filed a late notice of appeal and a motion for a new trial, arguing that he had received ineffective assistance from trial counsel because of counsel's failure to file a motion to suppress all evidence obtained from and after the illegal police entry into his apartment.

After a hearing, the trial judge denied the new trial motion. He ruled that Officer Deshod had probable cause to believe that DiGeronimo had been responsible for a motor vehicle accident while driving under the influence of alcohol. The judge also found that exigent circumstances existed to validate Deshod's warrantless, but restrained and peaceable, entry into the apartment. Those circumstances were (a) the need to check whether DiGeronimo might be injured as a result of the accident, and (b) the need to determine whether he was under the influence of alcohol, a determination that might have been frustrated by delays caused by DiGeronimo's apparent attempt to avoid detection and necessarily attendant to police efforts to obtain a warrant. The judge concluded that any motion to suppress would, therefore, have been denied, so that trial counsel's failure to have made such a futile motion could not be faulted.

Summary conclusion. DiGeronimo has reiterated on appeal his "ineffective assistance" contentions based on the failure of counsel to file a suppression motion. While recognizing both the good faith--indeed, the commendable intent--of the police in this case, as well as the deplorable social problem caused by "the continuing slaughter upon our Nation's highways, a good percentage of which is due to drivers who are drunk," Welsh v. Wisconsin, 466 U.S. 740, 755, 104 S.Ct. 2091, 2100, 80 L.Ed.2d 732 (1984) (Blackmun, J., concurring), we are constrained to agree with DiGeronimo. The warrantless police entry into his apartment was presumptively illegal, and in the circumstances, fell within no recognized exception to the constitutional warrant requirement. A motion to suppress the evidence improperly obtained from that entry, upon which DiGeronimo's conviction was substantially based, should have succeeded. Trial counsel's failure to file such a motion very likely deprived DiGeronimo of a substantial ground of defense. ⁶ His conviction must therefore be reversed.

The law of warrantless entry. The law applicable to the issue at hand is well established but, as our Declaration of Rights admonishes, ⁷ warrants periodic recapitulation:

" 'It is clear ... that the notion that the warrantless entry of a man's house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man's house without warrant are per se unreasonable in the absence of some one of a number of well defined "exigent circumstances." ' [Coolidge v. New Hampshire, 403 U.S. 443, 477-478, 91 S.Ct. 2022, 2044, 29 L.Ed.2d 564 (1971).] The right of police officers to enter into a home, for whatever purpose, represents a...