Com. v. Forde

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before TAURO; REARDON; HENNESSEY; QUIRICO
• Citation: 367 Mass. 798,329 N.E.2d 717
• Decision Date: 22 May 1975
• Parties: COMMONWEALTH v. Robert L. FORDE.

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329 N.E.2d 717 367 Mass. 798 COMMONWEALTH
v.
Robert L. FORDE. Supreme Judicial Court of Massachusetts, Suffolk. Argued Jan. 7, 1975.
Decided May 22, 1975.

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Kevin M. Keating & Charlotte Anne Perretta, Boston, for the defendant.

Robert Snider, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY and WILKINS, JJ.

[367 Mass. 799] REARDON, Justice.

The defendant was convicted in the Superior Court of possession of marihuana and LSD, and possession with intent to sell the same. He appealed under G.L. c. 278, §§ 33A--33G, and the Appeals Court reversed the judgments below. COMMONWEALTH V. FORDE, --- MASS.APP. ---, 313 N.E.2D 581 (1974)^A. The Commonwealth applied for and was granted further appellate review pursuant to G.L. c. 211A, § 11. The opinion of the Appeals Court contains a full statement of the facts and we repeat here only those critical to our decision.

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The warrantless entry into the defendant's apartment, which had been under police surveillance for some six months prior thereto, occurred about 11:45 P.M. on January 27, 1971. Earlier that month Sergeant Henry J. Rinaldi (Rinaldi) of the Boston police had been in receipt of information from a reliable informant relative to drug sales made by persons resident in the apartment. Approximately a week before January 27, 1971, the informant described having been in the apartment a few days earlier where he witnessed a sale of marihuana to a third person. Rinaldi testified that he had planned to obtain a search warrant in the week that followed but had not done so. At 7 P.M. on January 27, Rinaldi learned that one Donald McDonald would be arriving at the apartment that evening to purchase marihuana. Rinaldi and another officer 'staked out' the building and observed McDonald entering the apartment and leaving with a shopping bag. They followed McDonald's car for several blocks and arrested McDonald and the three other occupants of the car. Marihuana was found in the shopping bag. The four persons arrested were taken to police headquarters.

Based on the testimony of the police, the only activities which occurred between 8:30 P.M., the time of the arrest, and 11:30 P.M., were booking, photographing, and fingerprinting three of the four arrested persons, as well as calling the parents of the fourth, a juvenile, so that she might be released to them that evening. At [367 Mass. 800] 11:30 P.M. Rinaldi called an assistant district attorney to inquire whether he could search the defendant's apartment without a warrant. The answer was in the negative. While he was still on the telephone, another officer came to Rinaldi to inform him that he had just overheard McDonald telling two of his companions who were about to be admitted to bail that 'they better get right down to the place and tell them what has happened because, 'I can't get bailed. " Rinaldi then attempted to telephone two assistant clerks of the Municipal Court of the Roxbury District in order to procure a warrant. At 11:45 P.M., having failed to reach either of these clerks, he and seven other police officers proceeded to the defendant's apartment, rang the doorbell, and immediately arrested all of the occupants, fanning out through the apartment in the process. Those arrested were taken to police headquarters. About 1 A.M. Rinaldi finally reached one of the assistant clerks to obtain a search warrant issued entirely on the evidence in plain view at the time of the initial entry. Shortly after 2 A.M. a thorough search of the apartment was conducted.

In justification of the initial warrantless entry, the Commonwealth first argues that the cases fall within the exception to the warrant requirement in that the officers were faced with exigent circumstances. The Appeals Court rejected this contention, --- Mass.App. ---, ---, ^b 313 N.E.2d 581 (1974), and we are of the same opinion. When searches are conducted without a warrant, the burden is on the government 'to show that a particular search falls within a narrow class of permissible exceptions.' Commonwealth v. Antobenedetto, --- Mass. ---, ---, ^c 315 N.E.2d 530 (1974). Commonwealth v. Cavanaugh, --- Mass. ---, ---, ^d 317 N.E.2d 480, (1974). Commonwealth v. Hall, --- Mass. ---, ---, ^e 323 N.E.2d 319 (1975). Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). Under the exception for exigent circumstances, there must be a showing that it was impracticable for the police to obtain a warrant, and the standards as to exigency are strict. McDonald v. United States, 335 U.S. 451, [367 Mass. 801] 454--456, 69 S.Ct. 191, 93 L.Ed. 153 (1948). Vale v. Louisiana, supra, 399 U.S. at 35, 90 S.Ct. 1969. Commonwealth v. Hall,supra.

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The exigency here is said to spring from the statement of McDonald to his companions about to be released that the occupants of the defendant's apartment must be warned. Presumably such a warning would result in the destruction or removal of the drugs. The police had every reason to believe that there were persons in the apartment at that time who could respond to such a warning, so the concern of the police was genuine. Cf. Commonwealth v. Hall, supra, --- Mass. at ---, ^f 323 N.E.2d 319; Vale v. Louisiana, supra, 399 U.S. at 34, 90 S.Ct. 1969; United States v. Basurto, 497 F.2d 781, 789 (9th Cir. 1974). Considered alone, the conversation which was overheard could be said to supply exigent circumstances obviating the necessity of a warrant in that the delay in obtaining it would substantially increase the risk of loss or destruction of evidence. Commonwealth v. Hall, supra, --- Mass. at ---, ^g 323 N.E.2d 319. United States v. Rubin, 474 F.2d 262, 269 (3d Cir. 1973), cert. den. sub nom. Agran v. United States, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973). United States v. Evans, 481 F.2d 990, 992 (9th Cir. 1973).

However, the claim of exigency cannot be evaluated without considering the circumstances in their totality. Here the police had been watching the apartment with an eye to drug traffic for some time, and as of at least a week before the raid the police had information sufficient to establish probable cause. See Commonwealth v. Stevens, --- Mass. ---, --- - ---, ^h 283 N.E.2d 673 (1972). The police had planned to get a search warrant during that week but had not done so. On the night of January 27, 1971, after McDonald and his companions were arrested, three hours had elapsed before the police overheard McDonald urging that the occupants of the apartment be warned. During those hours the police undoubtedly could have foreseen the serious risk that one of those arrested would be released that evening and would attempt to warn the defendant and others. See United States v. Mapp, 476 [367 Mass. 802] F.2d 67, 74 (2d Cir. 1973); United States v. Evans, supra, at 994. Rinaldi in fact testified that he had called the parents of the arrested female juvenile and announced his intention to release her to them that evening. In these circumstances the failure of the Commonwealth to offer any explanation why no effort was made to obtain a warrant in the three hours prior to the McDonald conversation which was overheard is fatal to its claim of exigency. 'Haste does not become necessary in the present sense if the need for it has been brought about by deliberate and unreasonable delay. This would allow the exception to swallow the principle.' Niro v. United States, 388 F.2d 535, 540 (1st Cir. 1968). United States v. Curran, 498 F.2d 30, 34 (9th Cir. 1974). United States v. Rosselli, 506 F.2d 627, 630--631 (7th Cir. 1974). See United States v. Rubin, 474 F.2d 262, 270 (3d Cir. 1973), cert. den. sub nom. Agran v. United States, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973). Cf. Commonwealth v. Duran, --- Mass. ---, ---, ⁱ 293 N.E.2d 285 (1973). We do not intimate that the emergency which developed at 11:30 P.M. was contrived by the police but since as an emergency it was easily foreseeable, and since the police had three hours in which they might have secured a warrant and thereby avoided the need to rely on the emergency justification, see United States v. Rosselli, supra, the police must offer some acceptable explanation for their failure to act in that time. We hasten to add that our decision does not imply that police must be required to conduct a search as soon as probable cause arises. See Cardwell v. Lewis, 417 U.S. 583, 595--596, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). Nor must a warrant be obtained at that stage of the investigation, for the warrant

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would then have to be executed within seven days at most. G.L. c. 276, § 2A. Commonwealth v. Cromer, --- Mass. ---, --- ^j, 313 N.E.2d 557 (1974). Furthermore, where the police are conducting an investigation of continuing criminal activities, the exigency of circumstances which develop unexpectedly is not diminished by the fact that in hindsight it appears that there would [367 Mass. 803] have been time to obtain a warrant. United States v. Titus, 445 F.2d 577, 578--579 (2d Cir. 1971), cert. den. 404 U.S. 957, 92 S.Ct. 323, 30 L.Ed.2d 274 (1971). United States v. Miller, 460 F.2d 582, 586 (10th Cir. 1972). United States v. Davis, 461 F.2d 1026, 1031 (3d Cir. 1972). We hold here only that where the exigency is reasonably foreseeable and the police offer no justifiable excuse for their prior delay in obtaining a warrant, the exigency exception to the warrant requirement is not open to them.

The Commonwealth argues alternatively that the entry into the defendant's apartment was for the purpose of making arrests and that no 'search' in the terms of the Fourth Amendment to the United States Constitution occurred until after a warrant was finally obtained, for the only items 'seized' initially were those in plain view. The Appeals Court concluded that there was probable cause to make the arrests, and that under the Commonwealth precedents a warrant was not required for an arrest...