Com. v. Hamilton

• Decision Date: 29 July 1987
• Citation: 24 Mass.App.Ct. 290,508 N.E.2d 870
• Parties: COMMONWEALTH v. Michael A. HAMILTON.
• Court: Appeals Court of Massachusetts

Page 870

508 N.E.2d 870

24 Mass.App.Ct. 290

COMMONWEALTH v. Michael A. HAMILTON.

Appeals Court of Massachusetts Middlesex.

Argued April 23, 1987.

Decided June 10, 1987.

Further Appellate Review Denied July 29, 1987.

Edward L. Toro, Asst. Dist. Atty., for the Com.

Richard Zorza, Committee for Public Counsel Services, for defendant.

GREANEY, C.J., and CUTTER, and KASS, JJ.

GREANEY, Chief Justice.

A judge of the Superior Court allowed a motion to suppress drugs and drug-related items and paraphernalia seized in a warrantless search by the Malden police from a motel room occupied by the defendant. See G.L. c. 278, § 28E; Mass.R.Crim.P. 15(b)(2), 378 Mass. 884 (1979). We affirm the order.

The judge found the following facts. At approximately 1:30 A.M. on February 27, 1985, an unidentified woman made a telephone call to the Malden police department. She informed Officer Ronald Brown that her brother "had lost all of his ... money on drugs" which he had purchased from someone in room 214 at the Embassy Motel in Malden. ¹ Immediately Officer Brown and his partner, Officer Donald Cooper, went to the area and, at approximately 1:40 A.M., parked their police cruiser at a gasoline station across from the motel. They were soon joined by Sergeant Victor Ceranna, who arrived in another police cruiser.

The three officers went to the motel office and asked the night clerk to identify the occupant or occupants of room 214. The clerk responded that the room was registered to Sandra Hamilton. The clerk also reported that he had observed a male in the room and that the telephone had been "driving him crazy" throughout the night.

The officers went up the back stairway and positioned themselves where they could observe the exterior of room 214 as well as the other rooms off both sides of the hallway. Shortly thereafter, they saw a man, later identified as Michael Cronin, leave the room. Cronin walked unsteadily and appeared glassy-eyed. The officers concluded that he was under the influence of alcohol, drugs, or both. Bleeding puncture marks were observed in Cronin's left arm. Based on their collective experience, the officers concluded that the marks had been caused by needles. ² Cronin was placed in protective custody.

Sergeant Ceranna knocked on the door to room 214 and announced that the police were there. After a delay and a second knock, the door was opened by the defendant. ³ The officers could see the interior of the motel room. On one bed they saw a small child. On an adjacent night stand, they observed a scale, which they recognized as an implement likely to be used in processing and selling illegal drugs, and a white powder, which they thought was either cocaine or heroin. The defendant was arrested and the room searched. Packages appearing to contain drugs and other drug-related paraphernalia were seized. In an inventory search during the booking procedure, $481 was taken from the defendant. ⁴

The judge ruled that the police had probable cause to believe that narcotics and other illegal items were present in the room but that no exigent circumstances existed to excuse the lack of a warrant. ⁵ Relying principally on the reasoning in Commonwealth v. Huffman, 385 Mass. 122, 430 N.E.2d 1190 (1982), the judge ordered suppressed the drug items and paraphernalia seized by the police.

We need not decide whether the police had probable cause because, even assuming that they did, we agree with the judge that the Commonwealth has not shown the existence of exigent circumstances which would excuse the failure of the police to obtain a warrant. "Under the exemption 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." Commonwealth v. Forde, 367 Mass. 798, 800, 329 N.E.2d 717 (1975). The Commonwealth bears the burden of establishing the existence of exigent circumstances. Commonwealth v. Hall, 366 Mass. 790, 801-802, 323 N.E.2d 319 (1975). Commonwealth v. Donoghue, 23 Mass.App.Ct. 103, 108, 499 N.E.2d 832 (1986). Each case turns on an analysis of its own facts, but certain considerations have generally emerged as guidelines for resolution of the question. ⁶

The judge's findings that there was no indication that the defendant was armed, that he might flee, or that he was aware (until the police knocked on the door) of the officers' presence in the hallway are warranted by the evidence. See Commonwealth v. Huffman, 385 Mass. at 125, 430 N.E.2d 1190. The crime was not one of violence, and it was not shown that there were possible risks to the safety of other residents of the motel if the officers should fail to act immediately. Indeed, the possibility of violence in the motel was no greater than that inherent in the surveillance which had taken place and the subsequent knock and entry by the police.

The judge also reasonably found that "there [was] no suggestion that [the defendant] had any reason to destroy the contraband." We consider speculative the Commonwealth's suggestion that any drugs or drug-related paraphernalia inside the room might have been destroyed after Cronin had received his injection. There is nothing to show that the defendant was aware of the police presence in the hallway. The suggestion falls short of the specific evidence of imminent destruction necessary to satisfy the exception to the warrant requirement for evidence that is about to be destroyed. See Commonwealth v. Huffman, 385 Mass. at 125-126, 430 N.E.2d 1190. See also Commonwealth v. Forde, 367 Mass. at 801, 329 N.E.2d 717 (overheard telephone conversation in which accomplice attempted to warn search targets). Compare United States v. Davis, 461 F.2d 1026, 1031 (3d Cir.1972) (warning by informant to hurry).

Nothing was proved to show that there would have been any unusual difficulty in preventing access to the premises while a warrant was obtained, and there was no evidence that it would have been impractical to obtain a nighttime warrant. ⁷ On the facts found by the judge, it appears that the three officers located in the corridor could have kept watch while a warrant was sought. If something unusual occurred in the interim, it might have provided an exigency justifying immediate entry.

The Commonwealth argues that the police were entitled to seize the drugs and other materials because, once the door was opened, they were able to see some likely contraband from the hallway, where they had a right to be. In the Commonwealth's opinion, "[t]he discovery and seizure of the drugs and paraphernalia ... fall within the 'plain view' doctrine and should not be suppressed." The Commonwealth does not contend that the defendant consented to the entry, a point apparently abandoned because it was not raised below and, as a result, was not considered by the judge.

The difficulty with the argument lies in the facts that the police lacked exigent circumstances and failed to demonstrate consent for the search or the seizure. As was recognized by the judge, these factors subject the case to the reasoning of the Huffman decision, where the police also had plain view of suspected contraband but lacked exigent circumstances or consent to enter. ⁸ In Huffman, it was held that "in the absence of exigent circumstances, [the] police officers could not enter Huffman's home without a warrant," 385 Mass. at 124, 430 N.E.2d 1190, even though they had first-hand knowledge that a crime was probably...