Com. v. Huffman

• Decision Date: 19 January 1982
• Citation: 385 Mass. 122,430 N.E.2d 1190
• Parties: COMMONWEALTH v. Michael A. HUFFMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1190

430 N.E.2d 1190

385 Mass. 122

COMMONWEALTH v. Michael A. HUFFMAN.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Oct. 6, 1981.

Decided Jan. 19, 1982.

Janet W. Fisher, Worcester, for defendant.

Daniel F. Toomey, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and WILKINS, LIACOS and ABRAMS, JJ.

ABRAMS, Justice.

Following his conviction ¹ on an indictment charging unlawful possession of marihuana, a class D controlled substance, with intent to distribute (G. L. c. 94C, § 32, inserted by St.1971, c. 1071, § 1), Michael A. Huffman appealed. ² See G. L. c. 278, §§ 33A-33G. Huffman assigned as error an evidentiary ruling by the trial judge, and the denial of his motion to suppress the evidence seized by the police. The Appeals Court reversed on the evidentiary issue ³ (Commonwealth v. Huffman, --- Mass.App. ---, --- - ---, Mass.App.Ct.Adv.Sh. (1981) 103, 108-109, 414 N.E.2d 1032 (1981), and we granted the defendant's application for further appellate review on his claim that the denial of the motion to suppress was error. We agree with the defendant that his motion to suppress should have been allowed.

The Appeals Court concisely summarized the facts as follows. "At the hearing on the motion, Officer Del Rosso testified that about 9:40 P.M., on September 26, 1979, accompanied by a factory custodian, he was searching the third floor of a factory for intruders. The factory was about forty feet distant (across a thirty-two foot street) from the 'three-decker' apartment house in which, on the third floor, Huffman lived as a tenant. The officer's attention was attracted by lighted windows, without curtains or shades. Through the windows (before he called for assistance) he observed for an appreciable time Huffman and two other men taking a green herb from one bag and putting it into numerous other smaller bags. Officer Del Rosso called for police assistance and then obtained binoculars ... from his police cruiser. He was joined by several other officers. With them he observed Huffman and the other men through two different windows for about fifteen minutes more. The officers went to the apartment house, found 'the first door downstairs' open and the hall door unlocked. They proceeded to the third floor landing. Huffman's apartment door was partially ajar (about five or six inches), music was 'blaring,' and there was a strong odor (of) marihuana. Through the open door he observed one of the men 'still bagging' the green herb. The officers entered and found the three men, previously observed from the factory, sitting or standing near a table two or three feet from the windows. On the table were sixteen 'baggies' containing the green herb and fifteen hand-rolled cigarettes strewn around the table. The herb on analysis proved to be marihuana. No attempt was made to obtain a search or arrest warrant. Officer Del Rosso's cruiser and the other officers' cruisers were parked in an alley out of sight of the apartment building." Commonwealth v. Huffman, at --- - ---, Mass.App.Ct.Adv.Sh. (1981) at 104-105, 414 N.E.2d 1032.

The Appeals Court ruled that in the absence of exigent circumstances "any non-consensual entry through the partly open door of Huffman's apartment without a warrant (is proscribed), even though the officers had knowledge that a crime was probably there still in progress." Id. at ---, at 107, 414 N.E.2d 1032. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Commonwealth v. Forde, 367 Mass. 798, 329 N.E.2d 717 (1975). We agree with the Appeals Court that, in the absence of exigent circumstances, police officers could not enter Huffman's home without a warrant. ⁴ "(A) warrantless entry into a dwelling to arrest in the absence of sufficient justification for the failure to obtain a warrant" is prohibited. Id. at 806 & n.3, 329 N.E.2d 717.

We turn to the Commonwealth's claim that exigent circumstances were present. The burden is on the Commonwealth "to demonstrate that exigency." Id. See Commonwealth v. Hall, 366 Mass. 790, 801-802, 323 N.E.2d 319 (1975); Commonwealth v. Antobenedetto, 366 Mass. 51, 57, 315 N.E.2d 530 (1974); Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1971, 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." Commonwealth v. Forde, 367 Mass. at 800, 329 N.E.2d 717. Commonwealth v. Hall, 366 Mass. at 801, 323 N.E.2d 319. Donnino & Girese, Exigent Circumstances for a Warrantless Home Arrest, 45 Alb.L.Rev. 90, 113 (1980). ⁵

The Commonwealth's claim that there were exigent circumstances excusing the lack of a warrant is not supported by the record. The Commonwealth did not offer any evidence that the defendant was armed, that he might flee, or even that the defendant was aware of the officers' presence. ⁶ It does not appear in the record that there was any threat that the evidence would soon be removed from the premises. Further, Officer Del Rosso "imagine(d)" that there was a clerk on duty at the District Court for the Central Worcester Division on that evening, yet the Commonwealth did not offer any evidence as to the time it would take to get a warrant, or indicate that it would be impractical to get one.

The Commonwealth argues that exigent circumstances existed because of the potential destruction of the evidence, a well-established exception to the warrant requirement. See Commonwealth v. Forde, 367 Mass. at 800, 329 N.E.2d 717. Commonwealth v. Hall, 366 Mass. at 801-802, 323 N.E.2d 319. Comment, Warrantless Residential Searches to Prevent the Destruction of Evidence: A Need for Strict Standards, 70 J.Crim.L. & Criminology, 255 (1979). However, the question whether exigent circumstances exist depends upon an evaluation of all the circumstances. "(I)n the cases held 'exigent' a quite specific threat has been found: 'based on the surrounding circumstances or the information at hand' it is reasonably concluded that 'the evidence will be destroyed or removed before ... (the police) can secure a search warrant.' " ⁷ Commonwealth v. Hall, 366 Mass. at 802, 323 N.E.2d 319, quoting from United States v. Rubin, 474 F.2d 262, 268 (3d Cir. 1973). "The essence of an exigency is the existence of circumstances known to the police which prevent them from taking the time to obtain a warrant because to do so would thwart ... the arrest." Latzer, Police Entries to Arrest-Payton v. New York, 17 Crim.L.B. 156, 163 (1981).

In this case, the Commonwealth did not introduce evidence that there was a specific threat that the marihuana was about to be destroyed or that to obtain a warrant would have thwarted the arrest. Moreover, "(a) number of police officers were on hand; they could readily have maintained a presence to prevent suspicious access to the premises until a warrant could be obtained." Commonwealth v. Hall, 366 Mass. at 803, 323 N.E.2d 319. See, especially, id. at 803 n.16, 323 N.E.2d 319; Note, Police Practice and the Threatened Destruction of Tangible Evidence, 84 Harv.L.Rev. 1465, 1474-1475 (1971). The Commonwealth did not show the existence of an exigency. We cannot speculate or go outside of the record to justify the warrantless entry into a private residence. Cf. Commonwealth v. Ferguson, --- Mass. ---, Mass.Adv.Sh. (1981) 1551, 422 N.E.2d 1365 (1981).

Since the Commonwealth has failed to meet its burden of justifying the warrantless entry the motion to suppress should have been allowed. Commonwealth v. Forde, 367 Mass. at 806, 329 N.E.2d 717. The judgment is reversed and the verdict set aside. The order of the trial judge denying the motion to suppress is reversed and the case remanded to the District Court for the Central Worcester Division six-man jury session for further proceedings.

So ordered.

1 Huffman was fined $625, a sentence later suspended.

2 The case was tried in the six-member jury session of the District Court for the Central Worcester Division.

3 The Appeals Court reversed the judgment of the District Court on the ground that the judge should have allowed the defendant to testify as to his intentions with respect to the marihuana seized. Commonwealth v. Huffman, --- Mass.App. ---, --- - ---, Mass.App.Ct.Adv.Sh. (1981)...