Com. v. Peters

• Decision Date: 15 May 2009
• Docket Number: No. SJC-10269.,SJC-10269.
• Citation: 453 Mass. 818,905 N.E.2d 1111
• Parties: COMMONWEALTH v. James M. PETERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

905 N.E.2d 1111

453 Mass. 818

COMMONWEALTH v. James M. PETERS.

No. SJC-10269.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued March 4, 2009.

Decided May 15, 2009.

Barry P. Wilson, Boston (Michelle L. Brennan with him) for the defendant.

Julia K. Holler, Assistant District Attorney (Robert D. Moriarty, Assistant District Attorney, with her) for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

GANTS, J.

The defendant filed a motion in the Superior Court to suppress evidence seized by Falmouth police officers during the execution of a search warrant at his home. The probable cause for the warrant was based in large part on the police officers' earlier observation of a handgun and illegal drugs during the second of two warrantless "protective sweeps" of the residence. After an evidentiary hearing, a judge entered a memorandum of decision and order in which he ruled that the evidence must be suppressed because, although the officers' initial entry and sweep through the residence was lawful based on the emergency exception to the warrant requirement, the second sweep constituted a general search conducted after the emergency had ended and, therefore, was unconstitutional. A single justice of this court granted the Commonwealth leave to file an interlocutory appeal and transferred the matter to the Appeals Court. See Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). The Appeals Court, in an unpublished memorandum and order pursuant to rule 1:28, reversed. Commonwealth v. Peters, 72 Mass.App.Ct. 1101, 888 N.E.2d 386 (2008). We granted the defendant's application for further appellate review.

"The right of police officers to enter into a home, for whatever purpose, represents a serious governmental intrusion into one's privacy. It was just this sort of intrusion that the Fourth Amendment [to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights] was designed to circumscribe by the general requirement of a judicial determination of probable cause." Commonwealth v. DeJesus, 439 Mass. 616, 619, 790 N.E.2d 231 (2003), quoting Commonwealth v. Forde, 367 Mass. 798, 805, 329 N.E.2d 717 (1975). The exigencies that may justify police entry in a home without a warrant are "a narrow category." Commonwealth v. Young, 382 Mass. 448, 456, 416 N.E.2d 944 (1981). One such exigency is the so-called "emergency" or, more precisely, "emergency aid" doctrine, which permits the police to enter a home without a warrant when they have an objectively reasonable basis to believe that there may be someone inside who is injured or in imminent danger of physical harm. See Brigham City v. Stuart, 547 U.S. 398, 403-404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006); Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Commonwealth v. Snell, 428 Mass. 766, 774-775, 705 N.E.2d 236, cert. denied, 527 U.S. 1010, 119 S.Ct. 2351, 144 L.Ed.2d 247 (1999); Commonwealth v. Paniaqua, 413 Mass. 796, 797-798 & n. 2, 604 N.E.2d 1278 (1992).

In this case we consider whether police officers, who have entered and conducted a warrantless protective sweep of a home with an objectively reasonable basis to believe there may be a victim inside in need of help, may conduct a second protective sweep after the first sweep fails to locate any victim inside the residence. We conclude that they may, but only when, having considered the information learned from the first sweep, there continues to be an objectively reasonable basis to believe that an injured victim may still be inside. Because we agree with the judge that the officers no longer held such an objectively reasonable belief at the time they conducted the second sweep of the defendant's home, we affirm the judge's order allowing the motion to suppress.

Facts. We summarize the facts as found by the judge, supplementing them occasionally with undisputed evidence taken from the record.¹ On June 3, 2006 Officer Michael Rogers of the Falmouth police department visited a home on Seacoast Shores Boulevard in response to a reported disturbance. Officer Rogers spoke with one of the occupants of the home, Renato Bothelho, and learned that Bothelho had heard a loud noise in the rear of his house. Going into the kitchen to see what had happened, Bothelho saw his mother on her knees crying, apparently in response to the kitchen window breaking. Bothelho told Officer Rogers that he looked out the kitchen window and saw his neighbor at 24 Atwater Drive enter a vehicle and drive away.² There was a bullet hole in the rear kitchen window and a corresponding hole in the kitchen wall where a bullet had lodged. Sighting the angle of the bullet's trajectory, Officer Rogers presumed that the bullet had been fired from inside the house at 24 Atwater Drive.

Officer Rogers knocked on the door at 24 Atwater Drive, but no one responded to his knock. A man tending his garden next door informed Officer Rogers that he had heard arguing from the house and then saw someone drive away in a hurry. The man stated that he was concerned for the safety of the woman who lived in the house. Circling around the house, Officer Rogers found that a rear window had been broken, apparently by a flower pot thrown from inside the house.

Officer Rogers, now joined by a second Falmouth police officer, Robert Curtis, sought and received permission from a superior officer to enter 24 Atwater Drive to look for injured persons. Before entering, they donned body armor and helmets. Officer Curtis carried a shotgun; Officer Rogers drew his pistol. They kicked in the front door and quickly looked through the rooms on the first floor. Another officer, Chuck Martinson, entered the house, and the officers (now three) proceeded together to the second floor. They found nothing of concern.

Two dogs in the basement barked and snarled as the officers approached the basement steps, and the officers radioed for the assistance of an animal control officer to control the dogs. It took approximately fifteen minutes for help to arrive.³ During that time, the three officers waited in the kitchen area of the house. Two animal control officers subsequently arrived and confined both dogs, allowing the police officers to check the basement area. Again, they found nothing of concern.

Returning to the main floor of the house, the officers discussed a recent highly publicized case in which an emergency sweep of a home conducted by Hopkinton police officers failed to locate the bodies of two murder victims. Officer Rogers advised the others that they should search the house more thoroughly for a possible shooting victim. Officers Curtis and Martinson went upstairs to search the second floor while Officer Rogers proceeded to the first-floor bedroom. Dropping to his knees to peer under the bed, Officer Rogers observed the butt end of a handgun protruding from between the mattresses. He also noticed, for the first time, two plastic bags lying on top of the bed, one containing what appeared to be marijuana the other containing what appeared to be heroin. Officer Rogers summoned the others to the bedroom, and the three officers decided to secure the house until a search warrant could be obtained.

Detective Kent H. Clarkson of the Falmouth police department prepared the application for the search warrant. The supporting affidavit recited that the handgun and drugs were observed as the officers "swept the residence for occupants," failing to mention that the contraband had not been discovered until the second of two "sweeps." The warrant issued and the ensuing search of the house revealed a large capacity firearm, ammunition, and a significant quantity of cocaine and heroin. A grand jury returned eleven indictments against the defendant, most charging violations of drug and firearm statutes.

In a written memorandum and order allowing the defendant's motion to suppress the fruits of the search, the judge determined that the officers' initial entry and sweep of the house was based on their objectively reasonable belief that the situation was one of immediate peril and that a victim within the house might be injured or dead. The judge found that, during the initial sweep, the officers had "`tunnel vision,' searching for either an assailant or a victim." The judge determined, however, that "the exigency ended when the initial sweep of the house was completed." The judge reasoned that "[t]ime had lapsed, the danger had passed, there was no concrete evidence of a struggle, of a missing person or of a documented history of domestic violence.... There being nothing found of a suspicious nature during the initial sweep of the premises, the second inspection lacked the objectively reasonable basis which permitted the initial sweep under our law." Adopting language in Commonwealth v. Lewin (No. 1), 407 Mass. 617, 626, 555 N.E.2d 551 (1990), the judge concluded that the second pass through the house "was in fact and law a general search, conducted after the exigency generated by the need for a prompt protective search had ended." Because the search warrant was based on observations made during the officers' "second pass through the house," the judge ruled that the warrant was "hopelessly infected" and, therefore, the evidence seized during the execution of the search warrant must be suppressed.

Discussion. We review the judge's conclusion under the familiar standard used in reviewing a motion to suppress: we accept as true the subsidiary findings of fact made by the judge absent clear error, but make our own independent determination on the judge's "application of constitutional principles to the facts as found." Commonwealth v. Stoute, 422 Mass. 782, 783 n. 1, 665 N.E.2d 93 (1996), quoting Commonwealth v. Haas, 373 Mass. 545, 550, 369 N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154 (1986). As with respect to any evidentiary hearing, we defer to the credibility...