Commonwealth v. Suters, Nos. 15–P–622

• Court: Appeals Court of Massachusetts
• Writing for the Court: AGNES, J.
• Citation: 90 Mass.App.Ct. 449,60 N.E.3d 383
• Parties: COMMONWEALTH v. Monique L. SUTERS (and two companion cases).
• Decision Date: 07 October 2016
• Docket Number: 15–P–623,Nos. 15–P–622,15–P–624.

90 Mass.App.Ct. 449
60 N.E.3d 383

COMMONWEALTH
v.
Monique L. SUTERS (and two companion cases¹ ).

Nos. 15–P–622
15–P–623
15–P–624.

Appeals Court of Massachusetts, Berkshire.

Argued May 9, 2016.
Decided Oct. 7, 2016.

60 N.E.3d 387

Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth.

James F. Petersen for the defendants.

Present: AGNES, MASSING, & KINDER, JJ.

AGNES, J.

In this case we consider the applicability of the attenuation exception to the exclusionary rule. Under this exception, evidence that would not have been obtained by the police but for an unlawful search or seizure is nonetheless admissible because the connection between the unlawful police conduct and the evidence seized is separated by an independent act by the defendant that is sufficient to dissipate the taint of the initial unlawful search or seizure. See Commonwealth v. Martin, 457 Mass. 14, 22–23, 927 N.E.2d 432 (2010).²

60 N.E.3d 388

The cases come to us by interlocutory appeals from the allowance of the defendants' motions to suppress evidence of unlawful amounts of raw marijuana and related paraphernalia discovered in the basement of the defendants' home. For the reasons that follow, we agree with the motion judge that the initial entry by the police into the defendants' home without a warrant was justified based on voluntary consent by an occupant, as well as the emergency exception. We also conclude, contrary to the judge's ruling below, that the police were justified in entering a basement room, where a large quantity of marijuana was observed, to effect the arrest of one of the defendants for assault and battery on a police officer. Because the exclusionary rule should not be applied in such circumstances, we reverse.

Background. We summarize the facts as found by the motion judge, supplemented with uncontroverted testimony from the hearing on the motion to suppress, consistent with the judge's findings. On January 4, 2014, the State police received a 911 telephone call from 38 East Quincy Street in North Adams, during which a man and a woman were heard yelling about a water problem, and then the call was disconnected. The State police advised the North Adams police, and Officers David Lemieux and Trevor Manning were dispatched to the house at around 11:30 P.M. There the officers encountered defendant Monique Suters, who expressed concern about the possibility of an electrical fire and asked the officers to follow her adult son, defendant Makenzie,³ into the basement to assist with turning off the water. Inside the home, the officers observed water coming through a ceiling fan in the kitchen. The officers radioed dispatch to send the fire department and then descended into the basement.

Immediately upon entering the basement, the officers smelled “a strong odor of fresh marijuana.” There was water gathering in pools on the floor and coming down the walls. While the police were looking for the water shut-off valve, Monique's husband, defendant Whitney Suters, entered the basement through a door from the outside. He identified himself, apologized to the officers, and said he knew the location of the shut-off valve. Whitney then walked past the officers, opened a door into another room in the basement (second room), walked inside, and closed the door behind him. Officer Manning directed Officer Lemieux to follow Whitney into the second room because he “did not feel comfortable with [Whitney] being in there by himself.” Officer Lemieux opened the door “about half

60 N.E.3d 389

way,” and Whitney, from inside the second room, pushed the door back into Lemieux. Officer Lemieux grabbed Whitney, and then Officer Manning grabbed him as well. A “minor scuffle ensued” and the three ended up inside the second room. Whitney was brought to the floor and handcuffed.

The officers asked Whitney why he had become aggressive with them, and he answered that he did not want them in his house. It was not until this point that Officer Manning looked up and saw a mason jar containing what he believed to be more than one ounce of raw marijuana. The officers then arrested Whitney for assault and battery on a police officer and called a drug investigator, who applied for a search warrant. A subsequent search of the basement yielded more marijuana and related paraphernalia.

Whitney was charged five days later with assault and battery on a police officer, two counts of possession with intent to distribute a class D substance (marijuana), and conspiracy to violate drug laws. About five months later, Monique and Makenzie were charged with similar drug offenses. All three defendants moved to suppress all of the marijuana on the ground that the officers' warrantless entry into the second room, where they initially found a criminal amount of marijuana, was unlawful. After an evidentiary hearing, the motions were allowed on the ground that the Commonwealth had failed to show justification for entering the second room.

Discussion. On review of a “ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002).

Under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, the police are not authorized to enter a home unless they act on the basis of (1) voluntary consent, see Commonwealth v. Rogers, 444 Mass. 234, 236, 827 N.E.2d 669 (2005) ;⁴ (2) probable cause and exigent circumstances, see, e.g., Commonwealth v. Jewett, 471 Mass. 624, 628–629, 31 N.E.3d 1079 (2015) ; or (3) an objectively reasonable belief that there is an injured person or a person in imminent danger of physical harm inside the home who requires immediate assistance. See, e.g., Commonwealth v. Entwistle, 463 Mass. 205, 213, 973 N.E.2d 115 (2012). See also Commonwealth v. Duncan, 467 Mass. 746, 747, 7 N.E.3d 469 (2014) (“[I]n appropriate circumstances, animals, like humans, should be afforded the protection of the emergency aid exception”).⁵

60 N.E.3d 390

a. Initial entry into the home. There is no dispute in this case whether the initial entry into the defendants' home by the police was justified. “The question whether consent was voluntary is a question of fact to be determined in the circumstances of each case, with the burden of proof on the government.” Commonwealth v. Alleyne, 474 Mass. 771, 783, 54 N.E.3d 471 (2016), quoting from Commonwealth v. Carr, 458 Mass. 295, 302, 936 N.E.2d 883 (2010). The judge found that the police acted on the basis of voluntary consent by a co-occupant (Monique). See Georgia v. Randolph, 547 U.S. 103, 109, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) ; Commonwealth v. Rogers, supra at 237, 827 N.E.2d 669. An occupant's consent is valid as against the wishes of an absent, nonconsenting co-occupant. See United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) ( “[T]he consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared”).⁶ Moreover, Monique did not state or imply by her conduct that her consent was in any way limited beyond the obvious limitation that it was to enable the police to assist her in turning off the water.

b. Entry into the second room in the basement. The Commonwealth advances several arguments in support of its contention that the police had the right to enter the second room after Whitney arrived on the scene and closed the door upon entering that room.⁷

1. Consent. The Commonwealth argues that Whitney's action in closing the door behind him did not revoke or limit Monique's earlier consent to enter the home to shut off the water valve, and thus the police had a right to open the door and enter the second room. The scope of any consent that is granted is determined on the basis of an objective assessment of the facts. See, e.g., Commonwealth v. Porter P., 456 Mass. 254, 267, 923 N.E.2d 36 (2010) ; Commonwealth v. Lopez, 458 Mass. 383, 393, 937 N.E.2d 949 (2010). “Because a finding of voluntariness is a question of fact, it should not be reversed absent clear error by the judge.” Commonwealth v. Carr, supra at 303, 936 N.E.2d 883.

The general rule is that consent for the police to enter a home or to conduct a search may be withdrawn or limited at any time. See Commonwealth v. Stewart, 469 Mass. 257, 261–262, 13 N.E.3d 981 (2014), and cases cited. It is also settled that in the absence of exigent circumstances, when one co-occupant with common authority over the premises objects to the entry or continued presence of a guest

60 N.E.3d 391

invited onto the premises by another co-occupant or co-occupants, the authority of the other co-occupant to consent is lost. Georgia v. Randolph, supra at 114, 126 S.Ct. 1515 (“Since the co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, without...