Commonwealth v. Tuschall

• Decision Date: 08 March 2017
• Docket Number: SJC-12151
• Citation: 476 Mass. 581,71 N.E.3d 445
• Parties: COMMONWEALTH v. Kyle TUSCHALL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

476 Mass. 581

71 N.E.3d 445

COMMONWEALTH

v.Kyle TUSCHALL.

SJC-12151

Supreme Judicial Court of Massachusetts, Middlesex..

Argued November 9, 2016.

Decided March 8, 2017.

Randall F. Maas , Assistant District Attorney, for the Commonwealth.

Jessica LaClair for the defendant.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

LOWY, J.

Following a report of a "smell like drugs" emanating from the apartment of the defendant, police made two warrantless entries into his apartment. Based on observations of paraphernalia related to the manufacture of crystal methamphetamine, the police then obtained a warrant. The defendant was subsequently arrested and charged with, among other things, drug related offenses.

The defendant filed two motions in the Superior Court—one to suppress the evidence seized during the execution of the search warrant and another to suppress statements he made to police following his arrest. The judge granted both motions after an evidentiary hearing. With respect to the first motion, the judge determined that no emergency justified the warrantless entries, without which the Commonwealth could not establish the probable cause necessary for the subsequent warrant. Regarding the second motion, the judge concluded the defendant's statements to the police were the "fruit of" the defendant's unlawful arrest.

The Commonwealth appealed from the judge's decision. A single justice in the county court allowed the Commonwealth's application for interlocutory review and reported the matter to the Appeals Court. We subsequently allowed the defendant's motion for direct appellate review. We affirm.

Background . The motion judge made the following factual findings, which we accept absent clear error. Commonwealth v. Entwistle , 463 Mass. 205, 209, 973 N.E.2d 115 (2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 945, 184 L.Ed.2d 736 (2013). We review de novo the judge's application of constitutional principles to the facts. Commonwealth v. Phillips , 452 Mass. 617, 624, 897 N.E.2d 31 (2008).

On June 11, 2014, the Watertown police received a telephone call from the defendant's neighbor at a multifamily residential property. The neighbor reported a "smell like drugs" coming from the defendant's apartment. The police did not respond to the call until the next day, when a detective called the neighbor. The neighbor complained that the odor was causing her to suffer headaches and was adversely affecting her dog. She further described the odor as "skunky" and "minty." She also stated that the windows of the neighbor's apartment were "sealed," and there was a bright light shining in one of the defendant's apartment's rooms. The police did not visit the apartment on June 12.

On June 13, 2014, two detectives traveled to the apartment building, where they met with the neighbor who had complained two days earlier. The night before the detectives arrived, the neighbor spent the night elsewhere to avoid further exposure to the odor.

When the detectives knocked on the defendant's door, no one answered. The detectives could not see inside the defendant's apartment from the sidewalk because the windows were covered from inside the apartment. Beneath a running air conditioner extending from one of the apartment's windows, the detectives smelled a strong chemical odor.

The complaining neighbor informed the detectives that two people, the defendant and his girl friend, lived in the apartment. The two usually left the apartment together in the morning, but that morning, the neighbor had seen the defendant leave alone. The detectives obtained the girl friend's cellular telephone number through the building's owner. Unable to reach the girl friend on her cellular telephone, the detectives decided to enter the apartment to look for her.

The building owner's son led the detectives through the basement to the door of the defendant's apartment. The smell grew stronger in the basement. One of the detectives felt a dry, scratchy sensation in his throat, and his eyes began to burn and water. Before entering the apartment, the detectives identified themselves as police and said, "Is anyone home?" When no one responded, they entered.

Inside the apartment, the detectives went room to room in search of the girl friend, calling her by name. In the course of discovering that no one was present, one detective saw items he believed to be consistent with small-scale methamphetamine production. The detectives did not open any containers or drawers. Now concerned by the risk posed to other residents of the building, due to the volatile chemicals used in methamphetamine production, the detectives contacted the fire department and a colleague, Detective Gutwill, who had more expertise with methamphetamine laboratories (lab).

When Detective Gutwill arrived, he could not tell, by the smell alone, whether the source of the odor posed a danger. He was, however, concerned that the odor was the result of the "one pot" method of methamphetamine manufacture, which presents a risk of explosion. He donned a respirator and protective clothing and entered the apartment. He found no evidence of a "one pot" manufacturing method and determined that there was no immediate risk of danger.

Relying on observations from the two warrantless entries, the police obtained a search warrant. The defendant arrived while the police were executing the warrant. He was arrested and transported to the Watertown police station.

While in custody at the police station, the defendant was questioned by the police. The police informed him of the Miranda rights, including the right to have an attorney present and rights pursuant to Commonwealth v. Rosario , 422 Mass. 48, 56-57, 661 N.E.2d 71 (1996). He waived his Miranda and Rosario rights, agreed to speak with the police, and made some incriminating statements.

Discussion . The Commonwealth argues that the judge erred in granting both motions to suppress. As to the first motion, the Commonwealth argues that both searches were lawful under the emergency aid exception to the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. With regard to the second motion, the Commonwealth argues that the defendant's statements to the police should not have been suppressed, because they were not the fruit of unlawful searches. In the alternative, the Commonwealth argues that, even if the searches were unlawful, the defendant's statements were sufficiently attenuated from the unlawful conduct to escape the reach of the exclusionary rule.

1. The warrantless searches . Under the Fourth Amendment and art. 14, a search of an individual's home must be reasonable. A search conducted without a warrant is presumptively unreasonable. Brigham City v. Stuart , 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). Warrantless searches may be justifiable, however, if the circumstances of the search fall within an established exception to the warrant requirement. Under the exclusionary rule, evidence seized pursuant to an unreasonable search generally will be suppressed. See J.A. Grasso, Jr. & C.M. McEvoy, Suppression Matters Under Massachusetts Law § 20-2[a] (2017).

One such exception to the Fourth Amendment and art. 14 is the "emergency aid exception." Commonwealth v. Duncan , 467 Mass. 746, 749, 7 N.E.3d 469, cert. denied, ––– U.S. ––––, 135 S.Ct. 224, 190 L.Ed.2d 170 (2014). To meet the requirements of the exception, there must be "objectively reasonable grounds to believe that an emergency exists ... [and] the conduct of the police following the entry must be reasonable under the circumstances" (citation omitted). Id . at 750, 7 N.E.3d 469.

The emergency aid exception applies in two circumstances relevant to this case. First, a warrantless search is reasonable when law enforcement possess an objectively reasonable basis to conclude that "prompt intervention is necessary to prevent a threatened fire, explosion, or other destructive accident."

Commonwealth v. DiGeronimo , 38 Mass.App.Ct. 714, 723, 652 N.E.2d 148 (1995). See Commonwealth v. Marchione , 384 Mass. 8, 11-12, 422 N.E.2d 1362 (1981) (entry reasonable to prevent potential explosion from volatile liquids stored near incendiary device). Second, the emergency aid exception "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." Commonwealth v. Peters , 453 Mass. 818, 819, 905 N.E.2d 1111 (2009).

A police officer's " ‘subjective motivation [for entry] is irrelevant.’ " Entwistle , 463 Mass. at 214, 973 N.E.2d 115, quoting Brigham City , 547 U.S. at 404, 126 S.Ct. 1943. The emergency aid exception does not require that police have probable cause that a crime has been committed, because the purpose of the entry is to prevent harm stemming from a dangerous condition, not to investigate criminal activity. See Duncan , 467 Mass. at 750, 7 N.E.3d 469 (2014).¹

a. The initial entry . The Commonwealth suggests that the initial entry was justified due to the danger posed by the fumes to the residents in the building and to the defendant's girl friend, whom the police were concerned might be inside the apartment.

Prior to the first entry, there was no objectively reasonable basis upon which to conclude that residents of the building faced an "imminent threat of death or serious injury" due to the effects of the fumes, or that the fumes constituted a danger comparable to that of a "fire, explosion, or other destructive accident." DiGeronimo , 38 Mass.App.Ct. at 723, 652 N.E.2d 148. Indeed, two days had elapsed before the police responded to the initial complaint.² Moreover, unpleasant as the smell may have been, the discomfort described by the neighbor did not suggest the existence of an emergency situation requiring immediate intervention. When she first met the police two days after making her initial complaint, the...