Commonwealth v. Arias
Commonwealth v. Arias
Opinion of the Court
**605In this case, we confront the scope of two exceptions to the warrant requirement that have resulted in some confusion in previous jurisprudence in the Commonwealth: the emergency aid exception and the exigent circumstances exception.
1. Background. a. Facts. We summarize the facts found by the motion judge following an evidentiary hearing on the defendant's motion to suppress, supplemented by uncontroverted and undisputed facts in the record that were implicitly credited by the judge and that do not detract from the judge's ultimate findings. See Commonwealth v. Jones-Pannell,
On the evening of March 4, 2014, the Lawrence police department received a tip from an unnamed 911 caller.
The motion judge credited that, during the general period in which the 911 call was made, the Lawrence police department was investigating a "rash" of "home invasions" believed to be the work of a "crew" from New York. The judge noted, however, that the evidence did not indicate "how recently or where" the home invasions had occurred, or if any home invasion had "occurred in the immediate vicinity or neighbor[hood] of" the particular street.
Multiple police officers responded to the dispatch. The address given was one of two numbers associated with a four-unit apartment building. The building had a single front door, marked with the number "5" on the right side of the door and the number "7" on the left side of the door. The building contained two apartments on the ground floor, numbered "5A" and "7A," and two apartments on the upper floor, numbered "5B" and "7B." At the rear of the building, there was a porch with two entrances.
Sergeant Michael Simard of the Lawrence police department was the supervising patrol sergeant that evening. He arrived at the scene in a marked cruiser and was wearing a uniform. Simard saw no one outside the building. He and a number of other officers monitored the front entrance.
Sergeant Joseph Cerullo of the Lawrence police department's special operations division arrived at the scene in a marked cruiser; he, too, was wearing a uniform and a badge.
At the front of the building, Simard spoke to residents of unit 7A, the first-floor apartment located across the hall from unit 5A. The residents of unit 7A denied seeing or hearing anything out of the ordinary, and said that they did not know who lived in unit 5A. The residents did describe, however, the "layout of the apartment [at unit 5A] as far as what door leads to where." Simard commented that the residents of unit 7A were scared because *265of **607the "[fifteen] police officers with their guns drawn." Simard also stated that, except for the residents of unit 7A, no residents of the building appeared to be at home.
After obtaining the telephone number of the 911 caller, Simard spoke with her by telephone.
**608The caller told Simard that the men likely had a key to the building because they entered the front door "easily." Cerullo acknowledged that he and the other officers did not consider whether the men who allegedly entered the building with a firearm were residents of the building.
At the rear of the building, Cerullo observed a Hispanic male leave the building from the left rear door. The man had facial hair and was "wearing a black and gray sweater." He was identified at the evidentiary hearing as "Wascar Bievenido Guerrero Diaz."
With his firearm drawn, Cerullo shouted, "Lawrence Police. Show me your hands." From the front of the building, Simard was able to hear Cerullo. Diaz *266appeared "shocked" and "quickly went back inside" the building, "closing the door behind him." Cerullo and another officer attempted to enter the building through the door Diaz had used, but, as the judge determined, they "found it locked."
Cerullo moved to the front of the building to discuss the situation with Simard, while four officers remained at the rear of the building. Focusing their attention on unit 5A, Cerullo and Simard made the decision to enter that unit without a warrant.
Within approximately three to eight minutes after police arrived at the scene, Cerullo "entered the front door forcefully," and then led a number of officers through the front door of the building and into unit 5A. Conducting a "protective sweep" for any injured persons and the Hispanic male he had seen earlier at the rear of the building, Cerullo moved through the living room toward the rear of the building. Other officers searched different areas of the apartment. They did not find any people, but they did observe in plain view what appeared to be illegal narcotics, a scale, and plastic bags strewn on the floor. The officers did not seize anything at that point.
At the rear of the apartment, Cerullo encountered a door leading to a hallway outside unit 5A. In the hallway, he saw another door.
**609The officers believed that this was the door that Diaz had used minutes earlier. Cerullo also saw a stairway leading up to unit 5B and down to a basement; a light was on in the basement. After confirming the absence of any people inside unit 5A, Cerullo, other officers, and several canine unit dogs searched the basement; they found and arrested three individuals. They did not search anywhere else in the building for the suspected home invaders.
Based on observations made during the warrantless search of unit 5A, officers obtained a search warrant. Pursuant to the warrant, they searched unit 5A again and seized items from the apartment.
b. Procedural history. The defendant filed a motion to suppress evidence seized pursuant to the warrant, on the ground that the warrant was predicated on observations made during an unconstitutional search. Following an evidentiary hearing, a Superior Court judge allowed the motion.
2. Discussion. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent *267review of [the judge's] ultimate findings and conclusions of law.' " Commonwealth v. Cawthron,
A "warrantless government search of a home is presumptively unreasonable under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights." Commonwealth v. Entwistle,
a. Emergency aid exception. The emergency aid doctrine establishes one such "narrow exception to the warrant requirement." See Commonwealth v. Duncan,
To fall within the narrowly construed emergency aid exception, "a warrantless entry and protective sweep must meet two strict requirements." See Commonwealth v. Peters,
i. Objectively reasonable belief. To meet its burden, the Commonwealth first must demonstrate objectively reasonable grounds to believe that an emergency existed at the time of entry. See Peters,
In determining whether a warrantless entry is objectively justified, we evaluate it "in relation to the scene as it could appear to the officers at the time, *268not as it may seem to a scholar after the event with the benefit of leisured retrospective analysis" (citation omitted). Peters,
The reasonableness of an entry is evaluated under the totality of the circumstances. Compare Tuschall,
Entering officers "do not need ironclad proof of 'a likely serious, life-threatening' injury," Entwistle,
ii. Reasonableness of police conduct inside the dwelling. To rely upon the emergency aid doctrine, the Commonwealth also must **612demonstrate that the conduct of the officers after they entered the premises was reasonable under the circumstances. See Entwistle,
In addition, to be reasonable under the emergency aid doctrine, the officers' conduct after entry "may not be expanded into a general search for evidence of criminal activity." See Entwistle,
After completing a protective sweep, however, if officers continue to have an objectively reasonable basis to believe that an emergency exists, a subsequent sweep that is limited to the scope of the emergency may be justified. See Entwistle,
**613Undoubtedly, when officers have an objectively reasonable basis to believe that an emergency exists, and they reasonably circumscribe the scope of their conduct after entry, "[e]vidence observed in plain view may be seized," Peters,
*270With these considerations in mind, we turn to the search at issue.
iii. Initial search of unit 5A and basement. The defendant maintains that the officers who entered unit 5A and the basement without a warrant lacked objectively reasonable grounds to believe that an emergency existed. The Commonwealth, for its part, acknowledges an "absence of precedent" justifying the officers' warrantless entry under the emergency aid doctrine.
As the motion judge noted, the "Commonwealth's claim that the officers had reason for concern that an armed man was present inside the apartment building is not completely without merit." "[P]olice need not wait for screams from within in order to fear for the safety of occupants or themselves." United States v. Lenoir,
When the officers arrived at the scene in response to the 911 call, they saw and heard no signs of disturbance, and detected no signs of forced entry. To the contrary, they observed that the doors to the building, and to unit 5A, were closed and intact. Moreover, when Simard spoke with the 911 caller, she said that the men had **614entered the building "easily," because they likely had a key. The officers interviewed residents of unit 7A and learned that the residents, too, had seen and heard nothing suspicious or out of the ordinary. No one else informed the officers of any commotion, noises, or sounds coming from unit 5A. As the motion judge found, the officers had no knowledge of any residents or victims inside unit 5A, and the only residents of any unit the officers knew were present were the unharmed residents of unit 7A.
The fact that Diaz was observed at the back of the building does not transform the situation into an emergency. There was no indication that he was injured, in need of emergency assistance, armed, or about to harm others, or that he had harmed others.
Regardless of whether the officers had sincerely held beliefs as to the existence of an armed home invasion or hostage situation, their subjective beliefs at the scene cannot justify a search under the emergency aid exception. See, e.g., Stuart,
Our analysis does not end there, however. We turn to consider whether the entry was justified for some other reason, i.e., under the probable cause and exigent circumstances exception.
*271b. Probable cause and exigent circumstances exception. The judge concluded that, under the exigent circumstances doctrine, the facts confronting the officers did not establish the existence of an exigency, or probable cause of an armed home invasion or hostage situation in progress.
Pursuant to both art. 14 and the Fourth Amendment, the exigent circumstances doctrine establishes another "well-recognized," King,
"In the absence of a warrant, two conditions must be met in order for a nonconsensual entry to be valid" under the exigent circumstances doctrine: (1) "there must be probable cause" and (2) "there must be exigent circumstances." Commonwealth v. DeJesus,
The Commonwealth "bears the burden of proof" to establish that a warrantless search was proper. See Young,
When entry is lawful under the exigent circumstances doctrine, "the police, in accordance with the rule of 'plain view,' [may] take into their possession material having apparent evidential connection to the criminal activity they were in course of investigating" (footnote omitted). Young,
**616We begin with the question of exigency.
*272i. Exigency. A warrantless entry is justified only if, in addition to the existence of probable cause, exigent circumstances are present. See Figueroa,
For exigent circumstances to exist, officers must have "reasonable grounds to believe that obtaining a warrant would be impracticable under the circumstances." Figueroa,
"In determining whether a warrantless search falls within the narrow exception of exigent circumstances, we consider 'the circumstances in their totality' ..." (citation omitted). Figueroa,
In the circumstances here, for the same reasons that the officers lacked objectively reasonable grounds to believe that residents of unit 5A were in danger, pursuant to the emergency aid doctrine, the officers lacked a reasonable basis to believe that they or others were at risk of imminent harm, pursuant to the exigent circumstances doctrine. See Figueroa,
In addition, because the building was surrounded by officers, there was little risk of a suspect's flight from within. See Figueroa,
The investigation of a crime, even a serious crime such as an armed home invasion, does not itself establish an exigency. See Mincey,
Because officers lacked a reasonable basis to believe that an exigency existed in unit 5A, the warrantless search was impermissible. See DeJesus,
ii. Probable cause. To justify an entry into a dwelling pursuant to the exigent circumstances doctrine, the Commonwealth must demonstrate the existence of probable cause. See Tyree,
"In dealing with probable cause ... we deal with probabilities. These are not technical; they are ... practical considerations of everyday life, on which reasonable and prudent [people], not legal technicians, act." Commonwealth v. Cartright,
A. Informant's tip. Where, as here, police seek to establish probable cause based on an informant's tip, they must show, pursuant to the two-prong Aguilar- Spinelli test, both that the tip is grounded in a basis of knowledge, and that it is reliable. See Commonwealth v. Upton,
In accordance with the Aguilar- Spinelli test, the Commonwealth first must establish the basis of knowledge underlying an informant's tip. See Alfonso A.,
If an informant's basis of knowledge is established, to justify the warrantless entry, the Commonwealth then must demonstrate that the tip was credible. See *274Alfonso A.,
At the same time, "[i]t is important to recognize that [private individuals] who report criminal activity justifiably may be concerned for their own safety if their identity becomes known to the persons subsequently investigated or arrested, and for this reason may wish to remain anonymous." Cavitt,
In addition, the reliability of a tip may be adduced from the extent to which an informant provides factual details. See Alfonso A.,
Each prong of the Aguilar- Spinelli test "must be separately considered and satisfied or supplemented in some way." Upton,
B. Analysis. Our inquiry into the issue of probable cause begins with the 911 call. We are satisfied that the judge's subsidiary findings are substantiated by the *275record. Although this case presents a close question of probable cause, we conclude, as the judge found, that the circumstances confronting the officers at the scene did not corroborate the caller's tip. **620As to the basis of knowledge prong, we note that the 911 caller informed the Lawrence police dispatcher that she saw two men "going up to the building" located at the specified address, and that she heard one of the men load the gun before he and his companion entered the building. Thus, the basis of the 911 caller's firsthand knowledge was apparent from the initial tip itself.
Of course, carrying a firearm is not itself a crime in the Commonwealth. See, e.g., Commonwealth v. Alvarado,
The more difficult question, however, is whether the officers had an adequate basis to conclude that the 911 caller's tip was reliable. In this regard, the caller provided details adverse to a determination of probable cause. She commented that the men talked calmly before entering the building, which they entered "easily" because they likely had a key. In addition, although she said that she had never seen the men before, she acknowledged that she was new to the neighborhood and was unsure of what the men were doing. The caller also provided details that, due to their conflicting nature, undermined her reliability. She initially said that two men entered the building, but later told Simard that three men had entered the building. Of course, the details provided by the caller constitute an important aspect of our assessment of her reliability. See Alfonso A.,
Despite remaining unnamed, however, the 911 caller did give the dispatcher her home address. She therefore was aware that officers could identify her. See Depiero,
As indicated, either prong of the Aguilar- Spinelli test may be supplemented by corroborating evidence. See, e.g., Upton,
As discussed supra, Simard knew that the residents of unit 7A were unaware of any suspicious activity in unit 5A. Moreover, he was aware that the men who entered the building did so "easily," and that this was most likely because they had a key. No witness said that there had been any sound or sign of trouble in unit 5A; and no officer observed any sound or sign of struggle, violence, forced entry, or damaged property. We agree with the motion judge that "nothing ... indicated that the men who entered" the building "did not reside there."
The judge also found that Diaz, who had facial hair and left the building dressed in a gray and black sweater, did not match the 911 caller's "very general descriptions of two Hispanic men" who had entered the building, one of whom wore a gray jacket and the other of whom wore a black jacket, and neither of whom had facial hair. See Commonwealth v. Warren,
We acknowledge that this case presents a difficult question of probable cause, and that officers are at times required to make **622split-second decisions to avert violence. The racking of a firearm in public prior to entering a residential building is indeed a troubling suggestion of possible violent activity. In the circumstances here, however, given the absence of independent corroborating evidence, the reliability of the 911 caller's testimony was insufficient to establish probable cause under art. 14.
Order allowing motion to suppress affirmed.
We acknowledge the amicus brief submitted by the Committee for Public Counsel Services.
The record does not contain precise times concerning when the 911 call occurred or when officers responded to the scene. Notably, when the officers responded, they were working the "night shift," which began at 5 p.m. and ended at 1 a.m.
The judge found that both the 911 caller and the police dispatcher "provided very general descriptions" of the men who entered the building.
In his role with the special operations division, Sergeant Joseph Cerullo was responsible for emergency responses.
The judge found that the record did not make clear whether Sergeant Michael Simard spoke first to the residents of unit 7A or to the 911 caller. We analyze the judge's findings as to this point based on the record that was before her, and we do not address later-discovered evidence that the judge did not consider. Were we to consider this evidence, it would not change the result we reach.
At the hearing, the parties stipulated to the admission of a compact disc (CD) that contained audio recordings captured on a single audio track. The recordings were of the initial 911 call and the dispatch provided to responding officers. The judge listened to those recordings; she also was provided a copy of a CD that contained only those recordings. In its brief to the Appeals Court, however, the Commonwealth submitted a CD that contained additional audio recordings of police communications that had not been before the motion judge, and that were not transcribed in the filings in the Superior Court or on appeal. In particular, one of the recordings contains a telephone conversation between an employee of the Lawrence police department and the 911 caller that highlights a discrepancy as to when Simard spoke with the 911 caller. The judge made no findings as to that discrepancy, evidence of which was not before her.
"Racking" a handgun involves pulling the slide back to load a round into the chamber. See Commonwealth v. Arias,
Cerullo testified that he and Simard "convers[ed] back and forth" and that Simard shared information he had learned from the 911 caller. The judge found that "Cerullo and Simard discussed the information." According to Cerullo, Simard's "knowledge from the [911] caller was enough for [Cerullo] to make [his] determination to enter the building" because "[t]he knowledge of one would be the knowledge of all." It does not appear, however, that Simard shared all the information he had learned from the 911 caller. Cerullo testified that he "possibly heard" that there were "three individuals out front" of the building, as the 911 caller ultimately told Simard. He testified also that he was not made aware that those individuals likely had a key to the building. In any event, Simard, not Cerullo, ultimately made the decision to enter unit 5A without a warrant.
The judge did not find that Diaz locked the door to prevent officers from entering the building.
The judge found that there was no basis for the officers to have focused their attention on unit 5A. In addition, the judge noted that the officers were unaware of anyone who lived in that apartment.
Although the judge allowed the motion to suppress as to the defendant and a codefendant, this appeal pertains only to the defendant.
In Michigan v. Tyler,
See note 11, supra.
As to the second prong of the emergency aid exception, the reasonableness of the scope of the search, the judge found that "credible evidence showed that the police conducted only a limited protective sweep." The defendant argues, however, that the search of the basement was unreasonable, as the officers had found no sign of an emergency in unit 5A. Because the officers lacked an objectively reasonable basis to believe that an emergency existed anywhere in the building, a protective sweep was unjustifiable under the emergency aid doctrine, regardless of the scope of that sweep.
Concurring Opinion
I agree with the court that "the warrantless search was not justified under the emergency aid exception." Ante at ----, 119 N.E.3d at 270. I also agree that the search was not justified under the probable cause and exigent circumstances exception "[b]ecause officers lacked a reasonable basis to believe that an exigency existed in unit 5A." Id. at ----, 119 N.E.3d at 273. But unlike the court, I am convinced that the officers had probable cause to enter the apartment.
"Reasonableness must be evaluated in relation to the scene as it could appear to the officers at the time, not as it may seem to a scholar after the event with the benefit of leisured retrospective analysis" (quotation omitted). Commonwealth v. Kaeppeler,
Here, the court concedes that "the basis of the 911 caller's firsthand knowledge was apparent from the initial tip itself." Ante at ----, 119 N.E.3d at 275. However, the court then concludes that the caller's veracity has not been established. Id. at ----, --- N.E.3d at ----. I disagree.
The court acknowledges that the caller "was aware that officers could identify her" and that Sergeant Michael Simard of the Lawrence police department "ultimately spoke with the caller by telephone to discuss her observations." Ante at ----, 119 N.E.3d at 275. It then concludes that " 'knowledge of the informant's "identity" and "whereabouts," ' are generally 'not ... adequate standing alone to confirm the informant's reliability.' " Id., quoting **623Commonwealth v. Alfonso A.,
This reliable informant told police that she had observed two men with a gun enter a building at a specified address, and she claimed to have heard one of the men load a gun.
In addition to having reliable information from the caller that a gun was being loaded in public, the police also knew about an ongoing investigation into home invasions in Lawrence. And when **624they reached the address that the caller named, a man *278emerged from the building, only to retreat inside when an officer with a drawn gun told him to show his hands. The police tried to open the door that the man had reentered, but it was locked. There are many reasons why an individual might flee in the presence of the police. See Commonwealth v. Warren,
For the foregoing reasons, I concur.
I assume for purposes of my analysis, as does the court, that the conversation Sergeant Michael Simard of the Lawrence police department had with the caller took place before the officers entered the apartment. A recording with which we were provided, but to which the motion judge did not have access, suggests that this conversation might have occurred after the warrantless entry. See ante at note 5.
The court states that, "[a]ccording to Simard, the caller did not see a firearm." Ante at ----, 119 N.E.3d at 265. But according to the motion judge's factual findings, which we must accept unless clearly erroneous, "[t]he caller reported that while coming down her street she observed 'two guys with a gun' at 7 Royal Street." That finding was not clearly erroneous. Although Simard testified that the caller never said she had observed a gun, Sergeant Joseph Cerullo of the Lawrence police department testified that the caller did say she had observed a gun. The motion judge was free to credit Cerullo's testimony over that of Simard. Moreover, the 911 recording, which was played in open court, confirms that the caller said, "I seen two guys with a gun."
That the caller believed the men had a key to the premises does not alter my conclusion. It is not unusual for a crime in a home to be perpetrated by individuals who know the victims or have a means peaceably to enter the premises. See Commonwealth v. Middlemiss,
Reference
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- COMMONWEALTH v. Jose L. ARIAS.
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