COMMONWEALTH v. LAND (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from his conviction after a bench trial of possession of marijuana with intent to distribute, contending that there was error in the denial of his motion to suppress. We conclude that the warrantless entry into the home was not justified by the emergency aid exception to the warrant requirement, and reverse the conviction.²

“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” (quotation and citation omitted). Commonwealth v. Peters, 453 Mass. 818, 822-823 (2009).

1. Background. A field service representative from the NStar collections department arrived at a five-bedroom single-family house at the end of a dead-end street in Bedford to collect a past-due balance or suspend electric service. It was the middle of August and the windows of the house were open. The front door was open; a screen door was unlatched and flapping. The service representative knocked on the door, called out to anyone who might be inside, and received no response. She contacted her supervisor to request a welfare check, and her supervisor contacted the police. Two Bedford police officers arrived to conduct what the prosecutor referred to as a “well-being check.”

The two responding officers did not know who lived in the house, but they, like the NStar representative, thought it strange to leave a house “unsecured.” They observed no signs of forced entry and did not suspect any criminal activity. Nor did they observe any conditions indicating a person might be in distress. There were no signs that anyone was inside the house. The officers did not take any steps to discover who owned the house or whether an elderly person lived there, and did not check to see if there had been any emergency calls from the house in the past. Two cars were parked in the driveway, but the officers did not run the license plates until after they entered the home.

The officers announced their presence and entered through the open front door after receiving no response. They called out from the foyer, and after receiving no response walked through the house. An officer observed a “substantial size marijuana grow operation” in two of the second-floor bedrooms. The police officers obtained a warrant and executed a search, the fruits of which led to this conviction.

2. Emergency aid exception to warrant requirement. “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] [were] designed to circumscribe by the general requirement of a judicial determination of probable cause.” Commonwealth v. Duncan, 467 Mass. 746, 749, cert. denied, 574 U.S. 891 (2014), quoting Peters, 453 Mass. at 819. Accordingly, a “warrantless government search of a home is presumptively unreasonable” (citations omitted), Commonwealth v. Arias, 481 Mass. 604, 609 (2019), though “subject to certain carefully delineated exceptions.” Commonwealth v. Entwistle, 463 Mass. 205, 213 (2012), cert. denied, 568 U.S. 1129 (2013). One such exception to the warrant requirement is the “emergency aid” exception, “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.” Id., quoting Peters, supra.

The Commonwealth has the burden to show that the warrantless entry and protective sweep meet two strict requirements to satisfy the emergency aid exception. See Arias, 481 Mass. at 610; Commonwealth v. Knowles, 451 Mass. 91, 96 (2008). “First, there must be objectively reasonable grounds to believe that an emergency exists ․ Second, the conduct of the police following the entry must be reasonable under the circumstances, which here means that the protective sweep must be limited in scope to its purpose -- a search for victims” (citations omitted). Peters, 453 Mass. at 823. Although “[e]ntering officers do not need ironclad proof of a likely serious, life-threatening injury in order for a warrantless entry to be reasonable under the circumstances” (citations omitted), Arias, supra at 611, “[t]he injury sought to be avoided must be immediate and serious, and the mere existence of a potentially harmful circumstance is not sufficient.” Commonwealth v. Raspberry, 93 Mass. App. Ct. 633, 638-639 (2018), quoting Commonwealth v. Kirschner, 67 Mass. App. Ct. 836, 841-842 (2006).

The Commonwealth suggests that the warrantless entry was justified due to a potential danger to would-be occupants of the house if the power were disconnected. There was not a reasonable basis to conclude that anyone was in the house or that anyone was in danger; the only indication to the contrary was the “speculative” report of the NStar employee.³ See Commonwealth v. Tuschall, 476 Mass. 581, 587 (2017) (smell of drugs and anecdotal reports regarding presence of defendant's girlfriend insufficient to support emergency warrantless entry into home in which chemicals used in production of methamphetamines were found). Contrast Commonwealth v. Cantelli, 83 Mass. App. Ct. 156, 165-166 (2013) (warrantless entry permissible where gas company technician responding to report of gas smell measured “explosive levels” of gas coming from inside apartment). The presumptively unlawful warrantless entry was not otherwise justified. See Tuschall, supra at 584-587.

Judgment reversed.

Finding set aside.

FOOTNOTES

2.   Because we reverse the defendant's conviction on the ground that the warrantless entry into his home was not justified under the emergency aid exception, we need not reach the other issues raised on appeal.

3.   This case is therefore unlike those relied upon by the Commonwealth, where there is a credible report that a known occupant of the house was missing or endangered. See Entwistle, 463 Mass. at 215 (occupant of home reliably reported missing); Commonwealth v. Snell, 428 Mass. 766, 773, cert. denied, 527 U.S. 1010 (1999) (credible threats made on life of victim, who had not responded for several days); Commonwealth v. Gordon, 87 Mass. App. Ct. 322, 329 (2015) (reasonable to believe that victim, after requesting 911 call for aid, reentered home where domestic violence had occurred).