Commonwealth v. Kiser

724 N.E.2d 348, 48 Mass. App. Ct. 647, 2000 Mass. App. LEXIS 89
CourtMassachusetts Appeals Court
DecidedFebruary 25, 2000
DocketNo. 98-P-1453
StatusPublished
Cited by12 cases

This text of 724 N.E.2d 348 (Commonwealth v. Kiser) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Kiser, 724 N.E.2d 348, 48 Mass. App. Ct. 647, 2000 Mass. App. LEXIS 89 (Mass. Ct. App. 2000).

Opinion

Greenberg, J.

Before trial on indictments charging trafficking in cocaine, possession of a controlled substance in a school zone, assault and battery on a police officer, and possession of [648]*648marijuana, the defendant raised a claim that police had unlawfully entered his apartment and unlawfully seized items kept in his bedroom.

A Superior Court judge held an evidentiary hearing on the defendant’s motion to suppress evidence of cocaine, marijuana, and assorted drug-related paraphernalia alleged to belong to the defendant and found “in plain view.” Thereafter, the judge allowed the defendant’s motion to suppress and issued written findings of fact and rulings of law in support of his decision. The Commonwealth brings this interlocutory appeal pursuant to Mass.R.Crim.P. 15, 378 Mass. 884 (1979), and G. L. c. 278, § 28E. See Commonwealth v. Bouvier, 399 Mass. 1002, 1003 (1987). We affirm.

1. The propriety of the warrantless entry. At the outset we are asked to consider whether justification existed for warrant-less entry of the apartment itself. The applicable principles have been much discussed. The decisional law generally forbids police entry into a residence without a warrant. Payton v. New York, 445 U.S. 573 (1980). Commonwealth v. Forde, 367 Mass. 798, 806 (1975). Commonwealth v. Derosia, 402 Mass. 284, 286, cert. denied, 488 U.S. 980 (1988). See Commonwealth v. Huffman, 385 Mass. 122, 124 (1982); Commonwealth v. Acosta, 416 Mass. 279, 281-282 (1993) (relying on Payton to justify entry to arrest under Fourth Amendment to United States Constitution but not passing on whether art. 14 of Declaration of Rights of Massachusetts Constitution requires more in view of exigent circumstances).

Where the police have entered a residence without a warrant, the government bears the burden of showing that the officers’ conduct fell within the narrow, jealously guarded exceptions to the general rule. Commonwealth v. Forde, 367 Mass. at 800. Commonwealth v. DiGeronimo, 38 Mass. App. Ct. 714, 721-722 (1995).

One such exception is where police are confronted with an emergency situation which, at the time they commenced their warrantless search, made it impracticable for them to get a warrant. Commonwealth v. Paniaqua, 413 Mass. 796, 797-799 (1992). Commonwealth v. Lopez, 38 Mass. App. Ct. 748, 749 (1995). Logically, the question whether exigent circumstances exist depends upon an evaluation of all the circumstances as they appeared to the police at the time. See Commonwealth v. Collazo, 34 Mass. App. Ct. 79, 83-84 (1992). Compare Com[649]*649monwealth v. Wigfall, 32 Mass. App. Ct. 582, 586-588 (1992). In United States v. Cresta, 825 F.2d 538 (1st Cir. 1987), cert. denied sub nom. Impemba v. United States, 486 U.S. 1042 (1988), the court explained the assessment which courts should make in determining whether “exigent circumstances” exist which authorize police to make a warrantless entry into a dwelling. The court stated that the test “is whether there is such a compelling necessity for immediate action as will not brook the delay of obtaining a warrant.” Id. at 553, quoting from United States v. Adams, 621 F.2d 41, 44 (1st Cir. 1980). See Commonwealth v. Sergienko, 399 Mass. 291 (1987); Commonwealth v. Amaral, 16 Mass. App. Ct. 230, 235 (1983). Thus the standards as to exigency are strict and the burden of showing it is on the government. Vale v. Louisiana, 399 U.S. 30, 34-35 (1970). Commonwealth v. Hall, 366 Mass. 790, 801-803 (1975). Commonwealth v. Forde, 361 Mass. at 800-801.

We now apply these principles to the facts found by the motion judge in the case at hand when he acted on the suppression motion. See Commonwealth v. Moon, 380 Mass. 751, 755-756 (1980).

Sometime after 3:00 a.m. on October 24, 1996, four police officers returning to their cars from another call were approached by a woman complaining about a noisy party up the street. The officers walked toward the building she .had indicated and heard loud music coming from the third floor. They went upstairs and knocked. The defendant answered the door, standing on the threshold “neither in the apartment nor in the hallway.” The officers recognized him as a member of a local gang that had a reputation for narcotics and weapons violations. One of the officers asked the defendant to turn the music down, and he responded “yeah, okay.” Just then, an unidentified male ran from one side of the room to the other, out of the officer’s line of sight. The officer moved forward to get a better view into the room. The defendant pushed the officer back, “although not off his feet or backward any appreciable distance,” and tried to close the door. The officers then forcibly pushed the door open and entered, out of a stated concern for their safety. The officers told everyone who did not live there to leave and ordered those remaining to put their hands on a nearby pool table. The defendant did not leave, and the police asked him for his identification. At first he refused, but then he said it was in his room and asked whether he could retrieve it. Two officers ac[650]*650companied him into the room. When they saw contraband on top of his dresser in plain view, they placed the defendant under arrest.

The government claims no warrant was required because the loud music was a breach of the peace, and the police entered under the authority of G. L. c. 41, § 98.1 The judge rejected that contention and ruled that loud-sounding music was not the sort of riotous behavior that justified entry under the statute. We agree with the judge that if any statute permits a warrantless entry, its application must meet constitutional safeguards. While the Legislature may expand the authority of police to make warrantless arrests for certain misdemeanors, it may do so only if minimum standards set out by the Supreme Court are met. See, e.g., Sibron v. New York, 392 U.S. 40, 61 (1968); Commonwealth v. Jacobsen, 419 Mass. 269, 272 n.3 (1995).

Likewise, in Payton v. New York, 445 U.S. 573 (1980), the police relied upon a statute authorizing them to enter homes without warrants to make felony arrests. The crimes at issue were felonies, i.e., murder and armed robbery. Id. at 576, 578. The Supreme Court in that case concluded that statutory authority notwithstanding, “the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Id. at 590. See Commonwealth v. Midi, 46 Mass. App. Ct. 591, 594 (1999), quoting from Commonwealth v. Forde, 367 Mass. at 805 (“The right of police officers to enter into a home, for whatever purpose, represents a serious governmental intrusion into one’s privacy.

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Bluebook (online)
724 N.E.2d 348, 48 Mass. App. Ct. 647, 2000 Mass. App. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kiser-massappct-2000.