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15-P-403 Appeals Court
COMMONWEALTH vs. DEQUAN MARTIN.
No. 15-P-403.
Suffolk. April 1, 2016. - July 6, 2017.
Present: Meade, Wolohojian, & Maldonado, JJ.
Marijuana. Practice, Criminal, Motion to suppress. Threshold Police Inquiry. Probable Cause. Search and Seizure, Threshold police inquiry, Exigent circumstances, Probable cause, Pursuit, Emergency. Constitutional Law, Search and seizure, Investigatory stop, Probable cause.
Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on April 12, 2012.
After transfer to the Central Division of the Boston Municipal Court Department, a pretrial motion to suppress evidence was heard by Michael J. Coyne, J., and the case was heard by Thomas C. Horgan, J.
Chase A. Marshall for the defendant. Kathryn Leary, Assistant District Attorney, for the Commonwealth.
MALDONADO, J. In this case, we consider whether the
warrantless entry by police into a residence was justified where
the entry was made while chasing the defendant, who fled from 2
police during a stop for a civil infraction of marijuana
possession. Concluding that these circumstances do not give
rise to any exigency that would authorize the police to follow
the defendant into a residence, we reverse.
Background. On April 11, 2012, at about 8:50 P.M., two
undercover Boston police officers, while patrolling the
Dorchester section of Boston, approached a legally parked
vehicle in which sat three males. The vehicle was "consumed
with smoke" and condensation had formed on the rear windshield.
The defendant was seated in the front passenger seat. As the
officers approached the vehicle, the defendant opened the door
and stepped outside. Smoke emanated from the vehicle, and the
officers were struck by a "strong" odor of burnt marijuana.
One of the officers, Officer Beliveau, who had experience
and training in drug related crimes, was approaching the
passenger side and ordered the defendant to get back inside the
vehicle. The defendant sat back in the front passenger seat but
his legs protruded outside the vehicle through the door.
Beliveau repeated his command, and the defendant repositioned
himself fully into the vehicle. "[I]n the passenger compartment
of that door," Beliveau then observed a small plastic glassine
bag, a copper grinder (commonly used to break up marijuana so
that it could be more easily rolled into cigarettes), and cigar 3
wrappers. "[G]reen leafy matter" was observed inside the
grinder.
The defendant appeared very nervous. He told Beliveau, who
was standing before him, that he felt nauseous and wanted to
throw up; he asked the officer to step aside to make room for
him to vomit. Beliveau jokingly quipped that he must have
smoked some "bad weed," but he did not move away. Beliveau,
instead, leaned into the vehicle and addressed the back seat
passenger (passenger).
Beliveau asked the passenger and the defendant for
identification. The passenger produced identification, but he
was also asked by Beliveau if he had ever been arrested or on
probation. The passenger responded that he had been arrested
for a firearm charge and was on probation. The defendant
responded that he did not have any identification on him, but he
disclosed his name and date of birth. Beliveau jotted that
information in his notebook, and likewise asked the defendant
several additional questions, including whether he had any
warrants, was on probation, or had ever been arrested. The
defendant responded that he had been arrested, but Beliveau
could not remember if he disclosed the charge. At that point,
which was approximately four minutes from the time the officers
approached the vehicle, Beliveau's partner called for back up. 4
Meanwhile, a woman started approaching the vehicle and
asked the officers what was going on. Beliveau told the woman
that they were conducting an investigation that would take only
a couple of minutes, and he asked her to step back. The woman
complied, and the defendant identified her as his mother.
Within a few minutes, two uniformed officers arrived. One
of those officers positioned himself near the defendant.
Beliveau handed his notebook to his partner, who began checking
the defendant's information in the computer located in the
cruiser. Beliveau also went around the vehicle to the driver's
side rear door and continued his investigation of the passenger.
When Beliveau began pat frisking that individual, which was
seven to eight minutes after Beliveau and his partner first
approached the vehicle, the defendant fled.
Three officers chased after the defendant, while Beliveau
remained at the scene. The officers yelled for the defendant to
stop, but he kept running. As the officers chased the
defendant, there was a group of people on the sidewalk. The
defendant ran approximately forty or fifty feet1 to a side door
of 440 Gallivan Boulevard, which was later determined to be his
residence. He entered the residence without the use of force or
a key. The officers followed the defendant into the residence;
1 That the testimony was not consistent as to the distance to the residence does not affect the outcome of this case. 5
there were other individuals in the residence at that time. The
defendant ran through the kitchen and the dining room to the
front hallway, where the officers tackled him. Once on the
ground, without giving the defendant any Miranda warnings, one
of the officers asked the defendant why he had run. The
defendant responded that "he had a firearm" in his front right
pocket. The police retrieved the gun and handcuffed the
defendant.
The defendant was arrested and charged with three firearm
related crimes2 and resisting arrest. Arguing that the initial
stop and the incremental progression of police activity violated
his rights under the Fourth Amendment to the United States
Constitution and art. 14 of the Massachusetts Declaration of
Rights, the defendant moved to suppress the evidence, including
the gun. The judge denied the motion with the following single
endorsement: "I find the officers had reasonable suspicion to
confront the [defendant] and the subsequent actions of the
[defendant] provided sufficient probable cause to seize the
[defendant]." Prior to the jury-waived trial, the Commonwealth
dismissed two of the charges and the defendant stipulated that
he possessed a loaded firearm. The defendant was found guilty
of carrying a firearm without a license and carrying a loaded
2 Carrying a firearm without a license, possession of ammunition without a firearm identification card, and carrying a loaded firearm without a license. 6
firearm without a license. The defendant appeals, arguing that
his motion to suppress was erroneously denied. We agree.
Discussion. 1. The stop. The parties agree, correctly,
that the defendant was stopped in the constitutional sense when
Beliveau ordered him back into the vehicle. See, e.g.,
Commonwealth v. Borges, 395 Mass. 788, 791 (1985) (a person is
"seized" by police if, in view of all of the circumstances
surrounding the incident, a reasonable person would not believe
that he was free to leave); Commonwealth v. Lyles, 453 Mass.
811, 815 (2009) (same). The defendant argues that his seizure
was based only on the odor of burnt marijuana, which did not
give rise to a reasonable belief that he possessed a criminal
amount of marijuana. See Commonwealth v. Cruz, 459 Mass. 459,
469 (2011); Commonwealth v. Rodriguez, 472 Mass. 767, 778
(2015).3 As there was no reasonable suspicion of criminal
activity, the defendant asserts, the seizure was
3 The court in Rodriguez distinguished between police stopping a motor vehicle for a civil traffic violation, which requires reasonable suspicion, and police stopping a motor vehicle to investigate a civil infraction of possession of marijuana. The court reasoned that there is "no obvious and direct link" between maintaining road safety and enforcement of civil marijuana possession, which through a ballot initiative was decriminalized. Rodriguez, supra at 777-778. The court declined to extend the rule that allows police to stop a vehicle based on reasonable suspicion of a civil motor vehicle offense to stops of a vehicle by police to enforce the civil penalty for possession of one ounce or less of marijuana. Id. at 778. See G. L. c. 94C, §§ 32L-32N. Here, however, the officers approached an already parked vehicle, and there was no concern of a motor vehicle infraction. 7
unconstitutional and any evidence seized thereafter should have
been suppressed. See Cruz, supra; Rodriguez, supra. We
disagree.
While the defendant correctly asserts that there was no
reasonable suspicion for his possession of a criminal amount of
marijuana, there was overwhelming evidence of civil marijuana
possession. Compare Rodriguez, supra (where "a police officer
actually observed an infraction -- such as a person walking
through a park smoking what appeared to be a marijuana cigar or
cigarette --" the officer may stop offender to issue citation
and confiscate item). In addition to the odor of burnt
marijuana, the officers noticed that the interior of the
vehicle, in which the defendant sat, was filled with so much
smoke that it was condensing on the rear window. Also, before
the defendant was ordered back into the vehicle, police had
observed a plume of smoke that smelled like marijuana escape
through the open door. Those observations, in combination with
the officer's experience that such smoke occurs from individuals
smoking marijuana, provided probable cause to believe that the
individuals occupying the vehicle were presently in the process
of consuming marijuana.4 Accordingly, the police could lawfully
4 While it may also be fair to infer that the three occupants were sharing the marijuana, decisional law has made clear that the social sharing of marijuana does not constitute 8
detain the defendant long enough to issue a citation and
confiscate the marijuana. See Cruz, supra at 469 n.16;
Commonwealth v. Locke, 89 Mass. App. Ct. 497, 501 (2016).
The defendant's next challenge, that the length and nature
of the stop was longer and more intrusive than necessary for the
issuance of a civil citation, is arguably a closer question.
Once the defendant provided his name and date of birth, Beliveau
did not proceed directly to confirm the defendant's identity for
issuance of a citation.5 Rather, Beliveau engaged in a series of
unrelated questions pertaining to whether the defendant had a
criminal history. The defendant was asked whether he had ever
been arrested, had any warrants, or was on probation. Those
probing questions into the defendant's criminal history during a
stop grounded in only a civil violation for marijuana possession
are at odds with the Supreme Judicial Court's directive that
such an infraction is "no longer 'a serious infraction worthy of
criminal sanction,' and that those who commit this offense
should be treated differently from other drug offenders."
Rodriguez, supra at 777, quoting from Cruz, 459 Mass. at 471.
In addition, those questions, when asked of the passenger,
distribution in violation of G. L. c. 94C, § 32C. See Commonwealth v. Pacheco, 464 Mass. 768, 772 (2013). 5 "The defendant's inability to provide a license was unremarkable," as he was simply a passenger in a parked vehicle and therefore "was not required to carry one." Commonwealth v. Brown, 75 Mass. App. Ct. 528, 536 (2009). 9
resulted in police calling for back up and a further delay in
the civil citation process while awaiting the arrival of
additional officers.
However, in this particular case, because the questioning
produced no incriminating evidence and was brief (the uniformed
officers arrived within minutes of the call), we are not
inclined to conclude at this time that it resulted in
unreasonable delay. When the defendant fled, only seven to
eight minutes had passed from the arrival of Beliveau and his
partner, and the police were still in the process of confirming
the defendant's identifying information. We conclude,
therefore, that the duration of the stop did not exceed the
period reasonably necessary to issue the citation. See
Commonwealth v. Goewey, 69 Mass. App. Ct. 429, 434 (2007)
(extended duration of stopped motor vehicle permissible where
officers were investigating defendant's identity in order to
write proper citation). See also Commonwealth v. Torres, 424
Mass. 153, 158 (1997); Commonwealth v. Demirtshyan, 87 Mass.
App. Ct. 737, 745-746 (2015). We turn next to the chase that
led to the warrantless entry into the residence.
2. Exigent circumstances. a. Hot pursuit. "Warrantless
entries into the home are prohibited by the Fourth Amendment to
the United States Constitution and art. 14 of the Massachusetts
Declaration of Rights absent either probable cause and exigent 10
circumstances, or consent." Commonwealth v. Rogers, 444 Mass.
234, 236 (2005). "A variety of circumstances may give rise to
an exigency sufficient to justify a warrantless search,
including law enforcement's need to . . . engage in 'hot
pursuit' of a fleeing suspect." Missouri v. McNeely, 133 S. Ct.
1552, 1558 (2013), citing United States v. Santana, 427 U.S. 38,
42-43 (1976). "This exception effectuates the principle that 'a
suspect may not defeat an arrest which has been set in motion in
a public place . . . by the expedient of escaping to a private
place.'" Commonwealth v. Jewett, 471 Mass. 624, 631 (2015),
quoting from Santana, supra at 43. The Commonwealth bears the
"heavy burden," in the absence of consent, of justifying a
warrantless entry by establishing both probable cause and
exigent circumstances. Jewett, supra at 628. See Commonwealth
v. Tyree, 455 Mass. 676, 684 (2010).
The hot pursuit exception is inapplicable here for several
reasons. This exception is based on the limiting principle that
the grounds for entering a dwelling in hot pursuit of one
fleeing arrest were set in motion in a "public place." Santana,
supra at 42-43. Put another way, the grounds for arrest must
have been in place prior to the warrantless police entry. The
exception is further limited to the capture of "an individual
suspected of committing a jailable misdemeanor or felony."
Jewett, supra at 632-633. Here, the officers' pursuit of the 11
defendant commenced with probable cause to issue a citation for
civil marijuana possession, which is not a jailable misdemeanor.
See G. L. c. 94C, § 32L.
Furthermore, nothing that occurred during the chase
supplied probable cause of a more serious offense. The
Commonwealth argues that because the officers did not know that
the defendant had run into his own home, they had probable cause
to arrest the defendant for breaking and entering with the
intent to trespass. The Commonwealth contends, therefore, that
the officers were justifiably in hot pursuit of someone who had
just committed a jailable misdemeanor when they followed the
defendant into the residence. See generally Jewett, supra at
629-635.6 We disagree.
Probable cause to arrest "exists, where, at the moment of
arrest, the facts and circumstances within the knowledge of the
police are enough to warrant a prudent person in believing that
the individual arrested has committed or was committing an
offense." Commonwealth v. Franco, 419 Mass. 635, 639 (1995),
quoting from Commonwealth v. Santaliz, 413 Mass. 238, 241
(1992). Here, there was no reason to believe that the defendant
6 Police may lawfully arrest an individual without a warrant for committing a misdemeanor, such as breaking and entering with the intent to commit a misdemeanor (trespass), G. L. c. 266, § 16A, when the crime constitutes a breach of the peace, is committed in their presence, and is still continuing at the time of the arrest. Jewett, 471 Mass. at 630, 633. 12
entered the residence unlawfully. When Beliveau and his partner
first observed the defendant, he was seated in a legally parked
vehicle on a residential street and was only forty to fifty feet
from that residence. He entered the residence through a side
door without the use of force or a key. Moreover, the police
encounter had attracted the attention of a woman, who the
defendant identified as his mother, and other individuals
gathered on the street, and no one, including the individuals in
the residence, gave any indication that the defendant was an
intruder or unwelcomed. Contrast Commonwealth v. Small, 10
Mass. App. Ct. 606, 610 (1980) (defendant's arrest based on
information supplied by neighbor who had observed defendant
attempt to break and enter nearby home). In these
circumstances, there was an objectively reasonable possibility
that the defendant lived or was welcomed at that address. To
the extent the police may have doubted this conclusion, that
doubt was not the equivalent of establishing probable cause to
believe the defendant entered the residence illegally.7
b. Emergency aid. The Commonwealth also contends that the
entry was justified under the emergency aid exception to the
7 Given our conclusion, we pretermit any discussion of the issue, implicit in the Commonwealth's argument, of whether the police are permitted to pursue a suspect into a third party's home. 13
warrant requirement.8 That doctrine presents another narrow
exception to the warrant requirement, but it does not lend
justification for the police entry here. See Commonwealth v.
Duncan, 467 Mass. 746, 749 (2014).
The emergency aid exception permits the police to enter a
home without a warrant when two requirements are met. First,
the police must "have an objectively reasonable basis to believe
that there may be someone inside who is injured or in imminent
danger of physical harm." Id. at 749-750, quoting from
Commonwealth v. Peters, 453 Mass. 818, 819 (2009). Second, "the
conduct of the police following the entry must be reasonable
under the circumstances." Duncan, supra at 750, quoting from
Peters, supra at 823. "The need to protect or preserve life or
avoid serious injury is justification for what would be
otherwise illegal absent an exigency or emergency." Duncan,
supra at 750 (quotation omitted).
Here, the police were investigating civil marijuana
possession when the defendant fled into a nearby residence. As
discussed above, the entry presented no reasonable suggestion
8 Although the Commonwealth relies on the so-called "community caretaking" exception to justify the police action, that exception has been "applied almost exclusively in situations involving searches or seizures of automobiles." Commonwealth v. Duncan, 467 Mass. 746, 743 n.3 (2014). We therefore review the claim under the emergency aid exception that permits the police to enter a home without a warrant. See id. at 749-750. 14
that it was unauthorized. Moreover, there was no suggestion of
an imminent risk of physical harm to anyone in the residence.
See Peters, supra at 824 (second protective sweep of home not
justified where officers no longer had reasonable grounds that
anyone in home required assistance or was missing). There was
also no evidence that the defendant was armed and dangerous.
See Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 560 (2015)
(no testimony that police saw concealed bulge or defendant
grabbed at his waistband, pressed his waist, ran stiff-armed or
in otherwise awkward manner, or engaged in any furtive gesture).
We acknowledge that in these circumstances the combination
of the defendant's extreme nervousness and flight during a
lawful stop may have given rise to some suspicion of criminal
activity, but without more there was no reasonable suspicion
that the defendant had a gun. Cf. Commonwealth v. Sykes, 449
Mass. 308, 314-315 (2007); Commonwealth v. Monteiro, 71 Mass.
App. Ct. 477, 479-480 (2008).9 The defendant's nervousness alone
cannot "be the grounding factor on which to base suspicion of
criminal activity." Cruz, 459 Mass. at 468.
In Sykes, a "close case," the police had reasonable
suspicion to believe that the defendant was carrying a gun
9 Contrast Commonwealth v. Warren, 475 Mass. 530, 538-540 (2016) (flight where suspect is black male stopped in streets of Boston and under no obligation to respond to police inquiry should be given "little, if any, weight as a factor probative of reasonable suspicion"). 15
where, in addition to his nervousness and his peculiar behavior
of abandoning his bicycle in an effort to escape the police,
there was evidence that the pursuit occurred in a high crime
area, and the police observed the defendant "clench[ing] his
waistband" while he ran down the street. Sykes, supra at 314-
315. Similarly, in Monteiro, the police had reasonable
suspicion that the defendant was carrying a weapon where the
defendant, after receiving a hand gesture from one of four males
gathered on the street and known to police for their involvement
with gun-related incidents (the "functional equivalent" of a
high crime area), left on his bicycle that he later "dropped" in
order to run, had a "panicked look," and was seen by police
"pulling at his waistband" as he ran. Monteiro, supra at 478-
479. Neither of those additional factors are present here.
There is no testimony that this was a high crime area or its
functional equivalent. See Sykes, supra at 314-315; Monteiro,
supra at 479. Nor did police observe the defendant grab,
clench, or pull at his waist or waistband. See Sykes, supra at
315; Monteiro, supra at 478.
Furthermore, that the defendant fled during the patfrisk of
the passenger adds little, if nothing. To begin with, it
appears that the defendant, who was preparing his exit from the
inception of the encounter, was intent on running from police
well before the patfrisk of one of his companions. In addition, 16
even if the defendant's flight was triggered by the patfrisk,
the existence of a reasonable belief that the passenger
possessed a gun did not give rise to a reasonable basis to
suspect the defendant of possessing one. See generally
Commonwealth v. Wing Ng, 420 Mass. 236, 237 (1995) (police must
be able to point to "specific, articulable facts that warrant
a reasonable suspicion that the particular individual might be
armed and a potential threat to the safety of the officer or
others").
In sum, because no view of the evidence lends itself to a
reasonable belief that the defendant possessed a gun or was
otherwise a danger to himself or anyone else, we see no
"objectively reasonable grounds to believe that emergency aid
might be needed." Commonwealth v. Gordon, 87 Mass. App. Ct.
322, 329 (2015) (quotation omitted). See, e.g., Peters, 453
Mass. at 823-824 (first warrantless entry of house permitted
where police knew gun had been fired likely from inside, where
people had been arguing, and where moments later man left and
drove away); Commonwealth v. Copney, 468 Mass. 405, 411 (2014)
(warrantless entry of college dormitory room justified where
student's identification had been used to access building at
time of shooting, student had not been seen twenty-four hours
following shooting, student had not responded to knocks or 17
calls, school dean had reported being concerned, and room's
light and window remained open).
c. Exclusionary rule's deterrent effect. Finally, the
Commonwealth asserts that, in any event, based on these facts,
the exclusionary rule should not apply because it would not
result in an "appreciable deterrence" of police misconduct. We
are not convinced. "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
Rights] [were] designed to circumscribe by the general
requirement of a judicial determination of probable cause."
Peters, 453 Mass. at 819, quoting from Commonwealth v. DeJesus,
439 Mass. 616, 619 (2003).
Conclusion. The order denying the motion to suppress is
reversed. The judgment is reversed and the finding is set
aside.
So ordered.