Middlesex. Civil action commenced in the Superior Court on June 9, 1976. The case was heard by Larkin, J., a District Court Judge sitting under statutory authority. The Supreme Judicial Court granted a request for direct appellate review.
Hennessey, C.j., Braucher, Wilkins, Liacos, & Abrams, JJ.
Search and Seizure. Constitutional Law, Search and seizure, Use in civil proceeding of illegally obtained evidence. Public Employment. Municipal Corporations, Police. Police.
The opinion of the court was delivered by: Braucher
Where an off-duty police officer was found with a bullet wound outside his home and said he was shot by an unknown assailant who was also outside his home, a subsequent warrantless search of his home by the police was not justified by exigent circumstances. [785-786]
Evidence seized from a police officer's home in violation of the Fourth Amendment to the United States Constitution was not admissible in an administrative hearing to remove the officer. [786-788]
Evidence in a removal proceeding before the Civil Service Commission, apart from evidence obtained in violation of the Fourth Amendment, was insufficient to warrant the discharge of a police officer. 
The Civil Service Commission (commission) affirmed the action of the board of selectmen of Framingham (board) in discharging a police officer. A Judge of the Municipal Court of the City of Boston set aside the decision of the commission, and the decision of the Municipal Court was affirmed in the Superior Court in an action in the nature of certiorari. The board and the commission appealed, we allowed the application of the officer and the commission for direct appellate review, and we affirm. We hold that the warrantless search of the officer's home was illegal, that evidence obtained as a result of the search was not admissible in evidence, and that the commission's decision was not supported by substantial admissible evidence.
We summarize the pertinent facts recited in the memorandum of decision of the Municipal Court Judge, based on the record of the commission proceedings. The officer was shot and wounded at his home about 4:00 A.M. on August 9, 1973. He was found in front of the house next door and taken by the police to a hospital, where he remained for an appreciable period. He asserted to a neighbor and to the police that, as he stood in his doorway, he was shot by an unknown assailant standing on the sidewalk some ten feet away, and he persisted in this basic story, with minor variations and inconsistencies, during repeated questioning. On his recovery, the board charged (1) that, having personal knowledge of the course of events, he refused to state the facts to the investigating officers, and (2) that he had refused to cooperate in an official investigation at the direction of his superior officer, and was therefore guilty of insubordination.
At a hearing on those charges before the board, principal reliance was placed on evidence obtained by the police in a warrantless search of the officer's home without his consent. Before the search all the doors and windows of the house were found to be thoroughly secured. The police found the casing of a spent bullet in the vestibule and an automatic pistol concealed under clothing in a drawer of a dresser in a bedroom on the second floor. There was evidence that the bullet taken from the officer's body, and the casing, were fired from that pistol.
The Judge ruled that the search was illegal, the resulting evidence was inadmissible, and there was insufficient other evidence to sustain the charges. He ordered that the officer be reinstated without loss of compensation. In the Superior Court that decision was affirmed.
1. The search. The board and commission contend that the warrantless search of the officer's home was justified by exigent circumstances. Inconsistencies between the officer's statements and circumstances the police observed, they say, would have put a reasonable person in fear of his safety, and the police were reasonable in making a "limited search" of the home to be certain their safety was not in jeopardy. The commission's hearing officer found that the officer lived alone and that the police gained access to his home about 4:30 A.M. on the date of the shooting.
When searches are conducted without a warrant, the burden is on the government to show that a particular search falls within a narrow class of exigent circumstances. Under the exception for exigent circumstances, there must be a showing that it was impracticable for the police to obtain a warrant, and the standards as to exigency are strict. See Commonwealth v. Forde, 367 Mass. 798, 800-801 (1975), and cases cited. A warrantless search of a dwelling is particularly subject to constitutional scrutiny. Commonwealth v. Hall, 366 Mass. 790, 801-804 (1975). Commonwealth v. Cohen, 359 Mass. 140, 143-144 (1971). Cf. Boston v. Ditson, 4 Mass. App. Ct. 323, 327-328 (1976), cert. denied, 429 U.S. 1057 (1977) (administrative search).
Here the officer was found outside his home and said he was shot by an unknown assailant who was also outside. He was taken to the hospital, and the doors and windows of the house were secured. There was no emergency, no hot pursuit of a fleeing felon, no imminent removal or destruction of evidence, no search incident to lawful arrest, and no seizure of evidence of crime in plain view. The hypothesis that the assailant might have taken refuge in the house may be more than "a flight of imaginative fancy." See Commonwealth v. ...