Supreme Judicial Court of Massachusetts, Barnstable
Argued September 9, 2015.
Indictments found and returned in the Superior Court Department on April 15, 2011.
A pretrial motion to suppress evidence was heard by Gary A. Nickerson, J., and the cases were tried before him.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Robert L. Sheketoff for the defendant.
Julia K. Holler, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines, JJ.
[42 N.E.3d 1092] Hines, J.
After a jury trial in the Superior Court, the defendant, David J. Kaeppeler, was convicted of rape, G. L. c. 265, § 22 ( b ); drugging for sexual intercourse, G. L. c. 272, § 3; and drugging to confine, G. L. c. 265, § 26B. The convictions were based on events that occurred during a party at the defendant's home in the
early morning hours of May 21, 2010. Two of the guests became seriously ill after ingesting tequila supplied by the defendant. After learning that the defendant might also be ill, the police entered the defendant's home to perform a well-being check under the " emergency aid" exception to the warrant requirement of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. While there, the police seized two tequila bottles, one of which was later found to contain 1, 4-Butanediol, which when ingested is converted into gamma-hydroxy butyric acid (GHB), a so-called " date rape" drug.
In this appeal, the defendant challenges the denial of a motion to suppress the two tequila bottles seized during the well-being check. We conclude that the police had objectively reasonable grounds to believe that the defendant may have been injured or in need of immediate medical assistance but that the seizure of the evidence was unreasonable for two reasons: (1) the seizure occurred after the defendant departed for the hospital in an ambulance and while the police remained in his home without his consent; and (2) the police [42 N.E.3d 1093] retained the evidence for investigative purposes without verifying its relevance to the emergency justifying their entry into the defendant's home. Therefore, the motion to suppress should have been allowed. The defendant also claims error in the trial judge's failure to instruct the jury in accordance with Commonwealth v. Bowden, 379 Mass. 472, 399 N.E.2d 482 (1980). We reject the defendant's Bowden claim but remand for a new trial because of the error in the denial of the motion to suppress.
We recite the facts the jury could have found, reserving certain details for the discussion of the judge's ruling on the motion to suppress. On May 20, 2012, the defendant and the victims -- John Smith and Elana Thomas, both in their mid-twenties -- spent the evening drinking and dancing at a nightclub in Hyannis. They were joined by Jerry Laramay, Daniel Bernard Cammerata, and Patricia S. Sweet. That evening, the nightclub was inaugurating its first " gay and lesbian night," to which Cammerata had been invited to participate as the guest disc jockey. Cammerata drove to Hyannis from Boston for the event with Sweet, his roommate. His boy friend at the time, Laramay, and Laramay's roommate, Thomas, drove down separately from Boston. At some point during the evening, Cammerata invited
Smith, a local friend from Yarmouth, to come to the nightclub. Smith did so and performed as a dancer that night. Cammerata was acquainted with the defendant as a regular customer at another bar where Cammerata had worked. Smith had met the defendant twice before that night. Neither Thomas nor Laramay had previously met the defendant. Thomas and Smith danced together and appeared to " hit it off" with each other. The defendant made passes at Laramay, who rejected his advances and explained that he was in a dating relationship with Cammerata. When the club closed, the group decided to continue the celebration. The defendant offered his home, and the group accepted his invitation.
When the group arrived at the defendant's home, he served shots of tequila to everyone. After several hours, Cammerata, Sweet, and Laramay left to spend the night at Cammerata's mother's house. Smith inquired whether he and Thomas could stay at the defendant's house. The defendant agreed, and Cammerata, Laramay, and Sweet left, promising to return later that morning to pick up Smith and Thomas. The defendant then served another shot of tequila for him, Smith, and Thomas.
After 10 a.m. the following morning, Cammerata and Laramay returned to the defendant's house to pick up Thomas and Smith. They knocked at the door, but no one responded. Eventually, they were able to let themselves into the house through a patio door. When they entered, they observed Smith and Thomas sleeping on sofas in the living room. They managed to awaken Smith, but Thomas could not be roused. Cammerata and Laramay carried Thomas to Laramay's vehicle with the intention of driving on to Boston. Laramay became concerned, however, and decided instead to take Thomas to Cape Cod Hospital.
Smith left in Cammerata's vehicle for a ride home, and during the ride, Smith told Cammerata that he had a dream in which the defendant was giving Smith a " blow job" while he slept. Smith testified that he phrased the statement as having a dream because he " couldn't believe what had happened" and he " wanted someone to [42 N.E.3d 1094] tell [him] that that couldn't have happened." Smith testified that he had " [n]o doubt" that it had happened, and that he had pushed the defendant off of him, said " no," and turned over and went back to sleep after he was woken by the defendant's actions. After arriving at home, Smith became ill and was taken to Cape Cod Hospital at approximately 8 p.m.
Medical staff at the hospital learned that Thomas and Smith had both been drinking at the defendant's house and recognized that
both presented with similar symptoms -- unconsciousness and trouble breathing -- that could be associated with a drug overdose. The hospital staff tested for several types of drugs but did not test for GHB because the results from the test could not be available in sufficient time to assist with medical care. The staff suspected, however, that GHB could be the cause after ruling out a series of other possible causes. The victims' condition deteriorated at the hospital and both were transported, at separate times, by helicopter to Boston for medical treatment. The treating physicians in Boston conducted " everything that [was] possible" in terms of toxicology screens. Without positive results from any of those tests and with information provided by Laramay that he " tast[ed] something funny in the [tequila shared with the two patients]," the physicians concluded that the symptoms displayed by Thomas and Smith were caused by the ingestion of GHB and alcohol.
At or around 9:15 p.m. that evening, hospital staff requested the Barnstable police to perform a well-being check on the defendant at his home because he too might be at risk for illness after drinking tequila with the two patients. At the defendant's home, the police obtained two bottles of tequila. One bottle was empty and in the garage; the other had liquid remaining and was on the kitchen counter. Although the bottle from the garage tested negative for GHB, the bottle from the kitchen counter tested positive for 1, 4-Butanediol, a drug that is converted by the body into GHB.
1. Motion to suppress.
Prior to trial, the defendant filed a motion to suppress the tequila bottles seized during the warrantless entry into his home. The judge denied the motion, ruling that the seizure was reasonably related to the objective emergency of the undiagnosed illness of Smith and Thomas and the unknown status of the defendant's well-being. The defendant argues that the judge erred in denying the motion because the emergency justifying the warrantless entry, a check on his well-being, had ended by the time that the police seized the tequila bottles.
We summarize the facts as found by the judge, supplementing them as necessary with evidence in the record that is uncontroverted and that was implicitly credited by the judge. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S. C.,
450 Mass. 818, 882 N.E.2d 328 (2008). Shortly after 10 p.m., Officer Paul J. Everson and Sergeant Kevin Tynan of the Barnstable police department arrived at the defendant's home to perform the well-being check. The police learned from hospital staff that Thomas and Smith had suffered symptoms that could be the result of a drug overdose and had been drinking with the defendant at a nightclub and at the defendant's house. The officers were also told that the defendant had not appeared at his workplace that day. The [42 N.E.3d 1095] police knocked repeatedly before the defendant appeared at the door, looking as if he had just been awakened from sleep. After being told of the two individuals at the hospital, the defendant invited the officers into the home. Officer Everson asked the defendant how he was feeling; the defendant responded that he was not feeling well and had been sleeping a lot. Sergeant Tynan asked whether there was any GHB at the defendant's house or that could have been put in their drinks at the nightclub. The defendant told the officers that he did not have any drugs in the home and did not think that GHB could have been put in their drinks. He said that he was familiar with GHB and recognized the dangers of mixing it with alcohol.
In response to the officers' urging, the defendant agreed to go to the hospital, and an ambulance transport was arranged. Sergeant Tynan asked the defendant where the tequila was located, and the defendant told him that they had been drinking from a tequila bottle that was on the kitchen counter. The bottle was visible from the officers' location. The defendant also alerted the officers to the second tequila bottle in the garage. Sergeant Tynan confirmed the second tequila bottle was in the garage, but did not pick up either bottle at that time.
When the ambulance arrived, Officer Everson accompanied the defendant to the hospital. Sergeant Tynan remained in the house. At Sergeant Tynan's request, an evidence collection officer from the Barnstable County sheriff's office arrived and photographed and collected the tequila bottles. The bottles were not tested until ...