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Commonwealth v. Tuschall

Supreme Judicial Court of Massachusetts, Middlesex

March 8, 2017

COMMONWEALTH
v.
KYLE TUSCHALL.

          Heard: November 9, 2016.

         Indictments found and returned in the Superior Court Department on August 12, 2014. Pretrial motions to suppress evidence were heard by Thomas P. Billings, J.

         An application for leave to prosecute an interlocutory appeal was allowed by Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review.

          Randall F. Maas, Assistant District Attorney, for the Commonwealth.

          Jessica LaClair for the defendant.

          Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

          LOWY, J.

         Following a report of a "smell like drugs" emanating from the apartment of the defendant, police made two warrantless entries into his apartment. Based on observations of paraphernalia related to the manufacture of crystal methamphetamine, the police then obtained a warrant. The defendant was subsequently arrested and charged with, among other things, drug related offenses.

         The defendant filed two motions in the Superior Court --one to suppress the evidence seized during the execution of the search warrant and another to suppress statements he made to police following his arrest. The judge granted both motions after an evidentiary hearing. With respect to the first motion, the judge determined that no emergency justified the warrantless entries, without which the Commonwealth could not establish the probable cause necessary for the subsequent warrant. Regarding the second motion, the judge concluded the defendant's statements to the police were the "fruit of" the defendant's unlawful arrest.

         The Commonwealth appealed from the judge's decision. A single justice in the county court allowed the Commonwealth's application for interlocutory review and reported the matter to the Appeals Court. We subsequently allowed the defendant's motion for direct appellate review. We affirm.

         Background. The motion judge made the following factual findings, which we accept absent clear error. Commonwealth v. Entwistle, 463 Mass. 205, 209 (2012), cert, denied, 133 S.Ct. 945 (2013). We review de novo the judge's application of constitutional principles to the facts. Commonwealth v. Phillips, 452 Mass. 617, 624 (2008).

         On June 11, 2014, the Watertown police received a telephone call from the defendant's neighbor at a multifamily residential property. The neighbor reported a "smell like drugs" coming from the defendant's apartment. The police did not respond to the call until the next day, when a detective called the neighbor. The neighbor complained that the odor was causing her to suffer headaches and was adversely affecting her dog. She further described the odor as "skunky" and "minty." She also stated that the windows of the neighbor's apartment were "sealed, " and there was a bright light shining in one of the defendant's apartment's rooms. The police did not visit the apartment on June 12.

         On June 13, 2014, two detectives traveled to the apartment building, where they met with the neighbor who had complained two days earlier. The night before the detectives arrived, the neighbor spent the night elsewhere to avoid further exposure to the odor.

         When the detectives knocked on the defendant's door, no one answered. The detectives could not see inside the defendant's apartment from the sidewalk because the windows were covered from inside the apartment. Beneath a running air conditioner extending from one of the apartment's windows, the detectives smelled a strong chemical odor.

         The complaining neighbor informed the detectives that two people, the defendant and his girl friend, lived in the apartment. The two usually left the apartment together in the morning, but that morning, the neighbor had seen the defendant leave alone. The detectives obtained the girl friend's cellular telephone number through the building's owner. Unable to ...


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