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Commonwealth v. Arias

Appeals Court of Massachusetts, Essex

November 9, 2017

COMMONWEALTH
v.
JOSE L. ARIAS.

          Heard: January 13, 2017.

         Indictments found and returned in the Superior Court Department on April 14, 2014. A pretrial motion to suppress evidence was heard by Mary-Lou Rup, J.

         An application for leave to prosecute an interlocutory appeal was allowed by Geraldine S. Hines, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.

          Ronald DeRosa, Assistant District Attorney, for the Commonwealth.

          Esther J. Horwich (Stephen J. Wright also present) for the defendant.

          Present: Green, Trainor, Meade, Hanlon, & Desmond, JJ. [1]

          TRAINOR, J.

          This case comes to us on the Commonwealth's interlocutory appeal from a Superior Court judge's allowance of the defendant, Jose Arias's, motion to suppress. The Commonwealth argues that the judge erroneously concluded that the warrantless entry into the defendant's apartment building was not supported by probable cause and exigent circumstances or, in the alternative, by the emergency aid doctrine. For the reasons discussed, we reverse the judge's order, based on the application of the emergency aid doctrine.

         Background.

         We summarize the facts from the judge's findings, supplemented by the evidence in the record that is uncontroverted and that was implicitly credited by the judge. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007).

         On the evening of March 5, 2014, the Lawrence police department received a 911 call from a woman who reported that as she was walking down the street, she saw two "Spanish guys" "with a gun." She stated that she heard one of the men "load the gun" before entering the apartment building at "7 Royal Street." The woman was "really freaked out" and informed the dispatcher that she lived at "21 Royal Street." She also noted that she did not want her call to cause her any "problem[s], " considering that "one of the guys [had] looked at [her]."

         The woman gave a description of the men to the 911 dispatcher, which was later broadcast, in part, to officers on route to Royal Street. The dispatcher asked the woman if she had ever seen the men before, and she stated that she had not and that she was new to the area. The woman also reported that "there's always a little movement in that building, " but she was "not really sure what's going on." When the call ended, the dispatcher immediately broadcasted a request for any available detective or police officer to respond to the location of 7 Royal Street where a caller had witnessed "two Hispanic males enter[ing] a house, one in a gray jacket, [and] one in a black jacket" while one of the males was loading a gun.

         During this same "time frame, " the Lawrence police department was investigating "a rash of home invasions" "[a]round this area" and had "received information" that the crimes were being perpetrated by "a crew out of New York."

         When the police officers responded to the call, they discovered a four-unit apartment building with the address of 5-7 Royal Street. The units shared one common entranceway at the front of the building, and were structured in the following manner: two units were located on the first floor (apartment 5A and apartment 7A), and two units were located on the second floor (apartment 5B and apartment 7B). At the back of the building, there was a porch with two rear doors.

         Sergeant Joseph Cerullo arrived at the scene and went to the rear of the building with other officers to secure a perimeter. There, he saw a "Hispanic male with facial hair" exit the left rear door of the porch area. The man, later identified as the defendant, was "wearing a black and gray sweater" and was moving "quickly and with purpose." Sergeant Cerullo shouted, "Lawrence Police, " and commanded, "Show me your hands." The defendant appeared "shocked" and quickly retreated back into the building, "closing the door behind him." Sergeant Cerullo attempted to follow him, but the door was locked.

         At this time, Sergeant Michael Simard was positioned at the front of the building. He knocked on the door of apartment 5A, but there was no answer.[2] He also knocked on the door of apartment 7A and spoke with the residents of that unit. The residents informed him of the "layout of the apartment [building] as far as what door leads to where." Sergeant Simard noticed that the residents appeared "very afraid." Although the residents told him that they did not "know who lived on the first floor" other than themselves, Sergeant Simard got the impression that they knew the occupants of apartment 5A but did not tell him because "they didn't want anything to do with [his] conversation." Sergeant Simard acknowledged that the residents were probably scared because there were fifteen "police officers [present] with their guns drawn."

         Sergeant Simard then telephoned the 911 caller in an effort to obtain further information. The caller explained that she had seen "three males, " whom she did not recognize, "on the front step of" the apartment building. The woman stated that she "heard the very distinct sound of a rack being pulled back" on a "semi-automatic gun." When Sergeant Simard asked the caller how she knew the type of weapon, she explained, "I'm from Lawrence. I know about that stuff." She also told Sergeant Simard that she "lived very close by" and "knew of recent armed robberies in the area." The caller explained that she "thought one of the culprits or suspects had a key because they entered the front door very easily."[3]

         The police then decided to forcibly enter apartment 5A out of concern that a home invasion was taking place and that there were "possible armed subjects inside, as well as victims."[4]Entry was made approximately five to eight minutes after the police had first arrived. When the police entered through the front door of the apartment, they found no one inside. During the protective sweep, they observed in plain view: narcotics, a scale, and "thousands" of plastic bags on the floor. Still in pursuit of any potentially armed subjects or victims, the officers went down an interior back stairway, where they found the defendant and two other men hiding in a storage area in the basement.

         Discussion.

          "In reviewing the grant or denial of a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error, . . . and accord substantial deference to the judge's ultimate findings." Commonwealth v. Carr, 458 Mass. 295, 298 (2010) (quotation omitted). "We conduct an independent review of the judge's application of constitutional principles to the facts found." Commonwealth v. Hoose, 467 Mass. 395, 400 (2014) .

         1. Probable cause and ...


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