Heard: January 13, 2017.
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.
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.
DeRosa, Assistant District Attorney, for the Commonwealth.
J. Horwich (Stephen J. Wright also present) for the
Present: Green, Trainor, Meade, Hanlon, & Desmond, JJ.
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
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
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]."
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.
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."
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.
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.
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. 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."
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
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."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.
"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) .
Probable cause and ...