Heard: September 5, 2018.
found and returned in the Superior Court Department on June
27, 2016. A pretrial motion to suppress evidence was heard by
James F. Lang, J.
application for leave to prosecute an interlocutory appeal
was allowed by Kafker, J., in the Supreme Judicial Court for
the county of Suffolk, and the appeal was reported by him.
R. Mello, Assistant District Attorney, for the Commonwealth.
A. Cardy, Committee for Public Counsel Services, for the
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
defendant, Jean Alexis, was charged with numerous crimes
stemming from an armed home invasion in Lynn.The day after the
home invasion, and following an investigation, the police
arrested the defendant inside his dwelling without an arrest
warrant. The defendant moved to suppress evidence that (1)
the police observed during a protective sweep of his dwelling
after he was arrested and (2) the police gathered after they
obtained a warrant to search his dwelling. A judge in the
Superior Court allowed the defendant's motion to suppress
because the police created the exigency that prompted their
warrantless entry into the defendant's dwelling. A single
justice of this court allowed the Commonwealth's
application for leave to pursue an interlocutory appeal and
reported the case to the full court.
held that "where the exigency is reasonably foreseeable
and the police offer no justifiable excuse for their prior
delay in obtaining a warrant, the exigency exception to the
warrant requirement is not open to them."
Commonwealth v. Forde, 367 Mass. 798, 803 (1975)
(analyzing warrantless search under Fourth Amendment to
United States Constitution). See Commonwealth v.
Molina, 439 Mass. 206, 211 (2003). In Kentucky v.
King, 563 U.S. 452, 462 (2011), the United States
Supreme Court held that where "the police did not create
the exigency by engaging or threatening to engage in conduct
that violates the Fourth Amendment, warrantless entry to
prevent the destruction of evidence is reasonable and thus
allowed." The Commonwealth urges us to follow the
jurisprudence of the Supreme Court when examining a
warrantless search of a dwelling under art. 14 of the
Massachusetts Declaration of Rights. Adopting such an
approach would render all of the evidence obtained after the
defendant's arrest admissible. The defendant argues that,
notwithstanding the Supreme Court's decision in
King, under art. 14 the police cannot create the
exigent circumstances used to justify a warrantless entry to
a home, even if they engaged in lawful action, such as
approaching a house to knock on a door. He also contends that
the Commonwealth waived the argument that probable cause
remained for the subsequent search warrant, even if the
impermissibly viewed evidence is redacted from the affidavit.
interpret art. 14 to provide greater protection than the
Fourth Amendment where the police have relied on a reasonably
foreseeable exigency to justify the warrantless entry into a
dwelling. Therefore, we conclude that the judge did not err
in allowing the defendant's motion to suppress evidence
that was found in plain view during a protective sweep
because the officers' entry into his home was not
justified based on exigent circumstances. We also conclude
that the Commonwealth waived the argument regarding whether,
if the impermissible observations from the affidavit were
redacted, the search warrant was based on probable cause.
recite the motion judge's factual findings supplemented
by the uncontroverted evidence at the motion hearing that is
consistent with the judge's findings. Commonwealth v.
Jones-Pannell, 472 Mass. 429, 431 (2015). "[O]ur
duty is to make an independent determination of the
correctness of the [motion] judge's application of
constitutional principles to the facts as found"
(citation omitted). Commonwealth v. Campbell, 475
Mass. 611, 615 (2016). On the morning of June 14, 2016, Lynn
police officers responded to a report of a home invasion.
Shortly thereafter, Detective Stephen Pohle arrived at the
scene. Upon arrival, Pohle spoke with the victim, Shomar
Garcia, who lived at the apartment with his wife and two
children. Garcia conveyed that earlier that morning, while he
was leaving for work, three African-American males forced
their way into the apartment, one of them struck him in the
face with a silver handgun, and they "forced their way
into the bedroom, where his wife and two children were."
The men restrained Garcia with duct tape and took his jewelry
and wallet. Before leaving the house, the man with the silver
handgun struck Garcia's six month old baby in the face
with the gun.
recognized the man with the silver handgun as someone with
whom he had attended high school. Later that afternoon,
Garcia went to the police station in an attempt to identify
the perpetrator. After looking through a "few hundred
photos," Garcia saw a photograph of the defendant and
stated with "[one hundred] percent" certainty that
the photograph was of one of the men who had broken into his
home and was the one who had hit him and his baby.
wrote an incident report and filled out an arrest warrant
application. Because it was late in the afternoon and his
shift had ended, Pohle placed the warrant in the "court
box" for the next day. Pohle testified that although the
nature of the investigation -- an armed home invasion --
justified an after-hours warrant, the decision not to seek
one was within his discretion.
the next morning, before he began his shift, Pohle telephoned
the supervisor of the Lynn police department's warrant
task force, Sergeant Michael Kenny. Pohle informed Kenny, who
was on his way to the police station, that the defendant had
been identified as the perpetrator of the home invasion who
brandished a handgun and struck the baby with the gun. Pohle
also informed Kenny that he was in the process of getting an
approximately 7 A.M., Kenny arrived at the police station and
reviewed the department's "hot
sheet." Kenny recognized the defendant's name
on the "hot sheet" as a person with whom he had
recently spoken while investigating another matter. Kenny
also knew where the defendant lived.
an arrest warrant, but believing that there was probable
cause to arrest the defendant and that exigent circumstances
existed, Kenny and four other members of the warrant task
force proceeded to the defendant's address. The officers
were dressed in plainclothes and had their badges
displayed. Because of the information available to
Kenny at the time -- the defendant's identification being
fresh, the violent nature of the home invasion, the
defendant's role in it, his possession of a firearm, the
involvement of two accomplices, and the possibility that they
might flee -- he believed that immediate action was
arriving at the defendant's address, Kenny and two
officers approached the front door, while two other officers
went to the side of the house to secure a
perimeter. Kenny understood that the officers'
presence might prompt the defendant to flee or destroy
evidence. Kenny's plan was to knock on the door to
determine if the defendant was home, question him, and, if
the opportunity arose, arrest him. As Kenny ascended the
front porch steps, the defendant saw the officers through the
glass front door. The defendant turned around and ran toward
the back of the house. One of the officers who was setting up
a perimeter observed the defendant climbing through a window
in the back of the house. The officer shouted at the
defendant to show his hands. Instead, the defendant retreated
into the house, out of the officer's view. Because of the
volatile situation and the nature of the crimes involved, the
officers forced their way through the front door. As they
entered, they noticed the defendant coming toward them from
the back of the home. The officers ordered the defendant to
the ground and handcuffed him in the hallway.
the defendant had been restrained, the officers conducted a
protective sweep of the house and secured the premises.
During the protective sweep, Kenny made a plain view
observation of some jewelry on top of a refrigerator in the
defendant's room ...