Heard: September 7, 2018
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 Hines, J., in the Supreme Judicial
Court for the county of Suffolk, and the appeal was reported
by her to the Appeals Court. After review by the Appeals
Court, the Supreme Judicial Court granted leave to obtain
further appellate review.
J. Horwich (Stephen J. Wright also present) for the
Kenneth E. Steinfield, Assistant District Attorney, for the
R. Rangaviz, Committee for Public Counsel Services, for
Committee for Public Counsel Services, amicus curiae,
submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, & Lowy, JJ.
case, we confront the scope of two exceptions to the warrant
requirement that have resulted in some confusion in previous
jurisprudence in the Commonwealth: the emergency aid
exception and the exigent circumstances
summarize the facts found by the motion judge following an
evidentiary hearing on the defendant's motion to
suppress, supplemented by uncontroverted and undisputed facts
in the record that were implicitly credited by the judge and
that do not detract from the judge's ultimate findings.
See Commonwealth v. Jones-Pannell,
472 Mass. 429, 431 (2015). We reserve some details for later
evening of March 4, 2014, the Lawrence police department
received a tip from an unnamed 911 caller. The caller stated
that she was "coming down the street" when she saw
two "Spanish guys" "with a gun . . . going up
to the building" located at "7 Royal Street"
in a residential neighborhood in Lawrence. The caller stated
that "they . . . had a hat on," and were wearing
"a jacket and a coat," one of which "was
gr[a]y and the other was black." The caller "heard
. . . one of them load the gun," and saw the men enter
the building. The caller said that "there's always a
little movement in that building," and acknowledged that
she was "not really sure what's going on." In
addition, the caller stated that she was new to the
neighborhood, and that she had not seen the men previously.
She provided the dispatcher with her home address, and the
dispatcher indicated to the caller that he was aware of the
caller's telephone number.
dispatcher subsequently issued the following report:
"Any detective or any available north car [near the
specified address], caller said she saw two Hispanic males
enter a house, one in a gray jacket, one in a black jacket,
the male was loading gun, was loading a cli[p] to a
motion judge credited that, during the general period in
which the 911 call was made, the Lawrence police department
was investigating a "rash" of "home
invasions" believed to be the work of a "crew"
from New York. The judge noted, however, that the evidence
did not indicate "how recently or where" the home
invasions had occurred, or if any home invasion had
"occurred in the immediate vicinity or neighbor[hood]
of" the particular street.
police officers responded to the dispatch. The address given
was one of two numbers associated with a four-unit apartment
building. The building had a single front door, marked with
the number "5" on the right side of the door and
the number "7" on the left side of the door. The
building contained two apartments on the ground floor,
numbered "5A" and "7A," and two
apartments on the upper floor, numbered "5B" and
"7B." At the rear of the building, there was a
porch with two entrances.
Michael Simard of the Lawrence police department was the
supervising patrol sergeant that evening. He arrived at the
scene in a marked cruiser and was wearing a uniform. Simard
saw no one outside the building. He and a number of other
officers monitored the front entrance.
Joseph Cerullo of the Lawrence police department's
special operations division arrived at the scene in a marked
cruiser; he, too, was wearing a uniform and a
badge. Cerullo and four other officers, including
two members of the canine unit of the Essex County
sheriff's department, moved to the rear of the building.
front of the building, Simard spoke to residents of unit 7A,
the first-floor apartment located across the hall from unit
5A. The residents of unit 7A denied seeing or hearing
anything out of the ordinary, and said that they did not know
who lived in unit 5A. The residents did describe, however,
the "layout of the apartment [at unit 5A] as far as what
door leads to where." Simard commented that the
residents of unit 7A were scared because of the
"[fifteen] police officers with their guns drawn."
Simard also stated that, except for the residents of unit 7A,
no residents of the building appeared to be at home.
obtaining the telephone number of the 911 caller, Simard
spoke with her by telephone. The caller told Simard that she
had seen three males whom she did not recognize talking on
the front step of the building located at "5-7" on
that street. The caller stated that she had heard the sound
of a "rack" being pulled back on a semiautomatic
handgun,  a sound she recognized because she was
"from Lawrence." According to Simard, the caller
did not see a firearm. The caller was nervous, and was aware
of recent armed robberies "in the area." The judge
found that the "officers at the scene learned the
above-described information within minutes of their
caller told Simard that the men likely had a key to the
building because they entered the front door
"easily." Cerullo acknowledged that he and the
other officers did not consider whether the men who allegedly
entered the building with a firearm were residents of the
rear of the building, Cerullo observed a Hispanic male leave
the building from the left rear door. The man had facial hair
and was "wearing a black and gray sweater." He was
identified at the evidentiary hearing as "Wascar
Bievenido Guerrero Diaz."
his firearm drawn, Cerullo shouted, "Lawrence Police.
Show me your hands." From the front of the building,
Simard was able to hear Cerullo. Diaz appeared
"shocked" and "quickly went back inside"
the building, "closing the door behind him."
Cerullo and another officer attempted to enter the building
through the door Diaz had used, but, as the judge determined,
they "found it locked." According to Cerullo, the
door was associated with apartment "number 5."
Cerullo did not specify whether he was referring to apartment
5A, 5B, or both.
moved to the front of the building to discuss the situation
with Simard, while four officers remained at the rear of the
building. Focusing their attention on unit 5A, Cerullo and
Simard made the decision to enter that unit without a
approximately three to eight minutes after police arrived at
the scene, Cerullo "entered the front door
forcefully," and then led a number of officers through
the front door of the building and into unit 5A. Conducting a
"protective sweep" for any injured persons and the
Hispanic male he had seen earlier at the rear of the
building, Cerullo moved through the living room toward the
rear of the building. Other officers searched different areas
of the apartment. They did not find any people, but they did
observe in plain view what appeared to be illegal narcotics,
a scale, and plastic bags strewn on the floor. The officers
did not seize anything at that point.
rear of the apartment, Cerullo encountered a door leading to
a hallway outside unit 5A. In the hallway, he saw another
door. The officers believed that this was the door that Diaz
had used minutes earlier. Cerullo also saw a stairway leading
up to unit 5B and down to a basement; a light was on in the
basement. After confirming the absence of any people inside
unit 5A, Cerullo, other officers, and several canine unit
dogs searched the basement; they found and arrested three
individuals. They did not search anywhere else in the
building for the suspected home invaders.
on observations made during the warrantless search of unit
5A, officers obtained a search warrant. Pursuant to the
warrant, they searched unit 5A again and seized items from
defendant filed a motion to suppress evidence seized pursuant
to the warrant, on the ground that the warrant was predicated
on observations made during an unconstitutional search.
Following an evidentiary hearing, a Superior Court judge
allowed the motion. The Commonwealth filed a petition
seeking leave to pursue an interlocutory appeal, and a single
justice of this court allowed the appeal to proceed in the
Appeals Court. In a split decision, a panel of the Appeals
Court reversed the motion judge, after concluding that the
warrantless search was permissible under the emergency aid
doctrine. See Commonwealth v.
Arias, 92 Mass.App.Ct. 439, 449 (2017). We allowed
the defendant's application for further appellate review.
reviewing a ruling on a motion to suppress, we accept the
judge's subsidiary findings of fact absent clear error
'but conduct an independent review of [the judge's]
ultimate findings and conclusions of law.'"
Commonwealth v. Cawthron, 479
Mass. 612, 616 (2018), quoting Commonwealth
v. Scott, 440 Mass. 642, 646 (2004) .
"warrantless government search of a home is
presumptively unreasonable under the Fourth Amendment to the
United States Constitution and art. 14 of the Massachusetts
Declaration of Rights." Commonwealth
v. Entwistle, 463 Mass. 205, 213 (2012),
cert, denied, 568 U.S. 1129 (2013). See Kentucky
v. King, 563 U.S. 452, 459 (2011);
Brigham City v. Stuart, 547 U.S.
398, 403 (2006). "The presumption against warrantless
searches reflects the importance of the warrant requirement
to our democratic society." Commonwealth v.
Tyree, 455 Mass. 676, 683 (2010) . "Under the
exclusionary rule, evidence seized pursuant to an
unreasonable search generally will be suppressed."
Commonwealth v. Tuschall, 476 Mass. 581, 584 (2017)
. "Warrantless searches may be justifiable, however, if
the circumstances of the search fall within an established
exception to the warrant requirement." Id.
Emergency aid exception.
emergency aid doctrine establishes one such "narrow
exception to the warrant requirement." See
Commonwealthv.Duncan, 467 Mass.
746, 754, cert, denied, 135 S.Ct. 224 (2014). The emergency
aid exception applies when law enforcement officers enter a
dwelling to provide emergency assistance. See
Commonwealthv.Snell, 428 Mass.
766, 774, cert, denied, 527 U.S. 1010 (1999) (entry is
reasonable under emergency aid exception when made "not
to gather evidence of criminal ...