Commonwealth v. Arias

92 Mass.App.Ct. 439

87 N.E.3d 1173

COMMONWEALTH

v.Jose L. ARIAS.

No. 16–P–362

Appeals Court of Massachusetts, Essex..

January 13, 2017

November 9, 2017

As Amended November 10, 2017

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, 861 N.E.2d 404 (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, 936 N.E.2d 883 (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, 5 N.E.3d 843 (2014).

1. Probable cause and exigent circumstances. The Commonwealth argues that the defendant's motion to suppress should have been denied, and that the judge erred in ruling that there was no probable cause or exigent circumstances to support the warrantless entry into apartment 5A. We disagree with the judge's determinations, but do not reverse on this basis.⁵

"To justify a search or seizure on th[e] basis [of exigent circumstances], the Commonwealth bears ‘a heavy burden’ to show (1) that the search or seizure was supported by ‘probable cause,’ such that a warrant would have issued had one been sought, ... and (2) that there ‘exist[ed] ... exigent circumstances' that made obtaining a warrant impracticable." Commonwealth v. White, 475 Mass. 583, 588, 59 N.E.3d 369 (2016), citing Commonwealth v. Tyree, 455 Mass. 676, 684, 919 N.E.2d 660 (2010). "[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense." Commonwealth v. Stewart, 469 Mass. 257, 262, 13 N.E.3d 981 (2014), quoting from Commonwealth v. Santaliz, 413 Mass. 238, 241, 596 N.E.2d 337 (1992). "In other words, the government must ‘demonstrate [ ] ... a "nexus" between the crime alleged’ and the article to be searched or seized." White, supra, quoting from Commonwealth v. Matias, 440 Mass. 787, 794, 802 N.E.2d 546 (2004). "In dealing with probable cause, ... as the very name implies, we deal with probabilities." Commonwealth v. Cast, 407 Mass. 891, 895, 556 N.E.2d 69 (1990). "While police ‘need not make a showing beyond a reasonable doubt, "[s]trong reason to suspect is not adequate." ’ " White, supra at 589, 59 N.E.3d 369, quoting from Commonwealth v. Kaupp, 453 Mass. 102, 111, 899 N.E.2d 809 (2009).

Here, the judge concluded that the police did not have sufficient information available to them at the time of their warrantless entry into apartment 5A to support a finding of probable cause and exigent circumstances.

The judge's probable cause analysis begins with the information provided by the 911 caller. In consideration of the caller's initial 911 report and her subsequent telephone conversation with Sergeant Simard, it appears that the judge concluded that the 911 caller satisfied both the basis of knowledge and veracity prongs of the Aguilar–Spinelli test.⁶ The judge properly attributed "great[ ] weight" to the caller's reliability, where the caller identified her address, the police were able to trace her telephone number, and the police were able to speak with her about her observations.^{7 ,8} The judge, however, concluded that "the caller's statements provided little, if any, support for the officers' belief that they were confronting a home invasion or a ‘hostage situation.’ " The judge considered that mere possession of a firearm does not, by itself, warrant a basis for probable cause. See Commonwealth v. Alvarado, 423 Mass. 266, 269–271, 667 N.E.2d 856 (1996). She further reasoned that despite the 911 caller's statements and the ongoing investigations of home invasions by the Lawrence police department, when "[v]iewed objectively, the facts and circumstances confronting the officers" did not amount to probable cause. The judge's analysis highlighted factors including: the 911 caller's statement to Sergeant Simard that she believed one of the suspects may have had a key because they entered the building "eas[il]y"; Sergeant Cerullo's observation of a Hispanic male at the scene, whom ...