Commonwealth v. Tuschall

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-12151
COMMONWEALTH vs. KYLE TUSCHALL.
Middlesex. November 9, 2016. - March 8, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.
Constitutional Law, Search and seizure, Probable cause. Search
and Seizure, Emergency, Probable cause, Fruits of illegal
search. Probable Cause.
Indictments found and returned in the Superior Court
Department on August 12, 2014.
Pretrial motions to suppress evidence were heard by Thomas
P. Billings, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Botsford, J., in the Supreme Judicial
Court for the county of Suffolk, and the appeal was reported by
her to the Appeals Court. The Supreme Judicial Court granted an
application for direct appellate review.
Randall F. Maas, Assistant District Attorney, for the
Commonwealth.
Jessica LaClair for the defendant.
LOWY, J. Following a report of a "smell like drugs"
emanating from the apartment of the defendant, police made two
2
warrantless entries into his apartment. Based on observations
of paraphernalia related to the manufacture of crystal
methamphetamine, the police then obtained a warrant. The
defendant was subsequently arrested and charged with, among
other things, drug related offenses.
The defendant filed two motions in the Superior Court --
one to suppress the evidence seized during the execution of the
search warrant and another to suppress statements he made to
police following his arrest. The judge granted both motions
after an evidentiary hearing. With respect to the first motion,
the judge determined that no emergency justified the warrantless
entries, without which the Commonwealth could not establish the
probable cause necessary for the subsequent warrant. Regarding
the second motion, the judge concluded the defendant's
statements to the police were the "fruit of" the defendant's
unlawful arrest.
The Commonwealth appealed from the judge's decision. A
single justice in the county court allowed the Commonwealth's
application for interlocutory review and reported the matter to
the Appeals Court. We subsequently allowed the defendant's
motion for direct appellate review. We affirm.
Background. The motion judge made the following factual
findings, which we accept absent clear error. Commonwealth v.
Entwistle, 463 Mass. 205, 209 (2012), cert. denied, 133 S. Ct.
3
945 (2013). We review de novo the judge's application of
constitutional principles to the facts. Commonwealth v.
Phillips, 452 Mass. 617, 624 (2008).
On June 11, 2014, the Watertown police received a telephone
call from the defendant's neighbor at a multifamily residential
property. The neighbor reported a "smell like drugs" coming
from the defendant's apartment. The police did not respond to
the call until the next day, when a detective called the
neighbor. The neighbor complained that the odor was causing her
to suffer headaches and was adversely affecting her dog. She
further described the odor as "skunky" and "minty." She also
stated that the windows of the neighbor's apartment were
"sealed," and there was a bright light shining in one of the
defendant's apartment's rooms. The police did not visit the
apartment on June 12.
On June 13, 2014, two detectives traveled to the apartment
building, where they met with the neighbor who had complained
two days earlier. The night before the detectives arrived, the
neighbor spent the night elsewhere to avoid further exposure to
the odor.
When the detectives knocked on the defendant's door, no one
answered. The detectives could not see inside the defendant's
apartment from the sidewalk because the windows were covered
from inside the apartment. Beneath a running air conditioner
4
extending from one of the apartment's windows, the detectives
smelled a strong chemical odor.
The complaining neighbor informed the detectives that two
people, the defendant and his girl friend, lived in the
apartment. The two usually left the apartment together in the
morning, but that morning, the neighbor had seen the defendant
leave alone. The detectives obtained the girl friend's cellular
telephone number through the building's owner. Unable to reach
the girl friend on her cellular telephone, the detectives
decided to enter the apartment to look for her.
The building owner's son led the detectives through the
basement to the door of the defendant's apartment. The smell
grew stronger in the basement. One of the detectives felt a
dry, scratchy sensation in his throat, and his eyes began to
burn and water. Before entering the apartment, the detectives
identified themselves as police and said, "Is anyone home?"
When no one responded, they entered.
Inside the apartment, the detectives went room to room in
search of the girl friend, calling her by name. In the course
of discovering that no one was present, one detective saw items
he believed to be consistent with small-scale methamphetamine
production. The detectives did not open any containers or
drawers. Now concerned by the risk posed to other residents of
the building, due to the volatile chemicals used in
5
methamphetamine production, the detectives contacted the fire
department and a colleague, Detective Gutwill, who had more
expertise with methamphetamine laboratories (lab).
When Detective Gutwill arrived, he could not tell, by the
smell alone, whether the source of the odor posed a danger. He
was, however, concerned that the odor was the result of the "one
pot" method of methamphetamine manufacture, which presents a
risk of explosion. He donned a respirator and protective
clothing and entered the apartment. He found no evidence of a
"one pot" manufacturing method and determined that there was no
immediate risk of danger.
Relying on observations from the two warrantless entries,
the police obtained a search warrant. The defendant arrived
while the police were executing the warrant. He was arrested
and transported to the Watertown police station.
While in custody at the police station, the defendant was
questioned by the police. The police informed him of the
Miranda rights, including the right to have an attorney present
and rights pursuant to Commonwealth v. Rosario, 422 Mass. 48,
56-57 (1996). He waived his Miranda and Rosario rights, agreed
to speak with the police, and made some incriminating
statements.
Discussion. The Commonwealth argues that the judge erred
in granting both motions to suppress. As to the first motion,
6
the Commonwealth argues that both searches were lawful under the
emergency aid exception to the Fourth Amendment to the United
States Constitution and art. 14 of the Massachusetts Declaration
of Rights. With regard to the second motion, the Commonwealth
argues that the defendant's statements to the police should not
have been suppressed, because they were not the fruit of
unlawful searches. In the alternative, the Commonwealth argues
that, even if the searches were unlawful, the defendant's
statements were sufficiently attenuated from the unlawful
conduct to escape the reach of the exclusionary rule.
1. The warrantless searches. Under the Fourth Amendment
and art. 14, a search of an individual's home must be
reasonable. A search conducted without a warrant is
presumptively unreasonable. Brigham City v. Stuart, 547 U.S.
398, 403 (2006). Warrantless searches may be justifiable,
however, if the circumstances of the search fall within an
established exception to the warrant requirement. Under the
exclusionary rule, evidence seized pursuant to an unreasonable
search generally will be suppressed. See J.A. Grasso, Jr. &
C.M. McEvoy, Suppression Matters Under Massachusetts Law § 20-
2[a] (2017).
One such exception to the Fourth Amendment and art. 14 is
the "emergency aid exception." Commonwealth v. Duncan, 467
Mass. 746, 749, cert. denied, 135 S. Ct. 224 (2014). To meet
7
the requirements of the exception, there must be "objectively
reasonable grounds to believe that an emergency exists . . .
[and] the conduct of the police following the entry must be
reasonable under the circumstances" (citation omitted). Id. at
750.
The emergency aid exception applies in two circumstances
relevant to this case. First, a warrantless search is
reasonable when law enforcement possess an objectively
reasonable basis to conclude that "prompt intervention is
necessary to prevent a threatened fire, explosion, or other
destructive accident." Commonwealth v. DiGeronimo, 38 Mass.
App. Ct. 714, 723 (1995). See Commonwealth v. Marchione, 384
Mass. 8, 11-12 (1981) (entry reasonable to prevent potential
explosion from volatile liquids stored near incendiary device).
Second, the emergency aid exception "permits the police to enter
a home without a warrant when they have an objectively
reasonable basis to believe that there may be someone inside who
is injured or in imminent danger of physical harm."
Commonwealth v. Peters, 453 Mass. 818, 819 (2009).
A police officer's "'subjective motivation [for entry] is
irrelevant.'" Entwistle, 463 Mass. at 214, quoting Brigham
City, 547 U.S. at 404. The emergency aid exception does not
require that police have probable cause that a crime has been
committed, because the purpose of the entry is to prevent harm
8
stemming from a dangerous condition, not to investigate criminal
activity. See Duncan, 467 Mass. at 750 (2014).1
a. The initial entry. The Commonwealth suggests that the
initial entry was justified due to the danger posed by the fumes
to the residents in the building and to the defendant's girl
friend, whom the police were concerned might be inside the
apartment.
Prior to the first entry, there was no objectively
reasonable basis upon which to conclude that residents of the
building faced an "imminent threat of death or serious injury"
due to the effects of the fumes, or that the fumes constituted a
danger comparable to that of a "fire, explosion, or other
destructive accident." DiGeronimo, 38 Mass. App. Ct. at 723.
Indeed, two days had elapsed before the police responded to the
initial complaint.2 Moreover, unpleasant as the smell may have
been, the discomfort described by the neighbor did not suggest
the existence of an emergency situation requiring immediate
intervention. When she first met the police two days after
1
This is in contrast to the broader "exigent circumstances"
exception. Exigent circumstances justifying a warrantless entry
exist where the police have probable cause of criminal activity,
but where the time required to obtain a warrant would defeat the
purposes of the search -- such as when delay would result in the
destruction of evidence. See Duncan, 467 Mass. at 750-751 &
n.4.
2
The police certainly could have advised the neighbor to
contact her landlord regarding a nuisance claim, or the
Department of Public Health or the fire department to address
the odor.
9
making her initial complaint, the neighbor said that she had
slept elsewhere to avoid the smell, and that she had seen the
defendant leave his apartment, in apparently fine health despite
his presumably longer exposure to the fumes at a closer
proximity. Apart from the complaining neighbor's headache,
there were no reports of illness or negative health consequences
stemming from the smell, and no clear indication that the
smell's potency had increased since the neighbor's initial
report.3
The ill effects produced by the fumes are a stark contrast
to the discernible danger recognized as justifying emergency
intervention in other cases. See Brigham City, 547 U.S. at 406(warrantless entry was justified where police observed ongoing
violence in home); Marchione, 384 Mass. at 11-12 (1981)
(warrantless entry justified by landlord's report that large
quantity of volatile and explosive liquids surrounded incendiary
device); Commonwealth v. Cantelli, 83 Mass. App. Ct. 156, 165-
166 (2013) ("explosive levels" of natural gas filled defendant's
apartment prior to entry).
3
At oral argument, the Commonwealth argued that the danger
from the chemical odor increased over the course of the three
days, based on the nature of the complaining neighbor's
statements on each of those days. This may have been a
permissible inference from the neighbor's statements, but it is
not a necessary one and the judge made no such finding. Even if
true, however, it was apparent that exposure to the smell had
not caused sufficiently negative health consequences to justify
entry into the defendant's apartment on an emergency basis.
10
Prior to the first search, the police also lacked an
objectively reasonable basis to conclude that any condition
inside the defendant's apartment posed a risk of explosion.
Even if a reasonable belief that methamphetamine is actively
being manufactured inside an apartment justifies a warrantless
entry, based on the dangers inherent to the manufacture of
methamphetamine, the police lacked a reasonable basis prior to
the first search to believe that the apartment contained a
methamphetamine lab. Contrast Marchione, 384 Mass. at 11-12;
Cantelli, 83 Mass. App. Ct. at 165-166. The complaining
neighbor vaguely characterized the odor as a "smell like drugs."
One of the officers described it as akin to "nail polish,"
which does not in and of itself indicate the presence of a drug
lab. Contrast United States v. Cervantes, 219 F.3d 882, 886
(9th Cir. 2000), overruled on other grounds by Brigham City, 547
U.S. at 402, 404 (tenants in immediate proximity of apartment
emitting strong chemical odor and officer saw man in kitchen
with large pot on floor); People v. Duncan, 42 Cal. 3d 91, 95-96
& n.1 (1986) (police lawfully entered in response to ongoing
burglary and observed evidence indicating active manufacture of
methamphetamine); Holder v. State, 847 N.E.2d 930, 933-934, 937-
938 (Ind. 2006) (police specifically identified odor as ether,
which is highly flammable; smell was strong enough to be
detectable in two- or three-block area; and infant was inside
11
apartment from which odor was emanating); State v. Simmons, 714
N.W.2d 264, 269, 273 (Iowa 2006) (before entry, which was
permissible, officer who could not identify odor contacted
expert officer who ascertained smell of anhydrous ammonia, used
in manufacture of methamphetamine); State v. Meeks, 262 S.W.3d
710, 714 (Tenn. 2008) (officer with high degree of expertise
"could smell what [he] knew to be a meth[amphetamine] lab" and
heard glass breaking and voices inside apartment).
The police also lacked a reasonable basis to conclude that
the girl friend was inside the apartment and was injured or in
danger of imminent harm. The police could not reach the girl
friend by cellular telephone and there was no answer from the
apartment when they knocked. The only indication that the girl
friend may have been in the apartment was speculative, anecdotal
evidence from the complaining neighbor that the defendant and
his girl friend typically left together in the morning, but the
defendant left alone on that particular morning. The police
made no effort to contact the girl friend's employer or her
family, and made only a few attempts to contact her by cellular
telephone before entry.
These circumstances fall short of those in which we have
determined there was an objectively reasonable basis
establishing the existence of an emergency. For example, in
Commonwealth v. Townsend, 453 Mass. 413, 415, 422-423, 426
12
(2009), the Commonwealth met its burden to justify warrantless
entry into an apartment where a victim, whose last known
location was inside that apartment, had not been seen for
multiple days. The resident of that apartment had a history of
abusing the victim. Id. at 422-423. Before entry, the police
spoke to the victim's mother and the victim's sister, neither of
whom had had any contact with the victim in the days leading up
to the warrantless entry. Id. The victim had missed a visit
with her children, scheduled through the Department of Social
Services, and the victim's automobile was parked outside the
defendant's apartment. Id. at 422, 424. See Entwistle, 463
Mass. at 210, 215-216 (warrantless entry reasonable where
potential victim had been out of contact for two days, her dog
could be heard barking inside house, and she had
uncharacteristically missed multiple appointments); Peters, 453
Mass. at 823-824 (warrantless search reasonable following report
of audible domestic disturbance in which gunshot was heard and
individual subsequently fled scene).
b. The second entry. The proposed justification for the
second warrantless entry rests on observations of drug
paraphernalia made during the first entry. The Commonwealth
argues that, because they observed evidence that methamphetamine
had been manufactured inside the apartment, and the manufacture
of methamphetamine involves the use of volatile chemicals
13
susceptible to explosion, the second entry was justified to
ascertain the extent of the danger. Even setting aside the fact
that this information was obtained solely as the result of an
unlawful search, the observations of police during the first
entry did not form an objectively reasonable basis to conclude
that there was an imminent danger of explosion.4
The observations during the first search did not reasonably
support the conclusion that methamphetamine was being or
recently had been manufactured, or that the particular fumes to
which they were exposed were highly combustible. The only
additional information obtained by police during the first entry
was that it appeared possible that methamphetamine had been
manufactured at some point inside the apartment. The police
knew that the fumes had been emanating from the defendant's
apartment for at least two days before the entries. Prior to
the second entry, the police lacked an objectively reasonable
basis to conclude that the contents of the defendant's apartment
posed an imminent danger of death or serious injury.5 Contrast
4
Because we conclude that the first search did not
establish a reasonable basis to support the existence of an
emergency, we need not decide whether the discovery of an
emergency during an unlawful search would constitute an
intervening event, limiting the reach of the exclusionary rule.
5
The parties dispute whether the police must have an
objectively reasonable basis to conclude that there is active
methamphetamine production in a home to justify a warrantless
entry, or whether the danger posed by fumes from a previous
14
Cervantes, 219 F.3d at 886 (entry justified when officer saw man
in kitchen with large pot on floor); Duncan, 42 Cal. 3d at 95-96(entry justified where police observed active heat lamp,
suggesting possibility of active drug making); Cantelli, 83
Mass. App. Ct. at 165-166 (warrantless entry justified to shut
off natural gas, known by officers to be highly explosive, where
resident repeatedly flooded apartment with gas).
In sum, the Fourth Amendment and art. 14 form a bedrock
protection of an individual's hearth and home. The
inviolability of the home may be constitutionally pierced
without a warrant, but only within narrowly proscribed
circumstances. See DiGeronimo, 38 Mass. App. Ct. at 721,
quoting Jones v. United States, 357 U.S. 493, 499 (1958) ("the
few exceptions are 'jealously and carefully drawn'"). The facts
of this case, as carefully determined by the motion judge,
established that at the time of the first entry, there was a
smell that had adversely affected a neighbor and her pet -- a
smell that had persisted for days before the police took action
production of methamphetamine may be sufficient. We decide only
that, based on the judge's factual findings in this case, the
police lacked an objectively reasonable belief that the
condition of the defendant's apartment posed an imminent danger
of death or serious injury or that prompt intervention was
necessary to prevent a destructive accident. Whether such a
danger may exist in the absence of active drug manufacturing is
a question we need not resolve. As was the case before the
first warrantless entry, the police still could have directed
the complaining neighbor to her landlord, the fire department,
or the Department of Public Health to address the fumes.
15
-- and the presence of paraphernalia an officer believed to be
consistent with the manufacture of methamphetamine. These facts
alone are insufficient to form an objectively reasonable belief
in an emergency situation that justifies warrantless entry.
2. The defendant's statements. The judge permissibly
suppressed the defendant's statements as the "fruit of the
poisonous tree" of the unlawful searches. His inculpatory
statements resulting from that arrest must be suppressed unless
the State proves "that confession was 'an act of free will
[sufficient] to purge the primary taint of the unlawful
invasion.'" Kaupp v. Texas, 538 U.S. 626, 632-633 (2003) (per
curiam), quoting Wong Sun v. United States, 371 U.S. 471, 486
(1963).
In determining whether the Commonwealth met its burden of
showing that the defendant's statements were sufficiently
attenuated from the Commonwealth's unlawful conduct, we consider
(1) whether the defendant was informed of his rights; (2) the
proximity in time of the arrest and his inculpatory statements;
(3) any intervening circumstances; and (4) the degree of
official misconduct. Kaupp, 538 U.S. at 633, citing Brown v.
Illinois, 422 U.S. 590, 603-604 (1975). We also consider the
extent to which excluding the evidence would deter future
official misconduct. See Commonwealth v. Damiano, 444 Mass.
16444, 452-453 (2005), citing Brown, 422 U.S. at 609 (Powell, J.,
concurring in part).
The balance of the factors in this case is a close call,
but favors the defendant. The police read the defendant his
Miranda rights and there was no misconduct during the interview
itself. However, for the reasons stated above, the warrantless
entries were unlawful. The defendant made his statements
roughly twenty-one hours after his arrest, during which time he
was continuously in police custody. No intervening
circumstances further attenuated the defendant's statements from
his arrest, which was a direct result of the unlawful searches.
We conclude that the negative effects of the unlawful searches
were not "'so attenuated that the deterrent effect of the
exclusionary rule no longer justifies its cost.'" Damiano, 444
Mass. at 453, quoting Brown, 422 U.S. at 609 (Powell, J.,
concurring).
Order allowing motions to
suppress affirmed.