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13-P-1626 Appeals Court
COMMONWEALTH vs. JAMES A. GORDON.
No. 13-P-1626.
Essex. November 14, 2014. - May 5, 2015.
Present: Trainor, Agnes, & Maldonado, JJ.
Search and Seizure, Emergency. Constitutional Law, Search and
seizure. Practice, Criminal, Motion to suppress, Findings
by judge.
Complaint received and sworn to in the Peabody Division of
the District Court Department on May 17, 2012.
A pretrial motion to suppress evidence was heard by Richard
A. Mori, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Barbara A. Lenk, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.
Ronald DeRosa, Assistant District Attorney, for the
Commonwealth.
Jane D. Prince for the defendant.
AGNES, J. In this case we consider whether the emergency
aid exception to the warrant requirement justified the conduct
2
of Peabody police officers who responded to a 911 telephone call
about a disturbance in a particular apartment on Washington
Street and then, based on additional information gathered at the
scene, entered the apartment without a warrant. We conclude
that the police had an objectively reasonable basis to conclude
that the person who requested police assistance might be inside
the apartment and in need of emergency aid, and that the
warrantless entry did not violate the defendant's rights under
the Fourth Amendment to the United States Constitution or art.
14 of the Massachusetts Declaration of Rights. Accordingly, we
reverse the order allowing the defendant's motion to suppress
evidence seized as a result of the execution of a search warrant
following the warrantless entry.1
1
The case is before us as a result of the allowance of the
Commonwealth's motion for an interlocutory appeal. See
Mass.R.Crim.P. 15, as appearing in 422 Mass. 1501 (1996). Based
on the evidence seized from the defendant’s apartment pursuant
to the search warrant, he was charged with unlawful possession
of a firearm without a firearms identification card (G. L. c.
269, § 10[h]); unlawful possession of ammunition (G. L. c. 269,
§ 10[h]); defacing the serial number of a firearm (G.L. c. 269,
§ 11C); improper storage of a firearm (G. L. c. 140, § 131L);
and unlawful possession of a class E substance (G. L. c. 94C,
§ 34).
On appeal, the Commonwealth does not challenge the judge's
rulings that the police lacked probable cause and exigent
circumstances to justify a warrantless entry as an investigative
measure. The sole issue raised by the Commonwealth is whether
the judge was correct in ruling that the police were not
justified in conducting a warrantless entry under the emergency
aid exception.
3
Background. We draw the facts from the judge's findings of
fact, and additional evidence from the two witnesses (Officer
Coup and Sergeant Zampitella) who testified at the hearing on
the motion to suppress, and who were credited by the judge.2 At
approximately 8:20 P.M. on May 9, 2012, an unidentified female
telephoned the Peabody police department on its recorded 911
telephone line from Paddy Kelly's bar (bar), located at 154
Washington Street. The bar is part of a building that contains
three residential apartments.3 The caller reported a disturbance
in apartment number one. Peabody police Officers Coup and
Cecil, as well as Sergeant Zampitella, were dispatched to the
scene, arriving within minutes. The officers responded directly
to the apartment building's main entrance, which opens into a
foyer area where another door leads to apartment number one and
stairs lead up to apartments numbered two and three. After
knocking loudly on the outside door, a tenant from apartment two
came downstairs and let them in. From this point until the
2
The judge's findings of fact, as they appear in the
section of his written decision captioned "Summary of Facts,"
are entirely consistent with the testimony of the two police
witnesses with only one exception. See discussion, infra.
3
When facing at the building, the bar is on the right-hand
side and set slightly below street level. The three apartments
are located on the left side of the building, and the apartments
share a common entrance located to the left of the bar entrance.
The residential portion of the building has three floors, with
one apartment per floor. The three apartments also share a
common back door.
4
officers made their entry into apartment one about fifteen
minutes later, an officer was stationed in front of the main
entrance to the apartments.
The police learned from the tenant of apartment two that
she had not telephoned 911. However, she advised the officers
that while in her apartment she overheard an argument between a
male and female inside apartment one. She also heard some
"crashing" sounds, "[l]ike some things breaking." Officer Coup
walked up the stairs to the second floor with the tenant and
confirmed that her apartment was directly above apartment one.
She told the police that a male tenant (whose name was unknown
to her) lived in that apartment. She also related that she knew
that the tenant's girl friend was there often, she but did not
know the girl friend's name either.
Within minutes of their arrival, the officers knocked on
the door of apartment one and announced themselves as police
officers. They received no response and did not hear anything
from inside the apartment. At that point police dispatch
advised them that the 911 call had originated from the bar.
Officer Coup went downstairs to the bar. The police maintained
surveillance of the door to apartment one, repeatedly knocking
and announcing themselves as police officers. The bar is
located down several stairs from the street level. Inside the
bar, a female bartender identified herself and told Officer Coup
5
she was the 911 caller. She stated that (1) a female by the
name of "Kay" had come into the bar and asked her to call the
police; (2) when the bartender asked Kay if she was all right,
Kay responded, "no"; (3) Kay's hair was soaking wet, her shirt
looked like it had been pulled or stretched, and she was
carrying her dog; (4) Kay's tone of voice was "frantic" and she
appeared to be "very upset"; and (5) the bartender knew that Kay
stayed in apartment one "a lot." The bartender also knew that
an unidentified male lived in apartment one. The bartender
informed Officer Coup that after Kay asked her to call the
police, she (Kay) went out the door of the bar and toward the
apartment building entrance. No one saw whether Kay returned to
apartment one.4
After talking to the bartender for "a few minutes," Officer
Coup went back upstairs and discussed the new information with
Sergeant Zampitella. Sergeant Zampitella then made the decision
to enter the apartment, unsuccessfully attempting to force the
door open himself before calling the fire department for
assistance.5 This occurred about fifteen minutes after officers
4
The evidence was that the bar is below street level, and
to gain entrance to it one must walk down several steps and turn
to the left. From inside the bar it is not possible to see the
front door to the three apartments.
5
Sergeant Zampitella testified that at the moment he made
the decision to enter, he had information from the police
dispatcher and the tenant from apartment two, and now
6
first arrived on scene. Before the fire department arrived, the
building owner appeared. He informed the police that the tenant
in apartment one was the defendant, James Gordon, and that his
girl friend Kay often stayed there. He also told officers that
the defendant's car was still in the driveway. The building
owner let the officers into the apartment. The officers
conducted a brief search of the five-room apartment for persons
who might be injured or in need of assistance.
Once inside the apartment, officers noticed a number of
items in plain sight -- a frying machine and broken glass on the
kitchen floor, hypodermic needles out in the open, and some sort
of mushroom-growing operation located off the kitchen. None of
these objects was touched or moved. After five minutes, having
not found any persons, the officers left the apartment.6
information from the bartender that "a female had gone into the
bar requesting help. Her shirt was pulled." The female
requested that the bartender call the police. "She -- you know,
her hair was wet and she had a pulled shirt. And that's,
basically, what we had." It is not significant that Sergeant
Zampitella may not have known every detail related by the
bartender to Officer Coup, because the law provides that "the
knowledge of one [police officer] . . . [is] the knowledge of
all." Commonwealth v. Zirpolo, 37 Mass. App. Ct. 307, 311
(1994), quoting from Commonwealth v. Lanoue, 356 Mass. 337, 340
(1969).
6
Following the initial sweep of the apartment, two Peabody
police detectives from the drug squad and two agents from the
Bureau of Alcohol, Tobacco, and Firearms were called, and they
walked through the apartment. These officers applied for the
search warrant the led to the seizure of the firearms,
ammunition, and drugs. The defendant did not argue below, and
7
Discussion. 1. Standard of review. In reviewing a ruling
on a motion to suppress, we observe the settled practice that
leaves to the motion judge the responsibility for determining
the weight and credibility of the testimony, because it was that
judge, and not this court, who saw and heard the witnesses.
Commonwealth v. Moon, 380 Mass. 751, 756 (1980). We subject the
judge's ultimate findings and rulings of law to independent
review. See Commonwealth v. Scott, 440 Mass. 642, 646 (2012).
See also Commonwealth v. Murphy, 362 Mass. 542, 551 (1972)
(Hennessey, J., concurring) ("[T[he ultimate findings and
rulings of a judge may give rise to a meaningful appeal, even in
a case where his subsidiary findings are beyond practical
challenge"). "We independently review the judge's application
of constitutional principles to the facts." Commonwealth v.
Entwistle, 463 Mass. 205, 213 (2012).
2. Assessing the judge’s findings and rulings.7 a.
Findings not supported by the record. In support of his
conclusion that the Commonwealth did not meet its burden to
establish that the emergency aid exception justified the
does not contend here, that the second warrantless entry has
independent legal significance.
7
The facts recited above appear in a portion of the judge's
written decision entitled "Summary of Facts." In another
section of that decision specifically addressing the issue
before us, the judge made additional findings. Findings of fact
are not entitled to any greater deference on appeal because they
appear in the judge's conclusions of law.
8
warrantless entry, the judge made the following additional
finding:
"In this case the officers had the best of intentions
in their effort to conduct a thorough investigation.
However, there was no evidence that anyone was in need of
immediate, emergency assistance. Any argument was long
over by the time the officers arrived. There was no report
of physical violence, or demonstration that police had
evidence that there was a victim who needed immediate,
emergency assistance in the apartment. To the contrary,
the alleged victim ("Kay") was apparently uninjured and out
of the apartment. There is no basis to believe the alleged
victim was in need of emergency help for a life threatening
situation. There is no basis to support that she needed
emergency aid as envisioned under the emergency exception.
The circumstances presented to the police did not support a
conclusion that anyone was in a life-threatening situation
requiring an immediate, warrantless entry and assistance
into a home. . . . Importantly, in this case, the alleged
argument was clearly over. Any emergency (if there ever
was one) had dissipated given that the alleged victim was
out of the apartment physically uninjured, and safe."8
Whether we regard these observations as subsidiary
findings, ultimate findings, or a combination of the two, they
are essential to the judge’s ultimate conclusion that the
warrantless entry was not justified because no emergency existed
by the time the police entered the defendant’s apartment. Even
if we apply the deferential standard that governs the review of
subsidiary findings of fact, the findings that "[a]ny argument
8
In other parts of his decision, the judge repeated some of
these subsidiary or ultimate findings, and made others along the
same lines, e.g., it was "clear" to the police when they arrived
that any disturbance "was no longer occurring"; the police had
no information "that anyone was in the apartment"; after
speaking to the bartender "it was apparent that 'Kay' was no
longer in the apartment"; and "[t]here was no evidence of any
safety risk if the officers failed to act immediately."
9
was long over by the time the officers arrived," and, to the
same effect, "the alleged argument was clearly over," along with
the finding that "the alleged victim ('Kay') was apparently
uninjured and out of the apartment," are clearly erroneous. A
finding is clearly erroneous when it is not supported by the
evidence, or when, after a review of the entire record, we are
"left with the firm conviction that a mistake has been
committed." Commonwealth v. Tavares, 385 Mass. 140, 156, cert.
denied, 457 U.S. 1137 (1982), quoting from New England Canteen
Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977).
The Supreme Judicial Court has observed that "[s]o long as
the judge's account is plausible in light of the entire record,
an appellate court should decline to reverse it. 'Where there
are two permissible views of the evidence, the factfinder's
choice between them cannot be clearly erroneous.'" Demoulas v.
Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997), quoting
from Gallagher v. Taylor, 26 Mass. App. Ct. 876, 881 (1989).
After a review of the entire record, we conclude that this is
not a case in which the judge decided to credit one of two
permissible views of the evidence. Instead, after making a
series of subsidiary findings that have support in the testimony
of the witnesses, the judge reached conclusions that are not
supported by the evidence. Cf. Commonwealth v. Holley, 52 Mass.
App. Ct. 659, 664 (2001). In particular, the judge found that
10
any emergency that may have existed "was long over by the time
the officers arrived," and that Kay "was apparently uninjured
and out of the apartment." These ultimate or conclusory
findings are not supported by the evidence, which the judge
credited, that only a few minutes before the police arrived, Kay
appeared at the bar looking disheveled, frantic, and "very
upset," asked the bartender to call the police, and said that
she was not all right.9
b. Whether Kay returned to apartment one. The only
genuine conflict in the evidence was whether the bartender told
the police that Kay returned to the apartment after asking the
bartender to call the police. Based on the testimony about the
relationship between the apartments and the bar, including two
photographs that were introduced as exhibits, the bartender
could not have seen whether Kay walked up the steps to the
apartment building's outside door once she left the bar.
Officer Coup testified initially that the bartender told him
that Kay "headed back towards the apartment" after leaving the
bar. The judge overruled the defendant’s objection to that
9
The judge also found that "[t]he bartender did not observe
[that Kay had] any cuts, bruises, or abrasions." This finding
is entitled to deference as a subsidiary finding because it is
based on a permissible view of the evidence. However, it does
not supply an adequate foundation for the judge’s other ultimate
findings or conclusions that Kay was not injured, that any
incident of domestic violence was over, and that she was not in
need of emergency assistance.
11
testimony. On cross-examination, Officer Coup conceded that the
bartender was not in a position to see whether Kay had entered
the apartment after leaving the bar, but he testified that in
his police report he wrote that the bartender told him that Kay
had walked back "towards her apartment." He added, in reply to
a further question by defense counsel, that the bartender may
have observed that Kay took a right turn as she left the bar,
which was in the direction of the apartment. The judge found
that when Kay left the bar, "[n]o one saw whether Kay went to
Apartment #1 or not."
This subsidiary finding is supported by the evidence and is
entitled to deference. Moreover, the judge was not obliged to
find, as Officer Coup testified, that the bartender saw Kay turn
right when she left the bar.10 However, the judge did not
explicitly reject that testimony by Officer Coup. In these
circumstances it is open to an appellate court to imply
additional findings of fact so long as (1) "the evidence is
uncontroverted," and (2) "the judge explicitly or implicitly
credited the witness's testimony." Commonwealth v. Isaiah I.,
448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). Here,
10
The absence of a conflict in the evidence does not mean
that the motion judge is required to credit the testimony. See
Piemonte v. New Boston Garden Corp., 377 Mass. 719, 733 (1979).
Based on considerations of demeanor, narrative consistency, and
numerous other subjective factors, a motion judge may reject
uncontradicted testimony. See Commonwealth v. Cataldo, 69 Mass.
App. Ct. 465, 472 (2007).
12
the only evidence on the question of what Kay did after leaving
the bar is Officer Coup's testimony, elicited on cross-
examination and unaccompanied by a motion to strike, that he
recorded in his police report what the bartender told him, which
was that the bartender saw Kay turn right when she left the bar.
Sergeant Zampitella also testified that this is what Officer
Coup told him the bartender had said. See Commonwealth v.
Marchione, 384 Mass. 8, 12 (1981). We thus consider this
implied finding along with the other subsidiary findings that
are supported by the evidence.
3. Application of the emergency aid exception. 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). See, e.g., Commonwealth v. Snell, 428
Mass. 766, 774-775, cert. denied, 527 U.S. 1010 (1999);
Commonwealth v. Morrison, 429 Mass. 511, 515 (1999);
Commonwealth v. Entwistle, 463 Mass. 205, 213-214 (2012). See
also Mincey v. Arizona, 437 U.S. 385, 392 (1978) ("We do not
question the right of the police to respond to emergency
situations. Numerous state and federal cases have recognized
that the Fourth Amendment does not bar police officers from
making warrantless entries and searches when they reasonably
13
believe that a person within is in need of immediate aid"
[footnotes omitted]). The exception hinges on the existence of
evidence that someone is in need of immediate assistance. See
Commonwealth v. Bates, 28 Mass. App. Ct. 217, 219 (1990);
Commonwealth v. Lindsey, 72 Mass. App. Ct. 485, 488 (2008). See
generally Grasso & McEvoy, Suppression Matters Under
Massachusetts Law § 14-1[c][3] (2013/2014).
"[T]he burden of proof is on the Commonwealth to show that
the warrantless entry falls within the exception [to the warrant
requirement] and that there were reasonable grounds for the
. . . police to believe (an objective standard) that an
emergency existed." Commonwealth v. Bates, supra at 219-220
(1990). "Reasonableness must be 'evaluated in relation to
the scene as it could appear to the officers at the time, not as
it may seem to a scholar after the event with the benefit of
leisured retrospective analysis.'" Commonwealth v. Townsend,
453 Mass. 413, 425-426 (2009), quoting from Commonwealth v.
Young, 382 Mass. 448, 456 (1981). The law does not require the
police to be certain that a person’s life is in danger or to
know the precise nature of a person’s injuries, nor are they
required to have probable cause to believe a crime has been
committed. "It suffices that there are objectively reasonable
grounds to believe that emergency aid might be needed."
Commonwealth v. Entwistle, supra at 214.
14
"Police must often make balanced choices. Domestic
violence situations require police to make particularly delicate
and difficult judgments quickly." Fletcher v. Clinton, 196 F.3d
41, 50 (1st Cir. 1999). See Georgia v. Randolph, 547 U.S. 103,
118 (2006). There is a very strong public policy in this
Commonwealth against domestic violence.11 We think that it is
11
See Commonwealth v. Chretien, 383 Mass. 123, 131-132
(1981). See also Mitchell v. Mitchell, 62 Mass. App. Ct. 769,
772–773 (2005). The strong Massachusetts public policy against
domestic violence is reflected in numerous legislative
enactments such as G. L. c. 209A. Only last year, a sweeping
series of additional measures was adopted by the Legislature to
strengthen even further the legal framework designed to prevent
domestic violence. See "An Act Relative to Domestic Violence,"
St. 2014, c. 260 (Act). In addition to expanding existing
offenses and creating new offenses, see, e.g., domestic assault
and domestic assault and battery, St. 2014, c. 260, § 23,
amending G. L. c. 265, § 13M, and strangulation or suffocation,
St. 2014, c. 260, § 24, inserting G. L. c. 265, § 15D, the Act
prohibits the release on bail of a defendant charged with any
offense constituting domestic abuse "sooner than 6 hours after
arrest except by a judge in open court," and permits special
conditions of release to be included in bail orders made prior
to a court appearance. St. 2014, c. 260, §§ 28, 31, 32,
amending G. L. c. 276, §§ 42A, 57, 58. The Act provides that
the person who admits the defendant to bail may impose
conditions on the defendant's release to ensure not only the
defendant's appearance before the court, but also the safety of
the alleged victim, any other individual, or the community.
Ibid. The Act provides that in cases involving domestic assault
or domestic assault and battery, among others, the Commonwealth
is the only party that may move for arraignment in the first
three hours after a criminal complaint is signed. Ibid. The
Act prohibits accord and satisfaction, under G. L. c. 276, § 55,
in all cases alleging a criminal act constituting domestic
abuse. See St. 2014, c. 260, § 29. The Act further requires
that a certified batterer's intervention program be ordered when
a defendant is convicted or receives a continuation without a
finding for the crimes of domestic assault or assault and
battery, or strangulation or suffocation. G. L. c. 265, §§ 13M,
15
consistent with this strong public policy to recognize that
evidence that a person requesting police assistance may have
been the victim of domestic violence is a factor that police may
consider in determining whether an emergency exists involving a
particular individual and whether a warrantless entry is
reasonably necessary to render assistance under the emergency
aid exception. As the Washington Supreme Court has observed:
"[T]he fact that police are responding to a situation that
likely involves domestic violence may be an important factor in
evaluating both the subjective belief of the officer that
someone likely needs assistance and in assessing the
reasonableness of the officer's belief that there is an imminent
15D. If the judge declines to order a certified batterer's
intervention program upon conviction or continuation without a
finding for these crimes, it must be upon good cause shown and
the judge must issue specific written findings describing the
reasons that the batterer's intervention program should not be
ordered. Ibid. The Act substantially expands the training of
police officers, prosecutors, and court personnel in the area of
domestic violence. See St. 2014, c. 260, § 1, amending G. L.
c.6, § 116A; St. 2014, c. 260, § 5, inserting G. L. c. 12, § 33;
and St. 2014, c. 260, § 18, inserting G. L. c. 211B, § 9B. It
imposes on boards of registration for medicine, nursing,
physician assistants, nursing home administrators, social
workers, psychologists, and mental health professionals a duty
to require domestic violence and sexual violence training and
education as a condition for licensure. St. 2014, c. 260, § 9,
enacting G. L. c. 112, § 264. Finally, the Act directs the
Department of Elementary and Secondary Education to develop and
produce health curriculum and educational materials on domestic
violence, teen dating violence, and healthy relationships to be
distributed annually to students in grades nine through twelve.
St. 2014, c. 260, § 42.
16
threat of injury." State v. Shultz, 170 Wash. 2d 746, 756
(2011).12
The defendant contends that this case is controlled by
Commonwealth v. DiGeronimo, 38 Mass. App. Ct. 714, 723-725
12
We acknowledge that in State v. Shultz, supra, the court
concluded that the police did not have an objectively reasonable
basis for a warrantless entry. The court noted that the
evidence viewed in the light most favorable to the police was as
follows: "The police received a phone call from a resident of
an apartment complex about a yelling man and woman. The
responding officers stood outside and overheard a man and woman
talking loudly. The officers heard a man say that he wanted to
be left alone and needed his space. The officers knocked on the
door. Schultz opened it, appearing agitated and flustered.
Officer Malone asked Schultz about the male occupant of the
apartment. Schultz told her no one was there, but when
confronted with the fact the officers heard voices, summoned
Robertson from a nearby bedroom. When Robertson appeared, the
officers entered Schultz's apartment based upon her acquiescence
only." 170 Wash. 2d at 760. In Shultz, the court enunciated
six factors that it regarded as essential to invoke the
emergency aid exception: "'(1) the [police] officer
subjectively believed that someone likely needed assistance for
health or safety concerns; (2) a reasonable person in the same
situation would similarly believe that there was need for
assistance; and (3) there was a reasonable basis to associate
the need for assistance with the place being searched . . .' (4)
there is an imminent threat of substantial injury to persons or
property, (5) state agents must believe a specific person or
persons or property is in need of immediate help for health or
safety reasons, and (6) the claimed emergency is not a mere
pretext for an evidentiary search." Id. at 754, quoting from
State v. Kinny, 141 Wash. 2d 373, 386-387 (2000). Although the
Supreme Judicial Court has not adopted a comparable set of
criteria, we think the Shultz criteria are consistent with the
emergency aid exception under Massachusetts law. We also
conclude that on the record before us, the police satisfied
these criteria. It is of particular significance that in the
present case, unlike in Shultz, it was the victim who requested
that the bartender call the police and who told the bartender
that she was not all right after the upstairs tenant heard a
male and a female arguing and crashing sounds coming from the
apartment frequented by the victim.
17
(1995), in which we concluded that on the fact presented there,
the emergency aid doctrine did not authorize the warrantless
entry of a home. The DiGeronimo case involved a motor vehicle
collision in which the defendant rammed his vehicle into the
rear of another vehicle. Id. at 715. The defendant eventually
drove away. Ibid. The operator of the other vehicle made
observations that led him to conclude the defendant was under
the influence of alcohol, but not otherwise injured. Ibid.
Shortly thereafter, from his nearby apartment, the defendant
telephoned the police to report the accident. Id. at 715-716.
The defendant caller sounded to the police to be under the
influence of alcohol, but he did not report any injuries or
request assistance. Id. at 716. The defendant waited in his
apartment "because he thought the police might be coming to
question him." Ibid. Meanwhile, a police officer who responded
to the scene gathered facts that established probable cause to
believe that the defendant had operated a vehicle while under
the influence of alcohol. Ibid. Almost an hour later, the
officer went to the defendant's apartment. Ibid. The
defendant's damaged vehicle car was parked outside. Ibid. From
outside the defendant's apartment door, the officer heard a
television, but received no response when he knocked and
announced himself. Ibid. The police dispatcher called the
defendant’s home telephone but reported that he received a busy
18
signal. Id. at 717. The officer decided to make a warrantless
entry to check on the defendant's well-being. Ibid. The
defendant, who appeared to be under the influence of alcohol,
was arrested and transported to the police station. Id. at 717-
718.
In DiGeronimo, we rejected the argument that the
warrantless entry was justified under the emergency aid
exception, because the objective evidence did not support a
reasonable belief that an emergency existed. The observations
of the defendant made by the other motorist, and the impressions
left with the police who received the defendant’s telephone
report of the collision, strongly suggested that the defendant
was impaired by alcohol, but did not suggest that he had
suffered any serious physical injuries, was at risk of being
injured, or was in need of immediate assistance. "The objective
circumstances did not reasonably support a genuine concern on
[the officer's] part that DiGeronimo might have been so severely
injured in the accident as to be in a life-threatening situation
requiring immediate, warrantless entry and assistance." Id. at
725. See Commonwealth v. Bates, 28 Mass. App. Ct. at 219 (no
immediate emergency where three hours and twenty minutes passed
between 911 call about missing woman and officers arriving at
apartment); State v. Beede, 119 N.H. 620, 627-629 (1979), cert.
denied, 445 U.S. 967 (1980) (no emergency found where police
19
waited many hours before conducting search -- emergency can
disappear with the passage of time).
This case more closely resembles Commonwealth v. Lindsey,
72 Mass. App. Ct. at 488-490, where we concluded that the police
properly relied on the emergency aid exception to conduct a
warrantless entry into a house. In Lindsey, a 911 caller
reported an elderly woman trembling outside the caller's house
and asking for help. Id. at 486. Officers arrived on scene.
The caller, a neighbor informed the officers of the elderly
woman's poor health. She had been asking for help and pointing
behind her at her house, which she shared with her son. Because
a search for the woman had proved unavailing, officers concluded
that she had likely gone back into her house and that she might
be in need of emergency medical assistance. Id. at 487.
Because the front door was locked, fire fighters forced it open.
Once inside, the police officer's saw a number of incriminating
items in plain view, which they seized. Ibid.
In the case before us, the police did not have direct
evidence that Kay was the victim of domestic violence, but they
had an objectively reasonable basis for the belief that she had
been the victim of a domestic violence incident only minutes
before they arrived based on the evidence they gathered at the
scene. The police also had an objectively reasonable basis for
the belief that after requesting police assistance, Kay returned
20
to the apartment where the incident had occurred, that no one
had entered or left that apartment since they arrived at the
scene, and that her boy friend, whose vehicle was in the
driveway, also was nearby and could be present with her in the
apartment.13 On the basis of these facts and the reasonable
13
As noted earlier, we give deference to and accept the
judge’s subsidiary finding that no one saw Kay entering the
apartment after speaking to the bartender. We reject the
judge’s findings that Kay was uninjured, that whatever incident
that occurred earlier between Kay and her boy friend was over by
the time the police arrived, and that Kay was not in the
apartment at the time of the warrantless entry, as unsupported
by the evidence and implausible when considered in relation to
the judge's other subsidiary findings of fact, as well as the
finding we imply that the bartender reported to Officer Coup
that Kay turned right when she exited the bar. See part 2.b,
supra.
We also disregard a statement made by the judge about what
someone who has been the victim of domestic violence would be
likely to do after seeking help. The judge observed that
"[c]ertainly if there was a dangerous situation, one would not
expect she would have returned to the apartment." This is not a
finding of fact, but instead a generalization about human
behavior. There was no expert witness testimony to support this
generalization. Moreover, such a statement is contradicted by
the weight of research findings and clinical evidence about
victims of domestic violence and the cycles of violence that
they experience.
Domestic violence is a complex phenomenon that results in
psychological and physical injures to a significant number of
persons each year regardless of age, economic status, education,
or racial or ethnic background. See generally Breiding, Smith,
Basile, Walters, Chen, and Merrick, Prevalence and
Characteristics of Sexual Violence, Stalking, and Intimate
Partner Violence Victimization -- National Intimate Partner and
Sexual Violence Survey, United States, 2011 MMWR 2014:63, No. 8.
The phrase "battered woman’s syndrome," which is a misnomer
insofar as it suggests that the victim is necessarily suffering
from a disease or mental illness, describes "a common pattern in
abusive relationships." G. L. c. 233, § 23F, inserted by St.
1996, c. 450, § 248. The pattern "typically exhibited by
21
inferences that could be drawn from them, the police had the
right to make a warrantless entry into the apartment to
determine if Kay was in need of emergency aid.
Conclusion. The emergency aid exception is not a broad
authorization for the police to make warrantless entries into
battered women, include[es] their tendency to leave and then
return to the batterer many times before finally ending the
relationship.” Commonwealth v. Goetzendanner, 42 Mass. App. Ct.
637, 641 (1997). Victims, usually women, make this choice for
many reasons. Simply leaving an abuser may put a person in more
danger than they would be if they were to go back. See Dutton,
The Dynamics of Domestic Violence: Understanding the Response
from Battered Women, 68 Fla. B.J. 24, 26 (1994). Established
patterns of abuse and control might mean that an abused party
has become so isolated from friends, family, and employment that
they have nowhere to go if they were to permanently leave. An
abused person may not be able to support themselves (or their
families) without the additional income that is derived from the
abuser. Moreover, "[b]atterers sometimes try to control their
partners by limiting the partner's access to joint income."
Enos, Recent Development: Prosecuting Battered Mothers: State
Laws' Failure to Protect Battered Women and Abused Children, 19
Harv. Women's L.J. 229, 246 (1996). It has also been observed
that "[t]o protect their pets, domestic violence victims may
delay leaving their homes, or refuse to leave at all." Nelson,
The Connection Between Animal Abuse and Family Violence: A
Selected Annotated Bibliography, 17 Animal L. 369, 373 (2011).
Finally, despite the risk of future abuse, a person who is in an
abusive relationship might go back into the home because she
still loves and cares for her abuser. See, e.g., Report on
Domestic Violence: A Commitment to Action, 28 New Eng. L. Rev.
313 (1993). Lastly, there are a myriad of immediate practical
concerns that might lead a victim who has called for help to
return to the scene of a domestic violence incident, such as a
need for a wallet, cellular telephone, or car keys. We
emphasize it is not our intention nor our role to hypothesize
reasons for Kay's behavior in this case, but at the same time
judges must be cautious to avoid making findings that amount to
generalizations or speculation about patterns of human behavior
without support in the evidence.
22
homes to conduct wellness checks whenever the police have a
concern that someone may need assistance. It is a narrow
exception to the constitutionally-based preference for warrants
that arises when there is an objective basis for the belief that
an emergency exists and a person is in need of immediate
assistance. Evidence that an incident of domestic violence has
occurred is not, standing alone, justification for the police to
make a warrantless entry into a home to assist the victim.
However, the volatility and lethal nature of many domestic
violence incidents means that a "rapid police response" may be
the only way "to prevent further injury to a victim, to see
whether a threat against a victim has been carried out, or to
ascertain whether some other grave misfortune has befallen a
victim." Commonwealth v. Snell, 428 Mass. at 775. Therefore,
when the police have reliable information that a particular
individual has been the victim of domestic violence, has
requested police assistance, has exhibited signs of distress,
may be inside an apartment or home, and despite a prompt
response to the request for assistance and an effort to knock
and announce their presence, the police receive no response, the
conditions exist for a warrantless entry under the emergency aid
exception.
23
For the above reasons, the order allowing the motion to
suppress is reversed, and a new order shall enter denying the
motion.
So ordered.