June 23, 2017
Supreme Court
No. 2009-46-C.A.
(P2/07-4007AG )
State :
v. :
Boghos Terzian. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island,
250 Benefit Street, Providence, Rhode Island 02903, at Telephone
222-3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2009-46-C.A.
(P2/07-4007AG )
(Dissent begins on Page 20)
State :
v. :
Boghos Terzian. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Goldberg, for the Court. This case came before the Supreme Court on
February 8, 2017, on appeal by the defendant, Boghos Terzian (defendant or Terzian), from
judgments of conviction entered in the Superior Court following a jury trial. The defendant was
convicted on three counts of assault with a dangerous weapon and one count of carrying a pistol
without a license. Before this Court, the defendant contends that the Superior Court justice erred
in denying his motion to suppress evidence seized by police during a warrantless search of his
home. For the reasons set forth herein, we vacate the judgments of conviction.
Facts and Travel
This case turns on whether a warrantless entry into defendant’s home, after he was placed
in the custody of the Providence police, followed by a search and warrantless seizure of a firearm
and a can of pepper spray, pass constitutional scrutiny. In considering whether the search
exceeded the bounds of reasonableness, we confine our analysis to the evidence presented at the
pretrial suppression hearing in Superior Court, upon which the Superior Court justice based his
decision denying the motion to suppress.
-1-
In the late evening hours of July 31, 2007—nearly ten years ago—the Providence police
received a 9-1-1 call indicating that gunshots had been fired in the Pumgansett Street area of the
city.1 Patrolman Scott Zambarano (Patrolman Zambarano) responded to the call and was
dispatched to the parking lot of a Walgreens located approximately one-half mile from
Pumgansett Street. Upon his arrival, Patrolman Zambarano was approached by a man who
identified himself as Vito.2 Vito informed Patrolman Zambarano that defendant, who “lived on
Pumgansett Street,” had “shot his back window out and beat up his girlfriend.” Patrolman
Zambarano, accompanied by his supervisor, Sgt. Roger Aspinall (Sgt. Aspinall), and numerous
police officers, in several marked cruisers, responded to defendant’s home—a single-family
dwelling located at 19 Pumgansett Street. According to the officers, when they arrived at the
scene, the smell of gunpowder was still in the air and the officers noticed shards of broken glass
scattered around the street. The officers mistakenly went to the house next door. Patrolman
Zambarano subsequently knocked on the front door of 19 Pumgansett and was met by defendant,
who exited the house to speak to the officers. He appeared to the officers to be “highly
intoxicated.” The defendant stated that there had been a “rift” in front of the house caused by
“Spanish kids from the project[s].” The patrolman stated that, at some point during the
conversation, defendant became “uncooperative” and “belligerent.” The defendant was seated in
a police cruiser until he was identified by Vito as the person with the firearm; he was then placed
in handcuffs and returned to the cruiser.
1
The delay in this case is attributable to a remand by this Court for the purpose of a hearing on a
motion for a new trial. After four years in Superior Court, the motion for a new trial was
withdrawn, and the case was returned to this Court for recommencement of this appeal.
2
This person subsequently was identified as Vito A. Cocci, the complainant in count 1 of the
criminal information that is the subject of this appeal.
-2-
Patrolman Zambarano testified that Stephanie Kruwell (Stephanie), who identified herself
as defendant’s fiancée, and her daughter, Samantha Kruwell (Samantha),3 emerged from the
house. Samantha informed Patrolman Zambarano that she had been in a fight with her boyfriend
and that someone had been pepper-sprayed during the altercation. Patrolman Zambarano
testified that he asked the women whether there were any guns inside the house, and Stephanie
initially responded in the negative; but she then volunteered that “there were guns in the house”
and that the officers could go inside and search. Patrolman Zambarano did not inquire of
defendant or Stephanie as to who lived in the house. The officer testified that he assumed that
Stephanie and Samantha lived in the house and did not ask her for permission to enter the home,
nor did he ask Samantha where she lived. Significantly, when the Superior Court justice
pointedly asked Patrolman Zambarano to state the factors that led him to conclude that Stephanie
lived in the house, before he entered, he responded, “Just assumption, I guess, your Honor.”
Patrolman Zambarano testified that the officers “responded inside the house, and
Stephanie pointed out where the gun was in the house.” He stated that Stephanie “pointed out a
bureau,” with clothes “stacked on top of the bureau and [she said that] the gun would be under
the clothes on the bureau.” Patrolman Zambarano testified that he proceeded to look where she
pointed and “found a gun placed in a holster on top of the bureau underneath the clothing.” The
witness also testified that the officers searched the area where the gun was found and discovered
.38-caliber bullets “on a bureau or in a bureau next to the gun” in defendant’s bedroom.
However, the police did not seize the firearm at this time. Rather, the Bureau of Criminal
Identification (BCI) was summoned to 19 Pumgansett Street to photograph the evidence;
3
In order to differentiate between Stephanie Kruwell and Samantha Kruwell, we shall refer to
each witness by her first name only. In doing so, we intend no disrespect.
-3-
additional detectives entered the home and took photographs of both the firearm in defendant’s
bedroom and a can of pepper spray that had been discovered in the trash bin.
Sergeant Aspinall also testified at the suppression hearing; he said that he was the officer
in charge that evening and participated in the search. This witness testified that his first
encounter with Stephanie was at the house after defendant had been handcuffed and placed in the
cruiser. He testified that, as he approached the house, he encountered a white male subject, later
identified as Nathan Spardello, in the front doorway. Because Sgt. Aspinall “didn’t like the way
[Nathan] was standing above” him on the step, he had Nathan come down the stairs and “passed
him on to a patrol officer,” who was nearby, to be patted down. According to Sgt. Aspinall,
Stephanie then “responded to the doorway.” She stood inside the doorway, while he was
“talking to her from the outside.” Although the witness recalled that there may have been some
pit bulls in the home, this was not “an issue since I was outside of the house.” He testified that
he “asked [Stephanie] specifically what had gone on this evening in front of her house.”
Stephanie told the sergeant that white girls were in a fight in front of her house, at which point,
the sergeant returned to the cruiser where defendant was situated, to try to clarify what had
transpired. At that point, he learned from a radio call that pepper spray may have been used in
the incident. According to the sergeant’s testimony, he wanted to talk to Stephanie again, so he
returned to the doorway and “[o]pen[ed] the screen door to get her attention.” According to the
sergeant, Stephanie invited him in. The sergeant admitted that he did not ask Stephanie if she
lived in the house, but he “assumed” that she lived there. He testified that, during their
conversation, Stephanie was taking care of a young child who was “running around the house,
and she was trying to take care of that while talking to me.” Although he did not have much
-4-
contact with Samantha, he recalled that she was also watching the child, who was “going in and
out of the house.”
Sergeant Aspinall indicated that, when he asked Stephanie if there was pepper spray in
the house, her response was no, but that “we could look around.” According to the sergeant, at
that point in the investigation, they were looking for pepper spray. Sergeant Aspinall testified
that he immediately went to the trash bin, opened the lid, and discovered the can of pepper spray
on top of the trash. He then confronted Stephanie, stating, “I know there’s a firearm in this
house. Could you tell me where the gun is?” According to the witness, Stephanie responded,
“Yes. I’ll go get it for you.” Sergeant Aspinall stopped her and told her that “she could point it
out to [Patrolman Zambarano] so that he could grab it.” Patrolman Zambarano accompanied
Stephanie into the bedroom and notified Sgt. Aspinall that there was a firearm in defendant’s
bedroom. Sergeant Aspinall called in BCI detectives to take photographs. After the BCI
detectives entered the home and took photographs of the weapon, it was seized. There was no
warrant. Throughout this period of time, defendant—who was the owner of the house and in
whose bedroom the gun had been found—was in the back seat of a police cruiser; at no point did
the officers ask defendant for consent to enter his home and to search the dwelling; nor did the
officers consider utilizing a consent to search form. When Sgt. Aspinall was asked whether he
sought permission to search the house or whether Stephanie offered, Sgt. Aspinall responded, “I
believe she offered.”
Stephanie testified at the suppression hearing and disputed this sequence of events. She
testified that she does not live at 19 Pumgansett Street, but rather is a resident of North
Providence. However, on July 31, 2007, at approximately 9 p.m., she was with defendant at his
home when suddenly she heard a “ruckus going on in front of the house” and noticed a large
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light being shined into the windows of the home. The defendant went outside to investigate and,
after he did not return for a period of time, Stephanie went outside and found him handcuffed in
the back seat of a police cruiser. Stephanie testified that the officers never asked her what
happened, nor did they ask her whether there were any firearms in the house, or whether they
could enter the home; rather, the officers “tried to walk right in the house.” Stephanie testified
that she informed the officers that they could not go into the home because there were dogs on
the premises and “[t]he dogs bite,” and one of the officers responded, “[p]ut the dogs away
before I shoot them.” The officers entered the home and began to look around. According to
Stephanie, one of the officers looked through the kitchen area, including the trash bin, and found
the pepper spray; he then walked toward what she described as the spare bedroom. The officer
pointed to the closed door of the spare bedroom and asked what was behind the door. The
officer then opened the door, went inside, and looked around. The officer then pointed toward
the next closed door, asking what was behind it. Stephanie replied that it “was [defendant’s]
bedroom.” The officer entered defendant’s bedroom and “went through a few drawers, laundry
basket, [and] moved clothing that was on top of an armoire.” Stephanie denied ever leading the
policemen into defendant’s bedroom and pointing out the location of a firearm. Samantha also
recounted a similar series of events—that the officers entered the home without permission and
“were searching through [defendant’s] room.”
At the close of the hearing, the Superior Court justice concluded that the officers “did not
ask for consent” to enter into the home, but that “[t]his is not really a consent-to-search case.”
Nor was the Superior Court justice of the opinion that he was confronted with an individual
clothed with the apparent authority to consent to the entry and search of defendant’s home, such
that the seminal case of Illinois v. Rodriguez, 497 U.S. 177 (1990) applied to these facts. The
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Superior Court justice found that “in the first instance[,]” the police were responding to an
emergency situation and, therefore, “were lawfully at the premises.” He rejected, as not credible,
Stephanie’s testimony that “the police barged into the house uninvited.” Rather, he concluded
that the police believed that Stephanie lived in the house, and “the credible evidence is that she
invited them in, beckoned them to come in.” The Superior Court justice also declared that the
police “had not yet recovered a firearm and knew the firearm had to have been in the house.”
And, after Sgt. Aspinall found the pepper spray, it was clear that Stephanie had lied to the police,
and it was therefore “proper and appropriate” for Sgt. Aspinall to ask “[w]here’s the gun?,”
“particularly when you have a three-year-old running around the house.” The Superior Court
justice determined that it was Stephanie who pointed to the area where the gun was found and
that “the police would have been foolish and derelict in their duty not to be doing what they were
[doing].” Citing this Court’s opinion in State v. Portes, 840 A.2d 1131 (R.I. 2004), the Superior
Court justice concluded as follows:
“[T]here were circumstances present in the case before me that
certainly were exigent to the point where the cops had to find that
gun, and knew there was a firearm. And, you have a youngster
running around in the house. Shots had recently been fired, the
gun was not accounted for and there had been a melee recently just
before the cops arrived.”
The Superior Court justice denied defendant’s motion to suppress; and, after a jury trial,
defendant was convicted on three counts of assault with a dangerous weapon and one count of
carrying a pistol without a license.4 The defendant timely appealed his conviction to this Court.
4
The defendant was sentenced to eight years, with one year to serve, and seven years suspended
with probation on each of the four charges, to be served concurrently.
-7-
Standard of Review
“When confronted with a decision denying a motion to suppress evidence, the Supreme
Court accords deference to a trial justice’s findings of historical fact.” State v. Casas, 900 A.2d
1120, 1129 (R.I. 2006) (citing State v. Aponte, 800 A.2d 420, 424 (R.I. 2002)). However, when
we are tasked with reviewing an alleged violation of a constitutional right, this Court undertakes
a de novo review of the record in order to independently determine whether the rights of the
accused have been violated. Id.; see also State v. Gonzalez, 136 A.3d 1131, 1145 (R.I. 2016)
(“[W]hen this Court reviews ‘an alleged violation of a defendant’s constitutional rights, this
Court must make an independent examination of the record to determine if [the defendant’s]
rights have been violated.’” (quoting State v. Harrison, 66 A.3d 432, 441 (R.I. 2013))).
“When called upon to review a trial justice’s denial of a motion to suppress on Fourth
Amendment grounds, our task is to review the record to determine, based on the totality of the
circumstances, whether the evidence sought to be suppressed was obtained in violation of the
constitutional prohibition against warrantless searches and seizures.” State v. Barkmeyer, 949
A.2d 984, 995 (R.I. 2008) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)).
Analysis
Before this Court, defendant argues that the Superior Court justice erred in denying his
motion to suppress the incriminating evidence obtained during a warrantless entry and
subsequent search of his dwelling. The defendant disputes the existence of exigent
circumstances and contends that the warrantless entry and search violated the Fourth
Amendment to the United States Constitution and article 1, section 6 of the Rhode Island
Constitution.
-8-
Although acknowledging that the Superior Court justice rejected the theory that consent
based upon apparent authority justified the search, the state nonetheless argues that we affirm the
denial of the motion to suppress on the basis of apparent authority. The state contends that
Stephanie had the apparent authority to invite the officers into the residence, and that therefore,
this search was in compliance with the Fourth Amendment. In addition, the state argues that the
Superior Court justice properly concluded that there were exigent circumstances—an
emergency—which justified the warrantless search of defendant’s home and seizure of the
firearm from his bedroom.
It has long been recognized that a warrantless entry by members of law enforcement into
a person’s home, whether for an arrest or a search, is prohibited by the Fourth Amendment, in
the absence of one of the specific and carefully delineated exceptions to the warrant requirement.
See Portes, 840 A.2d at 1136. The starting point for analyzing whether the evidence seized
during the warrantless search of defendant’s home is admissible under the Fourth Amendment
must begin with a determination of whether the entry by the responding officers was justified as
falling within an exception to the warrant requirement. Id.
It is well-established that the analysis that is undertaken when law enforcement relies on
the apparent authority of a consenting party “is not that they always be correct, but that they
always be reasonable.” Rodriguez, 497 U.S. at 185. We undertake this examination in the face
of the undisputable facts that neither Stephanie nor Samantha lived in the home; they were not
authorized to consent to a search of the premises; and, after defendant was placed in custody, the
officers did not ask of anyone if they lived in the home.
-9-
Warrantless Entry
The Fourth Amendment to the United States Constitution clearly provides for “[t]he right
of the people to be secure in their * * * houses * * * against unreasonable searches and seizures.”
From this amendment derives one of the most fundamental principles of constitutional
jurisprudence—that entries and “searches conducted outside the judicial process, without prior
approval by [a] judge or magistrate, are per se unreasonable * * * subject only to a few
specifically established and well-delineated exceptions.” Duquette v. Godbout, 471 A.2d 1359,
1362 (R.I. 1984) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). It is equally
understood that “the Fourth Amendment has drawn a firm line at the entrance to the house.
Absent exigent circumstance, that threshold may not reasonably be crossed without a warrant.”
Gonzalez, 136 A.3d at 1146 (quoting Payton v. New York, 445 U.S. 573, 590 (1980)).
The warrant requirement serves to guard the privacy and sanctity of the home from
“zealous” police officers “thrust[ing] themselves into a home” while ardently “engaged in the
often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 13,
14 (1948). However, “because the ultimate touchstone of the Fourth Amendment is
‘reasonableness,’ the warrant requirement is subject to certain exceptions.” Brigham City, Utah
v. Stuart, 547 U.S. 398, 403 (2006) (citing Flippo v. West Virginia, 528 U.S. 11, 13 (1999);
Katz, 389 U.S. at 357). This Court consistently has declared that these exceptions are “narrowly
defined and jealously guarded.” State v. Beaumier, 480 A.2d 1367, 1373 (R.I. 1984).
Voluntary consent by a person authorized to grant consent is one of the exceptions to the
warrant requirement. See State v. Linde, 876 A.2d 1115, 1125 (R.I. 2005). Indeed, third-party
consent by a person with authority to consent is a valid tool for the police and prosecutors.
However, “the validity of third party consent to a search must be applied cautiously to prevent
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erosion of Fourth Amendment protections.” Id. at 1125 (quoting State v. Farrell, 443 A.2d 438,
442 (R.I. 1982)). The state bears the burden of establishing valid consent by a preponderance of
the evidence. See Casas, 900 A.2d at 1134.
Apparent Authority
Our careful examination of the record before us leads us to reject the state’s contention
that Stephanie’s purported consent justified the warrantless entry and subsequent search of
defendant’s home. “A third party’s consent to [an entry or] search is valid if that person has
either the ‘actual authority’ or the ‘apparent authority’ to consent to [entry and] a search of that
property.” Linde, 876 A.2d at 1125 (quoting United States v. Kimoana, 383 F.3d 1215, 1221
(10th Cir. 2004)). In order for apparent authority to consent to serve as a justification for a
warrantless entry and search, the state bears the burden of proving that the officer reasonably
believed that the person who invited the officer into the dwelling, or permitted a search, was
authorized to do so, and it is discovered later that the consenting party lacked the authority to
consent. See Barkmeyer, 949 A.2d at 999-1000 (“[T]he linchpin of apparent authority is
evidence that the police officer entered and/or searched the premises under the reasonable, but
mistaken, belief that the person consenting to such entry and/or search had the actual authority to
do so.” (citing Rodriguez, 497 U.S. at 186)). In order to establish apparent authority to consent
to a warrantless entry and search, the state must demonstrate by a preponderance of the evidence
the factors that were actually relied upon by the police.
Crucial to an examination of apparent authority, “‘is whether, based on the information in
the officers’ possession, they reasonably believed’ that the consenting individual had the
authority to consent to a[n] [entry or] search.” Barkmeyer, 949 A.2d at 1000 (emphasis added
- 11 -
and emphasis omitted) (quoting United States v. Meada, 408 F.3d 14, 22 (1st Cir. 2005)). We
look to the totality of the circumstances.
The record before this Court fails to establish any factors upon which the officers could
reasonably conclude that Stephanie lived in the home. Stephanie was described at various times
as defendant’s girlfriend or fiancée. The officers testified that they simply assumed that she lived
in the dwelling and they made no inquiry to satisfy themselves that she actually lived there.
After defendant was placed in custody, there were several adults and a young child remaining in
the house. The officers failed to ask who, if anyone, lived in the house, and they did not ask
anyone for identification. Sergeant Aspinall and Patrolman Zambarano testified that they had no
real interaction with the other adults. When the Superior Court justice asked Patrolman
Zambarano, “[w]hat led you to believe that [Stephanie] lived there?,” the patrolman responded,
“Just assumption, I guess.” Similarly, Sgt. Aspinall also testified that, because Stephanie
referred to the residence as “her house” when she came outside to speak to the officer, he
“assumed it was [Stephanie’s] house.” Although the state points out that Stephanie was
defendant’s fiancée and that she was familiar with defendant’s dogs as factors that support the
officers’ conclusions, there was no evidence produced to suggest that the officers relied on these
factors.
This Court recognizes that, in the context of apparent authority, “room must be allowed
for some mistakes on [the officer’s] part.” Rodriguez, 497 U.S. at 186 (quoting Brinegar v.
United States, 338 U.S. 160, 176 (1949)). However, “the mistakes must be those of reasonable
men, acting on facts leading sensibly to their conclusions of probability.” Id. (emphasis added)
(quoting Brinegar, 338 U.S. at 176). An assumption, in the absence of factors that would lead
an experienced police officer to reach such a conclusion, is woefully inadequate and does not
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lead to a reasonable judgment. Thus, we agree with the Superior Court justice that this search
cannot be justified on the basis of apparent authority to consent. The record is devoid of any
facts upon which the officers could formulate a reasonable belief that Stephanie was clothed with
apparent authority sufficient to invoke the consent exception to the warrant requirement.
Exigent Circumstances
We also reject the Superior Court justice’s conclusion that exigent circumstances were
present in this case because there was “a youngster running around in the house[,] [s]hots had
recently been fired, [and] the gun was not accounted for * * *.” “For this Court to conclude
there was an exigency, the ‘ultimate test is whether there is such a compelling necessity for
immediate action as will not brook the delay of obtaining a warrant.’” Gonzalez, 136 A.3d at
1151 (quoting United States v. Adams, 621 F.2d 41, 44 (1st Cir. 1980)). In demonstrating a
compelling and urgent necessity sufficient to circumvent the constitutional mandate of a warrant,
the police “bear a heavy burden[.]” Id. (quoting Welsh v. Wisconsin, 466 U.S. 740, 749 (1984));
see also id. (“[B]efore agents of the government may invade the sanctity of the home, the burden
is on the government to demonstrate exigent circumstances that overcome the presumption of
unreasonableness that attaches to all warrantless home entries.” (emphasis added) (quoting
Welsh, 466 U.S. at 750)).
Of course, facts that were not known to the officer at the time of the warrantless entry can
never support a finding of exigent circumstances. In passing on the question, we limit our focus
to the facts known to the police at the time they enter the dwelling. See Gonzalez, 136 A.3d at
1151-52. “[T]he police [must] have an objective, reasonable belief that a crisis can only be
avoided by swift and immediate action.” Id. at 1151 (quoting State v. Gonsalves, 553 A.2d
1073, 1075 (R.I. 1989)). This Court remains ever “mindful of the admonition of the United
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States Supreme Court to the effect that ‘[w]hen an officer undertakes to act as his own
magistrate, he ought to be in a position to justify it by pointing to some real immediate and
serious consequences if he postponed action to get a warrant.’” Id. (emphasis added) (quoting
Welsh, 466 U.S. at 751).
This Court previously has set forth specific examples of circumstances that were
sufficiently exigent to overcome the warrant requirement. Those circumstances include: “law
enforcement’s need to provide emergency assistance to an occupant of a home, * * * engage in
‘hot pursuit’ of a fleeing suspect, * * * enter a burning building to put out a fire and investigate
its cause, * * * [and] prevent the imminent destruction of evidence.” Gonzalez, 136 A.3d at
1164 (quoting Missouri v. McNeely, 133 S.Ct. 1552, 1558-59 (2013)). We have also declared
that exigent circumstances exist:
“When evidence is likely to be lost, destroyed, or removed during
the time required to obtain a warrant and when, because of the
circumstances, it is difficult to secure a warrant, a warrantless entry
and search may be justified. This exception also encompasses the
situation in which police believe a person within requires
immediate assistance or other victims or intruders may still be
present.” State v. Jennings, 461 A.2d 361, 366 (R.I. 1983).
In Gonzalez, 136 A.3d at 1152, we were faced with the constitutionality of a warrantless
search of the defendant’s residence and subsequent seizure of a firearm, after the police received
a report that the defendant had shot and killed somebody. The police testified that they knew the
defendant was inside the residence, was armed, and that “there were concerns about destruction
of evidence, and that there was a possibility of harm to the public or to [the defendant] himself.”
Id. None of those factors carried the day. Although this case is distinguishable from Gonzalez
in regard to the amount of time that elapsed between the 9-1-1 call and the warrantless entry, the
record before us is wholly devoid of any testimony whatsoever suggesting an urgent need to
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search the dwelling or any real and serious consequence that could result from a delay in order to
secure the premises and obtain a warrant.
It is well-established that, in considering the reasonableness of a warrantless search,
“[t]he proper line of inquiry is whether the police reasonably believed, relying upon facts known
by them at the time * * * that the warrantless intrusion was necessary to preserve life or avoid
serious injury.” Gonsalves, 553 A.2d at 1075-76. The testimony of the intruding officer
provides the court with insight into the officer’s motivation for the entry and, therefore, provides
the basis for the court’s conclusion that exigent circumstances support the intrusion. See, e.g.,
State v. Morin, 68 A.3d 61, 67 n.11 (R.I. 2013) (“In most cases, the testimony of the arresting
officer should provide the basis for the conclusion that he or she reasonably believed that exigent
circumstances existed.”).5
The record before this Court demonstrates that neither officer testified that he was
concerned about the unsecured firearm or that he was faced with an emergency. Neither officer
testified that he was concerned that the underlying dispute may reignite or that he suspected that
Samantha or Stephanie may pursue their earlier aggressors armed with the unsecured firearm.
Neither officer testified that time was of the essence or that their unfolding investigation was
potentially volatile. Had either officer testified to any of these concerns, or pointed to any reason
5
The full footnote reads as follows:
“In most cases, the testimony of the arresting officer should
provide the basis for the conclusion that he or she reasonably
believed that exigent circumstances existed. Under the facts of this
case, we conclude that, although Officer Green did not testify at
the suppression hearing, ‘the circumstances, viewed objectively,
justify [his] action[s]’ because Brandstromskelding’s testimony
sufficiently demonstrated the existence of exigent circumstances.”
State v. Morin, 68 A.3d 61, 67 n.11 (R.I. 2013) (citing Brigham
City, Utah v. Stuart, 547 U.S. 398, 404 (2006)).
- 15 -
justifying the warrantless search of defendant’s home, our analysis would hinge on that
testimony. However, where the record is bereft of any police testimony demonstrating exigency,
hypothesizing about what the officers “could have believed,” beseeches the distorting effects of
hindsight and is erroneous. See Welsh, 466 U.S. at 751 (“When an officer undertakes to act as
his own magistrate, he ought to be in a position to justify it by pointing to some real immediate
and serious consequences if he postponed action to get a warrant.” (quoting McDonald v. United
States, 335 U.S. 451, 460 (1948))); see also DeMayo v. Nugent, 517 F.3d 11, 17 (1st Cir. 2008)
(“[O]fficers must be able to point to specific facts in the record to justify a warrantless entry
based on exigent circumstances * * *.”); Hegarty v. Somerset County, 53 F.3d 1367, 1375 (1st
Cir. 1995) (“We must isolate all reasonably reliable information collectively known to the
officers at the time their challenged conduct occurred, without indulging hindsight[.]” (citing
Hunter v. Bryant, 502 U.S. 224, 227 (1991))).
After a thorough review of the record in this case, we are unable to discern any
conceivable facts demonstrating that the officers possessed a compelling and urgent need to enter
defendant’s home without the accompaniment of a warrant. The record clearly establishes that,
at the time of the warrantless entry, defendant—the lone suspect—was in custody in the back
seat of a police cruiser. No suspect was attempting to flee the scene; there was no threat of an
imminent destruction of evidence; there was no need to provide emergency assistance to anyone
in the home; and there were no other suspects, intruders, or victims on the premises. See
Gonzalez, 136 A.3d at 1151; see also Jennings, 461 A.2d at 366. Indeed, the police did not even
notice the child until after they were in the home, and they paid scant attention to the child in any
event. A passing observation that there may have been a child “running around the house” will
not support a warrantless search based on an emergency.
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Similarly there is no evidence supporting the Superior Court justice’s conclusion that the
officers felt immediate action was necessary to recover the firearm. Nor are we persuaded that
the presence of a firearm gives rise to an exigent circumstance sufficient to circumvent the
warrant requirement. The fact that there may have been a firearm somewhere in the residence
does not, by itself, rise to the level of exigency necessary to surpass the warrant requirement.
See State v. DeLaurier, 533 A.2d 1167, 1169 (R.I. 1987) (“The Supreme Court of the United
States has clearly prohibited the warrantless search of a dwelling based only on probable cause to
believe the dwelling contains contraband” (citing Payton, 445 U.S. at 587)); see also State v.
Alexander, 433 A.2d 965, 967 (R.I. 1981) (“Belief, however well founded, that an article sought
is concealed in a dwelling house furnishes no justification for a search of that place without a
warrant.” (quoting Vale v. Louisiana, 399 U.S. 30, 34 (1970))). The prudent course for the
police is to secure the premises and obtain a warrant. See United States v. Martins, 413 F.3d
139, 145 (1st Cir. 2005) (police conducted a protective sweep of the residence, secured the
residence, and then obtained a search warrant to search the premises).
Furthermore, it remains “important to ensure that the intrusion was not merely a pretext
to * * * search to seize evidence.” Portes, 840 A.2d at 1136 (citing Duquette, 471 A.2d at 1363).
“The impetus of the [warrantless] entry must be to preserve life and property.” Id. Because this
excuses what otherwise would be a violation of the Fourth Amendment, the search “must be
limited in scope and purpose.” Jennings, 461 A.2d at 367 (citing Mincey v. Arizona, 437 U.S.
385, 393 (1978)). When the area is secure and the danger is no longer present, the emergency is
over, and the search must cease. Id. (“When the security check has been completed, the area is
secured, and there is no longer any danger of the loss or destruction of evidence, the search must
cease. Any further intrusion is a violation of the Fourth Amendment.”).
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The record before us is devoid of any real immediate and serious consequences that may
have resulted had the police delayed entry into defendant’s residence to obtain a warrant.
Therefore, in the absence of exigency, the officers had ample time to obtain a warrant; their
failure to do so cannot be excused. See Jennings, 461 A.2d at 367.
Because the state failed to overcome the presumption of unreasonableness that
accompanies every warrantless entry into a home, we hold that the warrantless entry and search
of defendant’s home was in clear violation of his Fourth Amendment rights. To hold otherwise
would, essentially, “[a]llow[] the police to enter the home of every * * * suspect without first
obtaining the approval of a disinterested judicial officer, in effect, ‘* * * reduc[ing] the [Fourth]
Amendment to a nullity and leav[ing] the people’s homes secure only in the discretion of police
officers.’” Gonzalez, 136 A.3d at 1164 (quoting Johnson, 333 U.S. at 14). “The public has a
right to be protected from illegal searches and seizures * * *.” Casas, 900 A.2d at 1135. This
liberty is one that must be afforded to “those suspected of being or known to be, offenders as
well as to the innocent.” Id. (quoting State v. Robinson, 658 A.2d 518, 522 (R.I. 1995)).
Accordingly, the evidence in this case must be suppressed.
Harmless Error
Finally, we disagree with the state that the Superior Court justice’s admission of the
firearm amounted to harmless error because the firearm served only as “cumulative evidence,”
corroborating the testimony of the state’s three witnesses.
Harmless error is recognized to be an error that “in the setting of a particular case [is] so
unimportant and insignificant that [it] may, consistent with the Federal Constitution, be deemed
harmless, not requiring the automatic reversal of the conviction.” State v. Lopez, 943 A.2d 1035,
1043 (R.I. 2008) (quoting Chapman v. California, 386 U.S. 18, 22 (1967)). This Court has
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acknowledged that “whether or not an error is harmless turns on whether it is reasonably possible
that the error contributed to the conviction.” Id. (citing State v. Lachapelle, 112 R.I. 105, 112-
13, 308 A.2d 467, 471 (1973)).
In order to effectively conduct a harmless error analysis, the particular evidence must be
“quantitatively assessed in the context of other evidence presented in order to determine [the
effect it had on the trial].” State v. Humphrey, 715 A.2d 1265, 1276 (R.I. 1998) (quoting Brecht
v. Abrahamson, 507 U.S. 619, 629 (1993)). In cases in which there is “overwhelming additional
evidence indicative of [a] defendant’s guilt,” this Court has determined that erroneously admitted
evidence constituted harmless error. State v. Perez, 882 A.2d 574, 590 (R.I. 2005).
However, judicial error “in admitting plainly relevant evidence which possibly influenced
the jury adversely to a litigant cannot * * * be conceived of as harmless.” Lachapelle, 112 R.I. at
113, 308 A.2d at 471 (quoting Chapman, 386 U.S. at 23-24). The burden rests with the state “to
prove beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained.” Gonzalez, 136 A.3d at 1156 (emphasis omitted) (quoting Chapman, 386 U.S. at 24).
This is a case in which the accused was convicted of three counts of assault with a
dangerous weapon, to wit, a firearm, and one count of carrying that firearm without a license—
charges that require the state to prove beyond a reasonable doubt that defendant had control over
a firearm.
We are satisfied that the firearm was a critical piece of evidence in the case. The state’s
three key witnesses each testified that they observed the defendant with the gun. However, one
witness explained that she did not actually observe the defendant firing the weapon. An
eyewitness neighbor testified that he witnessed the altercation on Pumgansett Street and that the
defendant had nothing in his hands. He testified that the gunshot came from the direction of
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Douglas Avenue. In the face of this conflicting testimony, we cannot conclude that the
admission of the unlawfully seized evidence was harmless beyond a reasonable doubt.
Conclusion
For the reasons set forth herein, we vacate the judgment of the Superior Court. The
record shall be remanded to the Superior Court for a new trial.
Justice Indeglia, with whom Justice Robinson joins, dissenting. Although we agree
with the majority’s conclusion that, in view of the ambiguous nature of the facts known to the
police, the consent exception to the Fourth Amendment to the United States Constitution and
article 1, section 6 of the Rhode Island Constitution did not justify a warrantless search,
especially into the defendant’s bedroom, we vigorously disagree with its holding that the
officers’ actions could not be upheld under the exigent-circumstances exception to the warrant
requirement. In our view, the circumstances that confronted the officers on July 31, 2007, called
for emergency action; and, for that reason, we voice our respectful but unequivocal dissent.
In discerning whether an exigency existed, “[t]he police [must] have [had] an objective,
reasonable belief that a crisis can only be avoided by swift and immediate action.” State v.
Gonsalves, 553 A.2d 1073, 1075 (R.I. 1989) (quoting Duquette v. Godbout, 471 A.2d 1359,
1363 (R.I. 1984)). Such is the case before us.
While the majority has outlined the facts of this case in detail, we highlight those facts
that are reflective of the exigency that the officers faced. Around 9:30 p.m. on July 31, 2007,
officers responded to a radio dispatch concerning shots fired on Pumgansett Street in Providence.
When one patrol arrived at the scene, the gunfire was so recent that the officers testified that the
smell of gunpowder still permeated the air. An officer also saw broken glass in the street. At the
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same time, another patrol was dispatched to a nearby Walgreens pharmacy, where a person
claiming to be a victim said that defendant had shot out the back window of his car and had
beaten up his girlfriend. It was also learned that one of the victims had been pepper-sprayed.
Locating defendant’s house with the victim’s assistance, officers knocked on the door at 19
Pumgansett Street and defendant answered. Seemingly intoxicated and noticeably
uncooperative, he acknowledged that there had been a fight outside, but he was of little help
beyond that. One of the officers, Sgt. Aspinall, conducted a show-up of defendant, with the
witness identifying defendant as the person who had discharged the firearm. Although the
officers had identified defendant as the suspect who allegedly fired the gun, the weapon and the
pepper spray involved in the altercation had not yet been found or accounted for.
Following defendant’s detention, the officers’ investigative efforts determined that a
domestic dispute was at the heart of the incident. Samantha Kruwell, who was present at
defendant’s house, told the officers that there had been a fight between her and her ex-boyfriend
immediately outside the Pumgansett Street house.1 Officers observed that Stephanie Kruwell,
defendant’s fiancée and Samantha’s mother, had a bloody cut on her hand from her attempt to
break up the fight.
Stephanie and Samantha were not entirely forthright in their responses to the officers.
Apart from her recounting of that night’s events that conflicted with defendant’s, Stephanie
initially told the officers that there were no guns in the house. She then reversed course and
admitted that there was a gun, and, as the trial justice found, she allowed the officers to enter the
home to determine its whereabouts. It was at this point that the officers saw “a young child
running around the house,” as Stephanie and Samantha tried to attend to him. After being
1
The ex-boyfriend was later identified as Nathan Spardello.
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directed by Stephanie to defendant’s room, the officers conducted a brief, limited search, which
turned up a gun under a pile of clothing along with several loose bullets. The Bureau of
Criminal Identification unit was called to retrieve the gun.
We agree that “[a]t the core of the privacy protected by the Fourth Amendment is the
right to be let alone in one’s home.” Sutterfield v. City of Milwaukee, 751 F.3d 542, 550 (7th
Cir. 2014). Nevertheless, we afford protection to an officer’s “[o]n the spot reasonable
judgments * * * about risks and dangers * * * .” Fletcher v. Town of Clinton, 196 F.3d 41, 50
(1st Cir. 1999). “Deference to those judgments may be particularly warranted in domestic
disputes” where “violence may be lurking and explode with little warning.” Id. An officer is not
required to wait until the anticipated danger—whether to himself or herself or to the public—
comes to fruition. See Brigham City, Utah v. Stewart, 547 U.S. 398, 406 (2006) (Brigham City)
(“The role of a peace officer includes preventing violence and restoring order, not simply
rendering first aid to casualties * * *.”); see also Mincey v. Arizona, 437 U.S. 385, 392 (1978)
(“The need to protect or preserve life or avoid serious injury is justification for what would be
otherwise illegal absent an exigency or emergency.”) (quoting Wayne v. United States, 318 F.2d
205, 212 (D.C. Cir. 1963) (opinion of Burger, J.)).
The instant case presents such a setting. The defendant’s arrest did very little to address
the underlying domestic dispute that served as the catalyst to the fight and ultimate shooting.
Indeed, his arrest may have added more fuel to the fire. Although the officers were unfamiliar
with Samantha and Stephanie, they knew that they had been recent active participants in a fight
in the street. They saw Stephanie’s bloodied hand from the altercation and they learned from
Samantha that she had been in the fight. Leaving the scene without seeking the gun, the officers
would have left Samantha and Stephanie with the means to pursue their earlier aggressors.
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Whether they would have acted upon such a motivation is not something the officers could have
ruled out based on the information known to them at that time. As the trial justice noted,
“Frankly, the police would have been foolish and derelict in their duty not to be doing what they
were.”
Moreover, “[w]arrantless entries are justified to protect not only victims and fellow
police officers, but also innocent bystanders and suspects themselves.” Gonsalves, 553 A.2d at
1075; see also State v. Kendrick, 100 A.3d 821, 837 (Conn. 2014) (deeming reasonable the
police entrance into the bedroom under the exigent-circumstances doctrine based on the officers’
reasonable belief “that the entry was necessary for their own protection, as well as the protection
of others in the apartment”). Exigent circumstances are found when an officer anticipates that
someone in the home, whether a child or an adult, will be harmed by a firearm. See, e.g., United
States v. Hardy, 52 F.3d 147, 149 (7th Cir. 1995) (holding that exigent circumstances justified
the warrantless entry and search of the defendant’s motel room where the police officers
reasonably believed that the defendant, with a sawed-off shotgun, was a threat to the officers and
the women and children in the room); State v. Christensen, 663 N.W.2d 691, 696 (S.D. 2003)
(“[T]he house was unlocked and unwary children could have entered to take possession of
loaded firearms.”).
Here, the officers could reasonably have believed that it was necessary to secure the gun
before either the heated domestic dispute reignited or, perhaps worse, the young child located the
unsecured firearm. See United States v. Janis, 387 F.3d 682, 688 (8th Cir. 2004) (upholding a
warrantless search of a home for a gun that discharged and injured the defendant because the
officer testified that he had concerns that a loaded weapon was “out in the open” and “still at the
scene”); United States v. Antwine, 873 F.2d 1144, 1145-47 (8th Cir. 1989) (During a protective
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sweep following the arrest of a robbery suspect who brandished a gun, an officer found a young
boy and girl inside the home. Denying the motion for suppression, the court stated that “a
warrantless seizure of a weapon may be considered ‘reasonable’ within the meaning of the
Fourth Amendment when justified by an officer’s legitimate concern for someone’s safety.”).
The majority opinion suggests that a subjective analysis is employed when determining
whether the exigent-circumstances exception vindicates a warrantless search. Specifically, it
states that: “The testimony of the intruding officer provides the court with insight into the
officer’s motivation for the entry and, therefore, provides the basis for the court’s conclusion that
exigent circumstances support the intrusion.” (Emphasis added.) This conclusion, however,
misconstrues the controlling standard for assessing whether a warrantless search is reasonable
under the Fourth Amendment because the officer’s motivation is of no moment. In fact, the
United States Supreme Court has explicitly rejected this approach. See Brigham City, 547 U.S.
at 404 (setting forth the United States Supreme Court’s explicit view that, for purposes of the
Fourth Amendment’s reasonableness analysis, “[t]he officer’s subjective motivation is
irrelevant”); Whren v. United States, 517 U.S. 806, 813 (1996) (explaining the United States
Supreme Court’s unwillingness “to entertain Fourth Amendment challenges based on the actual
motivations of individual officers”).
In Brigham City, 547 U.S. at 406-07, the United States Supreme Court held that the
exigent-circumstances exception justified the police officers’ warrantless entry. The defendant
in that case, which involved an altercation observed at a 3 a.m. house party, argued that police
entry was unreasonable based on the officers’ subjective motivations, asserting that they “were
more interested in making arrests than quelling violence.” Id. at 400-02, 404. In rejecting this
argument, the Supreme Court made clear that the Fourth Amendment’s reasonableness analysis
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“has nothing to do with discerning what is in the mind of the individual officer conducting the
search”; id. at 405; rather, “[a]n action is ‘reasonable’ under the Fourth Amendment, regardless
of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively,
justify [the] action.’” Id. at 404 (quoting Scott v. United States, 436 U.S. 128, 138 (1978)); see
also Bond v. United States, 529 U.S. 334, 338 n.2 (2000) (“The parties properly agree that the
subjective intent of the law enforcement officer is irrelevant in determining whether that officer’s
actions violate the Fourth Amendment. * * * [T]he issue is not his state of mind, but the
objective effect of his actions.”); Graham v. Connor, 490 U.S. 386, 397 (1989) (“[T]he
subjective motivations of the individual officers * * * ha[ve] no bearing on whether a particular
seizure is ‘unreasonable’ under the Fourth Amendment.”).
By shifting the focus to “the officer[s’] motivation for the entry,” the majority has
erroneously applied a subjective analysis to determine whether an exigency existed. When the
circumstances are examined objectively, however, the officers’ entry was clearly justified under
the exigent-circumstances exception. State v. Morin, 68 A.3d 61, 67 n.11 (R.I. 2013) (citing
Brigham City, 547 U.S. at 404). Although the officers did not specifically state that they were
“faced with an emergency” or “concerned,” they did testify about the actual circumstances that
confronted them: shots had recently been fired; there had been a street fight between Samantha
and her ex-boyfriend; someone had been pepper-sprayed; and the officers had been told that
there was a firearm in the house where, as the majority noted, a young child “was running
around.” Here, “the circumstances, viewed objectively, justify [the officers’] action[s].” Id.
(quoting Brigham City, 547 U.S. at 404).
Finally, we do not agree with the majority that the officers should have secured the
premises and somehow removed the occupants from the house while they went about seeking a
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search warrant. Rather, this case was “defined by a time-urgent need to act that [made] resort to
the warrant process impracticable.” Sutterfield, 751 F.3d at 559. It was not “early on a weekday
afternoon” when “‘the amount of time necessary to obtain a warrant’ likely would have been
minimal”; rather, it was “late in the evening * * * when officers might not have had ready access
to a magistrate.” United States v. Menchaca-Castruita, 587 F.3d 283, 294 (5th Cir. 2009)
(quoting United States v. Rico, 51 F.3d 495, 501 (5th Cir. 1995)). As this Court stated in
Gonsalves, 553 A.2d at 1076, “Swift action was imperative. Any delay in obtaining a warrant at
one o’clock in the morning could have ignited an already volatile situation.”
From our view, this case falls squarely within the applicability of the exigent-
circumstances exception because the above-mentioned circumstances precisely demonstrate
“such a compelling necessity for immediate action as will not brook the delay of obtaining a
warrant.” State v. Gonzalez, 136 A.3d 1131, 1151 (R.I. 2016) (quoting United States v. Adams,
621 F.2d 41, 44 (1st Cir. 1980)). “[P]olice are in the emergency service business and they
usually have little or no time to leisurely consider their options or engage in protracted
evaluation.” Id. (quoting State v. Portes, 840 A.2d 1131, 1137 (R.I. 2004)). The United States
Supreme Court has underscored that “[t]he calculus of reasonableness must embody allowance
for the fact that police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving.” Kentucky v. King, 563 U.S. 452,
466 (2011) (quoting Graham, 490 U.S. at 396-97). Because, in our view, the circumstances of
this case compelled such an “allowance,” we are confident that the trial justice’s finding of
exigency was correct. For that reason, we respectfully dissent.
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Title of Case State v. Boghos Terzian.
No. 2009-46-C.A.
Case Number
(P2/07-4007AG)
Date Opinion Filed June 23, 2017
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Providence County Superior Court
Judicial Officer From Lower Court Associate Justice Robert D. Krause
For State:
Jane M. McSoley
Department of Attorney General
Attorney(s) on Appeal
For Defendant:
Matthew S. Dawson, Esq.
SU-CMS-02A (revised June 2016)