(concurring). I write separately because I am not persuaded that, in all instances, a “defendant retain[s] a possessory interest in [his] clothing, regardless of his status as a hospital patient.” Ante at 492-493. See Commonwealth v. Brandwein, 435 Mass. 623, 632 (2002) (where “private parties . . . tum[] over to the police physical evidence that they have uncovered . . . the exclusionary rule does not exclude evidence obtained by way of purely private conduct”). I concur in the result, which I believe is dictated by the particular facts of this case: a warrant-less seizure of the defendant’s personal property, over his objection, with no showing that a warrant could not have been obtained in time to prevent damage to the evidence and, thus, no showing of exigency.1 See Commonwealth v. Tyree, 455 Mass. 676, 684 (2010), quoting from Commonwealth v. Forde, 367 Mass. 798, 800 (1975) (“Under the exception for exigent circumstances, ‘there must be a showing that it was impracticable for the police to obtain a warrant, and the standards as to exigency are strict’ ”).
At the motion hearing, unfortunately, the parties stipulated to the facts in the police report and the judge heard the testimony of only one witness. That procedure left a number of unanswered questions about what occurred, including, particularly, the sequence of events. Nevertheless, the Commonwealth has the burden of proof on the motion and cannot benefit from the resulting ambiguities.