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15-P-403                                                Appeals Court

                 COMMONWEALTH    vs.   DEQUAN MARTIN.


                             No. 15-P-403.

            Suffolk.      April 1, 2016. - July 6, 2017.

           Present:    Meade, Wolohojian, & Maldonado, JJ.


Marijuana. Practice, Criminal, Motion to suppress. Threshold
     Police Inquiry. Probable Cause. Search and Seizure,
     Threshold police inquiry, Exigent circumstances, Probable
     cause, Pursuit, Emergency. Constitutional Law, Search and
     seizure, Investigatory stop, Probable cause.


     Complaint received and sworn to in the Dorchester Division
of the Boston Municipal Court Department on April 12, 2012.

     After transfer to the Central Division of the Boston
Municipal Court Department, a pretrial motion to suppress
evidence was heard by Michael J. Coyne, J., and the case was
heard by Thomas C. Horgan, J.


     Chase A. Marshall for the defendant.
     Kathryn Leary, Assistant District Attorney, for the
Commonwealth.


    MALDONADO, J.      In this case, we consider whether the

warrantless entry by police into a residence was justified where

the entry was made while chasing the defendant, who fled from
                                                                      2


police during a stop for a civil infraction of marijuana

possession.   Concluding that these circumstances do not give

rise to any exigency that would authorize the police to follow

the defendant into a residence, we reverse.

    Background.   On April 11, 2012, at about 8:50 P.M., two

undercover Boston police officers, while patrolling the

Dorchester section of Boston, approached a legally parked

vehicle in which sat three males.    The vehicle was "consumed

with smoke" and condensation had formed on the rear windshield.

The defendant was seated in the front passenger seat.    As the

officers approached the vehicle, the defendant opened the door

and stepped outside.   Smoke emanated from the vehicle, and the

officers were struck by a "strong" odor of burnt marijuana.

    One of the officers, Officer Beliveau, who had experience

and training in drug related crimes, was approaching the

passenger side and ordered the defendant to get back inside the

vehicle.   The defendant sat back in the front passenger seat but

his legs protruded outside the vehicle through the door.

Beliveau repeated his command, and the defendant repositioned

himself fully into the vehicle.     "[I]n the passenger compartment

of that door," Beliveau then observed a small plastic glassine

bag, a copper grinder (commonly used to break up marijuana so

that it could be more easily rolled into cigarettes), and cigar
                                                                     3


wrappers.    "[G]reen leafy matter" was observed inside the

grinder.

    The defendant appeared very nervous.     He told Beliveau, who

was standing before him, that he felt nauseous and wanted to

throw up; he asked the officer to step aside to make room for

him to vomit.   Beliveau jokingly quipped that he must have

smoked some "bad weed," but he did not move away.    Beliveau,

instead, leaned into the vehicle and addressed the back seat

passenger (passenger).

    Beliveau asked the passenger and the defendant for

identification.   The passenger produced identification, but he

was also asked by Beliveau if he had ever been arrested or on

probation.    The passenger responded that he had been arrested

for a firearm charge and was on probation.    The defendant

responded that he did not have any identification on him, but he

disclosed his name and date of birth.    Beliveau jotted that

information in his notebook, and likewise asked the defendant

several additional questions, including whether he had any

warrants, was on probation, or had ever been arrested.    The

defendant responded that he had been arrested, but Beliveau

could not remember if he disclosed the charge.    At that point,

which was approximately four minutes from the time the officers

approached the vehicle, Beliveau's partner called for back up.
                                                                        4


     Meanwhile, a woman started approaching the vehicle and

asked the officers what was going on.   Beliveau told the woman

that they were conducting an investigation that would take only

a couple of minutes, and he asked her to step back.   The woman

complied, and the defendant identified her as his mother.

     Within a few minutes, two uniformed officers arrived.        One

of those officers positioned himself near the defendant.

Beliveau handed his notebook to his partner, who began checking

the defendant's information in the computer located in the

cruiser.   Beliveau also went around the vehicle to the driver's

side rear door and continued his investigation of the passenger.

When Beliveau began pat frisking that individual, which was

seven to eight minutes after Beliveau and his partner first

approached the vehicle, the defendant fled.

     Three officers chased after the defendant, while Beliveau

remained at the scene.   The officers yelled for the defendant to

stop, but he kept running.   As the officers chased the

defendant, there was a group of people on the sidewalk.     The

defendant ran approximately forty or fifty feet1 to a side door

of 440 Gallivan Boulevard, which was later determined to be his

residence.   He entered the residence without the use of force or

a key.   The officers followed the defendant into the residence;


     1
       That the testimony was not consistent as to the distance
to the residence does not affect the outcome of this case.
                                                                     5


there were other individuals in the residence at that time.     The

defendant ran through the kitchen and the dining room to the

front hallway, where the officers tackled him.    Once on the

ground, without giving the defendant any Miranda warnings, one

of the officers asked the defendant why he had run.    The

defendant responded that "he had a firearm" in his front right

pocket.    The police retrieved the gun and handcuffed the

defendant.

         The defendant was arrested and charged with three firearm

related crimes2 and resisting arrest.    Arguing that the initial

stop and the incremental progression of police activity violated

his rights under the Fourth Amendment to the United States

Constitution and art. 14 of the Massachusetts Declaration of

Rights, the defendant moved to suppress the evidence, including

the gun.    The judge denied the motion with the following single

endorsement:    "I find the officers had reasonable suspicion to

confront the [defendant] and the subsequent actions of the

[defendant] provided sufficient probable cause to seize the

[defendant]."    Prior to the jury-waived trial, the Commonwealth

dismissed two of the charges and the defendant stipulated that

he possessed a loaded firearm.    The defendant was found guilty

of carrying a firearm without a license and carrying a loaded

     2
       Carrying a firearm without a license, possession of
ammunition without a firearm identification card, and carrying a
loaded firearm without a license.
                                                                    6


firearm without a license.    The defendant appeals, arguing that

his motion to suppress was erroneously denied.    We agree.

     Discussion.   1.   The stop.   The parties agree, correctly,

that the defendant was stopped in the constitutional sense when

Beliveau ordered him back into the vehicle.    See, e.g.,

Commonwealth v. Borges, 395 Mass. 788, 791 (1985) (a person is

"seized" by police if, in view of all of the circumstances

surrounding the incident, a reasonable person would not believe

that he was free to leave); Commonwealth v. Lyles, 453 Mass.

811, 815 (2009) (same).    The defendant argues that his seizure

was based only on the odor of burnt marijuana, which did not

give rise to a reasonable belief that he possessed a criminal

amount of marijuana.    See Commonwealth v. Cruz, 459 Mass. 459,

469 (2011); Commonwealth v. Rodriguez, 472 Mass. 767, 778

(2015).3   As there was no reasonable suspicion of criminal

activity, the defendant asserts, the seizure was

     3
       The court in Rodriguez distinguished between police
stopping a motor vehicle for a civil traffic violation, which
requires reasonable suspicion, and police stopping a motor
vehicle to investigate a civil infraction of possession of
marijuana. The court reasoned that there is "no obvious and
direct link" between maintaining road safety and enforcement of
civil marijuana possession, which through a ballot initiative
was decriminalized. Rodriguez, supra at 777-778. The court
declined to extend the rule that allows police to stop a vehicle
based on reasonable suspicion of a civil motor vehicle offense
to stops of a vehicle by police to enforce the civil penalty for
possession of one ounce or less of marijuana. Id. at 778. See
G. L. c. 94C, §§ 32L-32N. Here, however, the officers
approached an already parked vehicle, and there was no concern
of a motor vehicle infraction.
                                                                     7


unconstitutional and any evidence seized thereafter should have

been suppressed.   See Cruz, supra; Rodriguez, supra.    We

disagree.

     While the defendant correctly asserts that there was no

reasonable suspicion for his possession of a criminal amount of

marijuana, there was overwhelming evidence of civil marijuana

possession.   Compare Rodriguez, supra (where "a police officer

actually observed an infraction -- such as a person walking

through a park smoking what appeared to be a marijuana cigar or

cigarette --" the officer may stop offender to issue citation

and confiscate item).    In addition to the odor of burnt

marijuana, the officers noticed that the interior of the

vehicle, in which the defendant sat, was filled with so much

smoke that it was condensing on the rear window.     Also, before

the defendant was ordered back into the vehicle, police had

observed a plume of smoke that smelled like marijuana escape

through the open door.     Those observations, in combination with

the officer's experience that such smoke occurs from individuals

smoking marijuana, provided probable cause to believe that the

individuals occupying the vehicle were presently in the process

of consuming marijuana.4    Accordingly, the police could lawfully



     4
       While it may also be fair to infer that the three
occupants were sharing the marijuana, decisional law has made
clear that the social sharing of marijuana does not constitute
                                                                   8


detain the defendant long enough to issue a citation and

confiscate the marijuana.    See Cruz, supra at 469 n.16;

Commonwealth v. Locke, 89 Mass. App. Ct. 497, 501 (2016).

     The defendant's next challenge, that the length and nature

of the stop was longer and more intrusive than necessary for the

issuance of a civil citation, is arguably a closer question.

Once the defendant provided his name and date of birth, Beliveau

did not proceed directly to confirm the defendant's identity for

issuance of a citation.5    Rather, Beliveau engaged in a series of

unrelated questions pertaining to whether the defendant had a

criminal history.   The defendant was asked whether he had ever

been arrested, had any warrants, or was on probation.    Those

probing questions into the defendant's criminal history during a

stop grounded in only a civil violation for marijuana possession

are at odds with the Supreme Judicial Court's directive that

such an infraction is "no longer 'a serious infraction worthy of

criminal sanction,' and that those who commit this offense

should be treated differently from other drug offenders."

Rodriguez, supra at 777, quoting from Cruz, 459 Mass. at 471.

In addition, those questions, when asked of the passenger,


distribution in violation of G. L. c. 94C, § 32C. See
Commonwealth v. Pacheco, 464 Mass. 768, 772 (2013).
     5
       "The defendant's inability to provide a license was
unremarkable," as he was simply a passenger in a parked vehicle
and therefore "was not required to carry one." Commonwealth v.
Brown, 75 Mass. App. Ct. 528, 536 (2009).
                                                                     9


resulted in police calling for back up and a further delay in

the civil citation process while awaiting the arrival of

additional officers.

    However, in this particular case, because the questioning

produced no incriminating evidence and was brief (the uniformed

officers arrived within minutes of the call), we are not

inclined to conclude at this time that it resulted in

unreasonable delay.    When the defendant fled, only seven to

eight minutes had passed from the arrival of Beliveau and his

partner, and the police were still in the process of confirming

the defendant's identifying information.   We conclude,

therefore, that the duration of the stop did not exceed the

period reasonably necessary to issue the citation.    See

Commonwealth v. Goewey, 69 Mass. App. Ct. 429, 434 (2007)

(extended duration of stopped motor vehicle permissible where

officers were investigating defendant's identity in order to

write proper citation).   See also Commonwealth v. Torres, 424

Mass. 153, 158 (1997); Commonwealth v. Demirtshyan, 87 Mass.

App. Ct. 737, 745-746 (2015).   We turn next to the chase that

led to the warrantless entry into the residence.

    2.   Exigent circumstances.   a.   Hot pursuit.   "Warrantless

entries into the home are prohibited by the Fourth Amendment to

the United States Constitution and art. 14 of the Massachusetts

Declaration of Rights absent either probable cause and exigent
                                                                      10


circumstances, or consent."     Commonwealth v. Rogers, 444 Mass.

234, 236 (2005).     "A variety of circumstances may give rise to

an exigency sufficient to justify a warrantless search,

including law enforcement's need to . . . engage in 'hot

pursuit' of a fleeing suspect."     Missouri v. McNeely, 133 S. Ct.

1552, 1558 (2013), citing United States v. Santana, 427 U.S. 38,

42-43 (1976).     "This exception effectuates the principle that 'a

suspect may not defeat an arrest which has been set in motion in

a public place . . . by the expedient of escaping to a private

place.'"   Commonwealth v. Jewett, 471 Mass. 624, 631 (2015),

quoting from Santana, supra at 43.     The Commonwealth bears the

"heavy burden," in the absence of consent, of justifying a

warrantless entry by establishing both probable cause and

exigent circumstances.     Jewett, supra at 628.   See Commonwealth

v. Tyree, 455 Mass. 676, 684 (2010).

    The hot pursuit exception is inapplicable here for several

reasons.   This exception is based on the limiting principle that

the grounds for entering a dwelling in hot pursuit of one

fleeing arrest were set in motion in a "public place."      Santana,

supra at 42-43.    Put another way, the grounds for arrest must

have been in place prior to the warrantless police entry.      The

exception is further limited to the capture of "an individual

suspected of committing a jailable misdemeanor or felony."

Jewett, supra at 632-633.      Here, the officers' pursuit of the
                                                                     11


defendant commenced with probable cause to issue a citation for

civil marijuana possession, which is not a jailable misdemeanor.

See G. L. c. 94C, § 32L.

     Furthermore, nothing that occurred during the chase

supplied probable cause of a more serious offense.     The

Commonwealth argues that because the officers did not know that

the defendant had run into his own home, they had probable cause

to arrest the defendant for breaking and entering with the

intent to trespass.     The Commonwealth contends, therefore, that

the officers were justifiably in hot pursuit of someone who had

just committed a jailable misdemeanor when they followed the

defendant into the residence.     See generally Jewett, supra at

629-635.6    We disagree.

     Probable cause to arrest "exists, where, at the moment of

arrest, the facts and circumstances within the knowledge of the

police are enough to warrant a prudent person in believing that

the individual arrested has committed or was committing an

offense."    Commonwealth v. Franco, 419 Mass. 635, 639 (1995),

quoting from Commonwealth v. Santaliz, 413 Mass. 238, 241

(1992).     Here, there was no reason to believe that the defendant


     6
       Police may lawfully arrest an individual without a warrant
for committing a misdemeanor, such as breaking and entering with
the intent to commit a misdemeanor (trespass), G. L. c. 266,
§ 16A, when the crime constitutes a breach of the peace, is
committed in their presence, and is still continuing at the time
of the arrest. Jewett, 471 Mass. at 630, 633.
                                                                   12


entered the residence unlawfully.    When Beliveau and his partner

first observed the defendant, he was seated in a legally parked

vehicle on a residential street and was only forty to fifty feet

from that residence.   He entered the residence through a side

door without the use of force or a key.    Moreover, the police

encounter had attracted the attention of a woman, who the

defendant identified as his mother, and other individuals

gathered on the street, and no one, including the individuals in

the residence, gave any indication that the defendant was an

intruder or unwelcomed.    Contrast Commonwealth v. Small, 10

Mass. App. Ct. 606, 610 (1980) (defendant's arrest based on

information supplied by neighbor who had observed defendant

attempt to break and enter nearby home).    In these

circumstances, there was an objectively reasonable possibility

that the defendant lived or was welcomed at that address.     To

the extent the police may have doubted this conclusion, that

doubt was not the equivalent of establishing probable cause to

believe the defendant entered the residence illegally.7

     b.   Emergency aid.   The Commonwealth also contends that the

entry was justified under the emergency aid exception to the



     7
       Given our conclusion, we pretermit any discussion of the
issue, implicit in the Commonwealth's argument, of whether the
police are permitted to pursue a suspect into a third party's
home.
                                                                     13


warrant requirement.8   That doctrine presents another narrow

exception to the warrant requirement, but it does not lend

justification for the police entry here.   See Commonwealth v.

Duncan, 467 Mass. 746, 749 (2014).

     The emergency aid exception permits the police to enter a

home without a warrant when two requirements are met.     First,

the police must "have an objectively reasonable basis to believe

that there may be someone inside who is injured or in imminent

danger of physical harm."   Id. at 749-750, quoting from

Commonwealth v. Peters, 453 Mass. 818, 819 (2009).    Second, "the

conduct of the police following the entry must be reasonable

under the circumstances."   Duncan, supra at 750, quoting from

Peters, supra at 823.   "The need to protect or preserve life or

avoid serious injury is justification for what would be

otherwise illegal absent an exigency or emergency."     Duncan,

supra at 750 (quotation omitted).

     Here, the police were investigating civil marijuana

possession when the defendant fled into a nearby residence.        As

discussed above, the entry presented no reasonable suggestion


     8
       Although the Commonwealth relies on the so-called
"community caretaking" exception to justify the police action,
that exception has been "applied almost exclusively in
situations involving searches or seizures of automobiles."
Commonwealth v. Duncan, 467 Mass. 746, 743 n.3 (2014). We
therefore review the claim under the emergency aid exception
that permits the police to enter a home without a warrant. See
id. at 749-750.
                                                                   14


that it was unauthorized.   Moreover, there was no suggestion of

an imminent risk of physical harm to anyone in the residence.

See Peters, supra at 824 (second protective sweep of home not

justified where officers no longer had reasonable grounds that

anyone in home required assistance or was missing).   There was

also no evidence that the defendant was armed and dangerous.

See Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 560 (2015)

(no testimony that police saw concealed bulge or defendant

grabbed at his waistband, pressed his waist, ran stiff-armed or

in otherwise awkward manner, or engaged in any furtive gesture).

     We acknowledge that in these circumstances the combination

of the defendant's extreme nervousness and flight during a

lawful stop may have given rise to some suspicion of criminal

activity, but without more there was no reasonable suspicion

that the defendant had a gun.    Cf. Commonwealth v. Sykes, 449

Mass. 308, 314-315 (2007); Commonwealth v. Monteiro, 71 Mass.

App. Ct. 477, 479-480 (2008).9   The defendant's nervousness alone

cannot "be the grounding factor on which to base suspicion of

criminal activity."   Cruz, 459 Mass. at 468.

     In Sykes, a "close case," the police had reasonable

suspicion to believe that the defendant was carrying a gun

     9
       Contrast Commonwealth v. Warren, 475 Mass. 530, 538-540
(2016) (flight where suspect is black male stopped in streets of
Boston and under no obligation to respond to police inquiry
should be given "little, if any, weight as a factor probative of
reasonable suspicion").
                                                                    15


where, in addition to his nervousness and his peculiar behavior

of abandoning his bicycle in an effort to escape the police,

there was evidence that the pursuit occurred in a high crime

area, and the police observed the defendant "clench[ing] his

waistband" while he ran down the street.     Sykes, supra at 314-

315.    Similarly, in Monteiro, the police had reasonable

suspicion that the defendant was carrying a weapon where the

defendant, after receiving a hand gesture from one of four males

gathered on the street and known to police for their involvement

with gun-related incidents (the "functional equivalent" of a

high crime area), left on his bicycle that he later "dropped" in

order to run, had a "panicked look," and was seen by police

"pulling at his waistband" as he ran.    Monteiro, supra at 478-

479.    Neither of those additional factors are present here.

There is no testimony that this was a high crime area or its

functional equivalent.    See Sykes, supra at 314-315; Monteiro,

supra at 479.    Nor did police observe the defendant grab,

clench, or pull at his waist or waistband.     See Sykes, supra at

315; Monteiro, supra at 478.

       Furthermore, that the defendant fled during the patfrisk of

the passenger adds little, if nothing.     To begin with, it

appears that the defendant, who was preparing his exit from the

inception of the encounter, was intent on running from police

well before the patfrisk of one of his companions.     In addition,
                                                                  16


even if the defendant's flight was triggered by the patfrisk,

the existence of a reasonable belief that the passenger

possessed a gun did not give rise to a reasonable basis to

suspect the defendant of possessing one.   See generally

Commonwealth v. Wing Ng, 420 Mass. 236, 237 (1995) (police must

be able to point to "specific, articulable facts that warrant

a reasonable suspicion that the particular individual might be

armed and a potential threat to the safety of the officer or

others").

    In sum, because no view of the evidence lends itself to a

reasonable belief that the defendant possessed a gun or was

otherwise a danger to himself or anyone else, we see no

"objectively reasonable grounds to believe that emergency aid

might be needed."   Commonwealth v. Gordon, 87 Mass. App. Ct.

322, 329 (2015) (quotation omitted).   See, e.g., Peters, 453

Mass. at 823-824 (first warrantless entry of house permitted

where police knew gun had been fired likely from inside, where

people had been arguing, and where moments later man left and

drove away); Commonwealth v. Copney, 468 Mass. 405, 411 (2014)

(warrantless entry of college dormitory room justified where

student's identification had been used to access building at

time of shooting, student had not been seen twenty-four hours

following shooting, student had not responded to knocks or
                                                                       17


calls, school dean had reported being concerned, and room's

light and window remained open).

    c.   Exclusionary rule's deterrent effect.     Finally, the

Commonwealth asserts that, in any event, based on these facts,

the exclusionary rule should not apply because it would not

result in an "appreciable deterrence" of police misconduct.       We

are not convinced.    "The right of police officers to enter into

a home, for whatever purpose, represents a serious governmental

intrusion into one's privacy.    It was just this sort of

intrusion that the Fourth Amendment [to the United States

Constitution and art. 14 of the Massachusetts Declaration of

Rights] [were] designed to circumscribe by the general

requirement of a judicial determination of probable cause."

Peters, 453 Mass. at 819, quoting from Commonwealth v. DeJesus,

439 Mass. 616, 619 (2003).

    Conclusion.      The order denying the motion to suppress is

reversed.   The judgment is reversed and the finding is set

aside.

                                     So ordered.
