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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
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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.
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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.
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    For the above reasons, the order allowing the motion to

suppress is reversed, and a new order shall enter denying the

motion.

                                  So ordered.
