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SJC-11855

              COMMONWEALTH   vs.   DAVID J. KAEPPELER.



    Barnstable.      September 9, 2015. - December 30, 2015.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines,
                                JJ.


Search and Seizure, Emergency, Consent, Plain view. Practice,
     Criminal, Instructions to jury, Request for jury
     instructions.


     Indictments found and returned in the Superior Court
Department on April 15, 2011.

     A pretrial motion to suppress evidence was heard by Gary A.
Nickerson, J., and the cases were tried before him.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Robert L. Sheketoff for the defendant.
     Julia K. Holler, Assistant District Attorney, for the
Commonwealth.


    HINES, J.   After a jury trial in the Superior Court, the

defendant, David J. Kaeppeler, was convicted of rape, G. L.

c. 265, § 22 (b); drugging for sexual intercourse, G. L. c. 272,
                                                                   2


§ 3; and drugging to confine, G. L. c. 265, § 26B.1   The

convictions were based on events that occurred during a party at

the defendant's home in the early morning hours of May 21, 2010.

Two of the guests became seriously ill after ingesting tequila

supplied by the defendant.   After learning that the defendant

might also be ill, the police entered the defendant's home to

perform a well-being check under the "emergency aid" exception

to the warrant requirement of the Fourth Amendment to the United

States Constitution and art. 14 of the Massachusetts Declaration

of Rights.   While there, the police seized two tequila bottles,

one of which was later found to contain 1, 4-Butanediol, which

when ingested is converted into gamma-hydroxy butyric acid

(GHB), a so-called "date rape" drug.

     In this appeal, the defendant challenges the denial of a

motion to suppress the two tequila bottles seized during the

well-being check.   We conclude that the police had objectively

reasonable grounds to believe that the defendant may have been

injured or in need of immediate medical assistance but that the

seizure of the evidence was unreasonable for two reasons:    (1)

the seizure occurred after the defendant departed for the

hospital in an ambulance and while the police remained in his

     1
       The grand jury also returned indictments for distribution
of a class E substance, G. L. c. 94C, § 32D (a), and illegal
possession of a class E substance, G. L. c. 94C, § 34. The
Commonwealth filed a request for nolle prosequi as to each of
these indictments prior to trial.
                                                                        3


home without his consent; and (2) the police retained the

evidence for investigative purposes without verifying its

relevance to the emergency justifying their entry into the

defendant's home.       Therefore, the motion to suppress should have

been allowed.    The defendant also claims error in the trial

judge's failure to instruct the jury in accordance with

Commonwealth v. Bowden, 379 Mass. 472 (1980).       We reject the

defendant's Bowden claim but remand for a new trial because of

the error in the denial of the motion to suppress.

     Background.    We recite the facts the jury could have found,

reserving certain details for the discussion of the judge's

ruling on the motion to suppress.       On May 20, 2012, the

defendant and the victims -- John Smith2 and Elana Thomas, both

in their mid-twenties -- spent the evening drinking and dancing

at a nightclub in Hyannis.      They were joined by Jerry Laramay,

Daniel Bernard Cammerata, and Patricia S. Sweet.       That evening,

the nightclub was inaugurating its first "gay and lesbian

night," to which Cammerata had been invited to participate as

the guest disc jockey.      Cammerata drove to Hyannis from Boston

for the event with Sweet, his roommate.       His boy friend at the

time, Laramay, and Laramay's roommate, Thomas, drove down

separately from Boston.      At some point during the evening,

Cammerata invited Smith, a local friend from Yarmouth, to come

     2
         A pseudonym.
                                                                     4


to the nightclub.    Smith did so and performed as a dancer that

night.    Cammerata was acquainted with the defendant as a regular

customer at another bar where Cammerata had worked.    Smith had

met the defendant twice before that night.    Neither Thomas nor

Laramay had previously met the defendant.    Thomas and Smith

danced together and appeared to "hit it off" with each other.

The defendant made passes at Laramay, who rejected his advances

and explained that he was in a dating relationship with

Cammerata.    When the club closed, the group decided to continue

the celebration.    The defendant offered his home, and the group

accepted his invitation.

    When the group arrived at the defendant's home, he served

shots of tequila to everyone.    After several hours, Cammerata,

Sweet, and Laramay left to spend the night at Cammerata's

mother's house.    Smith inquired whether he and Thomas could stay

at the defendant's house.    The defendant agreed, and Cammerata,

Laramay, and Sweet left, promising to return later that morning

to pick up Smith and Thomas.    The defendant then served another

shot of tequila for him, Smith, and Thomas.

    After 10 A.M. the following morning, Cammerata and Laramay

returned to the defendant's house to pick up Thomas and Smith.

They knocked at the door, but no one responded.    Eventually,

they were able to let themselves into the house through a patio

door.    When they entered, they observed Smith and Thomas
                                                                   5


sleeping on sofas in the living room.    They managed to awaken

Smith, but Thomas could not be roused.    Cammerata and Laramay

carried Thomas to Laramay's vehicle with the intention of

driving on to Boston.    Laramay became concerned, however, and

decided instead to take Thomas to Cape Cod Hospital.

    Smith left in Cammerata's vehicle for a ride home, and

during the ride, Smith told Cammerata that he had a dream in

which the defendant was giving Smith a "blow job" while he

slept.   Smith testified that he phrased the statement as having

a dream because he "couldn't believe what had happened" and he

"wanted someone to tell [him] that that couldn't have happened."

Smith testified that he had "[n]o doubt" that it had happened,

and that he had pushed the defendant off of him, said "no," and

turned over and went back to sleep after he was woken by the

defendant's actions.    After arriving at home, Smith became ill

and was taken to Cape Cod Hospital at approximately 8 P.M.

    Medical staff at the hospital learned that Thomas and Smith

had both been drinking at the defendant's house and recognized

that both presented with similar symptoms -- unconsciousness and

trouble breathing -- that could be associated with a drug

overdose.   The hospital staff tested for several types of drugs

but did not test for GHB because the results from the test could

not be available in sufficient time to assist with medical care.

The staff suspected, however, that GHB could be the cause after
                                                                      6


ruling out a series of other possible causes.       The victims'

condition deteriorated at the hospital and both were

transported, at separate times, by helicopter to Boston for

medical treatment.      The treating physicians in Boston conducted

"everything that [was] possible" in terms of toxicology screens.

Without positive results from any of those tests and with

information provided by Laramay that he "tast[ed] something

funny in the [tequila shared with the two patients]," the

physicians concluded that the symptoms displayed by Thomas and

Smith were caused by the ingestion of GHB and alcohol.3

     At or around 9:15 P.M. that evening, hospital staff

requested the Barnstable police to perform a well-being check on

the defendant at his home because he too might be at risk for

illness after drinking tequila with the two patients.       At the

defendant's home, the police obtained two bottles of tequila.

One bottle was empty and in the garage; the other had liquid

remaining and was on the kitchen counter.       Although the bottle

from the garage tested negative for GHB, the bottle from the

kitchen counter tested positive for 1, 4-Butanediol, a drug that

is converted by the body into GHB.

     Discussion.   1.     Motion to suppress.   Prior to trial, the


     3
       The treating physician in Boston testified that the
symptoms of severe coma, vomiting, inflammation in the lungs,
and difficulty breathing, together with the negative results
from the other tests, guided their conclusion.
                                                                     7


defendant filed a motion to suppress the tequila bottles seized

during the warrantless entry into his home.    The judge denied

the motion, ruling that the seizure was reasonably related to

the objective emergency of the undiagnosed illness of Smith and

Thomas and the unknown status of the defendant's well-being.

The defendant argues that the judge erred in denying the motion

because the emergency justifying the warrantless entry, a check

on his well-being, had ended by the time that the police seized

the tequila bottles.

       We summarize the facts as found by the judge, supplementing

them as necessary with evidence in the record that is

uncontroverted and that was implicitly credited by the judge.

See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C.,

450 Mass. 818 (2008).    Shortly after 10 P.M., Officer Paul J.

Everson and Sergeant Kevin Tynan of the Barnstable police

department arrived at the defendant's home to perform the well-

being check.    The police learned from hospital staff that Thomas

and Smith had suffered symptoms that could be the result of a

drug overdose and had been drinking with the defendant at a

nightclub and at the defendant's house.    The officers were also

told that the defendant had not appeared at his workplace that

day.    The police knocked repeatedly before the defendant

appeared at the door, looking as if he had just been awakened

from sleep.    After being told of the two individuals at the
                                                                    8


hospital, the defendant invited the officers into the home.

Officer Everson asked the defendant how he was feeling; the

defendant responded that he was not feeling well and had been

sleeping a lot.    Sergeant Tynan asked whether there was any GHB

at the defendant's house or that could have been put in their

drinks at the nightclub.    The defendant told the officers that

he did not have any drugs in the home and did not think that GHB

could have been put in their drinks.    He said that he was

familiar with GHB and recognized the dangers of mixing it with

alcohol.

    In response to the officers' urging, the defendant agreed

to go to the hospital, and an ambulance transport was arranged.

Sergeant Tynan asked the defendant where the tequila was

located, and the defendant told him that they had been drinking

from a tequila bottle that was on the kitchen counter.    The

bottle was visible from the officers' location.    The defendant

also alerted the officers to the second tequila bottle in the

garage.    Sergeant Tynan confirmed the second tequila bottle was

in the garage, but did not pick up either bottle at that time.

    When the ambulance arrived, Officer Everson accompanied the

defendant to the hospital.    Sergeant Tynan remained in the

house.    At Sergeant Tynan's request, an evidence collection

officer from the Barnstable County sheriff's office arrived and

photographed and collected the tequila bottles.    The bottles
                                                                     9


were not tested until several months later, on September 6,

2010, in connection with this pending criminal case.

    In reviewing the grant or denial of a motion to suppress,

"we accept the judge's findings of fact and will not disturb

them absent clear error."   Commonwealth v. Tremblay, 460 Mass.

199, 205 (2011).   However, we undertake "an independent

determination as to the correctness of the judge's application

of constitutional principles to the facts as found."      Id.   We

begin the analysis with the well-settled principle that a

warrantless search or seizure is presumptively unreasonable

under the Fourth Amendment and art. 14, and may be justified

only by a few "specifically established and well-delineated

exceptions."   Arizona v. Gant, 556 U.S. 332, 338 (2009), quoting

Katz v. United States, 389 U.S. 347, 357 (1967).    See

Commonwealth v. Tyree, 455 Mass. 676, 683 (2010).    Although the

exceptions for exigent circumstances -- consent and plain

view -- are implicated in the judge's findings of fact, the

judge reviewed the search under the emergency exception to the

warrant requirement.   We consider each exception and conclude

that none justifies the seizure of the tequila bottles.

    a.   Emergency exception.   The well-established rule is that

the presumption of unreasonableness of a warrantless search

yields if "'the exigencies of the situation' make the needs of

law enforcement so compelling that the warrantless search is
                                                                   10


objectively reasonable under the Fourth Amendment" (citation

omitted).   Mincey v. Arizona, 437 U.S. 385, 393-394 (1978).

"The need to protect or preserve life or avoid serious injury is

[one such] justification for what would be otherwise illegal

absent an exigency or emergency."    Id. at 392, quoting Wayne v.

United States, 318 F.2d 205, 212 (D.C. Cir.), cert. denied, 375

U.S. 860 (1963).    Under the "emergency aid" exception, the

police may "enter a home without a warrant to render emergency

assistance to an injured occupant or to protect an occupant from

imminent injury."    Brigham City v. Stuart, 547 U.S. 398, 403

(2006).   See Commonwealth v. Entwistle, 463 Mass. 205, 213

(2012), cert. denied, 133 S. Ct. 945 (2013).

    A warrantless search or seizure undertaken on this basis

passes constitutional muster, however, only if (1) the police

had an objectively reasonable ground to believe that an

emergency existed; and (2) the conduct of the police after the

entry was reasonable under all the circumstances.    See Arizona

v. Hicks, 480 U.S. 321, 325 (1987); Mincey, 437 U.S. at 393-394;

Commonwealth v. McDermott, 448 Mass. 750, 766-767, cert. denied,

552 U.S. 910 (2007).    The Commonwealth bears the burden of

demonstrating that, taking into account the totality of the

circumstances, the search and seizure fit within this exception

to the warrant requirement.    Thompson v. Louisiana, 469 U.S. 17,

19-21 (1984); Commonwealth v. Peters, 453 Mass. 818, 823 (2009).
                                                                   11


"[T]he standards as to exigency are strict."   Tyree, 455 Mass.

at 684, quoting Commonwealth v. Forde, 367 Mass. 798, 800

(1975).

    i.    Existence of objectively reasonable emergency.    As a

threshold matter, we agree with the judge's ruling that the

police were presented with an objective emergency justifying the

warrantless entry into the defendant's home.   The police

received reliable information from hospital staff that two

individuals who had been with the defendant at a nightclub and

at the defendant's home the prior evening were seriously ill and

that, after being treated at the hospital, one victim was at

that time being transported to a Boston hospital for further

treatment.   The request from the hospital staff, together with a

report from a concerned coworker that the defendant had not

appeared at work that day, established the urgency regarding the

defendant's safety and presented an emergency warranting police

intervention for that purpose.   See Commonwealth v. Snell, 428

Mass. 766, 773, cert. denied, 527 U.S. 1010 (1999) (urgency

created by, among other things, information that victim not

heard from in days).   In addition, except for the seizure of the

tequila bottles, the police conduct after arriving at the

defendant's home was focused entirely on the concern for the

defendant's well-being.   As the judge found, the police, on

arrival at the defendant's home, "strongly urged that [the
                                                                   12


defendant] get checked out at the hospital."    The defendant

agreed to do so and accepted the ambulance transport arranged by

the police.   Accordingly, the actions of the police up to the

point that the defendant was transported to the hospital were

consistent with the emergency aid exception.4    See id. at 774,

quoting Commonwealth v. Bates, 28 Mass. App. Ct. 217, 219 (1990)

("purpose of the police entry [under emergency exception] is not

to gather evidence of criminal activity but rather, because of

an emergency, to respond to an immediate need for assistance for

the protection of life or property").

     ii.   Reasonableness of police conduct.    Having concluded

that the police were justified in entering the defendant's home

under the emergency aid exception, we turn to the second prong

of the exception:   whether the conduct of the police following

the warrantless entry was reasonable under the circumstances.

The defendant challenges the seizure of the tequila bottles,

arguing that it was not reasonably related to the purpose of a

check on his well-being.

     "Reasonableness must be 'evaluated in relation to the scene

as it could appear to the officers at the time, not as it may


     4
       This case does not present the question whether the police
may make an emergency entry to provide assistance to a person
not then present in the home. Although we do not decide the
issue, our ruling does not foreclose the possibility that police
may make a warrantless entry for the purpose of providing
emergency assistance to a person not actually present.
                                                                      13


seem to a scholar after the event with the benefit of leisured

retrospective analysis.'"       Commonwealth v. Townsend, 453 Mass.

413, 425-426 (2009), quoting Commonwealth v. Young, 382 Mass.

448, 456 (1981).    See Commonwealth v. Porter P., 456 Mass. 254,

270 (2010) ("We evaluate the reasonableness of a police

officer's conduct based on the information available to him at

the time, not on what we later learn to be true").

Reasonableness, in turn, is informed by the well-settled rule

that a "warrantless search must be 'strictly circumscribed by

the exigencies which justify its initiation.'"       Mincey, 437 U.S.

at 393, quoting Terry v. Ohio, 392 U.S. 1, 25-26 (1968).

     Applying this test to the police conduct at issue here, we

conclude that the continued police presence in the defendant's

home without his consent5 after he was transported to the

hospital for medical treatment and the subsequent seizure of the

tequila bottles was unreasonable.      First, the exigency

justifying the warrantless entry to check on the defendant's

well-being had ended before the seizure occurred.      As

established by the judge's findings, the defendant presented

himself to the police as having been awakened from sleep and

perhaps tired, but not in any apparent distress.      In addition,

he agreed to be transported to the hospital as a precaution.

From that point on, the police had no further cause for concern

     5
         See part 1.b, infra.
                                                                    14


about the defendant's well-being and no public safety

justification to remain in his home.    See Peters, 453 Mass. at

824-825 (no justification for protective sweep where emergency

had ended).

    In addressing reasonableness, we attach significance to the

judge's finding that "[n]o one from the hospital staff had

requested the bottles be seized" and that the deputy sheriff

maintained custody of the bottles for approximately four months

before they were sent to a laboratory for analysis with respect

to the pending criminal case.    Thus, the seizure of the tequila

bottles, lacking any demonstrable relationship to the emergency,

was more consistent with an investigative purpose.    As such, it

crossed the reasonableness threshold and cannot be sustained as

conduct properly within the scope of the emergency exception.

Cf. McDermott, 448 Mass. at 767 (conduct reasonable in context

of emergency entry to search for other possible murder victims

where police "looked only in places where a person could be

found, they did not pick up or remove any items, and they

remained for only a short time").

    If the police, after lawfully entering the defendant's

home, had seized the bottles in order to determine if the

tequila contained a chemical or other contaminant that made the

three people ill, the seizure might have been reasonable under

the emergency aid exception.    We need not, however, decide
                                                                   15


whether those circumstances would have rendered the seizure

reasonable, because no such intent was shown.    Sergeant Tynan

testified at the hearing on the motion to suppress that the

bottles were seized because the officers "didn't know the status

of the two people at the hospital" and they had information that

the tequila was "the only thing [the patients] had consumed in

that house at that time the night before."    While the motion

judge did not make any findings regarding the purpose of the

seizure, he noted at the evidentiary hearing that Sergeant

Tynan's statement about the purpose of the seizure was ambiguous

and that the sergeant was never asked whether police took the

bottles to aid in treatment or for proof of drugging.      It is

undisputed that the bottles were not submitted for immediate

testing to determine the cause of the illness, and the

Commonwealth, bearing the burden to show that the emergency aid

exception was satisfied, presented insufficient evidence to

support a finding that the bottles were seized in order to

determine the cause of the illness.    See Peters, 453 Mass. at

823.

       When, as here, the police seize evidence after the exigency

has ended, suppression of that evidence is proper.    In

Commonwealth v. Lewin (No.1), 407 Mass. 617, 626-628 (1990), we

held that evidence seized in the defendant's apartment after the

protective sweep had been completed should have been suppressed
                                                                    16


because the search was unconstitutional after the emergency had

ended.   The same rationale applies here.

    The decision in Commonwealth v. McCarthy, 71 Mass. App. Ct.

591 (2008), on which the Commonwealth relies, does not dictate a

contrary result.     While the defendant in McCarthy was

unconscious in a restaurant and was being attended by emergency

medical personnel, a police officer searched her open purse,

which contained evidence that she possessed controlled

substances.   The court validated the search.    Id. at 593.   We

distinguish McCarthy on several grounds.    First, the warrantless

search did not occur in a home; it occurred in a public place

that is not accorded the broad presumption of unreasonableness

that applies in the warrantless search of a home.     See

Commonwealth v. Krisco Corp., 421 Mass. 37, 44-45 (1995).

Second, the defendant was in obvious distress and in need of

immediate medical attention.    The attending medical personnel

expressed a specific concern that the defendant might be

suffering a drug overdose that might possibly be verified by a

search of the purse.    Considering these facts, the exigencies of

the situation justified the police in searching the purse.

    We recognize that the role of a police officer responding

to an emergency is not necessarily limited to rendering aid to

an injured person.    "[T]he role of a [police] officer includes

preventing violence and restoring order, not simply rendering
                                                                    17


first aid to casualties."     Michigan v. Fisher, 558 U.S. 45, 49

(2009), quoting Brigham City, 547 U.S. at 406.    However, the

seizure of the tequila bottles was not necessitated by the kind

of compelling safety concerns confronting the police in Fisher,

supra.   There, the police, responding to a report of a

disturbance, confronted a chaotic scene with an injured person

and an enraged defendant threatening further harm.     Id. at 48.

The ongoing events at the scene justified a law enforcement

response to prevent further injury.     Here, the police officers

responding to the defendant's home for the well-being check

faced no such threats to public safety.    Thus, although the

facts of this case do not present the need to parse the limits

of the police response to an ongoing emergency, we are satisfied

that the limitation we now impose on police conduct during a

warrantless entry into a home will not undermine the ability of

the police to respond to an emergency where the risk of harm or

injury is ongoing and apparent.

    b.    Other exceptions.   We address briefly the exceptions

for consent and plain view.    Although the defendant consented to

the police presence in his home for the purpose of a well-being

check on his condition, the consent ended when the defendant

left in an ambulance for the hospital.    "[A] search with consent

is reasonable and legal only to the extent that the individual

has consented."   Commonwealth v. Cantalupo, 380 Mass. 173, 178
                                                                    18


(1980).   The police officers did not ask the defendant to

consent to the seizure of the tequila bottles or to Sergeant

Tynan remaining in the home after the defendant had left; nor

did the defendant say or do anything that reasonably could be

interpreted to constitute such consent.   Thus, we see no basis

to validate the seizure as a product of the defendant's consent

to the police entry into his home to perform a check on his

well-being.   Similarly, the tequila bottles could not lawfully

be seized under the plain view doctrine because, at that time,

their "incriminating character" was not "immediately apparent."

Commonwealth v. D'Amour, 428 Mass. 725, 730 (1999), quoting

Commonwealth v. Santana, 420 Mass. 205, 211 (1995).     When the

seizure occurred, the medical condition of the two victims was

of unknown cause, there was no evidence that they had been

victims of a crime, and it was not known that the contents of a

tequila bottle would explain their medical condition.     With no

more than a hunch that the tequila bottles contained the drug

GHB, the police could not have seized the tequila bottles under

the plain view doctrine for investigatory purposes.   See

Commonwealth v. King, 389 Mass. 233, 243-244 (1983) (permissible

investigatory inquiry terminated when emergency concern

satisfied).   Cf. Commonwealth v. Marchione, 384 Mass. 8, 11-12

(1981) (plain view seizure of gasoline near homemade incendiary

device permissible after emergency entry with reasonable cause
                                                                   19


to believe gasoline was evidence of crime).

    2.   Bowden instruction.   The defendant argues that the

judge erred in declining to instruct the jury in accordance with

Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980).    Citing

Mathews v. United States, 485 U.S. 58, 63 (1988), he claims that

the decision whether to give the instruction cannot be a matter

of discretion because it is required as a matter of due process

when properly requested.   The defendant requested the

instruction in the charge conference following the close of

evidence; therefore, we review the claim for prejudicial error.

See Commonwealth v. Prater, 431 Mass. 86, 97 (2000).

    We discern no error, let alone prejudicial error, in the

judge's denial of the defendant's request for a Bowden

instruction.   Our cases are consistent in interpreting Bowden to

mean only that the defendant is entitled to offer in evidence

facts tending to establish that "certain tests were not

conducted or certain police procedures not followed [that] could

raise a reasonable doubt as to the defendant's guilt in the

minds of the jurors."   Bowden, 379 Mass. at 486.   See

Commonwealth v. Lao, 460 Mass. 12, 23 (2011) (no error in

denying Bowden instruction where defendant permitted to argue

faulty investigation); Williams, 439 Mass. at 687 ("the giving

of [a Bowden] instruction is never required").

    Accepting for the sake of argument the defendant's claim
                                                                  20


that he is entitled, on due process grounds, to an instruction

on his "defense" to the charge, there was no error here because

lapses in the police investigation do not constitute a "defense"

as that term is understood in our criminal jurisprudence.   We

said as much in Lao, supra, where we stated that "Bowden does

not create a 'defense' in the sense that it creates an element

of proof that the Commonwealth must prove or disprove beyond a

reasonable doubt."

    Conclusion.   The defendant's Bowden claim lacks merit.

Therefore, we decline to grant relief on that ground.   As to the

motion to suppress, the order denying the motion is reversed for

the reasons explained above.   The judgments of conviction are

vacated, and the defendant is to be granted a new trial.

                                    So ordered.
    CORDY, J. (dissenting).   "We all see something different in

the bottom of a tequila bottle.   Such is life."   The motion

judge's erudite observations, made during the motion to suppress

hearing about the Barnstable police officers' actions at the

defendant's home, likewise ring true with regard to the

emergency exception to the warrant requirement.    It is because

the court sees the emergency exception too narrowly as a

reprieve from the warrant requirement that I respectfully

dissent.

    There are two particular points made by the court with

which I disagree.   The first point is that the officers, on

arriving at the defendant's home, were responding only to a

potential emergency with regard to the defendant.    In my view,

the motion judge was correct in concluding that the emergency

also applied to the ongoing and life-threatening state of the

two patients, one at Cape Cod Hospital and one being "med-

flighted" to Boston, and this case therefore does present the

question whether the police may make an emergency entry to

provide assistance to a person not in the home.     I would hold

that they may, and were, in this case, justified in doing so.

Second, I disagree that the exigency to which the officers

responded ended as soon as the defendant left his home for the

hospital.   Because I would hold that the emergency was ongoing,

both for the defendant and the patients, the officers'
                                                                      2


subsequent seizure of the tequila bottles was objectively

reasonable under the circumstances.    It is for these reasons

that I agree with the motion judge that the officers' actions

fit squarely within the emergency exception, and I would hold

that the motion to suppress was appropriately denied.

    1.   Discussion.     "When reviewing a motion to suppress, we

accept the judge's subsidiary findings of fact absent clear

error, but independently review the judge's ultimate findings

and conclusions of law" (quotations omitted).     Commonwealth v.

Jewett, 471 Mass. 624, 628 (2015).    Where there has been an

evidentiary hearing, "we defer to the credibility findings of

the judge, who had the opportunity to observe and evaluate the

witnesses as they testified."     Commonwealth v. Peters, 453 Mass.

818, 823 (2009).

    The Fourth Amendment to the United States Constitution and

art. 14 of the Massachusetts Declaration of Rights provide that

the right of individuals to be secure in their persons, houses,

papers, and effects against unreasonable searches and seizures

shall not be violated.    Warrantless searches and seizures inside

of a home are presumptively unreasonable.    See, e.g., Brigham

City v. Stuart, 547 U.S. 398, 403 (2006); Commonwealth v.

Townsend, 453 Mass. 413, 425 (2009).    Such warrantless searches

may only be justified in "specifically established and well-

delineated exceptions" (quotation omitted).     Arizona v. Gant,
                                                                       3


556 U.S. 332, 338 (2009).    One such exception exists in

circumstances where the police reasonably believe that a search

is required to deal with a life-threatening emergency.       See

Mincey v. Arizona, 437 U.S. 385, 393-394 (1978).

    The emergency exception "applies when the purpose of the

police entry is not to gather evidence of criminal activity but

rather, because of an emergency, to respond to an immediate need

for assistance for the protection of life" (quotation omitted).

Commonwealth v. Snell, 428 Mass. 766, 774, cert. denied, 527

U.S. 1010 (1999).   "The reason is plain:   People could well die

in emergencies if police tried to act with the calm deliberation

associated with the judicial process" (quotation omitted).

Commonwealth v. Ringgard, 71 Mass. App. Ct. 197, 201 (2008).

Two strict requirements must be met before applying the

exception:   (1) the officers must have had objectively

reasonable grounds to believe that an emergency existed; and (2)

the conduct of the police after the entry must have been

reasonable under all the circumstances.     See Commonwealth v.

McDermott, 448 Mass. 750, 766-767 (2007).     The exception allows

the police, with an objectively reasonable basis for concluding

that an emergency exists, to be proactive, as "an officer is not

like a boxing . . . referee, poised to stop a bout only if it

becomes too one-sided."     Brigham City, 547 U.S. at 406.    I fear

that the court's reading of the emergency exception may, in many
                                                                   4


life-threatening instances, relegate the Commonwealth to

spectator status.

    a.   Scope of emergency exception.   The court limits the

scope of its analysis of the emergency exception to its

application to the defendant, ignoring, contrary to the findings

of the motion judge, the plight (known to the responding

officers) of the two patients at Cape Cod Hospital.   Our

consideration of the emergency exception should apply in equal

measure to the defendant and to the patients.   Despite the

court's assertions to the contrary, the evidence presented

throughout the motion to suppress hearing fully supports the

motion judge's ultimate findings that the officers entered the

defendant's home "out of concern for the well being of the

defendant and the two hospitalized individuals."

    In its restricted view of the motion judge's findings, the

court declines to address the emergency exception's application

to warrantless entries for the purpose of providing emergency

assistance to a person not actually present in the home.    I

would hold that the patients' not being within the defendant's

home does not vitiate the basis for a warrantless entry and

seizure on their behalf.   Although the United States Supreme

Court has not directly addressed the issue, its recent

jurisprudence on the emergency exception to the warrant

requirement is instructive.
                                                                    5


     The Supreme Court has had three instances to address the

emergency exception to the warrant requirement:   Mincey, supra;1

Brigham City, supra;2 and Michigan v. Fisher, 558 U.S. 45

(2009).3   In each of those opinions, the Supreme Court draws from

Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963), for

the premise of the emergency exception that "[t]he need to


     1
       An undercover police officer was shot in an apartment.
Mincey v. Arizona, 437 U.S. 385, 387 (1978). Other officers
rushed to his aid. Id. at 387-388. Minutes later, homicide
detectives arrived and took charge of the investigation. Id. at
388-389. They aided in the removal of the suspects, and then
conducted a search that lasted four days. Id. The United
States Supreme Court held that "the Fourth Amendment [to the
United States Constitution] does not bar police officers from
making warrantless entries and searches when they reasonably
believe that a person within is in need of immediate aid." Id.
at 392. The Supreme Court, however, refused to apply the
emergency exception to the homicide detectives' search and
seizure because all dangerous suspects had been removed prior to
the arrival of the homicide officers. Id. at 393.
     2
       Officers arrived at a home in response to a complaint of a
loud party. Brigham City v. Stuart, 547 U.S. 398, 400-401
(2006). The police observed an altercation in the home between
four adults and a juvenile. Id. at 401. The Supreme Court, in
concluding that the subsequent warrantless entry into the home
was reasonable, expanded the definition of the emergency
exception, holding that the police officers' subjective intent
upon entering the dwelling is irrelevant. Id. at 404-405.
     3
       A police officer, after responding to a report of a
disturbance, encountered signs of recent injury. Michigan v.
Fisher, 558 U.S. 45, 48 (2009). The officer could see violence
inside, including the defendant throwing projectiles at an
unobserved target. Id. The Supreme Court held that it was
objectively reasonable for the officer to enter the home,
further expanding the exception by observing that it would be
"error . . . to replace . . . objective inquiry into appearances
with . . . hindsight determination that there was in fact no
emergency." Id. at 49.
                                                                      6


protect or preserve life or avoid serious injury is

justification for what would be otherwise illegal absent an

exigency or emergency."    See Fisher, 558 U.S. at 47, quoting

Brigham City, 547 U.S. at 403; Mincey, 437 U.S. at 392.     Each of

these cases presents a situation in which the purported

emergency relates to an individual within the home to be

searched by the police.    They are not, for that reason,

factually analogous to our case.    However, the Court's reasoning

allows for an interpretation of the emergency exception that

would apply whenever officers have objectively reasonable

grounds to believe an emergency resonates from otherwise

protected private property, whether it be related to aiding an

injured person, preventing a shooting, extinguishing a fire,

defusing a bomb, or ascertaining the cause of a life-threatening

illness.    See Wayne, supra.   See also 3 W.R. LaFave, Search and

Seizure § 6.6(a), at 619 (5th ed. 2012) ("[e]ntry may be

justified even though the endangered persons are not in the

premises").

     Case law around the country and within the Commonwealth

supports this view, as victims and would be threats, be they

attackers or latent poisons, are frequently not in the same

place.4    It is an unnecessary requirement that they be so; a


     4
       See, e.g., Armijo ex rel. Armijo Sanchez v. Peterson, 601
F.3d 1065, 1071 (10th Cir. 2010), cert. denied, 562 U.S. 1224
                                                                   7


requirement that compromises public safety and hampers law

enforcement in fulfilling the purpose for which the emergency

exception exists.   See Fisher, 558 U.S. at 49, quoting Brigham

City, 547 U.S. at 406 ("role of a peace officer includes

preventing violence and restoring order, not simply rendering

first aid to casualties").   Consequently, the motion judge did

not err in concluding that the officers were seizing the bottles

in response to an emergency that encompassed both the condition

of the defendant who was being taken to the hospital and the

condition of the patients who were already there.



(2011) (holding that "the exigent circumstances exception
permits warrantless home entries when officers reasonably
believe that some actor or object in a house may immediately
cause harm to persons or property not in or near the house"
[emphasis in original]); Mora v. Gaithersburg, 519 F.3d 216,
225-226 (4th Cir. 2008) (placing search of home of detained man
who had threatened his coworkers squarely within emergency
exception, despite his not being home, as "[t]he authority to
defuse a threat in an emergency necessarily includes the
authority to conduct searches aimed at uncovering the threat's
scope"); United States v. Mayes, 670 F.2d 126, 127-128 (9th Cir.
1982) (allowing search of home for object that had been blocking
child's throat, though child was in hospital under care of
doctor when search and seizure of object took place); United
States v. Moskow, 588 F.2d 882, 892 (3d Cir. 1978) (entry into
vacant building with strong odor of gasoline held to be legal,
as of "primary concern to the police was the safety of the
occupants of neighboring buildings"); Richardson v. State, 247
So. 2d 296, 298 (Fla. 1971) (affirming denial of motion to
suppress when police had been searching defendant's home with
purpose of aiding doctors to save lives of six children then at
hospital being treated for symptoms of ingested poison). See
also Commonwealth v. McCarthy, 71 Mass. App. Ct. 591, 594-595
(2008) (denying motion to suppress evidence found in defendant's
handbag when officer believed it may have contained cause for
her overdose).
                                                                     8


    b.   Reasonableness of the seizure.     The court again limits

its analysis to whether the police were objectively reasonable

in seizing the tequila bottles in response to only the

defendant's emergency.   Because I agree with the motion judge

that the emergency exception also applied to -- and likewise was

triggered by -- the patients' emergency in the hospital, our

analysis should consider both.    In any event, whether it be

applied to the defendant, the patients, or both, the police

acted objectively reasonably under the circumstances in seizing

the bottles.

    In determining whether exigent circumstances exist, we

"evaluate the circumstances as they would have appeared to

prudent, cautious, and trained officers" (quotation omitted).

Armijo ex rel. Armijo Sanchez v. Peterson, 601 F.3d 1065, 1071

(10th Cir. 2010), cert. denied, 562 U.S. 1224 (2011).       See

Commonwealth v. Hall, 366 Mass. 790, 803 n.16 (1975).       "An

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. . . .

The officer's subjective motivation is irrelevant" (emphasis in

original; citation omitted).     Brigham City, 547 U.S. at 404.

See Commonwealth v. Entwistle, 463 Mass. 205, 214 (2012), cert.

denied, 133 S. Ct. 945 (2013).    Reasonableness is to be

"evaluated in relation to the scene as it could appear to the
                                                                      9


officers at the time, not as it may seem to a scholar after the

event with the benefit of leisured retrospective analysis"

(emphasis added; quotation omitted).    McDermott, 448 Mass. at

766.    See Commonwealth v. McCarthy, 71 Mass. App. Ct. 591, 594

(2008) (indicating that reviewing court evaluates police action

in its context and "not with twenty-twenty hindsight").

"Officers do not need ironclad proof of 'a likely serious, life-

threatening' injury to invoke the emergency aid exception."

Fisher, 558 U.S. at 49.    See Entwistle, supra at 214.   It is

commonly accepted that a "drug overdose is a serious medical

emergency, often resulting in death when the afflicted person is

not given timely and proper treatment."    McCarthy, supra.

       According to the motion judge's findings, when the officers

entered the defendant's home, their knowledge of the ongoing

situation was minimal.    They were aware that two individuals

were in critical condition under the care of emergency room

staff, and that one of them had been "med-flighted" to a Boston

hospital.    The defendant told them that he had been feeling ill

all day, as well.    Finally, in speaking with the defendant, the

officers ascertained that the only thing that all three ill

individuals had potentially shared was the tequila.

       At that moment, the police officers, in evaluating all the

circumstances, were justified in seizing the bottles.     This is a

situation in which there is more than just the mere existence of
                                                                  10


a potentially harmful circumstance.    See Commonwealth v.

Kirschner, 67 Mass. App. Ct. 836, 841-842 (2006).    A timely

medical response, namely the defendant leaving in an ambulance

and the patients already being present in the hospital, did not

obviate the need for intervention, as the presence of -- and

treatment by -- medical personnel does not necessarily render an

emergency over.    See McCarthy, 71 Mass. App. Ct. at 594-595

(denying motion to suppress evidence when officer searched bag

of unconscious woman, despite presence of emergency medical

technicians).5    Moreover, the information relayed from the


     5
       The court distinguishes McCarthy on two grounds. In that
case, an officer responded to reports of an unconscious woman.
McCarthy, 71 Mass. App. Ct. at 592. The officer called for the
assistance of an emergency medical technician (EMT). Id. The
EMT began to administer treatment, noted that the woman was
suffering from an overdose, and asked the officer if he knew
what the woman had taken. Id. The officer then searched the
woman's handbag. Id. at 593. The court first asserts that the
case is distinguishable because the defendant in McCarthy was in
a public place, rendering her reasonable expectation of privacy
less than if she had been in her home. Ante at     . I find
this argument to be inapposite. While it is true that an
individual's expectation of privacy is less in public places,
see Commonwealth v. Blood, 400 Mass. 61, 68-69 (1987), one's
expectation of privacy remains paramount with regard to personal
effects. Had the officer in McCarthy been able to see the
contents of the defendant's purse simply by looking, this would,
of course, not offend the defendant's expectation of privacy.
But when the officer searched the handbag, he was still
searching her personal effects, and an exception to the warrant
requirement was necessary. In that case, as I would find in
this one, the emergency exception provided grounds for that
search. Next, the court argues that McCarthy is different
because "the defendant [in McCarthy] was in obvious distress and
in need of immediate medical attention." Ante at     .
Moreover, the court finds, the "attending medical personnel
                                                                  11


hospital tended to show that the emergency was getting worse; as

the police knew it, there was reason to believe that the

patients' situation may have been deteriorating.   It was

objectively reasonable to believe that the defendant's health

could also have deteriorated even after going to the hospital.

The officers were therefore justified in seizing the tequila

bottles pointed out to them by the defendant with the goal of

aiding in either the patients' or the defendant's recovery.

    The court's focus on the treatment of the bottles after

their seizure is misplaced.   Whether the testing of the contents

of the bottles was subsequently necessary for the diagnosis and

treatment of the patients is irrelevant, and based on decisions

made by others rather than the responding officers who made the

decision to seize the bottles.   Considering subsequent events as

determinative of reasonableness is precisely the type of




expressed a specific concern that the defendant might be
suffering from a drug overdose that might possibly be verified
by a search of the purse." Id. The record, though, shows only
that the EMT asked the officer whether he knew what the
defendant had taken. McCarthy, supra at 594. To distinguish
these cases, and thus allow a search in McCarthy but not in the
present case, would be to split hairs. The officer in McCarthy
and the officers in the present case knew overdose was a
potential cause for the sickness. They also knew that the
attending medical personnel had been unable to ascertain the
cause of such an overdose, and the officers in each scenario
acted in what they believed was a reasonable response to the
situation. The only difference is that the EMT in McCarthy
asked the officer if he knew what the defendant had taken. That
is not enough to distinguish these cases.
                                                                  12


hindsight second-guessing that other courts have decried.6     It is

equally baseless to obligate, as would the court, a request from

medical staff before an officer can act in what might otherwise

amount to a life-threatening emergency.

     2.   Conclusion.   When the officers arrived at the

defendant's home, they had no reason to believe that the

defendant was in any way criminally responsible for the

patients' medical condition.   Further, there is no evidentiary

basis upon which to conclude that the hospital was aware of

circumstances that might lead to an arrest for the crime with

which the defendant was ultimately charged.   This inquiry is,

however, in the end, unimportant.   Even if the officers had

reason to suspect the defendant was responsible for the

patients' illnesses, the officers' subjective intent in


     6
       Attributing an investigative analysis to the officer's
actions in seizing the bottles based on something that occurred
after the seizure amounts exactly to the "leisured retrospective
analysis" we aim to avoid. See Commonwealth v. McDermott, 448
Mass. 750, 766, cert. denied, 552 U.S. 910 (2007). Indeed, I
would hold that, even had the officers learned, just moments
after the bottles were seized, that the patients and the
defendant were cleared medically, the purpose in seizing and
holding the bottles would still have been reasonably in response
to the ongoing emergency. Regardless, even if one were to
attach importance to the eventual use of the bottles in the
criminal prosecution of the defendant, the motion judge did "not
infer an investigative motive on the part of [the officers] from
the fact that [they] had an evidence collection officer
summonsed to the scene. Local police departments in Barnstable
County routinely use the services of the [s]heriff's [o]ffice to
assist in documenting all manner of police work, including non-
criminal events such as traffic accidents."
                                                                    13


retrieving the tequila bottles is irrelevant.    Rather, the only

important question is whether it was objectively reasonable to

believe an emergency existed justifying the seizure of the

tequila bottles.   I agree with the motion judge's findings and

conclusion that there were sufficient grounds to believe that

the bottles, from which all three ill individuals had been

drinking the night before, were relevant in addressing what

objectively appeared to be a life-threatening emergency, both as

to the defendant, and as to the patients already at the

hospital.   Such a seizure, therefore, was plainly reasonable

under the circumstances.

    For these reasons, I respectfully dissent.
