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SJC-12151

                COMMONWEALTH   vs.   KYLE TUSCHALL.



       Middlesex.      November 9, 2016. - March 8, 2017.

 Present:   Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
                             Budd, JJ.


Constitutional Law, Search and seizure, Probable cause. Search
     and Seizure, Emergency, Probable cause, Fruits of illegal
     search. Probable Cause.



     Indictments found and returned in the Superior Court
Department on August 12, 2014.

     Pretrial motions to suppress evidence were heard by Thomas
P. Billings, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Botsford, J., in the Supreme Judicial
Court for the county of Suffolk, and the appeal was reported by
her to the Appeals Court. The Supreme Judicial Court granted an
application for direct appellate review.


     Randall F. Maas, Assistant District Attorney, for the
Commonwealth.
     Jessica LaClair for the defendant.


    LOWY, J.   Following a report of a "smell like drugs"

emanating from the apartment of the defendant, police made two
                                                                      2


warrantless entries into his apartment.     Based on observations

of paraphernalia related to the manufacture of crystal

methamphetamine, the police then obtained a warrant.     The

defendant was subsequently arrested and charged with, among

other things, drug related offenses.

    The defendant filed two motions in the Superior Court --

one to suppress the evidence seized during the execution of the

search warrant and another to suppress statements he made to

police following his arrest.     The judge granted both motions

after an evidentiary hearing.     With respect to the first motion,

the judge determined that no emergency justified the warrantless

entries, without which the Commonwealth could not establish the

probable cause necessary for the subsequent warrant.     Regarding

the second motion, the judge concluded the defendant's

statements to the police were the "fruit of" the defendant's

unlawful arrest.

    The Commonwealth appealed from the judge's decision.       A

single justice in the county court allowed the Commonwealth's

application for interlocutory review and reported the matter to

the Appeals Court.    We subsequently allowed the defendant's

motion for direct appellate review.     We affirm.

    Background.      The motion judge made the following factual

findings, which we accept absent clear error.     Commonwealth v.

Entwistle, 463 Mass. 205, 209 (2012), cert. denied, 133 S. Ct.
                                                                      3


945 (2013).    We review de novo the judge's application of

constitutional principles to the facts.     Commonwealth v.

Phillips, 452 Mass. 617, 624 (2008).

    On June 11, 2014, the Watertown police received a telephone

call from the defendant's neighbor at a multifamily residential

property.     The neighbor reported a "smell like drugs" coming

from the defendant's apartment.    The police did not respond to

the call until the next day, when a detective called the

neighbor.     The neighbor complained that the odor was causing her

to suffer headaches and was adversely affecting her dog.      She

further described the odor as "skunky" and "minty."    She also

stated that the windows of the neighbor's apartment were

"sealed," and there was a bright light shining in one of the

defendant's apartment's rooms.     The police did not visit the

apartment on June 12.

    On June 13, 2014, two detectives traveled to the apartment

building, where they met with the neighbor who had complained

two days earlier.     The night before the detectives arrived, the

neighbor spent the night elsewhere to avoid further exposure to

the odor.

    When the detectives knocked on the defendant's door, no one

answered.   The detectives could not see inside the defendant's

apartment from the sidewalk because the windows were covered

from inside the apartment.     Beneath a running air conditioner
                                                                    4


extending from one of the apartment's windows, the detectives

smelled a strong chemical odor.

    The complaining neighbor informed the detectives that two

people, the defendant and his girl friend, lived in the

apartment.    The two usually left the apartment together in the

morning, but that morning, the neighbor had seen the defendant

leave alone.    The detectives obtained the girl friend's cellular

telephone number through the building's owner.    Unable to reach

the girl friend on her cellular telephone, the detectives

decided to enter the apartment to look for her.

    The building owner's son led the detectives through the

basement to the door of the defendant's apartment.    The smell

grew stronger in the basement.    One of the detectives felt a

dry, scratchy sensation in his throat, and his eyes began to

burn and water.    Before entering the apartment, the detectives

identified themselves as police and said, "Is anyone home?"

When no one responded, they entered.

    Inside the apartment, the detectives went room to room in

search of the girl friend, calling her by name.    In the course

of discovering that no one was present, one detective saw items

he believed to be consistent with small-scale methamphetamine

production.    The detectives did not open any containers or

drawers.   Now concerned by the risk posed to other residents of

the building, due to the volatile chemicals used in
                                                                        5


methamphetamine production, the detectives contacted the fire

department and a colleague, Detective Gutwill, who had more

expertise with methamphetamine laboratories (lab).

    When Detective Gutwill arrived, he could not tell, by the

smell alone, whether the source of the odor posed a danger.        He

was, however, concerned that the odor was the result of the "one

pot" method of methamphetamine manufacture, which presents a

risk of explosion.     He donned a respirator and protective

clothing and entered the apartment.     He found no evidence of a

"one pot" manufacturing method and determined that there was no

immediate risk of danger.

    Relying on observations from the two warrantless entries,

the police obtained a search warrant.     The defendant arrived

while the police were executing the warrant.     He was arrested

and transported to the Watertown police station.

    While in custody at the police station, the defendant was

questioned by the police.     The police informed him of the

Miranda rights, including the right to have an attorney present

and rights pursuant to Commonwealth v. Rosario, 422 Mass. 48,

56-57 (1996).   He waived his Miranda and Rosario rights, agreed

to speak with the police, and made some incriminating

statements.

    Discussion.      The Commonwealth argues that the judge erred

in granting both motions to suppress.    As to the first motion,
                                                                    6


the Commonwealth argues that both searches were lawful under the

emergency aid exception to the Fourth Amendment to the United

States Constitution and art. 14 of the Massachusetts Declaration

of Rights.    With regard to the second motion, the Commonwealth

argues that the defendant's statements to the police should not

have been suppressed, because they were not the fruit of

unlawful searches.    In the alternative, the Commonwealth argues

that, even if the searches were unlawful, the defendant's

statements were sufficiently attenuated from the unlawful

conduct to escape the reach of the exclusionary rule.

    1.   The warrantless searches.     Under the Fourth Amendment

and art. 14, a search of an individual's home must be

reasonable.    A search conducted without a warrant is

presumptively unreasonable.    Brigham City v. Stuart, 547 U.S.

398, 403 (2006).     Warrantless searches may be justifiable,

however, if the circumstances of the search fall within an

established exception to the warrant requirement.     Under the

exclusionary rule, evidence seized pursuant to an unreasonable

search generally will be suppressed.     See J.A. Grasso, Jr. &

C.M. McEvoy, Suppression Matters Under Massachusetts Law § 20-

2[a] (2017).

    One such exception to the Fourth Amendment and art. 14 is

the "emergency aid exception."    Commonwealth v. Duncan, 467

Mass. 746, 749, cert. denied, 135 S. Ct. 224 (2014).     To meet
                                                                     7


the requirements of the exception, there must be "objectively

reasonable grounds to believe that an emergency exists . . .

[and] the conduct of the police following the entry must be

reasonable under the circumstances" (citation omitted).     Id. at

750.

       The emergency aid exception applies in two circumstances

relevant to this case.   First, a warrantless search is

reasonable when law enforcement possess an objectively

reasonable basis to conclude that "prompt intervention is

necessary to prevent a threatened fire, explosion, or other

destructive accident."    Commonwealth v. DiGeronimo, 38 Mass.

App. Ct. 714, 723 (1995).    See Commonwealth v. Marchione, 384

Mass. 8, 11-12 (1981) (entry reasonable to prevent potential

explosion from volatile liquids stored near incendiary device).

Second, 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).

       A police officer's "'subjective motivation [for entry] is

irrelevant.'"   Entwistle, 463 Mass. at 214, quoting Brigham

City, 547 U.S. at 404.    The emergency aid exception does not

require that police have probable cause that a crime has been

committed, because the purpose of the entry is to prevent harm
                                                                      8


stemming from a dangerous condition, not to investigate criminal

activity.    See Duncan, 467 Mass. at 750 (2014).1

     a.     The initial entry.   The Commonwealth suggests that the

initial entry was justified due to the danger posed by the fumes

to the residents in the building and to the defendant's girl

friend, whom the police were concerned might be inside the

apartment.

     Prior to the first entry, there was no objectively

reasonable basis upon which to conclude that residents of the

building faced an "imminent threat of death or serious injury"

due to the effects of the fumes, or that the fumes constituted a

danger comparable to that of a "fire, explosion, or other

destructive accident."     DiGeronimo, 38 Mass. App. Ct. at 723.

Indeed, two days had elapsed before the police responded to the

initial complaint.2    Moreover, unpleasant as the smell may have

been, the discomfort described by the neighbor did not suggest

the existence of an emergency situation requiring immediate

intervention.    When she first met the police two days after

     1
       This is in contrast to the broader "exigent circumstances"
exception. Exigent circumstances justifying a warrantless entry
exist where the police have probable cause of criminal activity,
but where the time required to obtain a warrant would defeat the
purposes of the search -- such as when delay would result in the
destruction of evidence. See Duncan, 467 Mass. at 750-751 &
n.4.
     2
       The police certainly could have advised the neighbor to
contact her landlord regarding a nuisance claim, or the
Department of Public Health or the fire department to address
the odor.
                                                                   9


making her initial complaint, the neighbor said that she had

slept elsewhere to avoid the smell, and that she had seen the

defendant leave his apartment, in apparently fine health despite

his presumably longer exposure to the fumes at a closer

proximity.   Apart from the complaining neighbor's headache,

there were no reports of illness or negative health consequences

stemming from the smell, and no clear indication that the

smell's potency had increased since the neighbor's initial

report.3

     The ill effects produced by the fumes are a stark contrast

to the discernible danger recognized as justifying emergency

intervention in other cases.   See Brigham City, 547 U.S. at 406

(warrantless entry was justified where police observed ongoing

violence in home); Marchione, 384 Mass. at 11-12 (1981)

(warrantless entry justified by landlord's report that large

quantity of volatile and explosive liquids surrounded incendiary

device); Commonwealth v. Cantelli, 83 Mass. App. Ct. 156, 165-

166 (2013) ("explosive levels" of natural gas filled defendant's

apartment prior to entry).

     3
       At oral argument, the Commonwealth argued that the danger
from the chemical odor increased over the course of the three
days, based on the nature of the complaining neighbor's
statements on each of those days. This may have been a
permissible inference from the neighbor's statements, but it is
not a necessary one and the judge made no such finding. Even if
true, however, it was apparent that exposure to the smell had
not caused sufficiently negative health consequences to justify
entry into the defendant's apartment on an emergency basis.
                                                                  10


       Prior to the first search, the police also lacked an

objectively reasonable basis to conclude that any condition

inside the defendant's apartment posed a risk of explosion.

Even if a reasonable belief that methamphetamine is actively

being manufactured inside an apartment justifies a warrantless

entry, based on the dangers inherent to the manufacture of

methamphetamine, the police lacked a reasonable basis prior to

the first search to believe that the apartment contained a

methamphetamine lab.    Contrast Marchione, 384 Mass. at 11-12;

Cantelli, 83 Mass. App. Ct. at 165-166.    The complaining

neighbor vaguely characterized the odor as a "smell like drugs."

One of the officers described it as akin to "nail polish,"

which does not in and of itself indicate the presence of a drug

lab.    Contrast United States v. Cervantes, 219 F.3d 882, 886

(9th Cir. 2000), overruled on other grounds by Brigham City, 547

U.S. at 402, 404 (tenants in immediate proximity of apartment

emitting strong chemical odor and officer saw man in kitchen

with large pot on floor); People v. Duncan, 42 Cal. 3d 91, 95-96

& n.1 (1986) (police lawfully entered in response to ongoing

burglary and observed evidence indicating active manufacture of

methamphetamine); Holder v. State, 847 N.E.2d 930, 933-934, 937-

938 (Ind. 2006) (police specifically identified odor as ether,

which is highly flammable; smell was strong enough to be

detectable in two- or three-block area; and infant was inside
                                                                   11


apartment from which odor was emanating); State v. Simmons, 714

N.W.2d 264, 269, 273 (Iowa 2006) (before entry, which was

permissible, officer who could not identify odor contacted

expert officer who ascertained smell of anhydrous ammonia, used

in manufacture of methamphetamine); State v. Meeks, 262 S.W.3d

710, 714 (Tenn. 2008) (officer with high degree of expertise

"could smell what [he] knew to be a meth[amphetamine] lab" and

heard glass breaking and voices inside apartment).

    The police also lacked a reasonable basis to conclude that

the girl friend was inside the apartment and was injured or in

danger of imminent harm.   The police could not reach the girl

friend by cellular telephone and there was no answer from the

apartment when they knocked.   The only indication that the girl

friend may have been in the apartment was speculative, anecdotal

evidence from the complaining neighbor that the defendant and

his girl friend typically left together in the morning, but the

defendant left alone on that particular morning.   The police

made no effort to contact the girl friend's employer or her

family, and made only a few attempts to contact her by cellular

telephone before entry.

    These circumstances fall short of those in which we have

determined there was an objectively reasonable basis

establishing the existence of an emergency.   For example, in

Commonwealth v. Townsend, 453 Mass. 413, 415, 422-423, 426
                                                                   12


(2009), the Commonwealth met its burden to justify warrantless

entry into an apartment where a victim, whose last known

location was inside that apartment, had not been seen for

multiple days.   The resident of that apartment had a history of

abusing the victim.   Id. at 422-423.   Before entry, the police

spoke to the victim's mother and the victim's sister, neither of

whom had had any contact with the victim in the days leading up

to the warrantless entry.    Id.   The victim had missed a visit

with her children, scheduled through the Department of Social

Services, and the victim's automobile was parked outside the

defendant's apartment.   Id. at 422, 424.   See Entwistle, 463

Mass. at 210, 215-216 (warrantless entry reasonable where

potential victim had been out of contact for two days, her dog

could be heard barking inside house, and she had

uncharacteristically missed multiple appointments); Peters, 453

Mass. at 823-824 (warrantless search reasonable following report

of audible domestic disturbance in which gunshot was heard and

individual subsequently fled scene).

    b.   The second entry.    The proposed justification for the

second warrantless entry rests on observations of drug

paraphernalia made during the first entry.    The Commonwealth

argues that, because they observed evidence that methamphetamine

had been manufactured inside the apartment, and the manufacture

of methamphetamine involves the use of volatile chemicals
                                                                    13


susceptible to explosion, the second entry was justified to

ascertain the extent of the danger.   Even setting aside the fact

that this information was obtained solely as the result of an

unlawful search, the observations of police during the first

entry did not form an objectively reasonable basis to conclude

that there was an imminent danger of explosion.4

     The observations during the first search did not reasonably

support the conclusion that methamphetamine was being or

recently had been manufactured, or that the particular fumes to

which they were exposed were highly combustible.   The only

additional information obtained by police during the first entry

was that it appeared possible that methamphetamine had been

manufactured at some point inside the apartment.   The police

knew that the fumes had been emanating from the defendant's

apartment for at least two days before the entries.     Prior to

the second entry, the police lacked an objectively reasonable

basis to conclude that the contents of the defendant's apartment

posed an imminent danger of death or serious injury.5    Contrast


     4
       Because we conclude that the first search did not
establish a reasonable basis to support the existence of an
emergency, we need not decide whether the discovery of an
emergency during an unlawful search would constitute an
intervening event, limiting the reach of the exclusionary rule.
     5
       The parties dispute whether the police must have an
objectively reasonable basis to conclude that there is active
methamphetamine production in a home to justify a warrantless
entry, or whether the danger posed by fumes from a previous
                                                                  14


Cervantes, 219 F.3d at 886 (entry justified when officer saw man

in kitchen with large pot on floor); Duncan, 42 Cal. 3d at 95-96

(entry justified where police observed active heat lamp,

suggesting possibility of active drug making); Cantelli, 83

Mass. App. Ct. at 165-166 (warrantless entry justified to shut

off natural gas, known by officers to be highly explosive, where

resident repeatedly flooded apartment with gas).

    In sum, the Fourth Amendment and art. 14 form a bedrock

protection of an individual's hearth and home.     The

inviolability of the home may be constitutionally pierced

without a warrant, but only within narrowly proscribed

circumstances.   See DiGeronimo, 38 Mass. App. Ct. at 721,

quoting Jones v. United States, 357 U.S. 493, 499 (1958) ("the

few exceptions are 'jealously and carefully drawn'").    The facts

of this case, as carefully determined by the motion judge,

established that at the time of the first entry, there was a

smell that had adversely affected a neighbor and her pet -- a

smell that had persisted for days before the police took action


production of methamphetamine may be sufficient. We decide only
that, based on the judge's factual findings in this case, the
police lacked an objectively reasonable belief that the
condition of the defendant's apartment posed an imminent danger
of death or serious injury or that prompt intervention was
necessary to prevent a destructive accident. Whether such a
danger may exist in the absence of active drug manufacturing is
a question we need not resolve. As was the case before the
first warrantless entry, the police still could have directed
the complaining neighbor to her landlord, the fire department,
or the Department of Public Health to address the fumes.
                                                                   15


-- and the presence of paraphernalia an officer believed to be

consistent with the manufacture of methamphetamine.     These facts

alone are insufficient to form an objectively reasonable belief

in an emergency situation that justifies warrantless entry.

    2.    The defendant's statements.   The judge permissibly

suppressed the defendant's statements as the "fruit of the

poisonous tree" of the unlawful searches.     His inculpatory

statements resulting from that arrest must be suppressed unless

the State proves "that confession was 'an act of free will

[sufficient] to purge the primary taint of the unlawful

invasion.'"   Kaupp v. Texas, 538 U.S. 626, 632-633 (2003) (per

curiam), quoting Wong Sun v. United States, 371 U.S. 471, 486

(1963).

    In determining whether the Commonwealth met its burden of

showing that the defendant's statements were sufficiently

attenuated from the Commonwealth's unlawful conduct, we consider

(1) whether the defendant was informed of his rights; (2) the

proximity in time of the arrest and his inculpatory statements;

(3) any intervening circumstances; and (4) the degree of

official misconduct.   Kaupp, 538 U.S. at 633, citing Brown v.

Illinois, 422 U.S. 590, 603-604 (1975).     We also consider the

extent to which excluding the evidence would deter future

official misconduct.   See Commonwealth v. Damiano, 444 Mass.
                                                                   16


444, 452-453 (2005), citing Brown, 422 U.S. at 609 (Powell, J.,

concurring in part).

    The balance of the factors in this case is a close call,

but favors the defendant.   The police read the defendant his

Miranda rights and there was no misconduct during the interview

itself.   However, for the reasons stated above, the warrantless

entries were unlawful.   The defendant made his statements

roughly twenty-one hours after his arrest, during which time he

was continuously in police custody.   No intervening

circumstances further attenuated the defendant's statements from

his arrest, which was a direct result of the unlawful searches.

We conclude that the negative effects of the unlawful searches

were not "'so attenuated that the deterrent effect of the

exclusionary rule no longer justifies its cost.'"      Damiano, 444

Mass. at 453, quoting Brown, 422 U.S. at 609 (Powell, J.,

concurring).

                                    Order allowing motions to
                                     suppress affirmed.
