The Exigent Circumstances Exception To The Search Warrant Requirement Is Inapplicable To Establish Probable Cause Where The Police Create The Exigency Themselves By Not Procuring A Search Warrant When It is Practical to Do So Before Going Into The Defendant’s Residence To Make A Warrantless Arrest

• Steven Topazio wrote this April 16, 2020 at 5:25 pm

In the case of Commonwealth Vs. Jean Alexis, 481 Mass. 91 (2018) the SJC held that a Superior Court judge properly allowed the criminal defendant’s pretrial motion to suppress evidence that police officers observed in plain view during a protective sweep of his dwelling after his warrantless arrest, where, under art. 14 of the Massachusetts Declaration of Rights, the police could not avail themselves of the exigent circumstances exception to the warrant requirement when it was foreseeable that their actions (i.e., not procuring a warrant before going to the defendant’s dwelling, despite nothing in the record indicating that it was impracticable to do so) would create the exigency.

The defendant, Jean Alexis, was charged with numerous crimes stemming from an armed home invasion in Lynn. The day after the home invasion, and following an investigation, the police arrested the defendant inside his dwelling without an arrest warrant. The defendant moved to suppress evidence that (1) the police observed during a protective sweep of his dwelling after he was arrested and (2) the police gathered after they obtained a warrant to search his dwelling. A judge in the Superior Court allowed the defendant’s motion to suppress because the police created the exigency that prompted their warrantless entry into the defendant’s dwelling. The SJC has held that “where the exigency is reasonably foreseeable and the police offer no justifiable excuse for their prior delay in obtaining a warrant, the exigency exception to the warrant requirement is not open to them.” Commonwealth v. Forde, 367 Mass. 798, 803 (1975) (analyzing warrantless search under Fourth Amendment to United States Constitution). See Commonwealth v. Molina, 439 Mass. 206, 211 (2003).

The basic facts of Alexis are as follows.  Lynn police officers responded to a report of a home invasion. Shortly thereafter, Detective Pohle arrived at the scene. Upon arrival, Pohle spoke with the victim, who lived at the apartment with his wife and two children. The victim conveyed that earlier that morning, while he was leaving for work, three African-American males forced their way into the apartment, one of them struck him in the face with a silver handgun, and they “forced their way into the bedroom, where his wife and two children were.” The men restrained the victim with duct tape and took his jewelry and wallet. Before leaving the house, the man with the silver handgun struck the victim’s six month old baby in the face with the gun.

The victim recognized the man with the silver handgun as someone with whom he had attended high school. Later that afternoon, the victim went to the police station in an attempt to identify the perpetrator. After looking through a “few hundred photos,” the victim saw a photograph of the defendant and stated with “[one hundred] percent” certainty that the photograph was of one of the men who had broken into his home and was the one who had hit him and his baby.

Pohle wrote an incident report and filled out an arrest warrant application. Because it was late in the afternoon and his shift had ended, Pohle placed the warrant in the “court box” for the next day.  Pohle testified that although the nature of the investigation — an armed home invasion — justified an after-hours warrant, the decision not to seek one was within his discretion. 

Early the next morning, before he began his shift, Pohle telephoned the supervisor of the Lynn police department’s warrant task force, Sergeant Kenny. Pohle informed Kenny, who was on his way to the police station, that the defendant had been identified as the perpetrator of the home invasion who brandished a handgun and struck the baby with the gun. Pohle also informed Kenny that he was in the process of getting an arrest warrant.

At approximately 7 a.m., Kenny arrived at the police station and reviewed the department’s “hot sheet.”  Kenny recognized the defendant’s name on the “hot sheet” as a person with whom he had recently spoken while investigating another matter. Kenny also knew where the defendant lived.

Without an arrest warrant, but believing that there was probable cause to arrest the defendant and that exigent circumstances existed, Kenny and four other members of the warrant task force proceeded to the defendant’s address. The officers were dressed in plainclothes and had their badges displayed.  Because of the information available to Kenny at the time — the defendant’s identification being fresh, the violent nature of the home invasion, the defendant’s role in it, his possession of a firearm, the involvement of two accomplices, and the possibility that they might flee — he believed that immediate action was required. 

Upon arriving at the defendant’s address, Kenny and two officers approached the front door, while two other officers went to the side of the house to secure a perimeter.  Kenny understood that the officers’ presence might prompt the defendant to flee or destroy evidence. Kenny’s plan was to knock on the door to determine if the defendant was home, question him, and, if the opportunity arose, arrest him. As Kenny ascended the front porch steps, the defendant saw the officers through the glass front door. The defendant turned around and ran toward the back of the house. One of the officers who was setting up a perimeter observed the defendant climbing through a window in the back of the house. The officer shouted at the defendant to show his hands. Instead, the defendant retreated into the house, out of the officer’s view. Because of the volatile situation and the nature of the crimes involved, the officers forced their way through the front door. As they entered, they noticed the defendant coming toward them from the back of the home. The officers ordered the defendant to the ground and handcuffed him in the hallway.

After the defendant had been restrained, the officers conducted a protective sweep of the house and secured the premises. During the protective sweep, Kenny made a plain view observation of some jewelry on top of a refrigerator in the defendant’s room that matched the description of the jewelry taken during the home invasion. 

After the dwelling had been secured, Kenny prepared an application for a search warrant. In his affidavit, Kenny relayed the victim’s account of the violent home invasion, the victim’s identification of the defendant, and that the defendant was brandishing a silver handgun. He also included the plain view observations of the suspected stolen property he had seen during the protective sweep. A clerk-magistrate of the Lynn Division of the District Court Department approved the search warrant.

During the execution of the search warrant, the officers seized items of evidentiary significance, including jewelry, a wallet, an electrical stun gun, and various identification cards bearing the defendant’s name. Also discovered were articles of clothing that matched the description given by the victim of the clothes worn by the home invaders. Following the search warrant execution, the victim confirmed that the sweatshirt and the pants were consistent with the clothing worn by the defendant during the home invasion.

The SJC interpreted art. 14 to provide greater protection than the Fourth Amendment where the police have relied on a reasonably foreseeable exigency to justify the warrantless entry into a dwelling. Therefore, the Court in Alexis concluded that the judge did not err in allowing the defendant’s motion to suppress evidence that was found in plain view during a protective sweep because the officers’ entry into his home was not justified based on exigent circumstances. 

Historically, the Massachusetts Constitution has carefully protected the home from the intrusion by the government without a warrant, with certain delineated exceptions. See Commonwealth v. Tyree,455 Mass. 676, 684 (2010); Molina, 439 Mass. at 211. The existence of exigent circumstances that make it impracticable to obtain a warrant is one such exception. Commonwealth v. Figueroa,468 Mass. 204, 213 (2014). 

The court rejected the Commonwealth’s argument that the warrantless arrest of the defendant in his home was justified because the defendant’s reaction to the lawful police presence outside his home created exigent circumstances. In other words, if the conduct of the police before their entry into the apartment was entirely lawful, the exigent circumstances exception applies. The defendant argued that the exigent circumstances exception to the warrant requirement is inapplicable because the police created the exigency themselves by not procuring a warrant before going to the defendant’s residence. The defendant argued that the warrantless entry into his home violated his rights under art. 14, notwithstanding the fact that police officers may lawfully knock on a door and make inquiries.

“Information establishing that a person is guilty of a crime does not necessarily constitute probable cause to search the person’s residence.” Commonwealth v. Cinelli,389 Mass. 197, 213, cert. denied, 464 U.S. 860 (1983). There must be probable cause to conclude not only that an individual committed a crime, but also that there is a nexus between the crime and the items sought, and the location to be searched. The nexus to search a residence for evidence of a crime “may be found in the type of crime, the nature of the . . . items [sought], the extent of the suspect’s opportunity for concealment, and normal inferences as to where a criminal would be likely to hide [items of the sort sought]” (quotation and citation omitted). Id. See Perkins, 478 Mass. at 104.

Some cases involving the search of a dwelling have used an articulation of the nexus standard that has sometimes been interpreted as being more stringent, particularly in cases involving searches of residences for drugs. See, e.g., Perkins, 478 Mass. at 104; Commonwealth v. Colondres, 471 Mass. 192, 201, cert. denied, 136 S. Ct. 347 (2015); Commonwealth v. Tapia, 463 Mass. 721, 725-726 (2012); Commonwealth v. Escalera, 462 Mass. 636, 644-646 (2012); Commonwealth v. Pina, 453 Mass. 438, 440-441 (2009). In one of those cases we stated: “The affidavit need not convince the magistrate beyond a reasonable doubt, but must provide a substantial basis for concluding that [drugs or instrumentalities of the drug trade] will be found on the specified premises.” Pina, supra, quoting Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). A “substantial basis” means no more and no less than that “[a]n affidavit must contain enough information for an issuing magistrate to determine that the items sought are related to the criminal activity under investigation and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues.” Cinelli, 389 Mass. at 213. “In determining whether an affidavit justifies a finding of probable cause, the affidavit is considered as a whole and in a commonsense and realistic fashion” (citation omitted). Commonwealth v. Robertson, 480 Mass. 383, 386 (2018).

The affidavit in support of the search warrant stated that the defendant was identified by the victim, was seen brandishing a silver handgun, and struck Garcia and his baby during the home invasion with the gun. The affidavit also stated that Kenny observed jewelry fitting the description of stolen jewelry during the protective sweep. The search warrant was approved by a clerk-magistrate, and the police seized significant evidence, including articles of clothing that matched the victim’s description of the clothes worn by the home invaders.

Here, probable cause to issue the search warrant remained even without considering Kenny’s plain view observation of jewelry matching the description of the stolen jewelry. The defendant used a handgun to strike the victim and his child during the commission of the home invasion.  It is reasonable to expect that the handgun specified in the warrant was an item that could reasonably be located in the home of a person who had participated in an armed home invasion the previous day. Cinelli, 389 Mass. at 212-213. See Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 105 (2007) (“The connection between the items to be seized and the place to be searched does not have to be based on direct observations; it may be found by looking at the type of crime, nature of the items, the suspect’s opportunity to conceal items, and inferences as to where the items are likely to be hidden”). In Commonwealth v. James, 424 Mass. 770, 778 (1997), we held that the defendants had no reason to dispose of the instrumentalities used in a murder — knives, sneakers, and a face mask — because the defendants were unaware that they were suspects and “all of the items [were] durable, of continuing utility to the defendants, and it was reasonable to expect that they would be kept at home, particularly as they are not inherently incriminating to possess.” We noted, however, that a defendant who has fired a handgun in the commission of a murder “would not keep at home an incriminating handgun which could be readily identified as the murder weapon through ballistics tests.” Id. at 778 n.15. The defendant here did not fire his firearm but used it to strike Garcia and his baby. That a person would keep a handgun that was not vulnerable to ballistic testing in his or her home is not a remarkable proposition. See United States v. Cowling, 648 F.3d 690, 696 (8th Cir. 2011), cert. denied, 566 U.S. 940 (2012) (“people generally keep [firearms] at home or on their persons” [quotation and citation omitted]; United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993) (firearms are “the type[] of evidence likely to be kept in a suspect’s residence”). The fact that the handgun was ultimately not discovered is of no consequence. Had the argument been preserved, it is likely that the evidence seized as a result of the search would not have been suppressed.