COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. CENTRAL DIVISION BOSTON MUNICIPAL COURT
NO. 0301CR3016, 5036, 5037, 5038, 5039, 5040

COMMONWEALTH

v.

HEIDI K. ERICKSON

DEFENDANT’S MOTION FOR RECONSIDERATION OF THE COURT’S DECISION ON THE DEFENDANT’S MOTION TO SUPPRESS EVIDENCE OBTAINED FROM WARRANTLESS SEARCH

 

            Now comes the Defendant and respectfully requests that this Honorable Court reconsider its decision denying, in part, the Defendant’s Motion to Suppress Evidence of Warrantless Search of a Dwelling because the facts do not support the Court’s determination that an emergency or life-threatening situation existed at the time of the illegal entry of the dwelling and because the case law does not support it.  Even if assuming arguendo that the initial entry was justified all subsequent entries by over a dozen agents of the Commonwealth over a nine-hour period, cannot be justified under any emergency doctrine.  The Defendant respectfully requests that this Honorable Court suppress the following evidence:

1.   The Great Dane and all medical reports and photographs related thereto.

2.   All live cats and all medical reports and photographs related thereto.

3.   All additional photographs taken on the premises.

4.   All observations made inside the premises by any individuals on and after the date of the incident, such date being April 27, 2003.

 

This Honorable Court has already suppressed all evidence seized from opening of the cupboards, refrigerators, freezers and any other closed containers or places within the apartment and any photographs thereof.

FACTS

            On April 26, 2003 at approximately 5:20 p.m., Boston Police Officer Ray Doyle, a 17 year veteran, responded to a citizen call for a dog barking in the back of the building at 103 Charles Street, Boston, Massachusetts.  Motion to Suppress Hearing Transcript, attached, at 9, line 8-9.  Officer Doyle went to 103 Charles Street and spoke to the caller.  The officer then proceeded to the back of 103 Charles Street and made an investigation.  He looked through a window, which was partially open, and saw a Great Dane dog sitting against the wall.  Tr. at 14, ln. 11.  He smelled what he thought was “a dead carcass or feces” Tr. at 11, ln. 1.  The apartment was in disarray.  Officer Doyle banged on the door of the apartment and no one answered.

            The officer testified at the Motion to Suppress hearing that he was faced with a “sudden” – a situation where the dweller may have suddenly passed away inside the premises.  Tr. at 14, ln. 18.   He testified that he had faced a sudden situation a number of times in his career.  Tr. at 15, ln. 6.  The officer then notified the Boston Police operations.  Tr. at 17, ln. 3.  The Boston Fire Department was also notified because the grate on the window needed to be removed before making a forced entry.  Tr. at 17, lns. 8-12.  No one called a magistrate or duty judge to request a warrant to enter the premises during the time immediately prior to or immediately after the time it took the personnel from the fire department to arrive on the scene and removed the grate.  In fact, at no time during the nine-hour search of the Defendant’s apartment did anyone called to secure a search warrant.

            With the assistance of the fire personnel, the grate on the window was removed and Officer Doyle and unknown number of fire personnel entered the living room through the window.  Officer Doyle approached the dog and stretched his hand to the dog to befriend him.  Tr. at 22, lns. 7-10  With the assistance of one fire personnel removed the Great Dane through the front door and to the officer’s cruiser.  Tr. at 24, lns. 1-2.  Once he removed the dog, he made his way to the rest of the apartment, Tr. at 25, lns. 6-7, to look for the owner, Tr. at 25, ln. 21.  That is, Officer Doyle entered the kitchen for the first time after he took care of the dog.  Tr. at 26, ln. 2.  Officer Doyle did not testify he ever entered the bedroom or the bathroom.

            Subsequently, a number of officers of theAnimal Control Unit and inspectors of the Boston Inspectional Services arrived on the scene at the request of the police and conducted a thorough investigation of the scene without a warrant.

ARGUMENT

1.   The Boston Police Officer Ray Dolye’s testimony that the initial entry was made based on his determination that a “sudden” situation was at hand is belied by the fact that he only searched the front room and the kitchen and not the bedroom or the bathroom or any other room.  Without such “Monday quarterback” justification, Officer Doyle’s entry cannot be justified under Massachusetts law.

 

            Officer Doyle’s testimony that the entry was made due to a “sudden” is not credible.  Officer Doyle testified that he believed there may have been a dead person within the apartment.  Yet, prior to conducting a sweep of the premise for a dead body he took the time to befriend the Great Dane by placing his hand in front of it, carried it from the apartment, placed it in his cruiser, fed it dog biscuits and provided water before reentering the apartment to search the rest of the apartment.  Once he reentered he went into the kitchen where he observed five to seven live cats.  He never entered the bedroom or the bathroom.  That is, even though he was looking for a dead body, he never searched more than half of the apartment.  It is incredible that a 17-year veteran of the Boston Police Department would so tenderly care for a dog and yet ignore the dead body he believed was present within the apartment.  It is noteworthy that the police incident report filed by Officer Doyle, which was attached to the Defendant’s Memorandum of Law,  does not mention this “sudden” situation at all.  Further, he does not mention in his report that he smelled a carcass or anything to indicate that the occupant of the apartment was missing, gotten ill or died.  Significantly, none of the witnesses who testified at the hearing mentioned it either.  It is also significant that no ambulance was called to the scene, even though Officer Doyle testified that he thought a dead body or a seriously injured person might have been inside the premise.

            As previously set forth in the Defendant’s Memorandum of Law in Support of Motion to Suppress and the Supplemental Memorandum of Law, and as exhaustively argued by prior counsel, Ilse Nehring, at the motion hearing, no Massachusetts case justifies emergency, warrantless entry into a dwelling to save a dog.  Commonwealth v. Hurd, 51 Mass. App. Ct. 12 (2001).  The Commonwealth’s justification for the warrantless search and seizure entirely depends on the “sudden” justification.  As the Officer Doyle’s testimony that he was investigating a possible sudden is not credible, the entry of the dwelling without a warrant cannot be justified under the Fourth Amendment and Article XIV and all evidence searched and seized from within the apartment, including all evidence gathered as a result thereof, must be suppressed.

2.      Assuming arguendo that Boston Police Officer Ray Doyle’s initial entry was justified by the emergency exception to the warrant requirement of the Fourth Amendment and Arcitle XIV, no such emergency doctrine justified the second, third and fourth entry by Officer Doyle and other police officers as such entries exceeded the scope of the initial determination of emergency nature.

 

            Assuming arguendo that the initial entry by Officer Doyle was justified, his second, third and fourth and any other subsequent entries by him and other members of the Boston Police Department cannot be justified under the “sudden” theory.  Pursuant to the initial entry, Officer Doyle had more than adequate opportunity to conduct a sweep of the entire apartment and assess that no dead body or a severely injured individual requiring the assistance of the police was present at the scene.  In a murder case, “the police ‘may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises.’”  Commonwealth v. Lewsin, 407 Mass. 617, 621-622 (1990)(quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978).  The incident in question here did not involve as a heinous crime as a murder of a police officer, only a possible dead body as a result of natural or accidental death.[1]  Yet, Officer Doyle, along with fire personnel and other police officers, reentered numerous times to gather evidence.  “Any warrantless activity is ‘strictly circumscribed by the exigencies which justify its initiation.’”  Lewin, 407 Mass. at 622 (again, quoting Mincey, 437 U.S. at 393).  As Lewin held, the scope and duration of the search and seizure must be justified.

            In Lewin, at approximately 8:00 p.m the police attempted to enter an apartment pursuant to a no-knock warrant, which was later held invalid.  While attempting to break down the door with a sledgehammer, a shot was fired through the door and a police officer was shot and killed.  Shortly after the shooting, the officers entered the apartment and swept through the apartment.  No one was found within the apartment.  Within few minutes shouts from another apartment drew the attention of the police and several of the officers hurried to the second apartment.  From 8:30 p.m. and several hours thereafter, officers from homicide and drug control units conducted a thorough investigation of the first apartment.  The apartment was video taped and photographed and several items were seized, including several fingerprints, which were brought to the identification unit later the same day.  Other police officers removed the door through which the fatal bullet had been fired.  Lewin, 407 Mass. at 618-620.

            Following Mincey v. Arizona, Lewin court refused to “expand the scope of a protective search into a general murder scene exception which authorizes police to conduct a general investigatory search of a murder scene as thoroughly as if they had obtained a warrant.”  Id, at 622.  “There was no indication that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant….  And there is no suggestion that a search warrant could not easily and conveniently have been obtained.”  Id. at 623 (quoting Mincey, 437 U.S. at 394).  In reversing the trial judge’s decision denying the motion to suppress, Lewin court stated that “Although the judge characterized the over-all situation as a ‘crime scene investigation,’ it was in fact and law a general search, conducted after the exigency generated by the need for a prompt protective search had ended….”  Id. at 626.  The Court concluded by suppressing all items seized from the first apartment, including videotape and photographs of the apartment and lifts of the fingerprint, because these items were “obtained while the police had no lawful right to be on the premises.”  Id.

            Officer Doyle, and his supervisors at operations (or any other persons for that matter), never sought a warrant to enter and search Ms. Erickson’s apartment.  There is no suggestion that a search warrant could not easily and conveniently have been obtained.  As police officers and other state agents were present throughout the nine-hour period, there was no indication that evidence would be lost, destroyed, or removed during the time required to obtain a warrant.  Without a warrant, Officer Doyle and others who followed in his footsteps expanded the scope of an emergency search for a possible dead body into a general investigatory search as thoroughly as if they had obtained a warrant.  Once Officer Doyle made a sweep of the apartment and found no dead body, his initial justification no longer existed.  A plain view exception is not applicable under these circumstances.  “We reject the Commonwealth’s argument that the investigative units could seize items in plain view after the exigency ended because these seizures did not involve an additional search.  As a preliminary matter, these seizures did involve an additional search.”  Id. at 626, fn. 4.

3.      Entry by the Animal Control Officials Craig Pacitta and Patrick Conroy and Boston Inspectional Services inspectors cannot be justified by the emergency exception as the dwelling had already been secured by the Boston Police and the Boston Fire Department.

 

            Once Officer Doyle had investigated the emergency by conducting a sweep through the apartment, the exigent circumstance that justified his initial entry no longer existed.  A warrant was required to make further search and any seizure.  There was no independent basis for the entry by the Animal Control Officers or the Boston Inspectional Services and all evidence, including any observations personally made by any of these officers, any items seized by these officers and any photographs taken, whether on or off the premise, by these and other officers cannot be justified under the Fourth Amendment and Article XIV.  Therefore, all such evidence must be suppressed.     

CONCLUSION

            The justification for emergency nature of the entry put forth for the first time at the motions hearing by Officer Doyle is not credible.  Even if assuming arguendo that such initial entry was justified, the Commonwealth has the burden of showing that each of the subsequent warrantless entries, searches and seizures by over a dozen state officials over a nine hour period was justified.  Once Officer Doyle determined that there was no dead body or a seriously injured person within the dwelling, the initial justification of the warrantless entry no longer existed and his mere presence in the Defendant’s apartment violated the Defendant’s right to privacy guaranteed by the Fourth Amendment and Arcitle XIV.  All evidence seized from the Defendant’s apartment must be suppressed.

                                                                                                Heidi K. Erickson

By her attorney,

 


David Loh
BBO #639837
8 Faneuil Hall Marketplace

Boston, MA 02109

(617) 818-8543

Fax (617) 325-1715

Dated:  May 3, 2004

 

Certificate of Service

 

I, David Loh, attorney for defendant Heidi K. Erickson in the above-referenced action, certify that a copy of the above document was served upon the Commonwealth on May 3, 2004 by first class mail to Suffolk County District Attorney’s Office, One Bulfinch Place, 3rd Floor, Boston, MA 02114-2997, Attention:  ADA Amy McNamee.

 

            ___________________________

            David Loh, Esq.

 

 


[1] As noted above, only Officer Doyle, out of the more than a dozen state agents who entered the premise, believed it to be the case.  Even Officer Doyle’s belief is in doubt.