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COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT
CRIMINAL ACTION
No. 2006-387



COMMONWEALTH
vs.
NEIL ENTWISTLE


MEMORANDUM OF DECISION AND ORDER
ON DEFENDANT’S MOTION TO SUPPRESS EVIDENCE


INTRODUCTION

The defendant, Neil Entwistle, is charged with first degree murder in the deaths of Rachel Entwistle and Lillian Entwistle. He has moved to suppress evidence seized as a result of warrantless searches of his residence at 6 Cubs Path, Hopkinton, on January 21 and January 22. 2006. and all evidence derived therefrom. An evidentiary hearing was held on April 23, 2007, at which the following Hopkington police officers testified: Sergeants Charles Wallace and Michael Sutton, Detective Scott vanRaalten and Officer Gregg DeBoer. For the following reasons, the defendant’s motion to suppress is denied.


FINDINGS OF FACT


On Saturday, January 21, 2006, Sergeant Charles Wallace (“Wallace”) of the Hopkinton Police Department was the patrol supervisor between 8:00 p.m. and midnight. At about 8:25 p.m., he received a telephone call from Priscilla Matterazzo (“Matterazzo”). The call was recorded.

Matterazzo told Wallace that her daughter and son-in-law, Rachel and Neil Entwistle, and their nine-month old baby had moved to 6 Cubs Path in Hopkinton the previous week. Matterazzo said that she was concerned about them. She explained that she had last spoken with Rachel Entwistle on Thursday when she had arranged to have lunch with Rachel at 6 Cubs Path on Saturday. She had gone to the house as arranged earlier that day [Saturday]. When no one answered the door, Matterazzo left a note on the front door and went home. She said that she had been unable to reach Rachel by cell phone. She then said that she had just received a call from Rachel’s friend Joanna [Gately],who had plans to have dinner at the Entwistles on Saturday night, along with her [Joanna’s] sister. When the Gatelys arrived at 6 Cubs Path, no-one answered the door, but the dog was barking. Matterazzo said that, according to the Gatelys, the blinds were drawn, and Joanna had seen a light in the hallway through a basement slider. She stated that the Gatelys were waiting in the driveway. Matterazzo said It was “really unusual for [Rachel Entwistle] to do this.” In response to Wallace’s questions, she said that the Entwistles bad a BMW R3, registered to Rachel.

Wallace inquired as to whether the Entwistles might have gone away unexpectedly and Matterazzo said; “She’s the type of girl that calls me whenever she does anything.” Wallace told Matterazzo that he would send officers to check the house and would report their findings. He dispatched Sergeant Michael Sutton (“Sutton”) and officer Aaron O’Neill (“O’Neill”) “on a person check.”

When Sutton arrived at 6 Cubs Path, Joanna Gately and her sister, Maureen Gately, were in the driveway. Joanna Gately told Sutton that she and her sister had planned to have dinner at the Entwistles. They were scheduled to be there at 5:00 p.m, but had not arrived until about 7:15 p.m. Although Joanna Gately made calls to Rachel Entwistle’s cell phone between 5:00 and 7:00 p.m. to explain that they would be late and left messages on her voice mail, she received no response. She said that when she and her sister arrived at 6 Cubs Path, no one answered the door, although there were lights on. and they could hear the dog barking. After seeing the note that Priscilla Matterazzo had left on the front door, Gately had called Matterazzo. Joanna Gately was very anxious. She told Sutton that the dog was very “pampered,” and the Entwistles would not have gone away without making arrangements for the dog.

Sutton saw that the shades were drawn, but there were lights on in the house. The Gatelys said that the Entwistles drove a white BMW SUV. Sutton attempted to look into the garage, which is under the house, but the garage has no windows and Sutton was therefore unable to determine whether the car was in the garage. Sutton walked around the exterior of the house which was closed up. There were lights on in various rooms and he could hear the dog barking and a television.

Sutton decided to enter the house to check on the occupants. He believed that they might be in the house in need of aid. He returned to the front door and spoke with Officer Aaron O’Neill, who had arrived in the meantime. Sutton used a plastic credit card to release the lock in the door handle.1 He and O’Neill entered the house because they were worried that something had happened to the Entwistles, for example, that they had been overcome by carbon monoxide.2 The Gatelys remained outside. The officers entered the foyer. The living room was on the right and the dining room on the left with the kitchen straight ahead. The officers went into the kitchen and Sutton asked O’Neill to go through the basement to the garage to determine whether the Entwistles' car was in the garage. Sutton looked into the family room. The dog was in a crate and the television was on.

Sutton then went upstairs. There were four bedrooms and two bathrooms. Sutton looked into each of the rooms except the bathroom off the master bedroom, but did not walk through the rooms or look in the closets. There was a radio on in the baby’s room. Sutton looked in the main bathroom and saw water and toys in the bathtub. The door to the master bedroom was open and Sutton took one or two steps into the room. He saw a large bed across the room with a comforter heaped on top. He did not enter the bathroom off the master bedroom. The remaining two bedrooms were unoccupied.

Sutton returned to the first floor. O’Neill reported that there was no car in the garage. While in the kitchen, Sutton saw an open bill from BMW addressed to Rachel Entwistle. Sutton looked at the bill to obtain the VIN number for the vehicle. O’Neill picked up a digital camera that was in the kitchen. He turned it on to determine when it had last been used and learned that the most recent pictures had been taken on Thursday.

The officers returned to the front door and spoke with the Gatelys. They permitted Joanna Gately to let the dog out, return it to the crate and leave a note on the kitchen table. Joanna Gately told Sutton that she intended to wait at the house. Sutton did not permit her to stay in the house.

Sutton provided the VIN number to Wallace who obtained the plate number for the vehicle which was leased. Sutton ran the plate number and determined that there had been no recent law enforcement queries. He locked the front door. Joanna Gately then called Priscilla Matterazzo and Sutton spoke with her. He explained to Matterazo what steps they had taken and could take to locate the Eritwistles, e.g. an inquiry to determine whether there had been any queries by other police departments about the vehicle. Matterazzo was upset and concerned and asked about calling hospitals. Sutton obtained the telephone numbers of hospitals in Framingham and Marlborough and called them with no results. At approximately 9:23 p.m., Wallace put out a general broadcast asking any agency having contact with the Entwistles or their vehicle to notify the Hopkinton Police Department.

The following day, January 22, at about 5:10 p.m., the Gatelys and Mr. and Mrs. Matterazzo went to the Hopkinton Police Station. They had not heard from the Entwistles and were very worried and upset. Joanna Gately had the Entwistles’ dog with her. She explained that she and her sister had stayed in their car in the Entwistles' driveway through the night. In the morning, they had obtained the code to open the garage door from a neighbor and had entered the house to get the dog.3

Sutton brought the Matterazzos and Gatelys into a conference room. He asked Officer Gregg DeBoer (“DeBoer”) to take a missing persons report. He also introduced the Matterazzos and Gatelys to Det. Scott vanRaalten.4 Efforts were made to determine whether the Entwistles’ vehicle could be located through tracking devices, e.g. through Lo Jack and OnStar, but were unsuccessful. VanRaalten called BMW to determine whether the 2004 model BMW had a GPS system which could be used to track the vehicle. He determined that it did not. He again ran a registry query to determine whether there had been any law enforcement queries about the vehicle. There were none except a query made by a police department that had received Hopkinton’s earlier broadcast.

Meanwhile Sutton and O'Neill went to Cubs Path to canvass the neighborhood. They were able to speak with occupants of four of the seven houses in Cubs Path. All said that they knew that someone had moved into No. 6, but had not met the Entwistles. None had seen anything out of the ordinary.

The officers were about to leave, but Sutton and vanRaalten, who had arrived at the house, discussed the situation and, in particular, the high level of concern of the Matterazzos and Gatelys and the fact that their continuing efforts to locate the Entwistles vehicle had reached an impasse. Sutton and vanRaalten then decided to enter the house through the garage door to review the paperwork on the kitchen counter in an effort to find information about the whereabouts of the Entwistles. They also intended to attempt to ascertain whether clothes and equipment needed to care for the baby appeared to be missing, indicating a planned absence. They obtained the code to open the garage door from the Gatelys and entered through the garage door.

As the officers went from the basement to the kitchen, Sutton noticed an unpleasant odor that had not been there the day before. The odor was stronger on the first floor. Sutton thought that the source of the odor might be dirty diapers. The first floor was just as it had been the day before, apart from the fact that the dog was not in the crate in the family room. The officers followed the odor which became stronger as they went upstairs. The second floor also appeared unchanged from the day before. The odor seemed to be emanating from the master bedroom. The officers entered the room which, apart from the odor, was unchanged from the day before. VanRaalten looked in the master bathroom and in the closet. Sutton went to the left side of the bed. When he saw a watch and eyeglasses on the floor next to the far side of the bed, he lifted a corner of the comforter and saw an adult female foot. He called to vanRaalten, lifted the comforter again and after showing vanRaalten the foot, released the comforter to its original position. The officers then lifted the opposite corner of the comforter and saw a baby’ s face and an adult woman lying behind the baby. Both were obviously dead. The officers returned to the foyer and called the police station and reported that they had found the bodies of Rachel Entwistle and the baby. The Matterazzos and Gatelys were still with DeBoer filling out the missing person reports. Sutton and vanRaalten then discussed the fact that Neil Entwistle was still missing and looked through the house to be sure that Neil Entwistle’s body was not in the house. After doing so, they secured the house until a search warrant was obtained.

DISCUSSION

The defendant argues that the warrantless searches of 6 Cubs Path were unlawful and that evidence obtained as a result of the searches must be suppressed under the Fourth Amendment and art. XIV of the Massachusetts Declaration of Rights. The Commonwealth argues that the searches fall within the community caretaker exception to the warrant requirement and, in the alternative, that the discovery of the bodies was inevitable and/or that Neil Entwistle abandoned the house at 6 Cubs Path.

A government search or seizure on private premises without a warrant is presumptively unreasonable under the Fourth Amendment5 “The right of a police officer to enter into a home, for whatever purpose, represents a serious governmental intrusion into one’s privacy.” Commonwealth v. Forde, 367 Mass. 798, 805 (1975); see Commonwealth v. Kiser, 48 Mass App. Ct. 647, 648 (2000) (“The decisional law generally forbids police entry into a residence without a warrant”). Unless the entry falls within an exception to the warrant requirement, it violates the Fourth Amendment to the United States Constitution. Commonwealth v. Bates, 28 Mass. App. Ct. 217,219 (1990); see Commonwealth V. DiGeronimo, 38 Mass. App. Ct. 714,721 n.8 (1995) (noting that the “validity of warrantless entries ... is typically evaluated ... by Fourth Amendment standards” because warrantless entry that violates Fourth Amendment “will certainly violate the presumptively more stringent requirements of art. XIV” of the Massachusetts Declaration of Rights).

Because the touchstone ofthe Fourth Amendment is reasonableness, the warrant requirement is subject to a number of carefully delineated exceptions. Brigham City, Utah v. Stuart, 126 S. Ct. 1943, 1947 (2006); Payton v. New York, 445 U.S. 573, 586 (1980). Those exceptions include doctrines referred to as the “community caretaking exception’ and the “emergency aid doctrine.”6 The first Supreme Court case to discuss the community caretaking exception to the warrant requirement was Cadv v. Dombrowski, 413 U.S. 433 (1973).7 In Cady, the Court described the search of a vehicle based on “concern for the safety of the general public who might be endangered” if an intruder found and removed a revolver from the trunk of the vehicle as a “caretaking” search. Id. at 447-448. The emergency aid doctrine is first discussed in Mincey v. Arizona. 437 U.S. 385, 392 (1978) , where the Court stated: “The Fourth Amendment 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. The need to preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” Id. at 392-393.

Because Cady involved the search of a vehicle that had been involved in an accident and the Supreme Court referenced the community caretaking functions of the police in that context, it has been argued that the doctrine is confined to vehicles and is distinct from the emergency aid exception applied in connection with entries into dwellings.9 But individuals can require emergency aid in vehicles, as well as in dwellings, and emergency aid is clearly one of the community care functions performed by the police. A more logical approach treats the community caretaking exception as broader than and encompassing the emergency aid doctrine and applies a test of reasonableness, with the degree of intrusion as a an important factor in determining the reasonableness of the officers actions. See Decker, Emergency Circumstances, Police Responses, and Fourth Amendment Restrictions, 89 J. Crim. Law & Criminology, 433, 441-445 (1999) (hereinafter cited as Decker).10

Regardless whether police conduct is analyzed under doctrines labeled community caretaking or emergency aid, the exception to the warrant requirement is based on a recognition that police officers in our society “have complex and multiple tasks to perform in addition to identifying and apprehending persons committing serious criminal offenses.” 3 LaFave, Search & Seizure § 6.6 at 451 (4 ed. 2004), quoting ABA Standards of Criminal Justice, § 1-1.1 (2d ed. 1980). Those functions include performing “well-being checks” and assisting family members who are attempting to locate missing persons. “The need to investigate a missing person’s report does not flow from concern about criminal wrongdoing or involve the search for evidence of a crime, and the police conduct must be evaluated in that context.” State v. DiLoreto. 362 N.J. Super. 600, 620 (App. Div. 2003), citing People v. Bondi, 130 Ill: App 3d 536, 540 (1984), cert. den. sub nom, Bondi v. Illinois.
474 U.S. 836 (1985). The defining characteristic of permissible conduct under the community care doctrine is that the conduct is “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady, 413 U.S. at 441.

The burden of proof is on the Commonwealth to show that the warrantless entry falls within the exception and that there were reasonable grounds for the ... police to believe (an objective standard) that an emergency existed.” Commonwealth v. Snell, supra,428 Mass, at 774-775, quoting from Commonwealth v. Bates, 28 Mass. App. Ct at 219-220. “To meet this burden, the Commonwealth must show that (1) ‘the authorities had reasonable ground to believe that an [emergency] existed,' and (2) their actions were reasonable under the circumstances.” Commonwealth v. McDermott. 448 Mass. 750, 766 (2007), quoting Commonwealth v. Morrison, 429 Mass. 511, 515 (1999),11 “An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer's a state of mind’ as long as the circumstances, viewed objectively, justify [the] action.... The officer’s subjective motivation is irrelevant.” Brigham City, Utah v. Stuart, supra, 126 S. Ct. at 1948 (emphasis and alteration in original) (internal citation omitted).12 “[T]he determination of what is constitutionally sufficient to justify a search has been held to be ‘less stringent’ where the police are looking for missing persons rather than engaging in a criminal search for evidence.” Commonwealth v. Bates, 28 Mass. App. Ct. 217,220-221(1990).13 “Reasonableness must be 'evaluated in relation to the scene as it could appear to the officers at the time, not as it may seem to a scholar after the event with the benefit of leisured retrospective analysis.’” McDermott, 448 Mass. at 766 (quoting Commonwealth v. Young, 382 Mass. 448,456 (1981)). The purpose of a warrantless entry made pursuant to this 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.’” Commonwealth v. SneIl, 428 Mass. at 774, quoting Bates. 28 Mass. App. Ct. at 219. In brief, the test whether an emergency existed that warranted the intrusion in question is whether the totality of circumstances known to the officer at the time of the search would warrant a reasonable police officer in believing that the entry in question was necessary to protect persons or property.

The first entry into 6 Cubs Path by the Hopkinton police on January 21, 2006, falls comfortably within Massachusetts case law applying the emergency aid doctrine although no case involving similar facts has been presented to an appellate court for decision.14 The police were checking on the well-being of a husband, wife and infant at the request of family members and friends. The report was credible and the reporters’ fears that some harm had come to the Entwistles were supported by concrete facts. The police had been assured by her mother that Rachel Entwistle kept her parents apprised of her plans on a daily basis, yet her parents had not heard from her since Thursday and had been unable to reach her. Rachel Entwistle had invited her mother to visit Saturday afternoon and the Gatelys for dinner Saturday night. She had not called either her mother or Joanna Gately to cancel their plans. That failing to do so was uncharacteristic of her was shown by her mother’s statements to that effect and the degree of concern expressed by the Gatelys when the police first arrived at 6 Cubs Path. The dog, described as ‘pampered,” had been left in the house and lights and a television were on, but there was no response to the doorbell or knocking. The garage had no windows and the police were unable to determine whether the car was in the garage without entering the home.

On January 21, the officers did not have reasonable grounds to believe that a crime had been committed, but they did have reasonable grounds to believe that the Entwistles might be inside the house in need of assistance. The officers limited the scope of their search of the house to that necessary to determine whether an individual inside the house required assistance and to obtain information to locate the vehicle.15 Based on the totality of the circumstances, I find that the police had reasonable grounds to believe that an emergency existed and that the Entwistles might be inside the home needing assistance. The entry was therefore lawful.

In contrast to the first entry, the officers did not believe that anyone was in the house at the time of the second entry. The purpose of the second entry was to assist the Entwistles and their family members by seeking information as to the whereabouts of the two adults and their nine-month old child who had suddenly disappeared from their home. Based on the condition of the house as observed from outside and inside at the time of the first entry and the fact that no provision had been made for the dog, the officers had reasonable grounds to believe that the Entwistles had left the house suddenly as early as Thursday and had not planned to be away overnight. The Entwistles nine-month old child was also missing. It is less likely that adults with an infant child will change plans on the spur of the moment. The police had exhausted efforts to locate the Entwistles’ vehicle and had canvassed the neighborhood and local hospitals. The circumstances were even more alarming than they had been on Saturday given that another day had passed and the Matterazzos had not heard from Rachel Entwistle. As in People v. Mitchell, supra, the officers had reason to believe that “some grave misfortune” had befallen the Entwistles. They were searching for evidence as to their whereabouts in the only logical place in which such evidence might be found for the purpose of locating and providing assistance to them. Like the first entry, the second entry was “totally divorced from the detection, investigation or acquisition of evidence relating to the violation of a criminal statute. See Cady, supra, 413 U.S. at 441. Again, based on the totality of the circumstances and, in particular, the extraordinary nature of the Entwistles’ disappearance and the lack of any reasonable explanation for Rachel Entwistle’s failure to contact the Matterazzos, the officers had reasonable grounds to believe that an emergency existed, that the Entwistles were in need of assistance and that evidence shedding light on their whereabouts might be found in the house. They were therefore justified in entering the house to search for such evidence. When they detected an odor, they were. justified in investigating its source.

In ruling on motions, like this one, the Court must reconcile the liberty of citizens to be free from unreasonable searches and seizures and the duty of police officers to provide assistance to citizens. An alleged conflict between the two cannot be reconciled “by the pronouncement of general principles of reconciliation, but rather by an evaluation of the facts of the particular situation and an application of these principles to those facts.” People v. Ray, 21 Cal. 4th 464, 88 Cal. Rptr.2d 1,981 P.2d 928,939 (1999). Indeed, given the number and diversity of circumstances that give rise to the exercise of the community caretaking function, courts have recognized that a bright line test has public policy implications in that it could chill the exercise by police of the community caretaking function.16 In the present case, before finding the bodies, the officers never stepped out of their community caretaking role. In these circumstances, I find that the entries into the Entwistles’ home17 were reasonable and did not violate either the Fourth Amendment prohibition against unreasonable searches and seizures or art. 14 of the Declaration of Rights.



II. Inevitable Discovery

Assuming that an appellate court were to hold that the circumstances surrounding the entries into the Entwistles’ home did not satisfy the requirements of the emergency aid doctrine as recognized in Massachusetts, the evidence would be admissible on the independent grounds of inevitable discovery.18 See Commonwealth v. Perrot, 407 Mass. 539, 546-548 (1990); Commonwealth v. O’Connor, 406 Mass. 112, 116-118 (1989); Commonwealth v. Benoit, 382 Mass. 210, 217-219 (1981); Commonwealth v. McAfee, 63 Mass. App. Ct. 467, 478-480 (2005). The application of the inevitable discovery rule “requires a two-step analysis which focuses, first, on the question of inevitability, and, second, on the character of the police misconduct” Perrot, 407 Mass. at 546, citing O'Connor, 406 Mass. at 117. With respect to the first step, the Commonwealth must prove “the facts bearing on inevitability by a preponderance of the evidence.... Once the relevant facts are found by a preponderance of the evidence, the question is whether on those facts discovery by lawful means was certain as a practical matter.” O’Connor, 406 Mass. at 117.

The evidence adduced at the hearing on this motion established that, had the Hopkinton Police simply taken a missing persons report and sent the Matterazzos and Gatelys on their way, Joanna Gately, likely accompanied by the Matterazzos, would have returned to the home and discovered the bodies. I find that this sequence of events was certain as a practical matter. This finding is predicated on the facts that Joanna Gately was so concerned about the unexplained disappearance of the Entwistles that she had spent the night in her car in their driveway and accompanied the Matterazzos to the police station the following day. That she would not have hesitated to enter the home to search for evidence as to the Entwistles’ whereabouts is shown by the fact that she had asked to stay in the home after the police gained entry on Saturday, had obtained the code to enter the garage from a neighbor and had, in fact, entered the home to retrieve the dog on Sunday morning. Had she entered the home on Sunday evening, she would have noted the odor, investigated its source, discovered the bodies of Rachel and Lillian Entwistle and summonsed the police.

To come within the inevitable discovery doctrine, the Commonwealth must show that the police would inevitably have discovered the evidence by lawful means. See O’Connor, 406 Mass at 120 (“The inevitable discovery exception requires that the hypothetical process by which the evidence would inevitably have been discovered be a lawful one”). It may be argued that the doctrine does not apply because any entry by Joanna Gately, with or without the Matterazzos, would have constituted a trespass and would therefore have been unlawful. It is established, however, that evidence illegally obtained by a private party and turned over to the police does not violate the Fourth Amendment and is not subject to the exclusionary rule in the absence of evidence that the police instigated or participated in the illegality. See Commonwealth v. Robinson, 399 Mass. 209, 215 (1987), quoting Commonwealth v. Leone, 386 Mass. 329, 333 (1982) ( “Evidence discovered and seized by private parties is admissible without regard to the methods used unless State officials have instigated or participated in the search.”) See also Commonwealth v. Richmond, 379 Mass. 557, 561-562 (1980) (no State action where mother of child gave police letter addressed to her daughter by defendant, who was “prime suspect” in murder investigation).19

Based on the fact that Joanna Gately obtained the code and entered the house on Sunday morning without the knowledge of the police. I find that she would have entered again that evening to seek evidence of the whereabouts of the Entwistles without regard to any advice she may have received from the police.

With respect to the second step, “the severity of the constitutional violation is critical in deciding whether to admit evidence that it is shown would inevitably have been discovered.” O'Connor, 406 Mass. at 118.20 Even if a court were to find that the emergency aid doctrine did not justify either or both of the entries because there were insufficient grounds on which to believe an emergency existed, the conduct of the police did not rise to the level of egregiousness the Supreme Judicial Court contemplated in holding that the inevitable discovery rule would not apply where the police violated the warrant requirement. See O’Connor, 406 Mass. at 118; Benoit, 382 Mass. at 219. Bad faith on the part of the police is “relevant in assessing the severity of any constitutional violation.” O’Connor, 406 Mass. at 118. Here, the police were not investigating a crime, but searching for information concerning the Entwistles’ whereabouts in response to a missing persons report that was filed by concerned family members and friends as a result of the Entwistles’ disappearance. “There is no indication that the police acted in bad faith to accelerate the discovery of evidence through an unconstitutional shortcut” by entering the Entwistles' home on either January 21 or January 22. McAfee, 63 Mass, App. Ct. at 481, citing O’Connor, 406 Mass. at 118 & n.5. On the contrary, at all times before finding the bodies, the police were acting solely in their community caretaking capacity. Any constitutional violation that occurred was therefore not severe enough to preclude application of the inevitable discovery doctrine.

Accordingly, even if a court were to find that the entries were unlawful, the evidence would be admissible under the inevitable discovery doctrine.21

ORDER

For the foregoing reasons, the defendant Neil Entwistle’s motion to suppress is DENIED.

________________
Diane M. Kottmyer. Justice of the Superior Court


DATED: August 30, 2007



1 The dead bolt was not engaged.

2 Sutton’s reference to carbon monoxide in his testimony was by way of example of the types of accidents that can and do disable people in their homes. I credit his testimony that he entered the house because he believed that the Entwistles might be in the home and in need of assistance. The fact that the dog was barking and the officers did not take protective measures upon entering did not detract from the credibility of Sutton’s testimony that the officers entered the house because they believed that something untoward might have happened to the Entwhistles inside the house rendering them in need of assistance.

3 The neighbor had been given the code by the previous occupants of 6 Cubs Path.

4 When he came on duty, vanRaalten had checked the log and was aware that Priscilla Matterazzo had called the police station the previous day. In addition, vanRaalten received a telephone call from Trooper Robert Manning who said that a retired state police officer who was a friend of the Matterazzo family had requested the officers to do what they could to assist in locating the Entwistles. The fact that the Matterazzos had requested that such a call be made is further evidence of serious concern on their part.

5 “The purpose of a warrant is to allow a neutral judicial officer to assess whether the police have probable cause to make an arrest or conduct a search.” Steagold v. United Sta, 451 U.S. 204, 212 (1981) (citing Johnson v. United States, 333 U.S. 10, 14 (1948)). Statutory authority for the issuance of search warrants is set forth in G.L. c. 276, § 1. A person seeking a search warrant must provide an affidavit containing “the facts, information, and circumstances upon which such person relies to establish sufficient grounds for the issuance of the warrant” G.L. c. 276, § 2B. A court or justice issues a search warrant where, “based on the affidavit in its entirety, [he] ha[s] a substantial basis to conclude that a crime had been committed, ... and that the items described in the warrant [are] related to the criminal activity and probably in the place to be searched” Commonwealth v. O’Day, 440 Mass. 296, 298 (2003) (internal citations omitted).

Broadly speaking, G.L. c. 276, § 1 permits a magistrate to issue a warrant authorizing the search for specific property, including fruits, instrumentalities, and “property or articles ... which ...
have been used, as a means or instrumentality of committing a crime” Commonwealth v. D’Amour, 428 Mass. 725, 729 (1999) A search warrant issues if there is probable cause to believe that certain property is “concealed in the house, place, vessel or vehicle or in the possession of a person anywhere within the commonwealth ....” G.L. c. 276, § 1. Section 1 categorizes five types of items which may be seized pursuant to a warrant, including but not limited to, stolen property, property intended to be used as a means of committing a crime, property possessed for an unlawful purpose, “the dead body of a human being,” and “the body of a living person for whom a current arrest warrant is outstanding.”

Chapter 276 also permits a search warrant to issue based on common law authority where consistent with art. XIV. General Laws c. 276, § 1, states: “Nothing in this section shall be construed to abrogate, impair or limit powers of search and seizure granted under other provisions of the General Laws or under the common law.” See Commonwealth v. Penta, 423 Mass. 546, 552-553 (1996); Matter of Lavigne, 418 Mass. 831, 835 (1994). The parameters of a judicial officer’s authority to issue a warrant under the common law in the circumstances of this case are at best unclear. See id.

Massachusetts law also permits the issuance of anticipatory warrants. “An anticipatory warrant is one based on an affidavit that establishes probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.” Commonwealth v. Staines, 441 Mass. 521, 522 n.2 (2004). Just as with a non-anticipatory search warrant, “[t]he standard for determining whether an anticipatory warrant may issue is probable cause.” Id.. at 524 n.3.

At the time of the officers’ January 21 and 22, 2006, entries into and search of 6 Cubs Path, they did not have probable cause to believe that a crime had taken place.

6 Although the term “exigent” is often used to describe the circumstances in which the emergency aid doctrine applies, see Brigham City, Utah v. Stuart, 126 S. Ct. 1943, 1947 (2006); Commonwealth v. McDermott, 448 Mass. 750, 766-767 (2007), the emergency aid function of community caretaking is unrelated to the exception to the warrant requirement for exigent circumstances. The exigent circumstances exception is “more appropriately denominated the exception for probable cause and exigent circumstances.” Grasso & McEvoy, Suppression Matters Under Massachusetts Law, § 14-1[a] (2006). It applies where there is probable cause to believe that evidence of a crime will be in a particular location and the risk that delaying the entry until a warrant is obtained will result in destruction of evidence or property, escape of the suspect, or harm to police or others makes obtaining a warrant impracticable. See Commonwealth v. DeJesus, 439 Mass. 616, 619 (2003) (“In the absence of a warrant, two conditions must be met in order for a nonconsensual entry [to search or arrest to be valid: there must be probable cause and there must be exigent circumstances.” (footnote omitted)).

In contrast, the emergency aid exception applies when police are not engaged in investigating a crime. “Thus, while an emergency is an ‘exigency’ in the sense that police must respond to a crisis requiring immediate aid or action,’ Webster New International Dictionary Unabridged 796 (1986), the use of the word ‘exigent’ as a term of art to describe the emergency exception is misleading. An ‘exigent circumstance’ as a term of legal art requires both the presence of the exigency and probable cause to justify a warrantless entry.” People v. Hebert, 46 P.3d, 473, 479 (Colo. 2002).


7 In Cady, the personal vehicle of an off-duty Chicago police officer had been towed at police request to a private garage following an accident and the arrest of the off-duty police officer for driving under the influence. Police officers who responded to the scene believed that Chicago police officers were required to carry their guns with them at all times and that, because the defendant’s gun was not recovered when he was arrested, the gun might be in the car. An officer went to the garage and searched the car finding evidence that formed the basis of a murder conviction. The Supreme Court held that the search was lawful.

8 The Supreme Judicial Court and the Appeals Court have applied the community caretaking doctrine to justify stops and searches of vehicles in cases in which the stop or search is not made for investigative purposes, but where there is a reasonable basis for belief that the action in question is required either to determine whether a drives is in need of assistance or to protect the public from a driver who may be unfit to continue driving. See, e.g., Commonwealth v. Evans. 436 Mass. 369, 372-374 (2002); Commonwealth v. Murdough, 428 Mass. 760, 761, 762-763 (1999); Commonwealth v. Leonard, 422 Mass. 504(1996); Commonwealth v. Gaylardo, 68 Mass. App. Ct. 906,907, further appellate review denied, 448 Mass. 1107 (2007). Cf. Commonwealth v. Davis, 63 Mass. App. Ct. 88, 89 (2005) (holding that notwithstanding that slop was investigatory, “emergency exception to the warrant requirement” justified officer’s warrantless stop of motorist after officer heard radio transmission of anonymous tip indicating that allegedly drunk individual was driving in his direction).

9 See Commonwealth v. Kirschner, 67 Mass. App. Ct. 836, 842 (2006), where the Appeals Court distinguished the application of the community caretaking doctrine in cases in which police officers conduct well-being checks of motorists from the emergency exception; and Commonwealth v. Sondrini, 48 Mass. App. Ct. 704, 706-707 and n.3 (2000), where the Court “assume[d] for the benefit of the Commonwealth that the caretaking, so-called, can extend to entrance into a residence, although there is some opinion that its field of operation is the situations of diminished expectations of privacy, such as intrusion into automobiles.” Cf. Commonwealth v. Bates, 28 Mass App. Ct. 217,219, n.2 (1990), where the court noted that the emergency exception to the warrant requirement is “[s]ometimes called the ‘community caretaker exception’ when the public safety is involved.” Id. at 219 n.2.

10 In People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.2d 246, 347 N.E.2d 607, 609 (1976), the Court articulated a three-prong test for application of the emergency aid doctrine. Absent its second subjective prong which, as discussed in n. 12 infra, the Court rejected in Brigham City. Utah v. Stuart, 126 S. Ct. at 1947, that test forms the basis of the test applied in many jurisdictions today. including Massachusetts. Mitchell involved the lawfulness of searches of rooms in a hotel to locate a. missing chambermaid or evidence as to her whereabouts. Under the test articulated in Mitchell, for a search to be lawful under the emergency assistance doctrine: (1) the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) the search must not be primarily motivated by intent to arrest and seize evidence; (3) there must be some reasonable basis . . . to associate the emergency with the area or place to be searched. The Court noted that police need not be completely unmotivated by the desire to solve a crime because in many cases, there is a very strong possibility that criminal activities could account for the emergency. This has been true in several Massachusetts cases involving searches for missing persons. See, e.g., Commonwealth v. Snell, 428 Mass- 766 (1999), and Commonwealth v Ortiz, 435 Mass. 569, 572 (2002). Professor LaFave has advocated that the standard be “whether the police had reasonable grounds to believe that some kind of emergency existed,” evidence that would lead a prudent and reasonable official to see a need to act. Under that test, “the officer must be able to point to specific and articulable facts, which, taken with rational inferences from those facts, reasonably warrant intrusion into protected areas.” 3 LaFave, Search & Seizure § 6.6 (a) at 452 (4 ed. 2004).

11 In McDermott, 448 Mass. at 766-767, the Court held that the “exigency exception to the warrant requirement” justified the officers’ warrantless entry into the defendant’s home where officers knew that defendant had shot and killed several people at another location, that defendant had used at least two weapons, that a large amount of ammunition had been found at scene of shootings, and where the officer’s experience with violent crimes taught him that victims could be found at suspect’s residence and place of work. Although the Court referred to the exception justifying the officers’ warrantless entry as “the exigency exception to the warrant requirement,” as did the Supreme Court in Brigham City, supra, it is evident from the cases cited by the Court and the test applied (which included no requirement of probable cause) that the Court was applying the emergency aid doctrine. In Commonwealth v. Morrison, 429 Mass. at 515, cited as the source of the test applied in McDermott, the Court held that police had reasonable grounds to suspect that an exigency existed, justifying their warrantless entry into an apartment, where a pregnant woman known by police to have obtained protective order against a man was seen arguing furiously with a man, who was subsequently seen entering her apartment, and where police had reason to believe that the man in question was subject of the protective order. Commonwealth v. Young, 382 Mass. 448, 454, 456-457 (1981), on which the Court also relied, held that the “exigency exception” permitted officers to search an adjacent abandoned house after confirming a gas company employee’s report of dead body in a basement and observing links between the two locations. Id. at 456-457.

12 In Brigham City, supra, the Supreme Court responded to “the differences among state courts and the Courts of Appeals concerning the appropriate Fourth Amendment standard governing warrantless entry by Law enforcement in an emergency situation.” 126 S. Ct. at 1947. The Court rejected the subjective approach which considers, “in assessing the reasonableness of the entry, whether the officers were ‘indeed motivated primarily by a desire to save lives and property.’” Id. at 1948 (citation omitted).

Those Massachusetts cases that have considered the police officers’ subjective motivation in the context of a warrantless entry pre-date Brigham City. See, e.g., Snell, 428 Mass. at 775 (“It is clear ... that the police believed that the victim was in the home, and that ... [the officer’s] entry was not primarily motivated by an intent to search the home or to seize evidence.”); DiGeronimo, 38 Mass. App. Ct. 714, 717 n.4 (1995) (noting that lower court judge concluded — albeit without support in the record — that part of officer’s “motivation in. entering [defendant’s] apartment was ‘to determine if he was under the influence and was avoiding detection.”); and Bates, discussed in n.13, infra.

13 In Bates, supra, 28 Mass. App. Ct. 217, the Appeals Court held that the emergency exception to the warrant requirement did not justify the officers’ warrantless entry into a missing woman’s apartment. The victim had been out to dinner with the defendant when she “left the table to go to the ladies’ room, and had not returned.” Id. at 218. The defendant called the Hampton, New Hampshire, police about the victim’s disappearance at approximately 9:00 p.m. Id. at 218,221. The Hampton police passed on the information to the Newburyport police because the victim lived in Newburyport. Id. at 218. At 12:20 a.m., the officers were dispatched to the victim’s apartment to attempt to locate her. Id. The Court held that the delay in dispatching the officers to the apartment indicate that “the Newburyport police department did not regard the 9:00 p.m. telephone call as describing an emergency. This time lag, in the absence of additional facts explaining why it was 'impractical for the police to obtain a warrant,’ . . . precludes a finding of an emergency justifying the warrantless entry into the apartment.” Id. at 221. The Court did not specify the grounds on which the police might have sought a warrant. Bates predated the Supreme Court’s decision in Brigham City and the Court applied a subjective test, i.e., the Court reasoned that the officers’ delay in entering the apartment indicated that they did not believe that there was an emergency. More fundamentally, as noted by one commentator who has criticized an approach that places undue emphasis on delay by the police in responding to reports of missing persons, “adults are free to come and go as they please, which may explain why they have temporarily disappeared, and therefore more facts beyond the missing persons report are often necessary to determine whether there is an objectively reasonable basis” for the action taken. Decker, supra, 89 J. Crim. Law & Criminology at 470. In many cases, including this case, the longer a person is missing without explanation, the greater the cause for alarm.

14 In Bates, discussed in n.13, the report lacked the detail, credibility and association with the location searched that are present in this case. In contrast to the present case where the apparent disappearance of the Entwistles was alarming because there was no explanation for it, Massachusetts cases involving missing persons have, for the most part, involved circumstances strongly suggesting that the missing person was the victim of a crime. Thus, in Commonwealth v. Snell, 428 Mass. 766, 773, 775 (1999). the officers’ warrantless entry into defendant’s home for a well-being check of defendant’s wife was justified where defendant had made direct threat to murder victim and burn down house two days earlier, defendant was at large, and victim had failed to numerous attempts to reach her. In Commonwealth v. Ortiz, 435 Mass. 569, 572 (2002), a warrantless entry was valid where the victim was last seen going into the store with the defendant; no one had heard from or seen the victim or defendant since that time; after being seen with the victim, the defendant had not conducted his store’s business as usual; the store’s shades were drawn; the victim “was seen going into the fruit store with the defendant on the same morning that the defendant had sexually assaulted” another woman who lived in the victim’s apartment building; and the officers had information that the defendant could be aggressive and violent; and “[i]t appeared from the condition of [the victim’s] apartment that she had not intended on an extended absence.” Id. at 573.

15 Indeed, had Sutton not been so cognizant of the requirement that he limit the scope of the search to what was required to achieve its permissible objective, he would likely have walked through the bedroom, seen the glasses and watch on the far side of the bed and found the bodies on January 21.

16 In Ray, the Court stated: “An officer ‘less willing’ to discharge community caretaking functions implicates seriously undesirable consequences for society at large.” People v. Ray, supra, 981 P.2d at 939 (citations omitted). Quoting an earlier case, the Court hypothesized that a restrictive interpretation of the emergency aid doctrine could have the following consequence: “In the future, police will tell such concerned citizens, ‘Sorry, we can’t help you. We need a warrant and can’t get one.'” Id.

17 To the extent that the search for Neil Entwistle is viewed as a separate search, it falls squarely within the Court’s holding in McDermott, supra. To the extent that the officers’ review of the BMW bill and digital camera on January 21 constitute separate searches they were lawful for the same reasons that the January 22nd entry was lawful.

18 In determining whether evidence obtained after a constitutional violation must be suppressed, “the issue is not whether 'but for’ the prior illegality the evidence would not have been obtained, but 'whether ... the evidence ... has been come at by exploitation of [that] illegality or instead by means sufficiently distinguishable to be purged of the primary taint'” Commonwealth v. Damiano, 444 Mass. 444, 453 (2005) (ellipses and alteration in original), quoting Commonwealth v. Bradshaw, 385 Mass. 244, 258 (1982). The fruits of the poisonous tree doctrine does not exclude evidence discovered as a result of the constitutional violation “'[1] if the government obtained the evidence through an independent source, [2] if the connection between the improper conduct and the derivative evidence has become so attenuated as to dissipate the taint, or [3] if the government can demonstrate that the evidence inevitably would have been discovered by lawful means’” Commonwealth v. McAfee, 63 Mass. App. Ct. 467,478 (2005), quoting Commonwealth v. Fredette, 396 Mass. 455, 459 (1985).

19 There is no question that the bodies would have eventually been discovered by other means. People v. Molnar, 98 N.Y.2d 328, 335 (2002) (“[N]o person can, in the name of constitutional privacy, expect to harbor a dead body without generating official cognizance and action.... [A] public official would have been required to enter the apartment at some point [in order to investigate odor], regardless of whether that official could obtain a warrant.”). See also Hughes v. Commonwealth, 87 S.W.3d 850, 852-853 (Ky. 2002) (denying motion to suppress on alternative grounds of inevitable discovery where “the victim’s body inevitably would have been discovered, especially as the odor of decomposition increased”); People v. Macioce, 197 Cal. App.3d 262, 275 (1987) (holding that victim’s body would have been inevitably discovered because odor 'ultimately would have attracted the attention of the neighbors”); People v. Foster, 102 Cal. App.3d 882, 888- 889 (1980) (holding that while exigent circumstances did not justify entry into garage to retrieve dead body, body would have been inevitably discovered because, “given the offensive smell which permeated the alley, the coroner would have been called by someone”); State v. Beede, 119 N.H. 620, 629 (1979) (finding that, even though warrantless entry was not justified because there was no emergency, suppression was not required because “[i]t would not have been long before the odor would have spread to the adjoining apartments which would inevitably have led to the discovery of the body”). Discovery by other means was also certain by virtue of the fact that the Entwistles were lessees; eventually the owner of the house would have investigated their non-payment of rent.

20 In O’Connor, the court noted that the inevitable discovery rule will not apply “to justify admission of evidence seized in violation of the requirement that a search warrant be obtained, even if it was inevitable that, if sought, a search warrant would have been issued and the evidence would have been found.” Id. I do not read this language as applying to a situation like the present case where the police were not investigating a crime and did not have probable cause to believe that a crime had been committed at the time of the entry. The inevitability in this case is action by a private party wholly independent of the police. Cf. Commonwealth v. Brandwein, 435 Mass. 623, 631-632 (2002) (“[T]he ‘target’ of the exclusionary rule ‘is official misconduct,’ and the rule is not intended ‘to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals.’ (quoting Coolidge v. New Hampshire, 403 US. 443, 488 (1971)).

21 It is not necessary to address the Commonwealth’s argument that Neil Entwistle had abandoned the house at 6 Cubs Path.





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