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COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX,
SS SUPERIOR COURT DEPARTMENT
DOCKET NO. MICR 2006-387
COMMONWEALTH
V.
NEIL ENTWISTLE
COMMONWEALTH’S PRELIMINARY MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION TO SUPPRESS EVIDENCE
The Commonwealth files this preliminary memorandum1 in opposition to the defendant’s motion to suppress evidence, wherein he challenges the warrantless entries by police on January 21 and 22, 2006, into the residence located at 6 Cubs Path in Hopkinton. The Commonwealth asks the Court to deny the defendant’s motion because (1) the two entries by police into the home were lawful under the community caretaking functions of the police; (2) entry into the home and discovery of the victims’ bodies were inevitable; and (3) the defendant abandoned the Hopkinton home he was renting and had lived in for only one week when he flew to England with a one-way ticket and carrying no luggage.
FACTS
The Commonwealth anticipates the following evidence to be elicited through several police witnesses at the evidentiary hearing on the motion to suppress evidence.2
At approximately 8:00 P.M. on Saturday, January 21, 2006, Mrs. Priscilla Matterazzo, a resident of Carver, Massachusetts, called the Hopkinton Police Department and requested help on behalf of her daughter (Rachel Entwistle), her son-in-law (Neil Entwistle), and her nine month old granddaughter (Lillian Entwistle). Mrs. Matterazzo told police that she had not been able to reach her daughter for the past two days. According to Mrs. Matterazzo, this was highly unusual because she typically spoke by telephone with Rachel every day. Mrs. Matterazzo explained that the Entwistles had moved to the home only one week prior. Earlier that afternoon, Mrs. Matterazzo drove to the Entwistles’ home at 6 Cubs Path. However, no one answered the door there so Mrs. Matterazzo left them a note. Mrs. Matterazzo requested that police go to the home to provide any assistance that might be needed.
Hopkinton Police Sergeant Michael Sutton and Officer Aaron O’Neil were dispatched to that address for the purpose of conducting a “well being check.” They arrived there at approximately 8:31 P.M. Upon their arrival there, they were met outside by Ms. Joanna Gately and Ms. Gately’s sister Maureen, both from Cambridge, Massachusetts. Ms. Gately explained that she was a very close friend of Rachel’s and that she had been invited that evening to have dinner with the Entwistles and to see their new house. She and her sister arrived there at about 7:00 P.M., but no one answered the door. She discovered the note that Mrs. Matterazzo had left, and she telephone Mrs. Matterazzo via cell phone out of concern. She learned that Mrs. Matterazzo also was very worried about the family. Ms. Gately explained to police that it was completely out of character for Rachel not to call if she had a change of plans and was not going to be home for their pre-arranged plans. Ms. Gately appeared very distressed and had a high level of anxiety about the situation.
Sergeant Sutton checked the exterior of the house and found no signs of any forced entry; all the doors and windows were closed and locked. From the exterior, he observed numerous lights on inside the house on both the first and second floors. He also heard sound consistent with a television or stereo coming from the interior of the home. He heard a dog barking, and Ms. Gately confirmed that the Entwistles had a dog. She explained that the dog is very “pampered,” and she became further concerned for the Entwistles by the fact that the dog seemed to be untended to in the house. Sergeant Sutton rang the bell and knocked on the door, but no one answered, despite the signs that someone was home and expecting guests. It was seasonably cold and the house was new to the Entwistles, which increased the officers’ concerns, specifically about carbon monoxide poisoning. Ms. Gately told Sergeant Sutton that the Entwistles have only one car — a white BMW Sports Utility Vehicle. Sergeant Sutton tried to see whether the car was in the garage, but the interior of the garage was not visible from the outside of the house.
Based on what he knew about the circumstances, Sergeant Sutton decided to enter the home to check on the well-being of the residents. He decided to gain entry by the front door because the deadbolt was not engaged and he determined that he could gain entry there without damaging the door. Using a laminated card, he was able to open the lock on the door knob. Sergeant Sutton and Officer O’Neil entered the premises. They walked through the first floor rooms, and found no one present. Officer O’ Neil went to the basement and to the garage (accessible from the basement), while Sergeant Sutton went to the second floor. From the garage, Officer O’Neil called up to Sergeant Sutton that the car was not present. Sergeant Sutton looked cursorily into each upstairs room from its doorway. Neither officer looked inside any closets, under beds, or in drawers. They did not locate anyone inside the home. They did observe several indicators that the residents may have left the home on short notice: the upstairs stereo was on; the television was on in the first floor living room; the family dog was in a cage in the family room; there was water in the bathtub; there were unwashed dishes on the kitchen counter; and the beds were unmade.
Officer O’Neil turned on a digital camera on the kitchen table to determine when the most recent photograph was taken; it showed that the most recent photo was dated two days earlier, Thursday, January 19, 2006. Sergeant Sutton noticed a pile of mail on the kitchen counter, in particular an open bill from BMW from which he obtained the vehicle’s identification number (“VIN”). The entire walk through of the house lasted two to three minutes.
Sergeant Sutton provided the VIN to the Hopkinton Police dispatch operator, who used it to obtain the vehicle’s license plate number - Massachusetts Registration number 65KW79. From his police vehicle, Sergeant Sutton then ran the plate number through the Registry of Motor Vehicles system in order to determine whether there had been any recent queries by other police departments on that plate number. There had been no queries.
Sergeant Sutton informed Ms. Gately that they found no one inside. Ms. Gately asked if she could take the dog outside to relieve himself and if she could leave a note inside the house. Sergeant Sutton permitted her to do both. Prior to clearing the residence, Sergeant Sutton called Mrs. Matterazzo by cell phone. He relayed to her the conditions inside the home, and she asked whether anything else could be done at this time. He informed her that the police would broadcast a “general broadcast communication” with a description of the Entwistles’ vehicle and license plate number and request any agency having contact with the vehicle to call the Hopkinton Police Department. He also informed her that no agency had run the license plate recently, indicating that it probably had not been stopped or involved in a motor vehicle crash. She requested and was given the telephone numbers of area hospitals. Sergeant Sutton asked the dispatcher to contact area hospitals as well, which he did, but none reported having any contact with the Entwistles. Ms. Gately wanted to remain inside the home, but Sergeant Sutton would not permit that. Instead, she told Sergeant Sutton that she planned to remain parked in her vehicle in the driveway for a while.
At about 5:12 P.M. on the next day, Sunday, January 22, 2006, Mrs. Matterazzo, her husband Joseph Matterazzo (Rachel Entwistle’s stepfather), and the Gately sisters arrived at the Hopkinton Police Department. The Gatelys had remained parked at the home overnight and reported that they still had not seen or heard from the Entwistles. Joanna Gately had the Entwistles’ dog with her and explained that a neighbor had given her the security code to the garage door so that she could let the dog out. They still were not able to contact the Entwistles, and all four of them were in a heightened state of alarm. They were practically begging for police to help locate them. They wanted to file missing persons reports. Sergeant Sutton introduced them to Officer Gregg DeBoer who would assist them with the appropriate forms. They began the process of filling out the missing persons paperwork with respect to Rachel, Neil, and Lillian Entwistle.
Detective Scott vanRaalton turned his attention to locating the BMW. In the meantime, Sergeant Sutton and Officer O’Neil went to Cubs Path and canvassed the neighbors in four homes surrounding 6 Cubs Path. None of those neighbors had met the Entwistles yet, as they had moved into the home only one week earlier, and none of them had seen or heard anything suspicious at the residence.
Sergeant Sutton and Detective vanRaalton considered the genuine fears of Rachel Entwistle’s immediate family and best friend. They also considered the fact that the Entwistles had a nine month old baby, which made it less likely that they spontaneously would have gone on vacation and more likely that an emergency or illness had arisen. Thus, they continued to have concerns for the Entwistles’ whereabouts and safety, and they decided to re-enter the home with the objective of either dispelling those concerns or obtaining information that would permit them to be of assistance in locating the Entwistles.
They obtained the code for the garage from Ms. Gately and entered the home via the garage door. The garage is located in the basement level. Upon entering, the basement directly from the garage, Sergeant Sutton immediately noticed an unpleasant odor that had not been present the previous day. This odor heightened his concern. They followed the odor directly to the second floor master bedroom. The previous day, Sergeant Sutton had viewed the bedroom only from the doorway. This time, both Sergeant Sutton and Detective vanRaalton entered the master bedroom.3 Detective vanRaalton looked inside the bathroom attached to the master bedroom and then went inside the walk-in closet. Sergeant Sutton, meanwhile, went around the side of the bed and lifted the edge of the comforter on the bed a few inches and saw an adult foot. He returned the comforter to its original position, summoned Detective vanRaalton over, lifted the comforter again to expose the foot to Detective vanRaalton, and returned the comforter to its original position. They then walked to the opposite side of the bed. Sergeant Sutton lifted the comforter on the right side of the bed and they saw the face of a small child. He lifted the comforter further and they saw the head of an adult woman. It immediately was apparent that both victims were dead and had been dead for some time. Sergeant Sutton lowered the comforter and both he and Detective vanRaalton left the room without touching anything else. From the foyer of the residence, Sergeant Sutton called Officer DeBoer from his cell phone and directed him not to allow the Matterazzos or the Gatelys to come to the residence. Meanwhile, Detective vanRaalton called Chief Thomas Irvin at home and informed him of the circumstances. Chief Irvin went to the Hopkinton police station and delivered the news to the Matterazzos and the Gatelys. Sergeant Sutton and Detective vanRaalton then performed a walk through of the residence with an eye towards locating the body of Neil Entwistle. Finding no additional victim there, they exited the home and secured it from the exterior. The Crime Scene Services Division of the Massachusetts State Police, the State Police Homicide Unit attached to the Middlesex District Attorney’s Office, and the District Attorney’s Office were notified.
At approximately 7:45 on that same evening, a white BMW, Massachusetts registration number 65KW79, was located in the parking garage at Logan airport. It was unoccupied with the car keys inside. Later that evening, investigators learned that at 7:07 A.M. on Saturday, January 21, the defendant made a telephone purchase from British Airways of a one-way plane ticket from Boston to London, and that he departed Boston at 8:20 A.M. on Saturday, January 21, 2006 without any luggage. Police also determined that Neil Entwistle was a British citizen.
Three search warrants subsequently issued from the Framingham District Court on January 23, 2006 and January 25, 2006, authorizing searches of the home located at 6 Cubs Path in Hopkinton and the BMW. Seven additional search warrants issued from the Framingham District Court between January 27, 2006 and February 8, 2006, authorizing forensic analyses of data stored electronically on computer equipment previously seized pursuant to warrant. Two additional warrants issued (from Palo Alto, California and Santa Clara, California) for electronic mail documents connected with Neil Entwistle’s Adult Friend Finder account and electronic mail documents from Rachel Entwistle’s Hotmail account.
On January 23, 2006, Trooper Robert Manning placed a telephone call to the home of the defendant’s parents in England. Trooper Manning spoke to the defendant on a recorded line. Trooper Manning had another telephone conversation with the defendant, also recorded, the following day.
On February 7, 2007, the defendant left a telephone message for Attorney Michael Fee (attorney for the owner of the 6 Cubs Path property rented to the Entwistles). In the recorded message, the defendant acknowledged having received two letters from Attorney Fee, and informed Attorney Fee that he had no interest anymore in the house. The defendant also mentioned that he wanted the money he was owed for the security deposit and last month’s rent on the house,. as well as the possessions in the house, to be “taken care of in the appropriate manner.” On this score, the defendant stated in his telephone message that he “will probably leave [the money and possessions] to Rachel’s family, Priscilla and Joseph Matterazzo in Carver, but we need to discuss this.”
DISCUSSION
A. THE POLICE ACTIONS IN ENTERING THE HOME ON JANUARY 21 AND JANUARY 22, 2006, FELL SQUARELY WITH THEIR DUTIES AS COMMUNITY CARETAKERS.
“Local police officers are charged with ‘community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’” Commonwealth v. Gaylardo, 68 Mass. App. Ct. 906, 906 (2007), quoting Commonwealth v. Evans, 436 Mass. 369, 372 (2002). See also Cady v. Dombrowski, 413 U.S. 433, 441 (1973) . The community caretaking function is implicated if there is an objectively reasonable basis for believing that the safety of an individual or the public is jeopardized. Commonwealth v. Brinson, 440 Mass. 609, 615 (2003). See also Commonwealth v. DiGeronimo, 38 Mass. App. Ct. 714, 723 (1995). The community caretaking function of police encompasses intrusions into a person’s privacy that are a necessary by—product of expectations society places upon police to be of service to the public. Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 4—(2) (f), at 4-17—4—18 (2006). The “emergency” justification for such an intrusion “applies when the purpose of the police entry is not to gather evidence of criminal activity but rather, because of an emergency, to respond to an immediate need for assistance for the protection of life or property.” Commonwealth v. Bates, 28 Mass. App. Ct. 217, 219—220 (1990)
Because such a situation involves an entry based on an emergency and not for criminal investigative purposes, probable cause is not required to enter. Commonwealth v. Snell, 428 Mass. 766, 776 n.7, cert. denied, 527 U.S. 1010 (1999). “No probable cause is needed because the purpose is not to investigate criminal activity, although the collateral effect may be to assist greatly a criminal investigation.” Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 14— (1) (c) (3) (vi), at 14—10 (2006) . See also DiGeronimo, 38 Mass. App. Ct. at 723 (warrantless entry based on exigency requires probable cause to believe a crime has been committed “unless it is a ‘pure’ emergency where entry was effected solely to avert a dangerous situation that threatened life or safety in which case any incriminating evidence within plain view may legitimately be seized”). When the warrantless entry into a dwelling is “also motivated by an intent to discover incriminating evidence,” the emergency exception cannot be invoked. DiGeronimo, 38 Mass. App. Ct. at 723, citing Commonwealth v. Cricones, 12 Mass. App. Ct. 953, 954 (1981); Bates, 28 Mass. App. Ct. at 219. Even if police officers could have obtained a search warrant prior to or during the search, this fact does not preclude a finding that an emergency nonetheless justified the warrantless entry. Commonwealth v. Young, 382 Mass. 445, 459—460 (1981); Commonwealth v. Jeffers, 27 Mass. App. Ct. 1162, 1163 (1989); Commonwealth v. Donoghue, 23 Mass. App. Ct. 103, 108-109 (1986).
In order to justify an emergency entry, the Commonwealth bears the burden of demonstrating that there were reasonable grounds for the police to believe that an emergency existed, and the actions of the police were reasonable. Commonwealth v. McDermott, Slip Op. SJC—09130 (April 13, 2007); Snell, 428 Mass. at 777; Bates, 28 Mass. App. Ct. at 219-220. The standard is an objective one, id. at 220, and the determination of “[w]hether an exigency existed, and whether the response of the police was reasonable and therefore lawful, are matters to 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.” Young, 382 Mass. at 456. See also Brigham City v. Stuart, 126 S. Ct. 1943, 1948 (2006), quoting Scott v. United States, 436 U.S. 128, 138 (1978) (“An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action. The officer’s subjective motivation is irrelevant.”).
In the present case, not only was it reasonable for the Hopkinton officers to enter the home, but the public would expect as much. The Entwistles disappeared suddenly, without notice, and without explanation. The people closest to them were highly alarmed and essentially begged police to help them figure out what happened to them. It was wholly out of character for Rachel not to have contact with her mother for two days, and similarly out of character for Rachel to desert the Gatelys, who were invited to dinner with the Entwistles on the evening of Saturday, January 21, 2006. Both Mrs. Mattarrazzo and Ms. Gately had tried to reach the family by calling Rachel, knocking on the door, and ringing the bell, to no avail. While “[t]here can be no justification for a warrantless entry [into a dwelling] absent at least an objectively reasonable belief that someone is inside[,]” Commonwealth v. DeJesus, 439 Mass. 616, 624 (2003), here, there were a myriad of factors which, when viewed objectively, warranted the conclusion that the Entwistles were inside and needed assistance. Police observed lights on inside the home on both floors, heard a television or stereo on inside the home, and heard the Entwistles’ dog barking inside the house. Compare DeJesus, 439 Mass. at 623-624 (there was “no indication whatsoever that the dwelling was occupied at the time — the officers had no knowledge that anyone was inside, there was no response to their knocking at the door, and they apparently heard no sounds coming from within”) . Additional circumstances in this case which justified the officers’ objective belief that the Entwistles could be in danger inside the home were the cold January weather and the concern regarding carbon monoxide poisoning because the Entwistles just moved into the home a week earlier.
The first police entry into the home and their walk through were “‘strictly circumscribed by the exigencies which justify its initiation.’” Commonwealth v. Lewin, 407 Mass. 617, 622 (1990), quoting Mincey v. Arizona, 437 U.S. 385, 393 (1978). In the first entry, the Hopkinton officers entered the house only to determine whether the Entwistles were safe and inside, and their cursory walk through was limited to that purpose. The officers checked the outside of the home for any signs of forced entry, and once inside, they made cursory observations into the bedrooms to determine whether anyone was there, but did not look inside any closets or under beds. Compare McDermott, Slip Op. sJc—09130 (April 13, 2007) (holding that officers’ warrantless entry into defendant’s apartment to check for other victims and “looking in any area that could contain a victim” “was justified under the exigency exception to the warrant requirement”), with Commonwealth v. Bass, 24 Mass. App. Ct. 972, 974 (1987) (where police entered home to search for fleeing felon and looked under a small countertop, a gun seized from under the counter was suppressed because the scope of the exigent search was too broad). Notably, the police did not find the bodies of Rachel and Lillian Entwistle during this first entry into the home.
The second entry into the Entwistle home also was justified by the same rationale. Indeed the Entwistles had not been heard of for an additional 24 hours, this causing the Matterazzos and the Gatelys to go to the Hopkinton police to fill out missing persons reports concerning all three members of the Entwistle family. While the missing persons reports were being made, Sergeant Sutton and Detective vanRaalton canvassed the neighborhood and then, coming up with no helpful information, decided to enter the home again. Immediately upon this second entry, Sergeant Sutton detected the odor and followed it directly to the master bedroom. This time, officers checked the master bedroom more thoroughly. Detective vanRaalton looked in the bathroom and in the walk-in closet, and Sergeant Sutton lifted the comforter, which had not been disturbed on the earlier entry. See Bates, 28 Mass. App. Ct. at 220 (“We recognize that the 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.”). Although there was a delay of almost an entire day between the first and second entries into the house, the Entwistles’ friends and family had become increasingly concerned regarding their continued disappearance, and Sergeant Sutton reasonably decided to check the home again while the missing persons reports were being completed. Compare Bates, 28 Mass. App. Ct. at 221 (three hour delay between call regarding missing person and subsequent search belied officers’ claim that emergency justified the warrantless entry into apartment) . After discovering Rachel and Lillian Entwistles’ bodies, the police cursorily inspected the home for Neil Entwistle, who still had not been located. The Hopkinton police acted reasonably in all respects.
B. SETTING ASIDE THE TWO ENTRIES BY POLICE ON JANUARY 21 AND JANUARY 22, 2006, THE BODIES OF THE VICTIMS INEVITABLY WOULD HAVE BEEN DISCOVERED BY OTHER, LAWFUL MEANS.
Even if the police should not have conducted the well being checks for the Entwistle family on January 21 and January 22, 2006, a point which the Commonwealth does not concede, the fruit of the poisonous tree doctrine does not apply because the victims would inevitably have been discovered by other, lawful means. Nix v. Williams, 467 U.S. 431, 443 (1984). In applying the inevitable discovery rule, the Commonwealth has the burden to establish the facts bearing on inevitability by a preponderance of the evidence. Once the relevant facts are established by a preponderance of the evidence, the question is whether on those facts discovery by lawful means was certain as a practical matter. Commonwealth v. O’Connor, 406 Mass. 112, 117 (1989) . Here, it is apparent that with the defendant in England, the Matterazzos and the Gatelys would have taken it upon themselves to use the security code they had obtained to examine the contents of the home in the hopes of discovering the family’s whereabouts; the mail at the home at 6 Cubs Way was certain to overflow; the dog known to be in the home was certain to need to be rescued; snow and ice was certain to accumulate around the home, giving rise to reports by neighbors; the odor that was unpleasant on January 22, 2006, would have intensified; and eventually, the home would fall into disrepair. Ultimately, the bodies of the victims would have been discovered, either by police or by civilians, and a murder investigation would have followed.
In any event, the defendant’s entire argument is premised on the faulty assumption that police should have obtained a search warrant to enter the home, but chose not to do so. The defendant ignores the fact that in order to obtain a search warrant, police need probable cause to believe that a crime has been committed and that evidence of the crime reasonably may be expected to be found in the place to be searched at the time the warrant issues. Commonwealth v. Gentile, 437 Mass. 569, 577 (2002). No such probable cause existed until the discovery of the victims’ bodies. Moreover, no criminal investigation had commenced or would have even been warranted up to that point in time.
Regardless, assuming that the entry into the home during which the bodies were discovered constituted an illegal search (a point the Commonwealth does not concede), the defendant himself later informed the police that the victims’ bodies were inside the house. Under the independent source rule, evidence obtained by the government through a source independent of any constitutional violation need not be suppressed. Commonwealth v. Benoit, 382 Mass. 210, 216 (1981) . The rule is an exception to the fruit of the poisonous tree doctrine announced in Wong Sun v. United States, 371 U.S. 471, 486 (1963), and provides that the “premature discovery of evidence that would inevitably have been discovered by lawful means (without the need for a search warrant) does not render the evidence inadmissible, provided the Commonwealth’s case is not aided (or the defendant’s case harmed) by the unlawful, premature discovery of the evidence.” O’Connor, 406 Mass. at 119. See also Commonwealth v. Beldotti, 409 Mass. 553, 558—559 (1991) . Even if the prior search of the home was unconstitutional — it was not — the independent source rule would not require that the evidence discovered during this search be suppressed. When police located the defendant (whom they considered a missing person) in England, he told them that he had discovered his wife and child dead and left the home. Even if the police discovery of the victims could be considered premature or unlawful, finding the victims could not have harmed the defendant’s case where he himself informed the police that the bodies were inside the home. Furthermore, any alleged constitutional violation could not be considered “egregious” where the purpose of the police entry into the home was done to check on the well-being of the residents and not to search for evidence.
Moreover, the exclusionary rule should not be applied here because suppression would do nothing to deter police misconduct. As a matter of public policy, it would have defied logic and public responsibility for police to turn their backs on the pleas for help from the Matterazzos and the Gatelys. They were concerned family members and citizens who turned to the police for help. The public expects the police to heed such concerns.
C. THE DEFENDANT ABANDONED THE HOPKINTON HOME HE HAD RENTED AND RESIDED IN FOR ONE WEEK WHEN HE RETURNED TO HIS NATIVE COUNTRY VIA A ONE-WAY TICKET.
In addition, the defendant showed no subjective expectation of privacy in the home because he abandoned it when he left his dead wife and daughter in the home and flew across the Atlantic to England. Commonwealth v. Bly, 448 Mass. 473, 490-491 (2007). In addition to the defendant’s later statements to Attorney Fee regarding the rented home in Hopkinton, the defendant’s intent not to return to the home was apparent from the fact that he bought a one-way ticket to England, where he was still a citizen. Commonwealth v. Lanigan, 12 Mass. App. Ct. 913, 914 (1981) (noting that ‘‘abandonment can be found to have taken place before the end of the rental period” and describing abandonment as “the act of leaving coupled with the intention of not returning”). Moreover, the circumstances which led to the defendant’s abandonment of the home do not affect this analysis; “it is the fact of abandonment, not the circumstances that gave rise to the abandonment, that causes the previously reasonable expectation of privacy to end.” Commonwealth v. Netto, 438 Mass. 686, 698 (2003)
CONCLUSION
For the foregoing reasons, the defendant’s Motion to Suppress Evidence should be denied.
Respectfully Submitted,
GERARD T. LEONE, JR.
DISTRICT ATTORNEY
by: ___________________________
MICHAEL L. FABBRI (BBO 157110)
LORETTA M. LILLIOS (BBO 635588)
MEGHAN E. O’NEILL (BBO 660422)
ASSISTANT DISTRICT ATTORNEYS
Middlesex Superior Courthouse
40 Thorndike Street
Cambridge, MA 02141
(617) 679—6500
Dated: April 17, 2007
1 The Commonwealth may request that the Court permit it to file a supplemental memorandum at the conclusion of the evidentiary hearing on the motion to suppress evidence.
2 Because the issues before this court concern whether the actions of the police were justified under these circumstances, hearsay evidence is admissible for this purpose. Commonwealth v. Weiss, 370 Mass. 416, 418 (1976>; Commonwealth v. Young, 349 Mass. 175, 179 (1965). See Commonwealth v. Lavelle, 414 Mass. 146, 155 (1994) (hearsay rule prohibits the testimonial use of reported statements but does not preclude the use of such statements for other valid purposes, such as the “state of police knowledge”).
3 Except for the smell, the bedroom (and the rest of the house) appeared the same as it did the previous day.