Commonwealth v. Suters

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15-P-622 Appeals Court

15-P-623

15-P-624

COMMONWEALTH vs. MONIQUE L. SUTERS (and two companion cases1).

Nos. 15-P-622, 15-P-623, & 15-P-624.

Berkshire. May 9, 2016. - October 7, 2016.

Present: Agnes, Massing, & Kinder, JJ.

Search and Seizure, Probable cause, Fruits of illegal search,

Consent, Emergency. Evidence, Result of illegal search.

Constitutional Law, Search and seizure, Probable cause.

Probable Cause.

Complaints received and sworn to in the Northern Berkshire

Division of the District Court Department on January 10 and June

12, 2014.

Pretrial motions to suppress evidence were heard by Michael

J. Ripps, J.

An application for leave to prosecute an interlocutory

appeal was allowed by Francis X. Spina, J., in the Supreme

Judicial Court for the county of Suffolk, and the appeal was

reported by him to the Appeals Court.

Joseph A. Pieropan, Assistant District Attorney, for the

Commonwealth.

1

Commonwealth vs. Whitney L. Suters and Commonwealth vs.

Makenzie L. Suters.

2

James F. Petersen for the defendants.

AGNES, J. In this case we consider the applicability of

the attenuation exception to the exclusionary rule. Under this

exception, evidence that would not have been obtained by the

police but for an unlawful search or seizure is nonetheless

admissible because the connection between the unlawful police

conduct and the evidence seized is separated by an independent

act by the defendant that is sufficient to dissipate the taint

of the initial unlawful search or seizure. See Commonwealth v.

Martin, 457 Mass. 14, 22-23 (2010).2

2

"The suppression of evidence under the exclusionary rule

is a 'judicially created remedy,' whose 'prime purpose is to

deter future unlawful police conduct.'" Commonwealth v. Lora,

451 Mass. 425, 438 (2008), quoting from United States v.

Calandra, 414 U.S. 338, 347, 348 (1974). There are three

established exceptions to the exclusionary rule under both

Federal and State law. The attenuation exception is derived

from Wong Sun v. United States, 371 U.S. 471, 487-488 (1963),

where the Supreme Court observed that "[w]e need not hold that

all evidence is fruit of the poisonous tree simply because it

would not have come to light but for the illegal actions of the

police. Rather, the more apt question in such a case is

whether, granting establishment of the primary illegality, the

evidence to which instant objection is made has been come at by

exploitation of that illegality or instead by means sufficiently

distinguishable to be purged of the primary taint" (quotation

omitted). Another exception is the independent source doctrine,

whereby evidence obtained unlawfully is nonetheless admissible

if it is obtained later, independently and by lawful means that

are not tainted by the initial illegality. See, e.g.,

Commonwealth v. Cassino, 474 Mass. 85, 90 (2016); Commonwealth

v. Pearson, 90 Mass. App. Ct. 289, 291-294 (2016). Finally,

under the inevitable discovery exception, evidence obtained as a

result of an unlawful search or seizure will be admissible if

the Commonwealth establishes two things: (1) as a practical

3

The cases come to us by interlocutory appeals from the

allowance of the defendants' motions to suppress evidence of

unlawful amounts of raw marijuana and related paraphernalia

discovered in the basement of the defendants' home. For the

reasons that follow, we agree with the motion judge that the

initial entry by the police into the defendants' home without a

warrant was justified based on voluntary consent by an occupant,

as well as the emergency exception. We also conclude, contrary

to the judge's ruling below, that the police were justified in

entering a basement room, where a large quantity of marijuana

was observed, to effect the arrest of one of the defendants for

assault and battery on a police officer. Because the

exclusionary rule should not be applied in such circumstances,

we reverse.

Background. We summarize the facts as found by the motion

judge, supplemented with uncontroverted testimony from the

hearing on the motion to suppress, consistent with the judge's

findings. On January 4, 2014, the State police received a 911

matter, the discovery of the evidence was inevitable, and (2)

the police did not act in bad faith or with the intent to evade

constitutional requirements. See, e.g., Commonwealth v. Ubilez,

88 Mass. App. Ct. 814, 817-819 (2016). See generally Grasso &

McEvoy, Suppression Matters Under Massachusetts Law § 20-3

(2016). There are other circumstances in which a search or

seizure involves a violation of the law that is not of

sufficient magnitude to trigger the application of the

exclusionary rule. See Commonwealth v. Hernandez, 456 Mass.

528, 533 (2010). See generally Grasso & McEvoy, Suppression

Matters Under Massachusetts Law § 20-1.

4

telephone call from 38 East Quincy Street in North Adams, during

which a man and a woman were heard yelling about a water

problem, and then the call was disconnected. The State police

advised the North Adams police, and Officers David Lemieux and

Trevor Manning were dispatched to the house at around 11:30 P.M.

There the officers encountered defendant Monique Suters, who

expressed concern about the possibility of an electrical fire

and asked the officers to follow her adult son, defendant

Makenzie,3 into the basement to assist with turning off the

water. Inside the home, the officers observed water coming

through a ceiling fan in the kitchen. The officers radioed

dispatch to send the fire department and then descended into the

basement.

Immediately upon entering the basement, the officers

smelled "a strong odor of fresh marijuana." There was water

gathering in pools on the floor and coming down the walls.

While the police were looking for the water shut-off valve,

Monique's husband, defendant Whitney Suters, entered the

basement through a door from the outside. He identified

himself, apologized to the officers, and said he knew the

location of the shut-off valve. Whitney then walked past the

officers, opened a door into another room in the basement

3

Because all three defendants share a surname, we refer to

them by their first names to avoid confusion.

5

(second room), walked inside, and closed the door behind him.

Officer Manning directed Officer Lemieux to follow Whitney into

the second room because he "did not feel comfortable with

[Whitney] being in there by himself." Officer Lemieux opened

the door "about half way," and Whitney, from inside the second

room, pushed the door back into Lemieux. Officer Lemieux

grabbed Whitney, and then Officer Manning grabbed him as well.

A "minor scuffle ensued" and the three ended up inside the

second room. Whitney was brought to the floor and handcuffed.

The officers asked Whitney why he had become aggressive

with them, and he answered that he did not want them in his

house. It was not until this point that Officer Manning looked

up and saw a mason jar containing what he believed to be more

than one ounce of raw marijuana. The officers then arrested

Whitney for assault and battery on a police officer and called a

drug investigator, who applied for a search warrant. A

subsequent search of the basement yielded more marijuana and

related paraphernalia.

Whitney was charged five days later with assault and

battery on a police officer, two counts of possession with

intent to distribute a class D substance (marijuana), and

conspiracy to violate drug laws. About five months later,

Monique and Makenzie were charged with similar drug offenses.

All three defendants moved to suppress all of the marijuana on

6

the ground that the officers' warrantless entry into the second

room, where they initially found a criminal amount of marijuana,

was unlawful. After an evidentiary hearing, the motions were

allowed on the ground that the Commonwealth had failed to show

justification for entering the second room.

Discussion. On review of a "ruling on a motion to

suppress, we accept the judge's subsidiary findings of fact

absent clear error 'but conduct an independent review of his

ultimate findings and conclusions of law.'" Commonwealth v.

Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v.

Jimenez, 438 Mass. 213, 218 (2002).

Under the Fourth Amendment to the United States

Constitution and art. 14 of the Massachusetts Declaration of

Rights, the police are not authorized to enter a home unless

they act on the basis of (1) voluntary consent, see Commonwealth

v. Rogers, 444 Mass. 234, 236 (2005);4 (2) probable cause and

exigent circumstances, see, e.g., Commonwealth v. Jewett, 471

Mass. 624, 628-629 (2015); or (3) an objectively reasonable

belief that there is an injured person or a person in imminent

danger of physical harm inside the home who requires immediate

assistance. See, e.g., Commonwealth v. Entwistle, 463 Mass.

4

The Commonwealth has the burden to establish (1) that

consent was given, and (2) that it was voluntary, i.e.,

"unfettered by coercion, express or implied." Commonwealth v.

Harmond, 376 Mass. 557, 561 (1978), quoting from Commonwealth v.

Walker, 370 Mass. 548, 555, cert. denied, 429 U.S. 943 (1976).

7

205, 213 (2012). See also Commonwealth v. Duncan, 467 Mass.

746, 747 (2014) ("[I]n appropriate circumstances, animals, like

humans, should be afforded the protection of the emergency aid

exception").5

a. Initial entry into the home. There is no dispute in

this case whether the initial entry into the defendants' home by

the police was justified. "The question whether consent was

voluntary is a question of fact to be determined in the

circumstances of each case, with the burden of proof on the

government." Commonwealth v. Alleyne, 474 Mass. 771, 783

(2016), quoting from Commonwealth v. Carr, 458 Mass. 295, 302

(2010). The judge found that the police acted on the basis of

voluntary consent by a co-occupant (Monique). See Georgia v.

Randolph, 547 U.S. 103, 109 (2006); Commonwealth v. Rogers,

supra at 237. An occupant's consent is valid as against the

wishes of an absent, nonconsenting co-occupant. See United

5

The Commonwealth urges us to recognize a broader authority

on the part of the police to make warrantless entries into

homes, in the absence of probable cause or consent, when the

police are engaged in a community caretaking function.

Community caretaking functions include public service and public

safety activities performed by the police that are "totally

divorced from the detection, investigation, or acquisition of

evidence relating to the violation of a criminal statute."

Commonwealth v. Evans, 436 Mass. 369, 372 (2002), quoting from

Cady v. Dombrowski, 413 U.S. 433, 441 (1973). This question was

left unanswered in Commonwealth v. Entwistle, 463 Mass. at 219

n.8. Because we rest the result in this case on the

inapplicability of the exclusionary rule, see infra, it is

unnecessary for us to resolve this question, and we decline to

do so.

8

States v. Matlock, 415 U.S. 164, 170 (1974) ("[T]he consent of

one who possesses common authority over premises or effects is

valid as against the absent, nonconsenting person with whom that

authority is shared").6 Moreover, Monique did not state or imply

by her conduct that her consent was in any way limited beyond

the obvious limitation that it was to enable the police to

assist her in turning off the water.

b. Entry into the second room in the basement. The

Commonwealth advances several arguments in support of its

contention that the police had the right to enter the second

room after Whitney arrived on the scene and closed the door upon

entering that room.7

1. Consent. The Commonwealth argues that Whitney's action

in closing the door behind him did not revoke or limit Monique's

earlier consent to enter the home to shut off the water valve,

6

This is not a case in which the police had any reason to

doubt Monique's authority to give them permission to enter the

home. Contrast Commonwealth v. Lopez, 458 Mass. 383, 395

(2010). See generally Commonwealth v. Santos, 465 Mass. 689,

695-696 (2013) (when police obtain consent to enter home from

someone they reasonably believe has actual authority, they are

not required to inquire further).

7

The Commonwealth does not argue that the odor of fresh

marijuana alone established probable cause to enter the second

room. See Commonwealth v. Locke, 89 Mass. App. Ct. 497, 498 n.3

(2016) ("The decisional law of the Supreme Judicial Court makes

clear that the description of the odor as 'strong' or 'very

strong' does not, without more, constitute reasonable suspicion

or probable cause to believe that more than one ounce of

marijuana is present in light of the subjective and variable

nature of the strength of smell").

9

and thus the police had a right to open the door and enter the

second room. The scope of any consent that is granted is

determined on the basis of an objective assessment of the facts.

See, e.g., Commonwealth v. Porter P., 456 Mass. 254, 267 (2010);

Commonwealth v. Lopez, 458 Mass. 383, 393 (2010). "Because a

finding of voluntariness is a question of fact, it should not be

reversed absent clear error by the judge." Commonwealth v.

Carr, supra at 303.

The general rule is that consent for the police to enter a

home or to conduct a search may be withdrawn or limited at any

time. See Commonwealth v. Stewart, 469 Mass. 257, 261-262

(2014), and cases cited. It is also settled that in the absence

of exigent circumstances, when one co-occupant with common

authority over the premises objects to the entry or continued

presence of a guest invited onto the premises by another co-

occupant or co-occupants, the authority of the other co-occupant

to consent is lost. Georgia v. Randolph, supra at 114 ("Since

the co-tenant wishing to open the door to a third party has no

recognized authority in law or social practice to prevail over a

present and objecting co-tenant, his disputed invitation,

without more, gives a police officer no better claim to

reasonableness in entering than the officer would have in the

absence of any consent at all").

10

It is not necessary that a co-occupant with common

authority over the premises, who objects to the entry or

continued presence of a third party such as a guest or a police

officer, state the objection orally. As the Supreme Judicial

Court has explained, "[w]hat, if any, limitations on the consent

are implied by the language or conduct of the consenting party

is a question in the first instance for the judgment of the

police officers to whom the consent is given. The ultimate

question is whether, in light of all the circumstances, a man of

reasonable caution would be warranted in the belief that some

limitation was intended by the consent giver." Commonwealth v.

Cantalupo, 380 Mass. 173, 178 (1980). See Burton v. United

States, 657 A.2d 741, 746–747 (D.C. 1994) ("[C]onduct

withdrawing consent must be an act clearly inconsistent with the

apparent consent to search, an unambiguous statement challenging

the officer's authority to conduct the search, or some

combination of both" [footnotes omitted]).

The evidence supports the judge's conclusion that when

Whitney suddenly entered the basement, informed the police and

others present that he knew where the shut-off valve was

located, and entered the second room closing the door behind

him, a reasonable person in the position of the police officers

would understand that any consent that may previously have been

11

given by Monique with respect to entry into the second room was

withdrawn.

2. Emergency aid exception. The Commonwealth argues in

the alternative that notwithstanding the withdrawal of consent,

the police were justified in opening the door to the second room

under the emergency aid exception. This doctrine authorizes the

police to lawfully enter a home without probable cause or a

warrant "to render emergency assistance to an injured occupant

or to protect an occupant from imminent injury." Brigham City

v. Stuart, 547 U.S. 398, 403 (2006), quoting from Mincy v.

Arizona, 437 U.S. 385, 392 (1978). See Commonwealth v.

Entwistle, 463 Mass. at 213. The Commonwealth argues that the

water leaking onto the pipes, walls, and exposed wiring created

a dangerous situation that, when viewed objectively, required

them to act to protect the defendants as well as themselves.

In order for the emergency aid exception to apply, the

emergency condition must be operative at the time the police

enter the home or building, see Commonwealth v. Kirschner, 67

Mass. App. Ct. 836, 841-842 (2006), and the police are

authorized to remain on the premises only as long as there are

objectively reasonable grounds for the belief that emergency

assistance is still required. See Commonwealth v. Peters, 453

12

Mass. 818, 825-826 (2009).8 "[T]he Commonwealth has the burden

of showing that authorities had a reasonable ground to believe

that an emergency existed and that the actions of the police

were reasonable in the circumstances." Commonwealth v. Knowles,

451 Mass. 91, 96 (2008). "In determining whether entry is

justified under the emergency aid exception, we look solely to

the objective circumstances known to the police at the time of

entry and determine whether those circumstances provide a

reasonable basis for the entry." Commonwealth v. Entwistle,

supra at 214. The officers' subjective motivation is not

relevant. See Michigan v. Fisher, 558 U.S. 45, 47 (2009).

We assume for purposes of this analysis that the conditions

at the time the police first entered the home constituted a

genuine emergency due to the risk of a fire or electrocution.9

The existence of a genuine emergency, judged by an objective

standard, however, is a necessary but not sufficient basis to

justify the seizure or observation of evidence of criminal

8

It should be noted that evidence of criminal activity that

is found in plain view during an emergency entry may be seized

by the police without a warrant under the plain view doctrine.

See Commonwealth v. Ringgard, 71 Mass. App. Ct. 197, 202-203

(2008).

9

In order for the police to enter a home under the

emergency aid exception, "[i]t suffices that there are

objectively reasonable grounds to believe that emergency aid

might be needed." Commonwealth v. Entwistle, 463 Mass. at 214.

The doctrine is not limited in its application to cases in which

the police are aware that someone has suffered a life-

threatening injury or that a crime has been committed. Ibid.

13

activity by the police as they move through a home or building.

Under the emergency aid exception, the police conduct must be

reasonable and limited in scope to the purpose of the

warrantless entry. Commonwealth v. Peters, supra at 823, 825.

For example, in the Entwistle decision, where the victim's

family and friends had not heard from her for two days, the

Supreme Judicial Court explained that a genuine emergency

justified the police making a warrantless entry into the

victim's home, and that it was reasonable for the police to

examine vehicle lease papers that were in plain view on the

kitchen table to learn the vehicle identification number of the

family automobile. Commonwealth v. Entwistle, supra at 216-217.

However, the court reasoned that the police exceeded the scope

of the emergency aid exception when they turned on a digital

camera to determine the dates of the most recent photographs

that were taken. Id. at 217.

In assessing whether the police exceeded their authority

under the emergency aid exception in this case, Commonwealth v.

Sondrini, 48 Mass. App. Ct. 704, 706-707 (2000), is instructive.

There, a neighbor called the fire department to report that

water was leaking into her apartment from upstairs. From a fire

escape outside the second-floor apartment, police officers who

had been called to the scene observed paraphernalia used for

smoking marijuana in plain view on a table. They then entered

14

the second-floor apartment. Although the police observed that

the leaking water was due to a puncture in a water bed, they

opened a closed door and found a closet containing a marijuana

growing operation. Id. at 705. Rejecting the Commonwealth's

argument that the police conduct was justified under the

emergency aid exception, this court noted that even if the

initial entry by the police was justified, their subsequent

conduct, which included a search for evidence of a crime, was

not. Id. at 707.

As it was unnecessary in Sondrini for the officers to open

the closet door, it was not necessary in the present case for

the police to open the door and follow defendant Whitney into

the second room to address the purpose of their original entry.

Whitney stated that he knew where the shut-off valve was located

and then immediately entered the second room and closed the

door. There was no indication that he was incapable of turning

off the water or needed assistance in doing so. Indeed, the

motion judge found that Officer Manning told Officer Lemieux to

follow Whitney into the second room only "to see if he needed

any assistance because he 'did not feel comfortable with him

being in there by himself.'" We conclude, therefore, that the

15

emergency aid exception did not justify the action taken by the

police in opening the door to the second room.10

c. Application of the exclusionary rule. The motion judge

ruled that in the absence of any justification for opening the

door to the second room, the exclusionary rule required the

suppression of the fruits of that unlawful police conduct,

namely the large mason jar filled with raw marijuana.11 The

judge also ruled that the suppression of this evidence did not

affect the prosecution of the defendant for the crime of assault

and battery on a police officer.12

10

The motion judge evaluated the actions taken by the

police under the rubric of the community caretaking function,

and reached essentially the same conclusion, namely that the

police failed to act reasonably when they opened the door to the

second room because there was no evidence that they feared for

their safety because of the leak, or that Whitney needed

assistance. As stated in note 5, supra, we decline to address

whether the community caretaking function authorizes a

warrantless entry into a residence without probable cause or

exigent circumstances.

11

Because the mason jar provided the probable cause for the

search warrant, the execution of which led to the discovery of

more marijuana and related paraphernalia in another room in the

basement, suppression of the mason jar would necessitate

suppression of all of the marijuana and paraphernalia discovered

after the search warrant was obtained. On the other hand, if

the mason jar and its contents were not subject to the

exclusionary rule, neither would be the rest of the marijuana

and paraphernalia.

12

The judge did not expressly address whether this case

falls within the exception to the exclusionary rule based on

attenuation of the taint. While raised by the Commonwealth

below only obliquely, we address the issue for several reasons.

First, the judge's ruling that his suppression order does not

affect the prosecution of the defendant for assaulting a police

16

In determining whether to apply the exclusionary rule to

suppress the fruits of an illegal search or seizure, we do not

apply a "but for" test. Commonwealth v. Lundrin, 87 Mass. App.

Ct. 823, 826-827 (2015). Rather, the question is "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." Wong Sun v. United States, 371

U.S. 471, 488 (1963). "It is the Commonwealth's burden to

establish that the evidence it has obtained and intends to use

is sufficiently attenuated from the underlying illegality so as

to be purged from its taint." Commonwealth v. Damiano, 444

Mass. 444, 454 (2005).

The attenuation doctrine does not apply merely because the

defendant commits some voluntary act in response to an unlawful

search or seizure. See Commonwealth v. Borges, 395 Mass. 788,

795 (1985). We apply the three-part test developed in Brown v.

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

following: "(1) the temporal proximity of the arrest to the

officer is impliedly based on the attenuation of the taint

doctrine. See Commonwealth v. Gomes, 59 Mass. App. Ct. 332, 337

(2003) ("Neither Fourth Amendment nor art. 14 exclusionary rules

extend to suppression of evidence of crimes that are in reaction

to an illegal search or seizure"). Second, the parties have

fully briefed the issue and our resolution of it does not

require any additional fact finding. Third, in reaching this

issue, we avoid the need to resolve a separate constitutional

question specifically left open by the Supreme Judicial Court.

See note 5, supra.

17

defendant's response; (2) the presence or absence of intervening

circumstances; and (3) the purpose and flagrancy of the [police]

misconduct in the context of the circumstances of the arrest."

Commonwealth v. Borges, supra at 796.

In the present case, the judge was correct in recognizing

the significance of an intervening act that constituted a new

criminal offense, which determines whether the case fits within

the attenuation of the taint exception. For example, in

Commonwealth v. Gomes, 59 Mass. App. Ct. 332, 334 (2003), the

police responded to a call from a tenant who was awakened by a

loud, banging noise below her apartment. An inspection of the

building's exterior led the police to a residence associated

with the adjoining yard. Id. at 335. A uniformed police

officer knocked on the door and identified himself, and the

person who answered opened the door just a crack, was

intoxicated, and refused to identify himself or open the door

any further. Ibid. The officer kept his hand on the door and

placed his foot inside the open space to keep the door from

being closed. The person who had answered the door then shoved

the officer in the chest. Ibid. A melee broke out between the

police and the defendants, and the defendants were subsequently

convicted of assault and battery. Id. at 333-334.

In affirming the convictions, this court rejected the

defendants' argument that the exclusionary rule should prohibit

18

the Commonwealth from relying on any evidence of the assault and

battery because this evidence would not have been obtained but

for the illegal entry by the officer. "Neither Fourth Amendment

nor art. 14 exclusionary rules extend to suppression of evidence

of crimes that are in reaction to an illegal search or seizure."

Id. at 337. See Commonwealth v. King, 389 Mass. 233, 245 (1983)

(defendant could be prosecuted for crimes arising out of firing

gun at police even though shooting did not begin until after

police stopped defendant's motor vehicle without justification);

Commonwealth v. Holmes, 34 Mass. App. Ct. 916, 917-918 (1993)

(although initial police observation of bulge in defendant-

passenger's pocket during unlawful stop of vehicle would not

justify continued detention of vehicle or defendant, defendant's

action in suddenly opening door, slamming it against one of the

officers and fleeing scene "gave rise to an independent

justification for their pursuit" and subsequent seizure of

weapon).

The motion judge recognized this principle because he ruled

that his suppression order did not affect the prosecution of

Whitney for assault and battery on a police officer. However,

by allowing the motion to suppress any evidence of the marijuana

and related paraphernalia, the judge implicitly ruled that the

assault and battery did not attenuate the taint of the unlawful

search. We agree with the Commonwealth that the two rulings are

19

inconsistent, because the judge's findings of fact make clear

that the police did not see the mason jar containing marijuana

until after they lawfully arrested the defendant for the assault

and battery on a police officer. Although this observation was

close in time to the unlawful entry into the second room, it did

not come about by exploiting that unlawful act, but instead was

the result of Whitney's independent act of pushing the door into

the police officer, which established probable cause for

Whitney's arrest. See Commonwealth v. Fredette, 396 Mass. 455,

460 (1985). Applying the exclusionary rule to evidence seized

in plain view while the officers were lawfully present to effect

an arrest would not further the exclusionary rule's purpose as a

deterrent against unlawful conduct. See Commonwealth v. Lett,

393 Mass. 141, 145 (1984).13

13

The result we reach is consistent with the reasoning in

Commonwealth v. Martin, 457 Mass. at 22-23. In Martin, a police

officer unlawfully pat frisked the defendant, who pushed the

officer's hands away and said, "You can't touch me." Id. at 16.

The Supreme Judicial Court rejected the Commonwealth's argument

that the defendant's act was a new, intervening crime

dissipating the causal link between the officer's unlawful

conduct and his subsequent discovery of a firearm. Id. at 22-

23. Martin thus turns on the fact that the defendant's act "did

not influence the decision to seize the defendant, and

accordingly the acts cannot have dissipated the taint of the

original unlawful seizure." Id. at 23. In the present case, on

the other hand, the judge found that the defendant's act in

response to the unlawful entry into the second room established

probable cause for his arrest on a criminal charge that was not

the subject of any earlier police investigation and was not

affected by the unlawful police entry.

20

Moreover, even though the police lacked justification for

opening the door leading into the second room, there is no

evidence of flagrant misconduct or bad faith, especially

considering that they were invited to enter the basement to

assist in mitigating a genuine emergency. See Commonwealth v.

Fredette, supra at 461-463; Commonwealth v. Johnson, 58 Mass.

App. Ct. 12, 14-15 (2003).14,15 In sum, the third factor of the

analysis set forth in Brown v. Illinois, 422 U.S. at 603-604,

which is especially significant because it is tied to the

purpose underlying the exclusionary rule, does not favor

suppression of the evidence. See United States v. Fazio, 914

F.2d 950, 958 (7th Cir. 1990).16

14

Contrast Wong Sun v. United States, 371 U.S. at 482-484

(officer flagrantly violated Fourth Amendment by purposefully

misrepresenting his mission and breaking into residence); Brown

v. Illinois, 422 U.S. at 605 (unlawful arrest had "the

appearance of having been calculated to cause surprise, fright,

and confusion"); New York v. Harris, 495 U.S. 14, 25-26 (1990)

(police knowingly and deliberately violated Fourth Amendment to

acquire evidence not otherwise obtainable); United States v.

Camacho, 661 F.3d 718, 729 (1st Cir. 2011) (officers "accosted"

defendants in absence of reasonable suspicion with "substantial

show of authority" in "flagrant violation" of Fourth Amendment).

15

Although he admitted smelling marijuana, Officer Manning

testified: "To be perfectly honest with you, it was the end of

my shift, the last thing I wanted to do was get involved in

marijuana. I was there for a water break. And I wanted to

clear it up as quickly as I could." He also stated, "I wasn't

looking for marijuana."

16

This case is based on the attenuation of the taint

doctrine that was applied by the United States Supreme Court in

Brown v. Illinois, supra, and that has been followed by the

21

Conclusion. Although Officer Lemieux's entry into the

second room was unlawful, that illegality does not require the

exclusion of evidence concerning the mason jar filled with raw

marijuana, and all that followed from that observation. The

nexus between the unlawful entry and the evidence observed in

plain view during the course of the subsequent lawful arrest was

dissipated by an independent and intervening act of free will by

the defendant. See Commonwealth v. Borges, 395 Mass. at 795.

Order allowing motions to

suppress reversed.

Supreme Judicial Court. See, e.g., Commonwealth v. Damiano, 444

Mass. at 454. The critical facts that warrant application of

the doctrine are an unlawful search that was not a pretext for

the discovery of evidence nor a flagrant violation of the law,

followed by an independent, intervening act committed by the

defendant that established probable cause for his arrest during

which the police discovered evidence of other crimes. We do not

rely on the United States Supreme Court's most recent expression

of the attenuation of the taint doctrine in Utah v. Strieff, 136

S. Ct. 2056 (2016).