Petition — Fiore v. Massachusetts

Supreme Sourt US

: a a ae ote )

No. MICHAEL 1us..t, JR, CLERK

In the

Supreme Court of the United States.

OcrosBer TERM, 1980.

RICHARD FIORE,

PETITIONER,

v.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

Petition for Writ of Certiorari.

WiulE J. Davis,

Ten Post Office Square,

Boston, Massachusetts 02109.

(617) 482-5177

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS

Questions Presented.

1. Does a police officer have the right to enter unoccupied

premises, which apparently have been burglarized, for the

purpose of determining ownership of the premises?

2. If so, would prior information indicating the presence of

narcotics in the unoccupied premises necessitate obtaining a

search warrant prior to entry?

Table of Contents.

Opinion below

Jurisdiction

Constitutional provisions and statutes involved

Statement of the case

Reason for granting the writ

The constitutional issues here presented have not

hertofore been decided by this Court, and they

are of great significance

A. The initial entry into the Brimfield cottage

violated the petitioner’s Fourth Amendment

right to be secure from unreasonable searches

and seizures in that the entry was made with-

out a warrant and without justification by

reason of exigent circumstances

B. There is no constitutionally recognized

general “emergency” exception to the Fourth

Amendment’s warrant requirement. Even if

so broad an exception were approved, the

total circumstances surrounding the initial

entry into the Brimfield cottage do not justify

dispensing with the constitutional require-

ment of a warrant

C. The asserted reason for searching the cot-

tage without a warrant and the justification

for the search arrived at by the Appeals Court

are, when considered within the total cir-

cumstances surrounding the entry pretextual

rather than real

D. The informant’s tip which led the police to

the Brimfield cottage did not provide prob-

able cause to make a warrantless entry

Onn WD WD

=>)

11

ii TABLE OF CONTENTS.

E. The evidence seized from the Brimfield

cottage should have been excluded at trial as

the product of an illegal entry; and evidence

seized in East Longmeadow should have been

excluded because it was fruit from the pois-

onous tree

Conclusion

Appendix A

Appendix B

Table of Authorities Cited.

CASES.

Aguilar v. Texas, 378 U.S. 108 (1964)

Bumper v. North Carolina, 391 U.S. 543 (1968)

Chambers v. Maroney, 399 U.S. 42 (1970)

Commonwealth v. Fiore, Mass. Adv. Sh. (1980) 1549

(decided June 25, 1980)

Commonwealth v. Fiore, Mass. App. Ct. Adv. Sh.

(1980) 833, 403 N.E.2d 953

Commonwealth v. Forde, 367 Mass. 798 (1975)

Commonwealth v. Haefeli, 361 Mass. 271 (1972)

Mapp v. Ohio, 367 U.S. 643 (1961)

McDonald v. United States, 335 U.S. 451 (1948)

Michigan v. Tyler, 436 U.S. 499 (1978)

Mincey v. Arizona, 437 U.S. 385 (1978)

Pruitt v. State, 389 S.W.2d 475 (Tex. Crim. App. 1965)

Schmerber v. California, 384 U.S. 757 (1966)

12

12

la

6a

TABLE OF AUTHORITIES CITED. iii

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) 7

Spinelli v. United States, 393 U.S. 410 (1969) 11

Terry v. Ohio, 392 U.S. 1 (1968) 6

United States v. Barone, 330 F.2d 543 (2d Cir. 1964),

cert. denied, 377 U.S. 1004 10

United States v. Dunavan, 485 F.2d 201 (6th Cir. 1973) 7, 10

United States v. Jeffers, 342 U.S. 48 (1951) 7

United States v. Martinez-Fuerte, 420 U.S. 543 (1976) 11

United States v. Robinson, 414 U.S. 218 (1973) 6

Vale v. Louisiana, 399 U.S. 30 (1970) 7

Warden v. Hayden, 387 U.S. 294 (1967) 6

Wong Sun v. United States, 371 U.S. 471 (1963) 12

STATUTES.

United States Constitution, Fourth Amendment 2, 6,

7, 8, 9, 12

28 U.S.C. § 1257(3) 2

Rule 22 of the United States Supreme Court 2

MISCELLANEOUS.

Mascolo, The Emergency Doctrine Exception to the

Warrant Requirement Under the Fourth Amend-

ment, 22 Buffalo L. Rev. (1972) 9

The Emergency Doctrine, Civil Search and Seizure,

and the Fourth Amendment, 43 Fordham L. Rev.

(1975) 9

No. .

In the

Supreme Court of the United States.

Ocroser TERM, 1980.

RICHARD FIORE,

PETITIONER,

v.

—_

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

Petition for Writ of Certiorari.

The petitioner, Richard Fiore, respectfully prays that a writ

of certiorari issue to review the judgment of conviction and

opinion of the Appeals Court and Supreme Judicial Court of

the Commonwealth of Massachusetts entered in this pro-

ceeding on June 25, 1980.

2

Opinion Below.

The opinion of the Appeals Court is reported at Mass. App.

Ct. Adv. Sh. (1980) 833, 403 N.E.2d 953. A copy thereof ap-

pears in Appendix A. The Supreme Judicial Court declined

further appellate review. Mass. Adv. Sh. (1980) 1549 (decided —

June 25, 1980).

Jurisdiction.

The judgment of the Supreme Judicial Court was entered on

June 25, 1980 and this petition for certiorari was filed within

ninety days of that date. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1257(3) and Rule 22 of the Rules of the

United States Supreme Court.

Constitutional Provisions and Statutes Involved.

UNITED STATES CONSTITUTION, FOURTH AMENDMENT.

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no warrants shall

issue, but upon probable cause supported by oath or affir-

mation, and particularly describing the place to be

searched, and the persons or things to be seized.

Statement of the Case.

The petitioner was charged on six indictments with posses-

sion of a controlled substance with intent to distribute. He

3

filed a motion to suppress physical evidence on the ground that

entry into the premises was illegal. After an evidentiary hear-

ing the motion was denied. Thereafter, petitioner was tried

by jury and convicted on each indictment. He was sentenced

to two consecutive terms of two years in the house of correc-

tion. He appealed to the Appeals Court which affirmed the

conviction. Commonwealth v. Fiore, Mass. App. Ct. Adv.

Sh. (1980) 833, 403 N.E.2d 953. Further appellate review

was denied by the Supreme Judicial Court of Massachusetts.

Mass. Adv. Sh. (1980) 1549.

The facts material to the consideration of the questions pre-

sented are as follows:

Trooper John M. Cauley of the Massachusetts State Police,

an officer with more than ten years of experience, was assigned

to the Bureau of Investigation Services, Hampden County

C.P.A.C. at the District Attorney’s office in Springfield in De-

cember, 1977 (Tr. 2). Prior to this assignment, trooper Caul-

ey had worked primarily with narcotics in an undercover

capacity (Tr. 32).

On December 23, 1977, Officer Getty of the East Long-

meadow Police Department called the state police barracks at

Monson and left a message for Trooper Cauley (Tr. 9). Asa

result, Trooper Cauley called Officer Getty (Tr. 6, 9). The

two men knew each other and had worked together in the past

(Tr. 33).

Officer Getty told Trooper Cauley during the telephone

conversation that he (Getty), “had information from an in-

formant that there was a possibility of narcotics, guns and a

housebreak at a location near a trailer park, a junk yard and a

power line that he thought to be either in the Palmer or Brim-

field area.” (Tr. 6.) Officer Getty told Trooper Cauley that he

(Getty) had never used this particular informant before, but

that he believed the informant because he was scared (Tr. 9).

4

Cauley asked Getty where the informant got his information,

but Getty would not tell him (Tr. 10).

After receiving the information from Getty, Cauley contact-

ed his superior, Lt. Fitzgibbon (Tr. 10). Thereafter, Cauley

proceeded to the Monson barracks where he met Robert

Quarry, Thomas Duffy, and Sergeant Kennedy of the state po-

lice. He also met Chief Milani of the Brimfield Police Depart-

ment (Tr. 11). Later, Trooper Fitzgibbon of the state police

joined them (Tr. 12). All of the men then proceeded, “to a

vicinity near a power line, near a junk yard” in the Town of

Brimfield (Tr. 12-13). The men came upon a cottage at a lo-

cation previously given to Cauley by Getty (Tr. 13-14). There

were no signs of life in the cottage, and no lights (Tr. 15).

Cauley approached the cottage and shined his flashlight

around the outside of the building. At this time he noticed

that the outside door was broken open (Tr. 16). At this point

Cauley decided to enter the building; he did not knock (Tr.

17). He looked to see if anyone was inside, but found no one

(Tr. 18).

Once inside the cottage Cauley made certain observations

which included a hole in the floor. By shining the light down

in the hole he observed a substance which he determined to be

hashish (Tr. 24). This determination was made solely by the

odor which was not apparent to Cauley until he looked in the

hole (Tr. 24).

Cauley, after making the observations in the hole, applied

for a search warrant the next day (Tr. 25-26). In the affidavit

executed by Cauley in connection with the application for the

search warrant, he stated that he had information from Getty

about a possible breaking and entering at the cottage. The af-

fidavit did not state the other information Cauley received

about the cottage, i.e., the possibility of narcotics and guns

being found therein. However, Cauley proceeded to the loca-

tion of the cottage because of the information received from

5

Getty concerning the possibility of narcotics being in the cot-

tage (Tr. 39-40).

Upon receiving the search warrant the cottage was searched

and a large quantity of a substance suspected of being hashish

was seized.

The search of the Brimfield cottage produced some locks

(Tr. 43). Prior thereto Cauley had found a slip of paper on the

floor. It was a bill addressed to the petitioner Fiore, at 26

Smith Avenue, East Longmeadow (Tr. 22-23). As a result of

finding the locks at the Brimfield cottage, Cauley applied for a

search warrant to search the East Longmeadow premises (Tr.

43-44). His purpose was to try and find keys which would fit

the locks found at the Brimfield cottage (Tr. 44). While

searching the East Longmeadow premises. Cauley found nar-

cotics which resulted in other indictments being sought against

the petitioner (Tr. 44).

In filling out a complaint sheet which is filed at state police

headquarters in Boston, Cauley stated that the nature of the

complaint was, “information received re: large quantity of

hashish secreted in a cabin located in Brimfield.” (A. 21.) The

complainant’s name as given on the complaint sheet was Offi-

cer Getty, and his address was given as the East Longmeadow

Police Department (A. 21).

Cauley appeared before the grand jury in connection with

this matter. He was asked the nature of the information he

had which led him to seek the warrant for the Brimfield cot-

tage. He responded that the information was that there was a

large quantity of hashish located at a dwelling house (Tr. 30-

31).

6

Reason for Granting the Writ.

THE CONSTITUTIONAL Issues HERE PRESENTED HAvE Not

HERETOFORE BEEN DECIDED BY THIS Court,

AND THEY ARE OF GREAT SIGNIFICANCE.

A. The Initial Entry Into the Brimfield Cottage Violated

the Petitioner’s Fourth Amendment Right to be Secure

From Unreasonable Searches and Seizures in That the

Entry was Made Without a Warrant and Without Justifi-

cation by Reason of Exigent Circumstances.

The Fourth Amendment to the United States Constitution

proscribes all unreasonable searches and seizures. Its purpose

is to safeguard the privacy and security of individuals against

arbitrary and unreasonable invasions by government officials.

See Schmerber v. California, 384 U.S. 757, 767 (1966). Its

cardinal principle is that searches conducted outside the judi-

cial process, without prior approval by judge or magistrate,

are per se unreasonable, subject only to a few specifically

established and well-delineated exceptions. Mincey v. Ari-

zona, 437 U.S. 385, 390 (1978).

Petitioner contends that the initial entry into the Brimfield

cottage by Trooper Cauley constituted a search in violation of

his Fourth Amendment rights. The search was made without

a warrant.

The initial entry into the Brimfield cottage does not fall

within recognized exceptions to the warrant requirement.

This was not a search incident to an arrest, cf. United States v.

Robinson, 414 U.S. 218 (1973); nor a stop and frisk, cf. Terry

v. Ohio, 392 U.S. 1 (1968). The object of the search was not

an automobile or moving vehicle, cf. Chambers v. Maroney,

399 U.S. 42 (1970), and the police were not in hot pursuit of a

fleeing felon, cf. Warden v. Hayden, 387 U.S. 294 (1967); nor

7

had Trooper Cauley secured the consent of the petitioner to a

search of the premises. See Schneckloth v. Bustamonte, 412

U.S. 218 (1973). It might be said that the search was made in

order to seize evidence or contraband subject to removal or

destruction, cf. Schmerber v. California, 384 U.S. 757 (1966),

but this exception to the Fourth Amendment’s warrant re-

quirement was not claimed by Trooper Cauley as the reason

for his entry.

Trooper Cauley’s affidavit recited that his purpose for enter-

ing the dwelling was to, “ascertain who the owner was.”

There is no authority which supports including such a purpose

as an exception to the warrant requirement.

In its opinion, the Appeals Court refused to read Cauley’s

affidavit so restrictively as to exclude a legitimate entry to in-

vestigate a housebreak, and held that the possibility that some-

one in the cottage was in need of help or that an intruder was

in the dwelling, justified Cauley’s entry and investigation.

B. There is no Constitutionally Recognized General “Em-

ergency” Exception to the Fourth Amendment’s Warrant

Requirement. Even if so Broad an Exception Were Ap-

proved, the Total Circumstances Surrounding the Initial

Entry into the Brimfield Cottage do not Justify Dispens-

ing With the Constitutional Requirement of a Warrant.

Apparently the Appeals Court’s opinion rests upon the so-

called “emergency” exception. See United States v. Dunavan,

485 F.2d 201 (6th Cir. 1973). Certain decisions of this Court

have intimated that response to an emergency could be an ex-

igent circumstance. See Vale v. Louisiana, 399 U.S. 30, 35

(1970); United States v. Jeffers, 342 U.S. 48, 52 (1951); Mc-

Donald v. United States, 335 U.S. 451, 454 (1948). However,

petitioner contends that by their very nature, all exigent cir-

8

cumstances amount to an emergency. To now label an excep-

tion to the Fourth Amendment’s warrant requirement the

“emergency exception” is to subsume all the existing, restric-

tively applied exceptions to the rule, and to create an excep-

tion so broad as to swallow the Fourth Amendment’s warrant

protection.

Moreover, petitioner contends that there was no emergency

in the circumstances of the initial entry into the cottage, either

on the basis of already established emergency-like exceptions,

or on the basis of a broad-based concept of emergency. It is

clear that the recognized limited exceptions to the warrant re-

quirement (noted above) are inapplicable here. Nor do the

facts here support the Appeals Court’s notion that there could

have been persons in need of aid or intruders still in the cottage

when Cauley and the other police officers arrived. There was

no sign of life at the cottage (Tr. 15). Indeed, Trooper Cauley

found no one inside when he looked (Tr. 18). In fact, there

was no degree of urgency connected with Trooper Cauley’s in-

vestigation at all. Trooper Cauley did not immediately pro-

ceed to the vicinity when Officer Getty of the East Longmead-

ow Police Department told him that, “there was a possibility

of narcotics, guns and a house break at a location near a trailer

park, a junk yard and a power line that he thought to be either

in the Palmer or Brimfield area.” (Tr. 6.) Nor did Cauley

suggest to Getty that the local authorities should immediately

investigate the housebreak, as is probably the routine (A. 10).

Instead, Cauley contacted his superior officer, Lieutenant

Fitzgibbon, and proceeded to the state police barracks at Mon-

son to meet other police officers and await Trooper Fitzgibbon

(Tr. 12). Only then did Cauley and the other police officers

proceed to a vicinity, which by the uncertainty of its descrip-

tion of location, presumably took some time finding.

A claim of exigency cannot be evaluated without consider-

ing the circumstances in their totality. Commonwealth v.

9

Forde, 367 Mass. 798, 801 (1975). An evaluation of the total

circumstances in the instant case does not support any claim of

exigency based upon the emergency of aiding someone in the

cottage in need of help or apprehending an intruder.

C. The Asserted Reason for Searching the Cottage With-

out a Warrant and the Justification for the Search Arrived

at by the Appeals Court are, When Considered Within

the Total Circumstances Surrounding the Entry Pretext-

ual Rather Than Real.

To be sure, a large number of state and federal courts have

recognized an “emergency” exception to the Fourth Amend-

ment. See, “The Emergency Doctrine, Civil Search and Seiz-

ure, and the Fourth Amendment,” 43 Fordham L. Rev. 571

(1975). However, recognizing that the emergency doctrine

has been applied to a multiplicity of fact patterns, one author

has extracted from the cases an exhaustive definition:

Law enforcement officers may enter private premises

without either an arrest or a search warrant to preserve

life or property, to render first aid and assistance, or to

conduct a general inquiry into an unsolved crime, pro-

vided they have reasonable grounds to believe that there

is an urgent need for such assistance and protective ac-

tion, or to promptly launch a criminal investigation in-

volving a substantial threat of imminent danger to either

life, health, or property, and provided, further, that they

do not enter with an accompanying intent to either arrest

or search. Mascolo, “The Emergency Doctrine Excep-

tion to the Warrant Requirement Under the Fourth

Amendment,” 22 Buffalo L. Rev. 419, 426 (1972). (Em-

phasis added.)

10

It is this last proviso that renders Trooper Cauley’s entry il-

legal should an emergency doctrine be held applicable here.

This is not an instance where the police, hearing screams,

knocked at a door and demanded entrance to investigate.

United States v. Barone, 330 F.2d 543 (2d Cir. 1964), cert.

denied, 377 U.S. 1004. Nor does this case involve highly suspi-

cious circumstances which strongly indicated that unless

ownership was immediately ascertained, the object of the

search would be gone in the time it took to secure a search

warrant. Commonwealth v. Haefeli, 361 Mass. 271 (1972).

Rather, petitioner contends that this is a case in which the

police officers entered the premises not to investigate a break-

ing and entering and not, at least initially, to ascertain the

owner of the premises, but with the intent to search for the

contraband that had been reported to be present at a burglar-

ized cottage in the vicinity. Only upon discovering the

hashish did ascertainment of the owner of the cottage become

important to the officers.

Thus, even if an entry into a private dwelling for the pur-

poses of rendering aid, apprehending intruders, or investigat-

ing the occurrence of.a felony, is considered a valid “emergen-

cy” exception to the warrant requirement, that exception

would be inapplicable here. Petitioner contends that any of

those reasons for Trooper Cauley’s entry into the Brimfield

cottage are pretextual and not real. United States v. Duna-

van, 485 F.2d 201 (6th Cir. 1973). Pruitt v. State, 389S.W.2d

475 (Tex. Crim. App. 1965). Support for the petitioner’s

claim of pretext can be found within the motion judge’s find-

ings of fact on the motion to suppress; Trooper Cauley pro-

ceeded to the location of the cottage because of the informa-

tion received from Getty concerning the possibility of narcotics

being in the cottage (Tr. 39-40; A. 20). Trooper Cauley had

police experience primarily in undercover narcotics operations

(A. 19). In filling out a complaint sheet which is filed at state

11

police headquarters in Boston, Cauley stated that the nature of

the complaint was, “information received re: Large quantity

of hashish secreted in a cabin located in Brimfield.” (A. 21.)

Cauley and his fellow officers were not interested in investi-

gating a housebreak; they were admittedly there to find narco-

tics. Hindsight should not now color the true purpose of the

entry into the cottage, nor allow pretextual grounds to make

reasonable an entry made for purposes of an illegal search.

United States v. Martinez-Fuerte, 420 U.S. 543 (1976).

D. The Informant’s Tip Which Led the Police to the

Brimfield Cottage did not Provide Probable Cause

to Make A Warrantless Entry.

The search of the Brimfield cottage was indeed illegal; not

only was there no exigency justifying the entry, but also there

was no probable cause to support a search of the premises.

Since the informant who originally supplied the tip to Officer

Getty of the East Longmeadow Police Department had never

been used in the past, he was not reliable (Tr. 9). And Getty

refused to inform Trooper Cauley of any of the circumstances

from which the informant concluded that there were narcotics

in the Brimfield cottage (Tr. 10). Thus, the two-pronged test

of Aguilar v. Texas, 378 U.S. 108, 114 (1964), was not met in

either particular. It might be said that upon locating a cot-

tage which had been broken into in the general vicinity given

by the informant, the police had corroboration of the tip

which could amount to probable cause to search. Spinelli v.

United States, 393 U.S. 410 (1969). Since there had been no

exigency requiring immediate entry and sufficient police per-

sonnel to secure the premises, a warrant should have been ob-

tained at that point.

12

2

E. The Evidence Seized From the Brimfield Cottage

Should Have Been Excluded at Trial as the Product of an

Illegal Entry; and Evidence Seized in East Longmeadow

Should Have Been Excluded Because it was Fruit From

the Poisonous Tree.

A search unlawful at its inception is not validated by what it

turns up. Bumper v. North Carolina, 391 U.S. 543 (1968). It

follows that having observed what he suspected of being on

the premises as a result of a warrantless and illegal entry,

Trooper Cauley could not use that information in later seeking

to obtain a warrant to search the cottage. And, because the

warrant to search the Brimfield cottage was invalid, the war-

rant to search the premises in East Longmeadow, which was

obtained as a result of what was found in Brimfield, is also in-

valid. Wong Sun v. United States, 371 U.S. 471 (1963).

Petitioner’s convictions of possession of controlled sub-

stances with intent to distribute were based upon evidence

which should have been excluded as seized in violation of the

search and seizure provisions of the Fourth Amendment.

Mapp v. Ohio, 367 U.S. 643 (1961). Therefore, the decision

of the Appeals Court affirming the judgments of conviction

was in error.

-

Conclusion.

The response to the questions presented should be answered

by this Court in the negative. In Michigan v. Tyler, 436 U.S.

499 (1978), the basic purpose of the Fourth Amendment, i.e.,

to safeguard the privacy and security of individuals against ar-

bitrary invasions by government officials, was reaffirmed. In

Tyler, it was held that fire victims retain Fourth Amendment

13

protections in whatever remains of their property. Of course,

it was explained that fire and police officials faced with the ex-

igency of a fire in progress have a duty to enter without a war-

rant and, having entered during the emergency, they may re-

main on the premises for a reasonable time. But the mere fact

that a fire has occurred does not suspend Constitutional pro-

tections until the suspected arsonist has been apprehended and

the premises restored. Likewise, the fact that premises have

apparently been burglarized does not mean that police officials

can enter at will.

The instant case does not involve a breaking and entering in

progress, ‘which could be analogized to a burning building, re-

quiring an immediate warrantless entry. The record indicates

that there was a mere possibility that a breaking and entering

had occurred. The record indicates no exigency, a fact con-

clusively demonstrated by the actions of the police officers

themselves. The police did not respond as if to an emergency,

i.e., no officers were immediately dispatched to the cottage.

No right of entry accrued to the police, because no exigent

circumstances were present. Therefore, the petition for writ

of certiorari should issue.

Respectfully submitted,

WILLIE J. DAVIS,

Ten Post Office Square,

Boston, Massachusetts 02109.

(617) 482-5177

la

Appendix A.

COMMONWEALTH OF MASSACHUSETTS.

HAMPDEN, SS. SuPERIOR CourRT

Nos. 78-217 through

78-227

COMMONWEALTH

vs.

RICHARD FIORE

AND

DEBORAH TRACY

Findings and Rulings.

The Motion to Suppress is DENIED.

Findings of Fact.

1. Trooper John M. Cauley of the Massachusetts State

Police, an officer with more than ten years of experience, was

assigned to the Bureau of Investigation Services, Hampden

County C.P.A.C. at the District Attorney’s Office in Spring-

field in December 1977. (Tr. 2). Prior to this assignment,

Trooper Cauley had worked in an undercover capacity, pri-

marily with narcotics. (Tr. 32).

2. On December 23, 1977, Officer Getty of the East Long-

meadow Police Department called the State Police Barracks at

Monson and left a message for Trooper Cauley. (Tr. 9). Asa

result, Trooper Cauley called Officer Getty. (Tr. 6, 9). The

2a

two men knew each other and had worked together in the

past. (Tr. 33).

3. Officer Getty told Trooper Cauley during the telephone

conversation that he (Getty) “had information from an in-

formant that there was a possibility of narcotics, guns and a

house break at a location near a trailer park, a junk yard and a

power line that he thought to be either in the Palmer or Brim-

field area.” (Tr. 6). Officer Getty told Trooper Cauley that

he (Getty) had never used this particular informant before,

but that he believed the informant because he was scared. (Tr.

9). Cauley asked Getty where the informant goi his informa-

tion, but Getty would not tell him. (Tr. 10).

4. After receiving the information from Getty, Cauley con-

tacted his superior, Lt. Fitzgibbons. (Tr. 10). Thereafter,

Cauley proceeded to the Monson Barracks where he met Ro-

bert Quarry, Thomas Duffy and Sergeant Kennedy of the

State Police. He also met Chief Malangi of the Brimfield

Police Department. (Tr. 11). Later, Trooper Fitzgibbons of

the State Police joined them. (Tr. 12). All of the men then

proceeded “to a vicinity near a power line, near a junk yard”

in the town of Brimfield. (Tr. 12-13). The men came upon a

cottage at the location previously given to Cauley by Getty.

(Tr. 13-14). There were no signs of life in the cottage and no

lights. (Tr. 15).

5. Cauley approached the cottage and shone his flashlight

around the outside of the building. At this time he noticed

that the outside door was torn off. (Tr. 16). At this point

Cauley decided to enter the building; he did not knock. (Tr.

17). Upon entering through the doorway where the door had

been torn off, Trooper Cauley found the inner door to be ajar.

(Tr. 17). He looked to see if anyone was inside, but found no

one.

6. Once inside the cottage, Cauley made certain observa-

tions which included a hole in the floor. By shining his light

3a

down in the hole, he observed a substance which he deter-

mined to be hashish. (Tr. 24). This determination was made

solely by looking in the hole and by an odor which was not ap-

parent to Cauley until he looked in the hole. (Tr. 24). On his

way out, Cauley noticed a slip of paper on the floor of the

dwelling. It was a bill addressed to a Mr. R. Fiore, 26 Smith

Avenue, East Longmeadow, Massachusetts. (Tr. 22-23). The

East Longmeadow address is a home owned by Robert and

Antionette Fiore. (Tr. 46). The Brimfield cottage is also

listed to a Robert and Antionette Fiore.

7. After making the observations in the hole, Cauley ap-

plied for a search warrant the next day. (Tr. 25-26). In the

affidavit executed by Cauley in connection with the applica-

tion for the search warrant, he stated that he had information

from Getty about a possible breaking and entering at the cot-

tage. The affidavit did not state the other information Cauley

received about the cottage, i.e., the possibility of narcotics and

guns being found therein. However, Cauley proceeded to the

location of the cottage because of the information received

from Getty concerning the possibility of narcotics being in the

cottage. (Tr. 39-40).

8. Upon receiving the search warrant, the cottage was

searched, and a large quantity of a substance suspected of

being hashish was seized.

9. The search of the Brimfield cottage produced some locks.

(Tr. 43). Prior thereto, Cauley had found a slip of paper on

the floor. It (F. 6) was a bill addressed to the defendant Fiore

at 26 Smith Avenue, East Longmeadow. Asa result of finding

the locks at the Brimfield cottage, Cauley applied for a search

warrant to search the East Longmeadow premises. (Tr. 43-

44). His purpose was to try to find keys which would fit the

locks found at the Brimfield cottage. (Tr. 44). While search-

ing the East Longmeadow premises, Cauley found narcotics

4a

which resulted in other indictments being sought against the

defendants. (Tr. 44).

10. In filling out a complaint sheet which is filed at State

Police Headquarters in Boston, Cauley stated that the nature

of the complaint was “information received re: large quantity

of hashish secreted in a cabin located in Brimfield.” (Exh. 1).

The complainant’s name as given on the complaint sheet was

Officer Getty, and his address was given as the East Long-

meadow Police Department. (Exh. 1).

11. Cauley appeared before the Grand Jury in connection

with this matter. He was asked the nature of the information

he had which led him to seek the warrant for the Brimfield

cottage. He responded that the information was that there

was a large quantity of hashish located at a dwelling house.

(Tr. 30-31).

Rulings of Law.

1. The defendants have standing to challenge the search of

the premises involved.

2. The initial entry into the Brimfield, Massachusetts cot-

tage by Trooper Cauley was a legal entry under the circum-

stances.

Although Trooper Cauley had been investigating a breaking

and entering in the area, because of the broad description

given to him, he had no reason to believe at this point that this

was the cottage about which he had been informed. (Tr. 22).

Upon finding a dwelling with the front door torn from the

hinges and the second door ajar, Cauley surely had a duty to

make some investigation. Commonwealth v. Thomas, 358

Mass. 771, 774 (1971). It was reasonable in the instance for

Cauley to think that there might nave been someone hiding in

the dwelling (Tr. 22) who could escape or who might further

5a

damage the property. He had a duty to secure the property

for the owner. Also, upon viewing the violent way in which

the house was broken open, it would have been reasonable to

believe that someone might be injured and in need of assist-

ance. Leaving the scene under these circumstances to obtain a

search warrant would have been unreasonable and contrary to

his official duty.

3. There was no misstatement, intentionally or otherwise,

made by Trooper Cauley in his affidavit for the search war-

rant.

It is clear that Cauley had more information about the

Brimfield premises than he included in his affidavit. But it

does not follow that the inclusion of such additional informa-

tion would have destroyed the probable cause for the search

warrant to issue. The failure to include the information that

the Brimfield cottage probably contained narcotics and fire-

arms is not misrepresentation.

RAYMOND R. Cross

Justice of the Superior Court

Entered:

6a

Appendix B.

Hmdn. 79-170

COMMONWEALTH vs. RICHARD FIORE.

GoopMAN, J. The defendant appeals (G.L. c. 278, §§ 33A-

33G) from convictions on six indictments charging possession

. of controlled substances with intent to distribute. He assigns

as error and argues in the following order (1) the denial of his

motion to suppress evidence which, he contends, resulted from

an illegal search and seizure; (2) the trial judge’s refusal to ask

certain questions of prospective jurors; (3) the denial of his mo-

tions for directed verdicts; and (4) the admission of certain tes-

timony at trial. (Other assignments of error not argued are

deemed waived.)

1. Motion to suppress. The following background facts ap-

pear primarily from the judge’s findings on the motion to sup-

press, supplemented by the evidence introduced at the hearing

on the motion. At about 10:00 p.m., on December 23, 1977,

an officer of the East Longmeadow police department (Getty)

spoke over the telephone to a State police trooper (Cauley) and

told him that he (Getty) had received information “from an

informant that there was a possibility of narcotics, guns and a

house break at a location near a trailer park, a junk yard and a

power line that he thought to be either in the Palmer or Brim-

field area.”' Later that evening, Cauley, together with

members of the State Police and the chief of the Brimfield

police department, proceeded “to a vicinity near a power line,

near a junk yard” in the town of Brimfield (see note 1, supra) .?

There they came upon a cottage, the outside door of which

'The quotation, included in the judge's findings, is taken from Cauley’s

testimony at the hearing,

* There was also a trailer park in the area.

Ta

was torn off. Cauley entered through the doorway and found

the inner door to be ajar. He looked to see if anyone was in-

side but found no one. In the cottage, Cauley noticed a hole

in the floor and shone his flashlight into the hole, where he

saw and smelled a quantity of hashish. The next day he ap-

plied for and received a warrant to search the Brimfield cot-

tage; the police seized cocaine and a large quantity of hashish,

various bills, notebooks, papers and miscellaneous parapher-

nalia. As a result, Cauley then obtained a warrant to search

the defendant’s East Longmeadow residence; that search re-

sulted in the seizure of more narcotics, as well as keys to tne

locks on the cellar door of the cottage.®

The defendant contends that Cauley’s observation of the

hashish in the Brimfield cottage is the fruit of an illegal entry,

and that this is manifest (a) on the face of the affidavit in sup-

port of the search warrant (Commonwealth v. Monosson, 351

Mass. 327 [1966]) and (b) from the evidence at the hearing on

the motion to suppress. We do not agree.

(a) Cauley’s affidavit recites that, as a result of information

from Getty concerning a breaking and entering in a dwelling

house in Brimfield, Cauley and other officers went to that

dwelling house and found that “there had been in fact a break

committed there.” They “entered the dwelling house . . . to

ascertain who the owner was.” The affidavit further sets out

that while in the cottage Cauley noticed “a quantity of .. .

hashish.”

It seems clear to us that a house break without more — as set

out in the affidavit — raises the possibility of danger to an oc-

cupant and of the continued presence of an intruder and in-

dicates that need to secure the premises. In such circum-

stances “[t]he right of the police to enter and investigate in an

emergency without the accompanying intent to either search

°No separate issue is raised with reference to the East Longmeadow war-

rant.

8a

or arrest is inherent in the very nature of their duties as peace

officers.” United States v. Barone, 330 F.2d 543, 545 (2d

(Cir.), cert. denied, 377 U.S. 1004 (1964). Warden v. Hayden,

387 U.S. 294, 298-300 (1967). Michigan v. Tyler, 436 U.S.

499, 509-510 (1978). Commonwealth v. Thomas, 358 Mass.

771, 774 n.2 (1971). Commonwealth v. Kingsbury, Mass.

App. Ct. ; «,-- Bien Mass. (1979). See

Marshall v. United States, 422 F.2d 185, 187-189 (5th Cir.

1970); United States v. Dunavan, 485 F.2d 201, 204-205 (6th

Cir. 1973). The defendant points out, however, that the en-

trance in this case was stated in the affidavit to be in order “to

ascertain who the owner was.” We do not read the affidavit

so restrictively as to exclude the normal motivations in enter-

ing a dwelling when the police discover a break. United States

v. Ventresca, 380 U.S. 102, 108 (1965).*

(b) The defendant further contends that Cauley’s observa-

tion of the hashish in the cottage was the fruit of an illegal en-

try made for the purpose of looking for narcotics, rather than

the inadvertent result of the investigation of a breaking and

entering. See Commonwealth v. Forde, 367 Mass. 798,

807-808 (1975), citing Wong Sun v. United States, 371 U.S.

471, 484-488 (1963), Commonwealth v. Penta, 361 Mass. 894,

895 (1972), and Commonwealth v. Hall, 36[6] Mass. 790, 795

(1975). The issue, otherwise put, is the applicability to Caul-

“Mass. App. Ct. Adv. Sh. (1979) 180, 181-182.

> Mass. Adv. Sh. (1979) 2149.

‘The defendant also complains that Cauley omitted from his affidavit any

reference to the additional information received from Getty about the

possibility that narcotics might be found in the cottage. But in our view, as

explained in part (b) infra, this possibility did not make unlawful the entry

into the cottage; therefore its inclusion in the affidavit would have been im-

material. See Franks v. Delaware, 438 U.S. 154, 161-164 (1978); Common-

wealth v. Reynolds, 374 Mass. , - (1977) (Mass. Adv. Sh. [1977]

2817, 2822-2824).

9a

ley’s observation of “[t]he plain view doctrine [which] requires

prior police justification for an intrusion in the course of which

an officer inadvertently comes across incriminating evidence.

The ‘prior justification’ language is merely another way of ar-

ticulating the necessity for ‘some . . . legitimate reason for

being present unconnected with a search directed against [an]

accused.’ Coolidge v. New Hampshire [403 U.S. 443, 466

(1971)].” Commonwealth v. Walker, 370 Mass. 548, 557

(1976).

On the record in this case we believe the entry was justified.

To be sure, Cauley testified that he came upon the cottage in

the course of an investigation of the possibility of narcotics in a

house which might have been broken into and that Getty’s in-

formation, on which he proceeded, came from an informant

for whose reliability neither Cauley nor Getty could vouch.*

In view of the uncertainty of the information, the trial judge

could, as he did, believe Cauley’s testimony that when he

came upon the cottage from which the door had been torn, he

did not know that this was the cottage to which Getty’s infor-

mant had referred. From the testimony, Cauley had no physi-

cal description of or any other information as to the specific

cottage involved; there are “numerous cottages in the area.”

Cauley was obviously looking for the cottage which he ulti-

mately entered, but it was just happenstance that he went in

the direction of that cottage.® Further, there were tracks in

5Cauley testified that on questioning Getty he was told that Getty had

never used this informant before and that when Cauley “asked him what did

he base his reliability on . . . he told me that the informant was very scared

and he tended to believe him.” Getty would not tell Cauley where the infor-

mant got the information.

*He testified: “I went through a trailer park where there was numerous

places. There were some up behind it and I went up a dirt road. I bfore] to

the right. You could have b{orne] to the left and I think the[re] are cottages

up in there. I came upon a cottage.” He further testified: “1 came upon a

dwelling that was obviously broken into. I did not know . . . if it was the

10a

the snow leading to the cottage, and there was an automobile

parked in the yard.

In the circumstances the possibility that this was the cottage

where narcotics might be found did not cancel out the alter-

nate possibility that someone in the cottage was in need of help

or that an intruder was in the dwelling. Cauley was not ob-

liged to treat the cottage as somehow an outlaw without the

right to police protection and aid because of the possibility

that there might be narcotics in it. That mere possibility did

not require him to depart from the normal procedure that “if

we came upon a break we go in and ascertain if anybody who

had broken in was still inside.” Accordingly, the motion to

suppress was properly denied.

2. Voir dire of prospective jurors. Of the seventeen ques-

tions which defense counsel proposed that the trial judge ask

prospective jurors, the judge asked six. In view of the repre-

sentations of counsel that there had been “a lot of publicity”

when the case began a little less than a year previously, the

judge agreed to ask defense counsel’s proposed question ad-

dressed to the possible exposure of the venire to such publicity.’

He thus complied with G. L. c. 234, § 28, as amended through

St. 1975, c. 335, which requires the examination of prospec-

tive jurors “if it appears that as a result of the. . . possible ex-

same place that Mr. Getty had talked to me about. . . ._I went in to ascer-

tain if anybody was inside there who had broken in, to secure the property

for the owner and to identify the owner, if at all possible.

7The proposed question was: “Do you have any knowledge of this case

gained from any source including but not limited to radio, television, news-

papers or in conversation with other prospective jurors?

a. If so, have you formed an opinion about the case?

b. If you have not formed an opinion but have knowledge of the case, can

you decide the issues solely on the evidence presented at trial?”

He also asked as proposed by defense counsel: “Do you have any special

feelings about narcotics which will make it difficult for you to decide this

case upon the evidence alone?”

lla

posure to potentially prejudicial material . . . the juror may

not stand indifferent.” We see no reason to interfere with the

judgment of the trial judge in refusing to ask additional ques-

tions dealing with such general topics as a defendant’s right

not to testify and the presumption of innocence. The trial

judge apparently saw no sufficient relation between whatever

“extraneous considerations” the publicity might have en-

gendered and those questions, which arise at every trial and

which are, as the trial judge indicated, dealt with in the

charge to the jury. The trial judge necessarily has a large

measure of discretion to decide just how to frame the questions

in applying the statute. See Commonwealth v. Campbell,

Mass. ; - (1979);° Commonwealth v. Jones,

Mass. App. Ct. ‘ - ,¢ further appellate review

granted, Mass. (1980).°

3. Motions for directed verdict. Contrary to the defend-

ant’s contention, there was sufficient evidence when the de-

fendant moved for a directed verdict at the end of the Com-

monwealth’s case from which the jury could find beyond a

reasonable doubt that the defendant had dominion and con-

trol over the narcotics seized in the Brimfield cottage. Three

trunks of marihuana were found in the cellar, the windows of

which were welded shut with metal plate and the heavy door

to which was secured by two dead-bolt Yale locks. The keys to

these locks were in the possession of the defendant when the

police went to his East Longmeadow home. Further, in his

bedroom in East Longmeadow they found books of account

with reference to sales of marihuana and under his bed three

jars, the numbers on which correlated with numbers in note-

books found in the Brimfield cottage. The search of the Brim-

Mass. Adv. Sh. (1979) 2055, 2074-2076.

4 Mass. App. Ct. Adv. Sh. (1980) 153, 163-165.

Mass. Adv. Sh. (1980) 917.

12a

field cottage also yielded a number of papers and bills addressed

to “Mr. Richard Fiore, 26 Smith Avenue, East Longmeadow,”

where Richard Fiore lived and a number addressed to Richard

Fiore with directions to the Brimfield cottage. We need not

analyze each piece of evidence; together, we are convinced,

they presented a jury question as to the control and possession

of the narcotics in the Brimfield cottage. See Commonwealth

v. Dinnall, 366 Mass. 165, 169 (1974); Commonwealth v.

Rugaber, 369 Mass. 765, 769-770 (1976); Commonwealth v.

Xiarhos, 2 Mass. App. Ct.. 225, 231-252 (1974); Common-

wealth v. Lee, 2 Mass. App. Ct. 700, 702-705 (1974).

4. Admission of evidence. Cauley’s expert testimony as to

the “street value” of cocaine and hashish was admissible. The

trial judge was well within his discretion in qualifying Cauley

as an expert (Commonwealth v. Boyd, 367 Mass. 169, 182

[1975]) and the testimony was obviously relevant to the de-

fendant’s intent to distribute. See Commonwealth v. Baltrop,

2 Mass. App. Ct. 819, 820 (1974); Commonwealth v. Rivera,

Mass. App. Ct. (1978).! See also cases cited in Opin-

ion of the Justices, Mass. n.4 (1979). We find un-

convincing the defendant’s argument in his brief based on

points made on cross-examination going to the weight of the

testimony. His further objection to the evidence of the cor-

relation between the numbers on the jars found in the defend-

ant’s East Longmeadow home and the notations in notebooks

in the Brimfield cottage is insubstantial.

Judgments affirmed.

‘Mass. App. Ct. Adv. Sh. (1978) 1129.

® Mass. Adv. Sh. (1979) 1781, 1788 n.4.