# Petition — Fiore v. Massachusetts > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0311%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 938 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0311%3A1. Public record. Not legal advice.