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SJC-12151

COMMONWEALTH vs. KYLE TUSCHALL.

Middlesex. November 9, 2016. - March 8, 2017.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & 

Budd, JJ.

Constitutional Law, Search and seizure, Probable cause. Search 

and Seizure, Emergency, Probable cause, Fruits of illegal 

search. Probable Cause.

Indictments found and returned in the Superior Court 

Department on August 12, 2014.

Pretrial motions to suppress evidence were heard by Thomas 

P. Billings, J.

An application for leave to prosecute an interlocutory 

appeal was allowed by Botsford, J., in the Supreme Judicial 

Court for the county of Suffolk, and the appeal was reported by 

her to the Appeals Court. The Supreme Judicial Court granted an 

application for direct appellate review.

Randall F. Maas, Assistant District Attorney, for the 

Commonwealth.

Jessica LaClair for the defendant.

LOWY, J. Following a report of a "smell like drugs" 

emanating from the apartment of the defendant, police made two 
2

warrantless entries into his apartment. Based on observations 

of paraphernalia related to the manufacture of crystal 

methamphetamine, the police then obtained a warrant. The 

defendant was subsequently arrested and charged with, among 

other things, drug related offenses.

The defendant filed two motions in the Superior Court --

one to suppress the evidence seized during the execution of the 

search warrant and another to suppress statements he made to 

police following his arrest. The judge granted both motions

after an evidentiary hearing. With respect to the first motion, 

the judge determined that no emergency justified the warrantless 

entries, without which the Commonwealth could not establish the 

probable cause necessary for the subsequent warrant. Regarding 

the second motion, the judge concluded the defendant's 

statements to the police were the "fruit of" the defendant's 

unlawful arrest.

The Commonwealth appealed from the judge's decision. A 

single justice in the county court allowed the Commonwealth's 

application for interlocutory review and reported the matter to 

the Appeals Court. We subsequently allowed the defendant's 

motion for direct appellate review. We affirm.

Background. The motion judge made the following factual 

findings, which we accept absent clear error. Commonwealth v. 

Entwistle, 463 Mass. 205, 209 (2012), cert. denied, 133 S. Ct. 
3

945 (2013). We review de novo the judge's application of 

constitutional principles to the facts. Commonwealth v. 

Phillips, 452 Mass. 617, 624 (2008).

On June 11, 2014, the Watertown police received a telephone 

call from the defendant's neighbor at a multifamily residential 

property. The neighbor reported a "smell like drugs" coming 

from the defendant's apartment. The police did not respond to 

the call until the next day, when a detective called the 

neighbor. The neighbor complained that the odor was causing her 

to suffer headaches and was adversely affecting her dog. She 

further described the odor as "skunky" and "minty." She also 

stated that the windows of the neighbor's apartment were 

"sealed," and there was a bright light shining in one of the 

defendant's apartment's rooms. The police did not visit the 

apartment on June 12.

On June 13, 2014, two detectives traveled to the apartment 

building, where they met with the neighbor who had complained 

two days earlier. The night before the detectives arrived, the 

neighbor spent the night elsewhere to avoid further exposure to 

the odor.

When the detectives knocked on the defendant's door, no one 

answered. The detectives could not see inside the defendant's 

apartment from the sidewalk because the windows were covered 

from inside the apartment. Beneath a running air conditioner 
4

extending from one of the apartment's windows, the detectives

smelled a strong chemical odor.

The complaining neighbor informed the detectives that two 

people, the defendant and his girl friend, lived in the 

apartment. The two usually left the apartment together in the 

morning, but that morning, the neighbor had seen the defendant 

leave alone. The detectives obtained the girl friend's cellular

telephone number through the building's owner. Unable to reach 

the girl friend on her cellular telephone, the detectives 

decided to enter the apartment to look for her.

The building owner's son led the detectives through the 

basement to the door of the defendant's apartment. The smell 

grew stronger in the basement. One of the detectives felt a 

dry, scratchy sensation in his throat, and his eyes began to 

burn and water. Before entering the apartment, the detectives 

identified themselves as police and said, "Is anyone home?" 

When no one responded, they entered.

Inside the apartment, the detectives went room to room in 

search of the girl friend, calling her by name. In the course 

of discovering that no one was present, one detective saw items 

he believed to be consistent with small-scale methamphetamine 

production. The detectives did not open any containers or 

drawers. Now concerned by the risk posed to other residents of 

the building, due to the volatile chemicals used in 
5

methamphetamine production, the detectives contacted the fire 

department and a colleague, Detective Gutwill, who had more 

expertise with methamphetamine laboratories (lab).

When Detective Gutwill arrived, he could not tell, by the 

smell alone, whether the source of the odor posed a danger. He 

was, however, concerned that the odor was the result of the "one 

pot" method of methamphetamine manufacture, which presents a 

risk of explosion. He donned a respirator and protective 

clothing and entered the apartment. He found no evidence of a 

"one pot" manufacturing method and determined that there was no 

immediate risk of danger.

Relying on observations from the two warrantless entries, 

the police obtained a search warrant. The defendant arrived 

while the police were executing the warrant. He was arrested 

and transported to the Watertown police station.

While in custody at the police station, the defendant was 

questioned by the police. The police informed him of the 

Miranda rights, including the right to have an attorney present

and rights pursuant to Commonwealth v. Rosario, 422 Mass. 48, 

56-57 (1996). He waived his Miranda and Rosario rights, agreed 

to speak with the police, and made some incriminating 

statements.

Discussion. The Commonwealth argues that the judge erred 

in granting both motions to suppress. As to the first motion, 
6

the Commonwealth argues that both searches were lawful under the 

emergency aid exception to the Fourth Amendment to the United 

States Constitution and art. 14 of the Massachusetts Declaration 

of Rights. With regard to the second motion, the Commonwealth 

argues that the defendant's statements to the police should not 

have been suppressed, because they were not the fruit of 

unlawful searches. In the alternative, the Commonwealth argues 

that, even if the searches were unlawful, the defendant's 

statements were sufficiently attenuated from the unlawful 

conduct to escape the reach of the exclusionary rule.

1. The warrantless searches. Under the Fourth Amendment 

and art. 14, a search of an individual's home must be 

reasonable. A search conducted without a warrant is

presumptively unreasonable. Brigham City v. Stuart, 547 U.S. 

398, 403 (2006). Warrantless searches may be justifiable, 

however, if the circumstances of the search fall within an 

established exception to the warrant requirement. Under the 

exclusionary rule, evidence seized pursuant to an unreasonable 

search generally will be suppressed. See J.A. Grasso, Jr. & 

C.M. McEvoy, Suppression Matters Under Massachusetts Law § 20-

2[a] (2017).

One such exception to the Fourth Amendment and art. 14 is 

the "emergency aid exception." Commonwealth v. Duncan, 467 

Mass. 746, 749, cert. denied, 135 S. Ct. 224 (2014). To meet 
7

the requirements of the exception, there must be "objectively 

reasonable grounds to believe that an emergency exists . . . 

[and] the conduct of the police following the entry must be 

reasonable under the circumstances" (citation omitted). Id. at 

750.

The emergency aid exception applies in two circumstances 

relevant to this case. First, a warrantless search is 

reasonable when law enforcement possess an objectively 

reasonable basis to conclude that "prompt intervention is 

necessary to prevent a threatened fire, explosion, or other 

destructive accident." Commonwealth v. DiGeronimo, 38 Mass. 

App. Ct. 714, 723 (1995). See Commonwealth v. Marchione, 384 

Mass. 8, 11-12 (1981) (entry reasonable to prevent potential 

explosion from volatile liquids stored near incendiary device). 

Second, the emergency aid exception "permits the police to enter 

a home without a warrant when they have an objectively 

reasonable basis to believe that there may be someone inside who 

is injured or in imminent danger of physical harm." 

Commonwealth v. Peters, 453 Mass. 818, 819 (2009).

A police officer's "'subjective motivation [for entry] is 

irrelevant.'" Entwistle, 463 Mass. at 214, quoting Brigham 

City, 547 U.S. at 404. The emergency aid exception does not 

require that police have probable cause that a crime has been 

committed, because the purpose of the entry is to prevent harm 
8

stemming from a dangerous condition, not to investigate criminal 

activity. See Duncan, 467 Mass. at 750 (2014).1

a. The initial entry. The Commonwealth suggests that the 

initial entry was justified due to the danger posed by the fumes 

to the residents in the building and to the defendant's girl 

friend, whom the police were concerned might be inside the 

apartment.

Prior to the first entry, there was no objectively 

reasonable basis upon which to conclude that residents of the 

building faced an "imminent threat of death or serious injury" 

due to the effects of the fumes, or that the fumes constituted a 

danger comparable to that of a "fire, explosion, or other 

destructive accident." DiGeronimo, 38 Mass. App. Ct. at 723. 

Indeed, two days had elapsed before the police responded to the 

initial complaint.2 Moreover, unpleasant as the smell may have 

been, the discomfort described by the neighbor did not suggest 

the existence of an emergency situation requiring immediate 

intervention. When she first met the police two days after 

 

1 This is in contrast to the broader "exigent circumstances" 

exception. Exigent circumstances justifying a warrantless entry 

exist where the police have probable cause of criminal activity, 

but where the time required to obtain a warrant would defeat the 

purposes of the search -- such as when delay would result in the 

destruction of evidence. See Duncan, 467 Mass. at 750-751 & 

n.4.

2 The police certainly could have advised the neighbor to 

contact her landlord regarding a nuisance claim, or the 

Department of Public Health or the fire department to address 

the odor.
9

making her initial complaint, the neighbor said that she had 

slept elsewhere to avoid the smell, and that she had seen the 

defendant leave his apartment, in apparently fine health despite 

his presumably longer exposure to the fumes at a closer 

proximity. Apart from the complaining neighbor's headache, 

there were no reports of illness or negative health consequences 

stemming from the smell, and no clear indication that the 

smell's potency had increased since the neighbor's initial 

report.3

The ill effects produced by the fumes are a stark contrast 

to the discernible danger recognized as justifying emergency 

intervention in other cases. See Brigham City, 547 U.S. at 406 

(warrantless entry was justified where police observed ongoing 

violence in home); Marchione, 384 Mass. at 11-12 (1981)

(warrantless entry justified by landlord's report that large 

quantity of volatile and explosive liquids surrounded incendiary 

device); Commonwealth v. Cantelli, 83 Mass. App. Ct. 156, 165-

166 (2013) ("explosive levels" of natural gas filled defendant's 

apartment prior to entry).

 

3 At oral argument, the Commonwealth argued that the danger 

from the chemical odor increased over the course of the three 

days, based on the nature of the complaining neighbor's 

statements on each of those days. This may have been a 

permissible inference from the neighbor's statements, but it is 

not a necessary one and the judge made no such finding. Even if 

true, however, it was apparent that exposure to the smell had 

not caused sufficiently negative health consequences to justify 

entry into the defendant's apartment on an emergency basis.
10

Prior to the first search, the police also lacked an 

objectively reasonable basis to conclude that any condition 

inside the defendant's apartment posed a risk of explosion. 

Even if a reasonable belief that methamphetamine is actively 

being manufactured inside an apartment justifies a warrantless 

entry, based on the dangers inherent to the manufacture of 

methamphetamine, the police lacked a reasonable basis prior to 

the first search to believe that the apartment contained a 

methamphetamine lab. Contrast Marchione, 384 Mass. at 11-12; 

Cantelli, 83 Mass. App. Ct. at 165-166. The complaining 

neighbor vaguely characterized the odor as a "smell like drugs." 

One of the officers described it as akin to "nail polish," 

which does not in and of itself indicate the presence of a drug 

lab. Contrast United States v. Cervantes, 219 F.3d 882, 886 

(9th Cir. 2000), overruled on other grounds by Brigham City, 547 

U.S. at 402, 404 (tenants in immediate proximity of apartment 

emitting strong chemical odor and officer saw man in kitchen 

with large pot on floor); People v. Duncan, 42 Cal. 3d 91, 95-96 

& n.1 (1986) (police lawfully entered in response to ongoing 

burglary and observed evidence indicating active manufacture of 

methamphetamine); Holder v. State, 847 N.E.2d 930, 933-934, 937-

938 (Ind. 2006) (police specifically identified odor as ether, 

which is highly flammable; smell was strong enough to be 

detectable in two- or three-block area; and infant was inside 
11

apartment from which odor was emanating); State v. Simmons, 714 

N.W.2d 264, 269, 273 (Iowa 2006) (before entry, which was 

permissible, officer who could not identify odor contacted 

expert officer who ascertained smell of anhydrous ammonia, used 

in manufacture of methamphetamine); State v. Meeks, 262 S.W.3d 

710, 714 (Tenn. 2008) (officer with high degree of expertise 

"could smell what [he] knew to be a meth[amphetamine] lab" and 

heard glass breaking and voices inside apartment).

The police also lacked a reasonable basis to conclude that 

the girl friend was inside the apartment and was injured or in 

danger of imminent harm. The police could not reach the girl 

friend by cellular telephone and there was no answer from the 

apartment when they knocked. The only indication that the girl 

friend may have been in the apartment was speculative, anecdotal 

evidence from the complaining neighbor that the defendant and 

his girl friend typically left together in the morning, but the 

defendant left alone on that particular morning. The police 

made no effort to contact the girl friend's employer or her 

family, and made only a few attempts to contact her by cellular 

telephone before entry.

These circumstances fall short of those in which we have 

determined there was an objectively reasonable basis 

establishing the existence of an emergency. For example, in 

Commonwealth v. Townsend, 453 Mass. 413, 415, 422-423, 426
12

(2009), the Commonwealth met its burden to justify warrantless 

entry into an apartment where a victim, whose last known 

location was inside that apartment, had not been seen for 

multiple days. The resident of that apartment had a history of 

abusing the victim. Id. at 422-423. Before entry, the police 

spoke to the victim's mother and the victim's sister, neither of 

whom had had any contact with the victim in the days leading up 

to the warrantless entry. Id. The victim had missed a visit 

with her children, scheduled through the Department of Social 

Services, and the victim's automobile was parked outside the 

defendant's apartment. Id. at 422, 424. See Entwistle, 463 

Mass. at 210, 215-216 (warrantless entry reasonable where 

potential victim had been out of contact for two days, her dog 

could be heard barking inside house, and she had 

uncharacteristically missed multiple appointments); Peters, 453 

Mass. at 823-824 (warrantless search reasonable following report 

of audible domestic disturbance in which gunshot was heard and 

individual subsequently fled scene).

b. The second entry. The proposed justification for the 

second warrantless entry rests on observations of drug 

paraphernalia made during the first entry. The Commonwealth 

argues that, because they observed evidence that methamphetamine 

had been manufactured inside the apartment, and the manufacture 

of methamphetamine involves the use of volatile chemicals 
13

susceptible to explosion, the second entry was justified to 

ascertain the extent of the danger. Even setting aside the fact 

that this information was obtained solely as the result of an 

unlawful search, the observations of police during the first 

entry did not form an objectively reasonable basis to conclude 

that there was an imminent danger of explosion.

4

The observations during the first search did not reasonably 

support the conclusion that methamphetamine was being or 

recently had been manufactured, or that the particular fumes to 

which they were exposed were highly combustible. The only 

additional information obtained by police during the first entry

was that it appeared possible that methamphetamine had been 

manufactured at some point inside the apartment. The police 

knew that the fumes had been emanating from the defendant's 

apartment for at least two days before the entries. Prior to 

the second entry, the police lacked an objectively reasonable 

basis to conclude that the contents of the defendant's apartment 

posed an imminent danger of death or serious injury.5 Contrast

 

4 Because we conclude that the first search did not 

establish a reasonable basis to support the existence of an 

emergency, we need not decide whether the discovery of an 

emergency during an unlawful search would constitute an 

intervening event, limiting the reach of the exclusionary rule.

5 The parties dispute whether the police must have an 

objectively reasonable basis to conclude that there is active 

methamphetamine production in a home to justify a warrantless 

entry, or whether the danger posed by fumes from a previous 
14

Cervantes, 219 F.3d at 886 (entry justified when officer saw man 

in kitchen with large pot on floor); Duncan, 42 Cal. 3d at 95-96 

(entry justified where police observed active heat lamp, 

suggesting possibility of active drug making); Cantelli, 83 

Mass. App. Ct. at 165-166 (warrantless entry justified to shut 

off natural gas, known by officers to be highly explosive, where 

resident repeatedly flooded apartment with gas).

In sum, the Fourth Amendment and art. 14 form a bedrock 

protection of an individual's hearth and home. The 

inviolability of the home may be constitutionally pierced 

without a warrant, but only within narrowly proscribed 

circumstances. See DiGeronimo, 38 Mass. App. Ct. at 721, 

quoting Jones v. United States, 357 U.S. 493, 499 (1958) ("the 

few exceptions are 'jealously and carefully drawn'"). The facts 

of this case, as carefully determined by the motion judge, 

established that at the time of the first entry, there was a 

smell that had adversely affected a neighbor and her pet -- a 

smell that had persisted for days before the police took action 

 

production of methamphetamine may be sufficient. We decide only 

that, based on the judge's factual findings in this case, the 

police lacked an objectively reasonable belief that the 

condition of the defendant's apartment posed an imminent danger 

of death or serious injury or that prompt intervention was 

necessary to prevent a destructive accident. Whether such a 

danger may exist in the absence of active drug manufacturing is 

a question we need not resolve. As was the case before the 

first warrantless entry, the police still could have directed 

the complaining neighbor to her landlord, the fire department, 

or the Department of Public Health to address the fumes.
15

-- and the presence of paraphernalia an officer believed to be 

consistent with the manufacture of methamphetamine. These facts 

alone are insufficient to form an objectively reasonable belief 

in an emergency situation that justifies warrantless entry.

2. The defendant's statements. The judge permissibly 

suppressed the defendant's statements as the "fruit of the 

poisonous tree" of the unlawful searches. His inculpatory 

statements resulting from that arrest must be suppressed unless 

the State proves "that confession was 'an act of free will 

[sufficient] to purge the primary taint of the unlawful 

invasion.'" Kaupp v. Texas, 538 U.S. 626, 632-633 (2003) (per 

curiam), quoting Wong Sun v. United States, 371 U.S. 471, 486

(1963).

In determining whether the Commonwealth met its burden of 

showing that the defendant's statements were sufficiently 

attenuated from the Commonwealth's unlawful conduct, we consider

(1) whether the defendant was informed of his rights; (2) the 

proximity in time of the arrest and his inculpatory statements;

(3) any intervening circumstances; and (4) the degree of 

official misconduct. Kaupp, 538 U.S. at 633, citing Brown v. 

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

extent to which excluding the evidence would deter future 

official misconduct. See Commonwealth v. Damiano, 444 Mass. 
16

444, 452-453 (2005), citing Brown, 422 U.S. at 609 (Powell, J., 

concurring in part).

The balance of the factors in this case is a close call, 

but favors the defendant. The police read the defendant his

Miranda rights and there was no misconduct during the interview 

itself. However, for the reasons stated above, the warrantless

entries were unlawful. The defendant made his statements

roughly twenty-one hours after his arrest, during which time he 

was continuously in police custody. No intervening 

circumstances further attenuated the defendant's statements from 

his arrest, which was a direct result of the unlawful searches. 

We conclude that the negative effects of the unlawful searches 

were not "'so attenuated that the deterrent effect of the 

exclusionary rule no longer justifies its cost.'" Damiano, 444 

Mass. at 453, quoting Brown, 422 U.S. at 609 (Powell, J., 

concurring).

Order allowing motions to 

suppress affirmed.