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SJC-11855

COMMONWEALTH vs. DAVID J. KAEPPELER.

Barnstable. September 9, 2015. - December 30, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines,

JJ.

Search and Seizure, Emergency, Consent, Plain view. Practice, 

Criminal, Instructions to jury, Request for jury 

instructions.

Indictments found and returned in the Superior Court 

Department on April 15, 2011.

A pretrial motion to suppress evidence was heard by Gary A. 

Nickerson, J., and the cases were tried before him.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Robert L. Sheketoff for the defendant.

Julia K. Holler, Assistant District Attorney, for the 

Commonwealth.

HINES, J. After a jury trial in the Superior Court, the 

defendant, David J. Kaeppeler, was convicted of rape, G. L. 

c. 265, § 22 (b); drugging for sexual intercourse, G. L. c. 272, 
2

§ 3; and drugging to confine, G. L. c. 265, § 26B.1 The 

convictions were based on events that occurred during a party at 

the defendant's home in the early morning hours of May 21, 2010. 

Two of the guests became seriously ill after ingesting tequila

supplied by the defendant. After learning that the defendant 

might also be ill, the police entered the defendant's home to 

perform a well-being check under the "emergency aid" exception 

to the warrant requirement of the Fourth Amendment to the United 

States Constitution and art. 14 of the Massachusetts Declaration 

of Rights. While there, the police seized two tequila bottles, 

one of which was later found to contain 1, 4-Butanediol, which 

when ingested is converted into gamma-hydroxy butyric acid 

(GHB), a so-called "date rape" drug.

In this appeal, the defendant challenges the denial of a 

motion to suppress the two tequila bottles seized during the 

well-being check. We conclude that the police had objectively 

reasonable grounds to believe that the defendant may have been 

injured or in need of immediate medical assistance but that the 

seizure of the evidence was unreasonable for two reasons: (1) 

the seizure occurred after the defendant departed for the 

hospital in an ambulance and while the police remained in his 

 

1 The grand jury also returned indictments for distribution 

of a class E substance, G. L. c. 94C, § 32D (a), and illegal 

possession of a class E substance, G. L. c. 94C, § 34. The 

Commonwealth filed a request for nolle prosequi as to each of 

these indictments prior to trial.
3

home without his consent; and (2) the police retained the 

evidence for investigative purposes without verifying its 

relevance to the emergency justifying their entry into the 

defendant's home. Therefore, the motion to suppress should have 

been allowed. The defendant also claims error in the trial 

judge's failure to instruct the jury in accordance with 

Commonwealth v. Bowden, 379 Mass. 472 (1980). We reject the 

defendant's Bowden claim but remand for a new trial because of 

the error in the denial of the motion to suppress.

Background. We recite the facts the jury could have found, 

reserving certain details for the discussion of the judge's 

ruling on the motion to suppress. On May 20, 2012, the 

defendant and the victims -- John Smith2 and Elana Thomas, both 

in their mid-twenties -- spent the evening drinking and dancing 

at a nightclub in Hyannis. They were joined by Jerry Laramay, 

Daniel Bernard Cammerata, and Patricia S. Sweet. That evening, 

the nightclub was inaugurating its first "gay and lesbian 

night," to which Cammerata had been invited to participate as 

the guest disc jockey. Cammerata drove to Hyannis from Boston 

for the event with Sweet, his roommate. His boy friend at the 

time, Laramay, and Laramay's roommate, Thomas, drove down 

separately from Boston. At some point during the evening, 

Cammerata invited Smith, a local friend from Yarmouth, to come 

 

2 A pseudonym.
4

to the nightclub. Smith did so and performed as a dancer that 

night. Cammerata was acquainted with the defendant as a regular 

customer at another bar where Cammerata had worked. Smith had 

met the defendant twice before that night. Neither Thomas nor 

Laramay had previously met the defendant. Thomas and Smith 

danced together and appeared to "hit it off" with each other. 

The defendant made passes at Laramay, who rejected his advances 

and explained that he was in a dating relationship with 

Cammerata. When the club closed, the group decided to continue 

the celebration. The defendant offered his home, and the group 

accepted his invitation.

When the group arrived at the defendant's home, he served 

shots of tequila to everyone. After several hours, Cammerata, 

Sweet, and Laramay left to spend the night at Cammerata's 

mother's house. Smith inquired whether he and Thomas could stay 

at the defendant's house. The defendant agreed, and Cammerata, 

Laramay, and Sweet left, promising to return later that morning 

to pick up Smith and Thomas. The defendant then served another 

shot of tequila for him, Smith, and Thomas.

After 10 A.M. the following morning, Cammerata and Laramay 

returned to the defendant's house to pick up Thomas and Smith. 

They knocked at the door, but no one responded. Eventually, 

they were able to let themselves into the house through a patio 

door. When they entered, they observed Smith and Thomas 
5

sleeping on sofas in the living room. They managed to awaken 

Smith, but Thomas could not be roused. Cammerata and Laramay 

carried Thomas to Laramay's vehicle with the intention of 

driving on to Boston. Laramay became concerned, however, and 

decided instead to take Thomas to Cape Cod Hospital.

Smith left in Cammerata's vehicle for a ride home, and 

during the ride, Smith told Cammerata that he had a dream in 

which the defendant was giving Smith a "blow job" while he 

slept. Smith testified that he phrased the statement as having 

a dream because he "couldn't believe what had happened" and he 

"wanted someone to tell [him] that that couldn't have happened." 

Smith testified that he had "[n]o doubt" that it had happened, 

and that he had pushed the defendant off of him, said "no," and 

turned over and went back to sleep after he was woken by the 

defendant's actions. After arriving at home, Smith became ill 

and was taken to Cape Cod Hospital at approximately 8 P.M.

Medical staff at the hospital learned that Thomas and Smith 

had both been drinking at the defendant's house and recognized 

that both presented with similar symptoms -- unconsciousness and 

trouble breathing -- that could be associated with a drug 

overdose. The hospital staff tested for several types of drugs 

but did not test for GHB because the results from the test could 

not be available in sufficient time to assist with medical care. 

The staff suspected, however, that GHB could be the cause after 
6

ruling out a series of other possible causes. The victims' 

condition deteriorated at the hospital and both were 

transported, at separate times, by helicopter to Boston for 

medical treatment. The treating physicians in Boston conducted

"everything that [was] possible" in terms of toxicology screens. 

Without positive results from any of those tests and with 

information provided by Laramay that he "tast[ed] something 

funny in the [tequila shared with the two patients]," the 

physicians concluded that the symptoms displayed by Thomas and 

Smith were caused by the ingestion of GHB and alcohol.3

At or around 9:15 P.M. that evening, hospital staff

requested the Barnstable police to perform a well-being check on 

the defendant at his home because he too might be at risk for 

illness after drinking tequila with the two patients. At the 

defendant's home, the police obtained two bottles of tequila. 

One bottle was empty and in the garage; the other had liquid 

remaining and was on the kitchen counter. Although the bottle 

from the garage tested negative for GHB, the bottle from the 

kitchen counter tested positive for 1, 4-Butanediol, a drug that 

is converted by the body into GHB.

Discussion. 1. Motion to suppress. Prior to trial, the 

 

3 The treating physician in Boston testified that the 

symptoms of severe coma, vomiting, inflammation in the lungs, 

and difficulty breathing, together with the negative results 

from the other tests, guided their conclusion.
7

defendant filed a motion to suppress the tequila bottles seized 

during the warrantless entry into his home. The judge denied 

the motion, ruling that the seizure was reasonably related to 

the objective emergency of the undiagnosed illness of Smith and 

Thomas and the unknown status of the defendant's well-being. 

The defendant argues that the judge erred in denying the motion 

because the emergency justifying the warrantless entry, a check 

on his well-being, had ended by the time that the police seized 

the tequila bottles.

We summarize the facts as found by the judge, supplementing 

them as necessary with evidence in the record that is 

uncontroverted and that was implicitly credited by the judge. 

See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 

450 Mass. 818 (2008). Shortly after 10 P.M., Officer Paul J. 

Everson and Sergeant Kevin Tynan of the Barnstable police 

department arrived at the defendant's home to perform the wellbeing check. The police learned from hospital staff that Thomas 

and Smith had suffered symptoms that could be the result of a 

drug overdose and had been drinking with the defendant at a 

nightclub and at the defendant's house. The officers were also 

told that the defendant had not appeared at his workplace that 

day. The police knocked repeatedly before the defendant 

appeared at the door, looking as if he had just been awakened 

from sleep. After being told of the two individuals at the 
8

hospital, the defendant invited the officers into the home. 

Officer Everson asked the defendant how he was feeling; the 

defendant responded that he was not feeling well and had been 

sleeping a lot. Sergeant Tynan asked whether there was any GHB 

at the defendant's house or that could have been put in their 

drinks at the nightclub. The defendant told the officers that 

he did not have any drugs in the home and did not think that GHB 

could have been put in their drinks. He said that he was 

familiar with GHB and recognized the dangers of mixing it with 

alcohol.

In response to the officers' urging, the defendant agreed 

to go to the hospital, and an ambulance transport was arranged. 

Sergeant Tynan asked the defendant where the tequila was 

located, and the defendant told him that they had been drinking 

from a tequila bottle that was on the kitchen counter. The 

bottle was visible from the officers' location. The defendant 

also alerted the officers to the second tequila bottle in the 

garage. Sergeant Tynan confirmed the second tequila bottle was 

in the garage, but did not pick up either bottle at that time.

When the ambulance arrived, Officer Everson accompanied the 

defendant to the hospital. Sergeant Tynan remained in the 

house. At Sergeant Tynan's request, an evidence collection 

officer from the Barnstable County sheriff's office arrived and 

photographed and collected the tequila bottles. The bottles 
9

were not tested until several months later, on September 6, 

2010, in connection with this pending criminal case.

In reviewing the grant or denial of a motion to suppress, 

"we accept the judge's findings of fact and will not disturb 

them absent clear error." Commonwealth v. Tremblay, 460 Mass. 

199, 205 (2011). However, we undertake "an independent 

determination as to the correctness of the judge's application 

of constitutional principles to the facts as found." Id. We 

begin the analysis with the well-settled principle that a 

warrantless search or seizure is presumptively unreasonable 

under the Fourth Amendment and art. 14, and may be justified 

only by a few "specifically established and well-delineated 

exceptions." Arizona v. Gant, 556 U.S. 332, 338 (2009), quoting 

Katz v. United States, 389 U.S. 347, 357 (1967). See 

Commonwealth v. Tyree, 455 Mass. 676, 683 (2010). Although the 

exceptions for exigent circumstances -- consent and plain 

view -- are implicated in the judge's findings of fact, the 

judge reviewed the search under the emergency exception to the 

warrant requirement. We consider each exception and conclude 

that none justifies the seizure of the tequila bottles.

a. Emergency exception. The well-established rule is that 

the presumption of unreasonableness of a warrantless search 

yields if "'the exigencies of the situation' make the needs of 

law enforcement so compelling that the warrantless search is 
10

objectively reasonable under the Fourth Amendment" (citation 

omitted). Mincey v. Arizona, 437 U.S. 385, 393-394 (1978). 

"The need to protect or preserve life or avoid serious injury is 

[one such] justification for what would be otherwise illegal 

absent an exigency or emergency." Id. at 392, quoting Wayne v. 

United States, 318 F.2d 205, 212 (D.C. Cir.), cert. denied, 375 

U.S. 860 (1963). Under the "emergency aid" exception, the 

police may "enter a home without a warrant to render emergency 

assistance to an injured occupant or to protect an occupant from 

imminent injury." Brigham City v. Stuart, 547 U.S. 398, 403 

(2006). See Commonwealth v. Entwistle, 463 Mass. 205, 213 

(2012), cert. denied, 133 S. Ct. 945 (2013).

A warrantless search or seizure undertaken on this basis 

passes constitutional muster, however, only if (1) the police 

had an objectively reasonable ground to believe that an 

emergency existed; and (2) the conduct of the police after the 

entry was reasonable under all the circumstances. See Arizona

v. Hicks, 480 U.S. 321, 325 (1987); Mincey, 437 U.S. at 393-394; 

Commonwealth v. McDermott, 448 Mass. 750, 766-767, cert. denied, 

552 U.S. 910 (2007). The Commonwealth bears the burden of 

demonstrating that, taking into account the totality of the 

circumstances, the search and seizure fit within this exception 

to the warrant requirement. Thompson v. Louisiana, 469 U.S. 17, 

19-21 (1984); Commonwealth v. Peters, 453 Mass. 818, 823 (2009). 
11

"[T]he standards as to exigency are strict." Tyree, 455 Mass. 

at 684, quoting Commonwealth v. Forde, 367 Mass. 798, 800 

(1975).

i. Existence of objectively reasonable emergency. As a 

threshold matter, we agree with the judge's ruling that the 

police were presented with an objective emergency justifying the 

warrantless entry into the defendant's home. The police 

received reliable information from hospital staff that two 

individuals who had been with the defendant at a nightclub and 

at the defendant's home the prior evening were seriously ill and 

that, after being treated at the hospital, one victim was at 

that time being transported to a Boston hospital for further 

treatment. The request from the hospital staff, together with a 

report from a concerned coworker that the defendant had not 

appeared at work that day, established the urgency regarding the 

defendant's safety and presented an emergency warranting police 

intervention for that purpose. See Commonwealth v. Snell, 428 

Mass. 766, 773, cert. denied, 527 U.S. 1010 (1999) (urgency 

created by, among other things, information that victim not 

heard from in days). In addition, except for the seizure of the 

tequila bottles, the police conduct after arriving at the 

defendant's home was focused entirely on the concern for the 

defendant's well-being. As the judge found, the police, on 

arrival at the defendant's home, "strongly urged that [the 
12

defendant] get checked out at the hospital." The defendant 

agreed to do so and accepted the ambulance transport arranged by 

the police. Accordingly, the actions of the police up to the 

point that the defendant was transported to the hospital were 

consistent with the emergency aid exception.4 See id. at 774, 

quoting Commonwealth v. Bates, 28 Mass. App. Ct. 217, 219 (1990) 

("purpose of the police entry [under emergency exception] is not 

to gather evidence of criminal activity but rather, because of 

an emergency, to respond to an immediate need for assistance for 

the protection of life or property").

ii. Reasonableness of police conduct. Having concluded 

that the police were justified in entering the defendant's home 

under the emergency aid exception, we turn to the second prong 

of the exception: whether the conduct of the police following 

the warrantless entry was reasonable under the circumstances. 

The defendant challenges the seizure of the tequila bottles, 

arguing that it was not reasonably related to the purpose of a 

check on his well-being.

"Reasonableness must be 'evaluated in relation to the scene 

as it could appear to the officers at the time, not as it may 

 

4 This case does not present the question whether the police 

may make an emergency entry to provide assistance to a person 

not then present in the home. Although we do not decide the 

issue, our ruling does not foreclose the possibility that police 

may make a warrantless entry for the purpose of providing 

emergency assistance to a person not actually present.
13

seem to a scholar after the event with the benefit of leisured 

retrospective analysis.'" Commonwealth v. Townsend, 453 Mass. 

413, 425-426 (2009), quoting Commonwealth v. Young, 382 Mass. 

448, 456 (1981). See Commonwealth v. Porter P., 456 Mass. 254, 

270 (2010) ("We evaluate the reasonableness of a police 

officer's conduct based on the information available to him at 

the time, not on what we later learn to be true"). 

Reasonableness, in turn, is informed by the well-settled rule 

that a "warrantless search must be 'strictly circumscribed by 

the exigencies which justify its initiation.'" Mincey, 437 U.S. 

at 393, quoting Terry v. Ohio, 392 U.S. 1, 25-26 (1968).

Applying this test to the police conduct at issue here, we 

conclude that the continued police presence in the defendant's 

home without his consent5 after he was transported to the 

hospital for medical treatment and the subsequent seizure of the 

tequila bottles was unreasonable. First, the exigency 

justifying the warrantless entry to check on the defendant's 

well-being had ended before the seizure occurred. As 

established by the judge's findings, the defendant presented 

himself to the police as having been awakened from sleep and 

perhaps tired, but not in any apparent distress. In addition, 

he agreed to be transported to the hospital as a precaution. 

From that point on, the police had no further cause for concern 

 

5 See part 1.b, infra.
14

about the defendant's well-being and no public safety 

justification to remain in his home. See Peters, 453 Mass. at 

824-825 (no justification for protective sweep where emergency 

had ended).

In addressing reasonableness, we attach significance to the 

judge's finding that "[n]o one from the hospital staff had 

requested the bottles be seized" and that the deputy sheriff 

maintained custody of the bottles for approximately four months 

before they were sent to a laboratory for analysis with respect 

to the pending criminal case. Thus, the seizure of the tequila 

bottles, lacking any demonstrable relationship to the emergency, 

was more consistent with an investigative purpose. As such, it 

crossed the reasonableness threshold and cannot be sustained as 

conduct properly within the scope of the emergency exception. 

Cf. McDermott, 448 Mass. at 767 (conduct reasonable in context 

of emergency entry to search for other possible murder victims 

where police "looked only in places where a person could be 

found, they did not pick up or remove any items, and they 

remained for only a short time").

If the police, after lawfully entering the defendant's 

home, had seized the bottles in order to determine if the 

tequila contained a chemical or other contaminant that made the 

three people ill, the seizure might have been reasonable under 

the emergency aid exception. We need not, however, decide 
15

whether those circumstances would have rendered the seizure 

reasonable, because no such intent was shown. Sergeant Tynan 

testified at the hearing on the motion to suppress that the 

bottles were seized because the officers "didn't know the status 

of the two people at the hospital" and they had information that 

the tequila was "the only thing [the patients] had consumed in 

that house at that time the night before." While the motion 

judge did not make any findings regarding the purpose of the 

seizure, he noted at the evidentiary hearing that Sergeant 

Tynan's statement about the purpose of the seizure was ambiguous 

and that the sergeant was never asked whether police took the 

bottles to aid in treatment or for proof of drugging. It is 

undisputed that the bottles were not submitted for immediate 

testing to determine the cause of the illness, and the 

Commonwealth, bearing the burden to show that the emergency aid 

exception was satisfied, presented insufficient evidence to 

support a finding that the bottles were seized in order to 

determine the cause of the illness. See Peters, 453 Mass. at 

823.

When, as here, the police seize evidence after the exigency 

has ended, suppression of that evidence is proper. In 

Commonwealth v. Lewin (No.1), 407 Mass. 617, 626-628 (1990), we 

held that evidence seized in the defendant's apartment after the

protective sweep had been completed should have been suppressed 
16

because the search was unconstitutional after the emergency had 

ended. The same rationale applies here.

The decision in Commonwealth v. McCarthy, 71 Mass. App. Ct. 

591 (2008), on which the Commonwealth relies, does not dictate a 

contrary result. While the defendant in McCarthy was 

unconscious in a restaurant and was being attended by emergency 

medical personnel, a police officer searched her open purse,

which contained evidence that she possessed controlled 

substances. The court validated the search. Id. at 593. We 

distinguish McCarthy on several grounds. First, the warrantless 

search did not occur in a home; it occurred in a public place 

that is not accorded the broad presumption of unreasonableness 

that applies in the warrantless search of a home. See 

Commonwealth v. Krisco Corp., 421 Mass. 37, 44-45 (1995). 

Second, the defendant was in obvious distress and in need of 

immediate medical attention. The attending medical personnel 

expressed a specific concern that the defendant might be 

suffering a drug overdose that might possibly be verified by a 

search of the purse. Considering these facts, the exigencies of 

the situation justified the police in searching the purse.

We recognize that the role of a police officer responding 

to an emergency is not necessarily limited to rendering aid to 

an injured person. "[T]he role of a [police] officer includes 

preventing violence and restoring order, not simply rendering 
17

first aid to casualties." Michigan v. Fisher, 558 U.S. 45, 49 

(2009), quoting Brigham City, 547 U.S. at 406. However, the 

seizure of the tequila bottles was not necessitated by the kind 

of compelling safety concerns confronting the police in Fisher, 

supra. There, the police, responding to a report of a 

disturbance, confronted a chaotic scene with an injured person

and an enraged defendant threatening further harm. Id. at 48. 

The ongoing events at the scene justified a law enforcement 

response to prevent further injury. Here, the police officers 

responding to the defendant's home for the well-being check 

faced no such threats to public safety. Thus, although the 

facts of this case do not present the need to parse the limits 

of the police response to an ongoing emergency, we are satisfied 

that the limitation we now impose on police conduct during a 

warrantless entry into a home will not undermine the ability of 

the police to respond to an emergency where the risk of harm or 

injury is ongoing and apparent.

b. Other exceptions. We address briefly the exceptions 

for consent and plain view. Although the defendant consented to 

the police presence in his home for the purpose of a well-being 

check on his condition, the consent ended when the defendant 

left in an ambulance for the hospital. "[A] search with consent 

is reasonable and legal only to the extent that the individual 

has consented." Commonwealth v. Cantalupo, 380 Mass. 173, 178 
18

(1980). The police officers did not ask the defendant to 

consent to the seizure of the tequila bottles or to Sergeant 

Tynan remaining in the home after the defendant had left; nor 

did the defendant say or do anything that reasonably could be 

interpreted to constitute such consent. Thus, we see no basis 

to validate the seizure as a product of the defendant's consent 

to the police entry into his home to perform a check on his 

well-being. Similarly, the tequila bottles could not lawfully 

be seized under the plain view doctrine because, at that time, 

their "incriminating character" was not "immediately apparent." 

Commonwealth v. D'Amour, 428 Mass. 725, 730 (1999), quoting 

Commonwealth v. Santana, 420 Mass. 205, 211 (1995). When the 

seizure occurred, the medical condition of the two victims was 

of unknown cause, there was no evidence that they had been 

victims of a crime, and it was not known that the contents of a 

tequila bottle would explain their medical condition. With no 

more than a hunch that the tequila bottles contained the drug 

GHB, the police could not have seized the tequila bottles under 

the plain view doctrine for investigatory purposes. See 

Commonwealth v. King, 389 Mass. 233, 243-244 (1983) (permissible 

investigatory inquiry terminated when emergency concern 

satisfied). Cf. Commonwealth v. Marchione, 384 Mass. 8, 11-12 

(1981) (plain view seizure of gasoline near homemade incendiary 

device permissible after emergency entry with reasonable cause 
19

to believe gasoline was evidence of crime).

2. Bowden instruction. The defendant argues that the 

judge erred in declining to instruct the jury in accordance with 

Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). Citing 

Mathews v. United States, 485 U.S. 58, 63 (1988), he claims that 

the decision whether to give the instruction cannot be a matter 

of discretion because it is required as a matter of due process 

when properly requested. The defendant requested the 

instruction in the charge conference following the close of 

evidence; therefore, we review the claim for prejudicial error. 

See Commonwealth v. Prater, 431 Mass. 86, 97 (2000).

We discern no error, let alone prejudicial error, in the 

judge's denial of the defendant's request for a Bowden

instruction. Our cases are consistent in interpreting Bowden to 

mean only that the defendant is entitled to offer in evidence 

facts tending to establish that "certain tests were not 

conducted or certain police procedures not followed [that] could 

raise a reasonable doubt as to the defendant's guilt in the 

minds of the jurors." Bowden, 379 Mass. at 486. See 

Commonwealth v. Lao, 460 Mass. 12, 23 (2011) (no error in 

denying Bowden instruction where defendant permitted to argue 

faulty investigation); Williams, 439 Mass. at 687 ("the giving 

of [a Bowden] instruction is never required").

Accepting for the sake of argument the defendant's claim 
20

that he is entitled, on due process grounds, to an instruction 

on his "defense" to the charge, there was no error here because 

lapses in the police investigation do not constitute a "defense" 

as that term is understood in our criminal jurisprudence. We 

said as much in Lao, supra, where we stated that "Bowden does 

not create a 'defense' in the sense that it creates an element 

of proof that the Commonwealth must prove or disprove beyond a 

reasonable doubt."

Conclusion. The defendant's Bowden claim lacks merit. 

Therefore, we decline to grant relief on that ground. As to the 

motion to suppress, the order denying the motion is reversed for 

the reasons explained above. The judgments of conviction are 

vacated, and the defendant is to be granted a new trial.

So ordered.
CORDY, J. (dissenting). "We all see something different in 

the bottom of a tequila bottle. Such is life." The motion 

judge's erudite observations, made during the motion to suppress 

hearing about the Barnstable police officers' actions at the 

defendant's home, likewise ring true with regard to the 

emergency exception to the warrant requirement. It is because 

the court sees the emergency exception too narrowly as a 

reprieve from the warrant requirement that I respectfully 

dissent.

There are two particular points made by the court with 

which I disagree. The first point is that the officers, on 

arriving at the defendant's home, were responding only to a 

potential emergency with regard to the defendant. In my view, 

the motion judge was correct in concluding that the emergency 

also applied to the ongoing and life-threatening state of the 

two patients, one at Cape Cod Hospital and one being "medflighted" to Boston, and this case therefore does present the 

question whether the police may make an emergency entry to 

provide assistance to a person not in the home. I would hold 

that they may, and were, in this case, justified in doing so. 

Second, I disagree that the exigency to which the officers 

responded ended as soon as the defendant left his home for the 

hospital. Because I would hold that the emergency was ongoing, 

both for the defendant and the patients, the officers' 
2

subsequent seizure of the tequila bottles was objectively 

reasonable under the circumstances. It is for these reasons 

that I agree with the motion judge that the officers' actions 

fit squarely within the emergency exception, and I would hold 

that the motion to suppress was appropriately denied.

1. Discussion. "When reviewing a motion to suppress, we 

accept the judge's subsidiary findings of fact absent clear 

error, but independently review the judge's ultimate findings 

and conclusions of law" (quotations omitted). Commonwealth v. 

Jewett, 471 Mass. 624, 628 (2015). Where there has been an 

evidentiary hearing, "we defer to the credibility findings of 

the judge, who had the opportunity to observe and evaluate the 

witnesses as they testified." Commonwealth v. Peters, 453 Mass. 

818, 823 (2009).

The Fourth Amendment to the United States Constitution and 

art. 14 of the Massachusetts Declaration of Rights provide that 

the right of individuals to be secure in their persons, houses, 

papers, and effects against unreasonable searches and seizures 

shall not be violated. Warrantless searches and seizures inside 

of a home are presumptively unreasonable. See, e.g., Brigham 

City v. Stuart, 547 U.S. 398, 403 (2006); Commonwealth v. 

Townsend, 453 Mass. 413, 425 (2009). Such warrantless searches 

may only be justified in "specifically established and welldelineated exceptions" (quotation omitted). Arizona v. Gant, 
3

556 U.S. 332, 338 (2009). One such exception exists in 

circumstances where the police reasonably believe that a search 

is required to deal with a life-threatening emergency. See 

Mincey v. Arizona, 437 U.S. 385, 393-394 (1978).

The emergency exception "applies when the purpose of the 

police entry is not to gather evidence of criminal activity but 

rather, because of an emergency, to respond to an immediate need 

for assistance for the protection of life" (quotation omitted). 

Commonwealth v. Snell, 428 Mass. 766, 774, cert. denied, 527 

U.S. 1010 (1999). "The reason is plain: People could well die 

in emergencies if police tried to act with the calm deliberation 

associated with the judicial process" (quotation omitted). 

Commonwealth v. Ringgard, 71 Mass. App. Ct. 197, 201 (2008). 

Two strict requirements must be met before applying the 

exception: (1) the officers must have had objectively 

reasonable grounds to believe that an emergency existed; and (2) 

the conduct of the police after the entry must have been 

reasonable under all the circumstances. See Commonwealth v. 

McDermott, 448 Mass. 750, 766-767 (2007). The exception allows 

the police, with an objectively reasonable basis for concluding 

that an emergency exists, to be proactive, as "an officer is not 

like a boxing . . . referee, poised to stop a bout only if it 

becomes too one-sided." Brigham City, 547 U.S. at 406. I fear 

that the court's reading of the emergency exception may, in many 
4

life-threatening instances, relegate the Commonwealth to 

spectator status.

a. Scope of emergency exception. The court limits the 

scope of its analysis of the emergency exception to its 

application to the defendant, ignoring, contrary to the findings 

of the motion judge, the plight (known to the responding 

officers) of the two patients at Cape Cod Hospital. Our 

consideration of the emergency exception should apply in equal 

measure to the defendant and to the patients. Despite the 

court's assertions to the contrary, the evidence presented 

throughout the motion to suppress hearing fully supports the 

motion judge's ultimate findings that the officers entered the 

defendant's home "out of concern for the well being of the 

defendant and the two hospitalized individuals."

In its restricted view of the motion judge's findings, the 

court declines to address the emergency exception's application 

to warrantless entries for the purpose of providing emergency 

assistance to a person not actually present in the home. I 

would hold that the patients' not being within the defendant's 

home does not vitiate the basis for a warrantless entry and 

seizure on their behalf. Although the United States Supreme 

Court has not directly addressed the issue, its recent 

jurisprudence on the emergency exception to the warrant 

requirement is instructive.
5

The Supreme Court has had three instances to address the 

emergency exception to the warrant requirement: Mincey, supra;

1

Brigham City, supra;

2 and Michigan v. Fisher, 558 U.S. 45 

(2009).3 In each of those opinions, the Supreme Court draws from 

Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963), for 

the premise of the emergency exception that "[t]he need to 

 

1 An undercover police officer was shot in an apartment. 

Mincey v. Arizona, 437 U.S. 385, 387 (1978). Other officers 

rushed to his aid. Id. at 387-388. Minutes later, homicide 

detectives arrived and took charge of the investigation. Id. at 

388-389. They aided in the removal of the suspects, and then 

conducted a search that lasted four days. Id. The United 

States Supreme Court held that "the Fourth Amendment [to the 

United States Constitution] does not bar police officers from 

making warrantless entries and searches when they reasonably 

believe that a person within is in need of immediate aid." Id. 

at 392. The Supreme Court, however, refused to apply the 

emergency exception to the homicide detectives' search and 

seizure because all dangerous suspects had been removed prior to 

the arrival of the homicide officers. Id. at 393.

2 Officers arrived at a home in response to a complaint of a 

loud party. Brigham City v. Stuart, 547 U.S. 398, 400-401 

(2006). The police observed an altercation in the home between 

four adults and a juvenile. Id. at 401. The Supreme Court, in 

concluding that the subsequent warrantless entry into the home 

was reasonable, expanded the definition of the emergency 

exception, holding that the police officers' subjective intent 

upon entering the dwelling is irrelevant. Id. at 404-405.

3 A police officer, after responding to a report of a 

disturbance, encountered signs of recent injury. Michigan v. 

Fisher, 558 U.S. 45, 48 (2009). The officer could see violence 

inside, including the defendant throwing projectiles at an 

unobserved target. Id. The Supreme Court held that it was 

objectively reasonable for the officer to enter the home, 

further expanding the exception by observing that it would be 

"error . . . to replace . . . objective inquiry into appearances 

with . . . hindsight determination that there was in fact no 

emergency." Id. at 49.
6

protect or preserve life or avoid serious injury is 

justification for what would be otherwise illegal absent an 

exigency or emergency." See Fisher, 558 U.S. at 47, quoting 

Brigham City, 547 U.S. at 403; Mincey, 437 U.S. at 392. Each of 

these cases presents a situation in which the purported 

emergency relates to an individual within the home to be 

searched by the police. They are not, for that reason, 

factually analogous to our case. However, the Court's reasoning 

allows for an interpretation of the emergency exception that 

would apply whenever officers have objectively reasonable 

grounds to believe an emergency resonates from otherwise 

protected private property, whether it be related to aiding an 

injured person, preventing a shooting, extinguishing a fire, 

defusing a bomb, or ascertaining the cause of a life-threatening 

illness. See Wayne, supra. See also 3 W.R. LaFave, Search and 

Seizure § 6.6(a), at 619 (5th ed. 2012) ("[e]ntry may be 

justified even though the endangered persons are not in the 

premises").

Case law around the country and within the Commonwealth 

supports this view, as victims and would be threats, be they 

attackers or latent poisons, are frequently not in the same 

place.4 It is an unnecessary requirement that they be so; a 

 

4 See, e.g., Armijo ex rel. Armijo Sanchez v. Peterson, 601 

F.3d 1065, 1071 (10th Cir. 2010), cert. denied, 562 U.S. 1224 
7

requirement that compromises public safety and hampers law 

enforcement in fulfilling the purpose for which the emergency 

exception exists. See Fisher, 558 U.S. at 49, quoting Brigham 

City, 547 U.S. at 406 ("role of a peace officer includes 

preventing violence and restoring order, not simply rendering 

first aid to casualties"). Consequently, the motion judge did 

not err in concluding that the officers were seizing the bottles 

in response to an emergency that encompassed both the condition 

of the defendant who was being taken to the hospital and the 

condition of the patients who were already there.

 

(2011) (holding that "the exigent circumstances exception 

permits warrantless home entries when officers reasonably 

believe that some actor or object in a house may immediately

cause harm to persons or property not in or near the house" 

[emphasis in original]); Mora v. Gaithersburg, 519 F.3d 216, 

225-226 (4th Cir. 2008) (placing search of home of detained man 

who had threatened his coworkers squarely within emergency 

exception, despite his not being home, as "[t]he authority to 

defuse a threat in an emergency necessarily includes the 

authority to conduct searches aimed at uncovering the threat's 

scope"); United States v. Mayes, 670 F.2d 126, 127-128 (9th Cir. 

1982) (allowing search of home for object that had been blocking 

child's throat, though child was in hospital under care of 

doctor when search and seizure of object took place); United 

States v. Moskow, 588 F.2d 882, 892 (3d Cir. 1978) (entry into 

vacant building with strong odor of gasoline held to be legal, 

as of "primary concern to the police was the safety of the 

occupants of neighboring buildings"); Richardson v. State, 247 

So. 2d 296, 298 (Fla. 1971) (affirming denial of motion to 

suppress when police had been searching defendant's home with 

purpose of aiding doctors to save lives of six children then at 

hospital being treated for symptoms of ingested poison). See 

also Commonwealth v. McCarthy, 71 Mass. App. Ct. 591, 594-595 

(2008) (denying motion to suppress evidence found in defendant's 

handbag when officer believed it may have contained cause for 

her overdose).
8

b. Reasonableness of the seizure. The court again limits 

its analysis to whether the police were objectively reasonable 

in seizing the tequila bottles in response to only the 

defendant's emergency. Because I agree with the motion judge 

that the emergency exception also applied to -- and likewise was 

triggered by -- the patients' emergency in the hospital, our 

analysis should consider both. In any event, whether it be 

applied to the defendant, the patients, or both, the police 

acted objectively reasonably under the circumstances in seizing 

the bottles.

In determining whether exigent circumstances exist, we 

"evaluate the circumstances as they would have appeared to 

prudent, cautious, and trained officers" (quotation omitted). 

Armijo ex rel. Armijo Sanchez v. Peterson, 601 F.3d 1065, 1071 

(10th Cir. 2010), cert. denied, 562 U.S. 1224 (2011). See 

Commonwealth v. Hall, 366 Mass. 790, 803 n.16 (1975). "An 

action is 'reasonable' under the Fourth Amendment, regardless of 

the individual officer's state of mind, 'as long as the 

circumstances, viewed objectively, justify [the] action. . . . 

The officer's subjective motivation is irrelevant" (emphasis in 

original; citation omitted). Brigham City, 547 U.S. at 404. 

See Commonwealth v. Entwistle, 463 Mass. 205, 214 (2012), cert. 

denied, 133 S. Ct. 945 (2013). Reasonableness is to be 

"evaluated in relation to the scene as it could appear to the 
9

officers at the time, not as it may seem to a scholar after the 

event with the benefit of leisured retrospective analysis" 

(emphasis added; quotation omitted). McDermott, 448 Mass. at 

766. See Commonwealth v. McCarthy, 71 Mass. App. Ct. 591, 594 

(2008) (indicating that reviewing court evaluates police action 

in its context and "not with twenty-twenty hindsight"). 

"Officers do not need ironclad proof of 'a likely serious, lifethreatening' injury to invoke the emergency aid exception." 

Fisher, 558 U.S. at 49. See Entwistle, supra at 214. It is 

commonly accepted that a "drug overdose is a serious medical 

emergency, often resulting in death when the afflicted person is 

not given timely and proper treatment." McCarthy, supra.

According to the motion judge's findings, when the officers 

entered the defendant's home, their knowledge of the ongoing 

situation was minimal. They were aware that two individuals 

were in critical condition under the care of emergency room 

staff, and that one of them had been "med-flighted" to a Boston 

hospital. The defendant told them that he had been feeling ill 

all day, as well. Finally, in speaking with the defendant, the 

officers ascertained that the only thing that all three ill 

individuals had potentially shared was the tequila.

At that moment, the police officers, in evaluating all the 

circumstances, were justified in seizing the bottles. This is a 

situation in which there is more than just the mere existence of 
10

a potentially harmful circumstance. See Commonwealth v. 

Kirschner, 67 Mass. App. Ct. 836, 841-842 (2006). A timely 

medical response, namely the defendant leaving in an ambulance 

and the patients already being present in the hospital, did not 

obviate the need for intervention, as the presence of -- and 

treatment by -- medical personnel does not necessarily render an 

emergency over. See McCarthy, 71 Mass. App. Ct. at 594-595 

(denying motion to suppress evidence when officer searched bag 

of unconscious woman, despite presence of emergency medical 

technicians).5 Moreover, the information relayed from the 

 

5 The court distinguishes McCarthy on two grounds. In that 

case, an officer responded to reports of an unconscious woman. 

McCarthy, 71 Mass. App. Ct. at 592. The officer called for the 

assistance of an emergency medical technician (EMT). Id. The 

EMT began to administer treatment, noted that the woman was 

suffering from an overdose, and asked the officer if he knew 

what the woman had taken. Id. The officer then searched the 

woman's handbag. Id. at 593. The court first asserts that the 

case is distinguishable because the defendant in McCarthy was in 

a public place, rendering her reasonable expectation of privacy 

less than if she had been in her home. Ante at . I find 

this argument to be inapposite. While it is true that an 

individual's expectation of privacy is less in public places, 

see Commonwealth v. Blood, 400 Mass. 61, 68-69 (1987), one's 

expectation of privacy remains paramount with regard to personal 

effects. Had the officer in McCarthy been able to see the 

contents of the defendant's purse simply by looking, this would, 

of course, not offend the defendant's expectation of privacy. 

But when the officer searched the handbag, he was still 

searching her personal effects, and an exception to the warrant 

requirement was necessary. In that case, as I would find in 

this one, the emergency exception provided grounds for that 

search. Next, the court argues that McCarthy is different 

because "the defendant [in McCarthy] was in obvious distress and 

in need of immediate medical attention." Ante at . 

Moreover, the court finds, the "attending medical personnel 
11

hospital tended to show that the emergency was getting worse; as 

the police knew it, there was reason to believe that the 

patients' situation may have been deteriorating. It was 

objectively reasonable to believe that the defendant's health 

could also have deteriorated even after going to the hospital. 

The officers were therefore justified in seizing the tequila 

bottles pointed out to them by the defendant with the goal of 

aiding in either the patients' or the defendant's recovery.

The court's focus on the treatment of the bottles after 

their seizure is misplaced. Whether the testing of the contents 

of the bottles was subsequently necessary for the diagnosis and 

treatment of the patients is irrelevant, and based on decisions 

made by others rather than the responding officers who made the 

decision to seize the bottles. Considering subsequent events as 

determinative of reasonableness is precisely the type of 

 

expressed a specific concern that the defendant might be 

suffering from a drug overdose that might possibly be verified 

by a search of the purse." Id. The record, though, shows only 

that the EMT asked the officer whether he knew what the 

defendant had taken. McCarthy, supra at 594. To distinguish 

these cases, and thus allow a search in McCarthy but not in the 

present case, would be to split hairs. The officer in McCarthy

and the officers in the present case knew overdose was a 

potential cause for the sickness. They also knew that the 

attending medical personnel had been unable to ascertain the 

cause of such an overdose, and the officers in each scenario 

acted in what they believed was a reasonable response to the 

situation. The only difference is that the EMT in McCarthy

asked the officer if he knew what the defendant had taken. That 

is not enough to distinguish these cases.
12

hindsight second-guessing that other courts have decried.6 It is 

equally baseless to obligate, as would the court, a request from 

medical staff before an officer can act in what might otherwise 

amount to a life-threatening emergency.

2. Conclusion. When the officers arrived at the 

defendant's home, they had no reason to believe that the 

defendant was in any way criminally responsible for the 

patients' medical condition. Further, there is no evidentiary 

basis upon which to conclude that the hospital was aware of 

circumstances that might lead to an arrest for the crime with 

which the defendant was ultimately charged. This inquiry is, 

however, in the end, unimportant. Even if the officers had 

reason to suspect the defendant was responsible for the 

patients' illnesses, the officers' subjective intent in 

 

6 Attributing an investigative analysis to the officer's 

actions in seizing the bottles based on something that occurred 

after the seizure amounts exactly to the "leisured retrospective 

analysis" we aim to avoid. See Commonwealth v. McDermott, 448 

Mass. 750, 766, cert. denied, 552 U.S. 910 (2007). Indeed, I 

would hold that, even had the officers learned, just moments 

after the bottles were seized, that the patients and the 

defendant were cleared medically, the purpose in seizing and 

holding the bottles would still have been reasonably in response 

to the ongoing emergency. Regardless, even if one were to 

attach importance to the eventual use of the bottles in the 

criminal prosecution of the defendant, the motion judge did "not 

infer an investigative motive on the part of [the officers] from 

the fact that [they] had an evidence collection officer 

summonsed to the scene. Local police departments in Barnstable 

County routinely use the services of the [s]heriff's [o]ffice to 

assist in documenting all manner of police work, including noncriminal events such as traffic accidents."
13

retrieving the tequila bottles is irrelevant. Rather, the only 

important question is whether it was objectively reasonable to 

believe an emergency existed justifying the seizure of the 

tequila bottles. I agree with the motion judge's findings and 

conclusion that there were sufficient grounds to believe that 

the bottles, from which all three ill individuals had been 

drinking the night before, were relevant in addressing what 

objectively appeared to be a life-threatening emergency, both as 

to the defendant, and as to the patients already at the 

hospital. Such a seizure, therefore, was plainly reasonable 

under the circumstances.

For these reasons, I respectfully dissent.