The Massachusetts Appeals Court upheld the exception for a warrant requirement in an unpublished opinion in Commonwealth v. Hale No. 09-P-157 On December 17th, 2009. In Hale, “Springfield police officer William Kelly responded to a call that a shooting victim was being treated at Baystate Medical Center (Baystate). Upon arriving there, Officer Kelly was directed to the defendant, who was covered with blood and had transported the victim to the hospital. The victim was in surgery and could not be interviewed. The defendant told Kelly that the victim was his girlfriend and that he had been in their apartment when she came home and told him that she had been shot.  Kelly asked the defendant if the victim had been with anyone. The defendant responded that she had been with her five year old son, who had been ‘dropped off’ before she entered the apartment. The defendant did not know where the boy was. After a certain point in the questioning, the defendant ‘apparently refused to provide additional information to Kelly about the boy.’”
The result of this situation was predictable to any Police Officer. Believing that the womans child was in danger he directed other Officers to the residence and without a warrant entered to search for the child. “after knocking on the door, then yelling and trying all windows, Clapprood broke a glass panel to the door and gained access to the apartment. Once inside, the officers noticed a strong smell of gunpowder, a pool of blood, and a bullet hole in a wall, leading them to determine that the shooting had taken place in the apartment. After quickly concluding that no one was inside, the officers left, secured the apartment, and waited for the issuance of a search warrant.”
The court stated, “We conclude that the Commonwealth met its burden to establish that there was here an emergency justifying the warrantless entry. The location of the victim’s child was unknown, and ‘[t]he possibility of a [five]-year-old child in a house in the middle of the night without the supervision of any responsible adult is a situation requiring immediate police assistance.’ United States v. Bradley, 321 F.3d 1212, 1215 (9th Cir. 2003), and cases cited. See 3 LaFave, Search & Seizure § 6.6(a), at 463 (4th ed. 2004 & Supp. 2009-2010) (entry reasonable to assist unattended small children). Also, where, as here, there was one victim seriously wounded by gunfire, reasonable grounds existed to check briefly the defendant’s apartment for additional victims. See Commonwealth v. McDermott, 448 Mass. 750, 766-767, cert. denied, 552 U.S. 910 (2007). See also LaFave, supra at 457; Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 14-1[c][v] & [vi] (2009-2010 ed.). Contrary to the defendant’s contention, the fact that there was no response to the officers’ knocking is not dispositive, as the child or other potential victims ‘may not have been conscious or able to seek help on their own.’ Commonwealth v. McDermott, supra at 767.
Once police have an objectively reasonable belief that an emergency exists, ‘the conduct of the police following the entry must be reasonable under the circumstances.’ Commonwealth v. Peters, 453 Mass. 818, 823 (2009). Thus, ‘the protective sweep must be limited in scope to its purpose — a search for [the child or other] victims.’ Ibid. The officers’ conduct was reasonable. Before breaking a glass panel, they looked into the windows to see if they could see anyone, then ‘knocked on the door several times[,]… banged on windows [,]… [and] yelled.’ Once inside, the officers, though making observations about evidence that was in plain view, left after a quick sweep determined that neither the child nor any other victim was inside. “
Although its an unpublished opinion it can still prove to be a good example for Officers to follow in a similar situation. Clearly, the defendant was attempting to suppress all the evidence in the apartment and it was a reach at best to believe it was possible. I thought considering the Michigan courts absurd attempt to rewrite the 4th amendment I would help reconfirm the faith in Massachusetts appeals court by Police and citizens. Also of note is the referance to Appeals Court Jutice Joseph Grasso‘s text “Grasso & McEvoy, Suppression Matters Under Massachusetts Law 2009“. Anyone wishing to read a definitive text on search and siezure should check it out.
Attorney Ronald A. Sellon