MA: Under state const., police created exigency by attempted warrantless arrest at home suppressed

Massachusetts interprets its state constitution to provide greater protection in the home than the Fourth Amendment. Thus, when the police come to a house without an arrest warrant, they can’t use the likelihood they will create an exigency for an entry if the defendant attempts to flee. Commonwealth v. Alexis, 2018 Mass. LEXIS 814 (Dec. 14, 2018):

In the present case, balancing the interests of law enforcement with the rights of people to be protected from warrantless searches in the home, we conclude that art. 14 provides greater protection than the Fourth Amendment in these circumstances and that under art. 14 the police cannot avail themselves of the exigency exception to the warrant requirement when it was foreseeable that their actions would create the exigency, even if their conduct was lawful. See Molina, 439 Mass. at 210; Forde, 367 Mass. at 803.

Here, before arriving at the defendant’s home, Kenny knew that Pohle was in the process of getting an arrest warrant but had not secured one. Moreover, Kenny testified that his plan was to knock on the door to see if the defendant was home, question him, and if the opportunity arose, arrest him. Based on his testimony, it was evident that Kenny went to the defendant’s home with the purpose of making an arrest without a warrant. There is nothing in the record indicating that it was impracticable to get a warrant.

Likewise, it was reasonably foreseeable that the five police officers approaching the defendant’s home could cause the defendant to attempt to flee. In fact, Kenny testified that he understood that the officers’ presence might prompt the defendant to flee or destroy evidence. See Forde, 367 Mass. at 801. The officers also set up a perimeter around the house to prevent the defendant from discarding evidence or escaping.

There is no question that the police had developed probable cause to arrest the defendant prior to arriving at his home. Pohle decided not to pursue an after-hours arrest warrant, even though he testified that there was a procedure in place to get one. There is also no question that it is generally permissible for police to approach a person’s home and knock on the door. Commonwealth v. Leslie, 477 Mass. 48, 57, 76 N.E.3d 978 (2017). However, Kenny had the opportunity to obtain an arrest warrant the morning of the arrest. Forgoing multiple opportunities to procure an arrest warrant further highlights the unreasonableness of the arrest. See Forde, 367 Mass. at 799, 801.

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