COMMONWEALTH vs. VINCENT DIGERONIMO.

LAURENCE, J. The underlying issue in this case is the validity of a warrantless police entry into the private residence

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of a suspected drunk driver who had recently caused an accident. As a result of that entry, the police obtained overwhelmingly incriminating evidence that led to the conviction of Vincent DiGeronimo for operating his vehicle under the influence of intoxicating liquor.

Background facts. [Note 1] In Leominster on St. Patrick's Day evening, 1993, snow and misty rain covered the roads in a dark sheen of ice. At approximately 10:30 P.M., DiGeronimo was operating his four-wheel drive Jeep Wagoneer on North Street. He was bringing a corned beef sandwich from Donnelly's Tavern to his invalid mother, whom he had been visiting. At the tavern, he had ordered at least two beers as he waited for the food to be prepared. While traveling at an excessive rate of speed, DiGeronimo rammed the rear of a vehicle being driven by Paul Eagan. Eagan had stopped at the bottom of a hill on North Street because of difficulties that cars ahead of him were having negotiating the slippery incline. The impact of the collision broke Eagan's seat and pushed his car more than thirty feet up the hill, spinning it around and dumping Eagan into his rear seat.

Neither driver was physically injured. Eagan's car was, however, inoperable. DiGeronimo got out of his car and staggered toward Eagan's car. (At trial, DiGeronimo attributed his difficulty walking to the icy conditions.) Eagan observed that DiGeronimo was unsteady on his feet, nervous, and agitated in an angry manner. DiGeronimo was also speaking in so slurred a fashion that Eagan could not understand him. Eagan quickly concluded that DiGeronimo was drunk. Two passersby said that they would notify the police. Eagan then noticed DiGeronimo getting back into his car and driving off without turning on his headlights. (DiGeronimo testified that they had been broken as a result of the collision.) Eagan took down the vehicle's license plate number.

DiGeronimo drove to his apartment, which was in a building only a short distance away. His car's crumpled front fender had by this time so gouged his tire that he could no

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longer move the vehicle. From his apartment, he telephoned the police station to report the accident. During the conversation, DiGeronimo used obscenities, and his speech was slurred. [Note 2] He then waited in his apartment because he thought the police might be coming to question him. [Note 3] After a while, he ate the corned beef sandwich, drank (so he testified) one or two glasses of wine, turned on the television, and fell asleep in a chair in front of the television set.

Meanwhile, a police cruiser had arrived at the accident scene. It was followed, at approximately 10:45 P.M., by uniformed Leominster police officer Deshod (or Ducharm -- the record is inconsistent), who had received a radio report of the accident. After observing the scene and speaking with Eagan (who opined that the driver who had rear-ended him had been drunk), Deshod called the police station to "run" the license plate of the other car, which Eagan had given him. Deshod was soon informed of DiGeronimo's ownership of the suspect vehicle and nearby address. He remained at the scene for approximately fifty minutes until the road, which was still slippery, was salted, and Eagan's car was towed. At this point (so the judge found), the officer had probable cause to believe DiGeronimo had been operating a motor vehicle under the influence of alcohol.

At approximately 11:35 P.M., Deshod drove to the address he had been given. He found the car described by Eagan parked in front of the apartment building. He was allowed entrance into the common hallway of the building by a security guard and proceeded to DiGeronimo's apartment, accompanied by the guard. There he knocked repeatedly and vigorously on the door for several minutes, announcing as loudly as he could that he was a police officer. No response came from within, but Deshod could hear the sound of a television set through the door. Deshod concluded (in good

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faith, the judge found) that DiGeronimo was inside and possibly in need of assistance. [Note 4] He radioed the police station and asked the dispatcher to call DiGeronimo's number. The dispatcher reported receiving a busy signal. Deshod next asked his patrol supervisor whether he should enter the apartment "to check on the welfare of the owner of the second vehicle." Upon being told he should, he entered the apartment, using the security guard's passkey, [Note 5] and immediately identified himself as a police officer.

Deshod saw DiGeronimo sitting in a chair in front of the television set in his underwear. DiGeronimo (who testified that the opening of the door wakened him) looked at Deshod in surprise and stood up. Deshod told DiGeronimo to put some clothes on. As DiGeronimo walked about the room, Deshod noticed that he was unsteady on his feet and swayed. As DiGeronimo approached after getting dressed, Deshod detected a strong odor of alcohol on his breath and observed that his eyes were bloodshot and glassy. Deshod asked DiGeronimo if he had been involved in an accident. In slurred but comprehensible speech, DiGeronimo responded affirmatively, stating that the vehicle he struck had "backed down the hill" into him. Deshod then asked if DiGeronimo had been drinking. DiGeronimo said he had drunk two beers

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at Donnelly's. Deshod saw no bottles, glasses, or containers of any sort in the apartment, and DiGeronimo unsolicitedly stated that there was no alcohol anywhere in the apartment. At some point DiGeronimo turned and left without explanation to go to the bathroom.

Deshod concluded from his observations that DiGeronimo was under the influence of alcohol, placed him under arrest, handcuffed him, and transported him to the police station. After being booked for operating under the influence and being advised of his rights, DiGeronimo elected to take a breathalyzer test. The test yielded two reliable readings of 0.15, well above the blood alcohol level that leads to license suspension under G. L. c. 90, Section 24N. During the booking and testing procedure, two officers watched DiGeronimo for more than twenty minutes and noted the strong odor of alcohol on his breath, the unsteadiness of his gait, and the glassy redness of his eyes.

Ultimately charged with the misdemeanor of operating under the influence, second offense, DiGeronimo was found guilty after trial before a jury of six in November, 1993. He was sentenced to two years in the Worcester County house of correction, with nine months to serve and the balance suspended. In February, 1994, he filed a late notice of appeal and a motion for a new trial, arguing that he had received ineffective assistance from trial counsel because of counsel's failure to file a motion to suppress all evidence obtained from and after the illegal police entry into his apartment.

After a hearing, the trial judge denied the new trial motion. He ruled that Officer Deshod had probable cause to believe that DiGeronimo had been responsible for a motor vehicle accident while driving under the influence of alcohol. The judge also found that exigent circumstances existed to validate Deshod's warrantless, but restrained and peaceable, entry into the apartment. Those circumstances were (a) the need to check whether DiGeronimo might be injured as a result of the accident, and (b) the need to determine whether he was under the influence of alcohol, a determination that might have been frustrated by delays caused by DiGeronimo's

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apparent attempt to avoid detection and necessarily attendant to police efforts to obtain a warrant. The judge concluded that any motion to suppress would, therefore, have been denied, so that trial counsel's failure to have made such a futile motion could not be faulted.

Summary conclusion. DiGeronimo has reiterated on appeal his "ineffective assistance" contentions based on the failure of counsel to file a suppression motion. While recognizing both the good faith -- indeed, the commendable intent -- of the police in this case, as well as the deplorable social problem caused by "the continuing slaughter upon our Nation's highways, a good percentage of which is due to drivers who are drunk," Welsh v. Wisconsin, 466 U.S. 740, 755 (1984) (Blackmun, J., concurring), we are constrained to agree with DiGeronimo. The warrantless police entry into his apartment was presumptively illegal, and in the circumstances, fell within no recognized exception to the constitutional warrant requirement. A motion to suppress the evidence improperly obtained from that entry, upon which DiGeronimo's conviction was substantially based, should have succeeded. Trial counsel's failure to file such a motion very likely deprived DiGeronimo of a substantial ground of defense. [Note 6] His conviction must therefore be reversed.

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The law of warrantless entry. The law applicable to the issue at hand is well established but, as our Declaration of Rights admonishes, [Note 7] warrants periodic recapitulation:

"`It is clear . . . that the notion that the warrantless entry of a man's house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man's house without warrant are per se unreasonable in the absence of some one of a number of well defined "exigent circumstances."' [Coolidge v. New Hampshire, 403 U.S. 443, 477-478 (1971).] The right of police officers to enter into a home, for whatever purpose, represents a serious governmental intrusion into one's privacy. It was just this sort of intrusion that the Fourth Amendment was designed to circumscribe by the general requirement of a judicial determination of probable cause. . . . The distinction between an entry to search and an entry to arrest is slight, for the latter may well be characterized as simply a search for a person rather than a search for things. . . . Moreover, it can be argued that an entry to arrest is a far greater intrusion than an entry to search.

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Coolidge v. New Hampshire, supra, at 479-480. The exigencies which would excuse the lack of an arrest warrant may differ from those supplying the excuse for the lack of a search warrant. In any event, the police are required to demonstrate that exigency. In short, we believe that the Fourth Amendment prohibits a warrantless entry into a dwelling to arrest in the absence of sufficient justification for the failure to obtain a warrant. . . ." (Emphasis supplied.)

Commonwealth v. Forde, 367 Mass. 798, 804-806 (1975). [Note 8] The circumstances that have been recognized as justifying failure to obtain a warrant have been severely circumscribed by the courts as being both few, Katz v. United States, 389 U.S. 347, 357 (1967), and exceptional, G.M. Leasing Corp. v. United States, 429 U.S. 338, 352-353, 358 (1977). The Supreme Court of the United States has also observed that the few exceptions are "jealousy and carefully drawn," Jones v. United States, 357 U.S. 493, 499 (1958), and that the government's "heavy burden" in such cases, Welsh v. Wisconsin, 466 U.S. at 749-750, is to show that, even within the few, narrow exceptions, proceeding without a warrant was "imperative." McDonald v. United States, 335 U.S. 451, 456 (1948).

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The Supreme Judicial Court has underscored the necessity, within these stringent Fourth Amendment guidelines, of subjecting warrantless searches of private residences to strict constitutional scrutiny. The government has the heavy burden of clearly demonstrating an urgent need to effect entry in the particular case even within a recognized category of exceptional circumstances. Selectmen of Framingham v. Municipal Ct. of the City of Boston, 373 Mass. 783, 785-786 (1977).

The "emergency" exception to the warrant requirement. The judge below and the Commonwealth here have relied upon two of the narrow exceptions that have been recognized by the courts [Note 9] to justify the warrantless police breach of DiGeronimo's castle. [Note 10] The first is the so-called "emergency" doctrine, which authorizes warrantless entry when a police officer (or other public safety official) reasonably believes that a person within the dwelling is in need of immediate

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assistance because of an imminent threat of death or serious injury, or that prompt intervention is necessary to prevent a threatened fire, explosion, or other destructive accident. See Commonwealth v. Marchione, 384 Mass. 8, 11-12 (1981); Commonwealth v. Bates, 28 Mass. App. Ct. 217, 219-220 (1990); Commonwealth v. Hurd, 29 Mass. App. Ct. 929, 930 (1990). [Note 11]

Police action in such situations is to be viewed under a reasonableness standard in light of the circumstances in the field, not by "Monday morning quarterbacking." [Note 12] Nonetheless, we fail to find in this record the requisite compelling reasons, supported by specific and articulable facts, see Mincey v. Arizona, 437 U.S. 385, 392-394 (1978), that could have led officer Deshod reasonably to believe that DiGeronimo was in dire, life-threatening distress and in need of immediate assistance.

Eagan did not tell Deshod that DiGeronimo was injured, only that he appeared drunk. Eagan himself revealed that he was uninjured. DiGeronimo's driving off from the accident scene suggested lack of incapacitating injury. DiGeronimo's telephone call to the police gave no hint that he was ailing, only profane and possibly inebriated. Deshod's lingering at the accident scene for almost an hour, knowing that DiGeronimo lived only yards away and with a police cruiser standing nearby, reflected a belief that no pressing reason required prompt attention to DiGeronimo.

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No alarming signs confronted Deshod as he stood outside DiGeronimo's apartment (such as a trial of blood, Commonwealth v. Young, 382 Mass. 445, 454, 457 [1981]; shots heard from within, Mincey v. Arizona, 437 U.S. at 387; moaning sounds coming from inside, Commonwealth v. Kingsbury, 7 Mass. App. Ct. 51, 53-54, S.C., 378 Mass. 751 [1979]; a badly wounded person on the threshold, Commonwealth v. Cricones, 12 Mass. App. Ct. at 953-954; or flammable and explosive materials on the floor, Commonwealth v. Marchione, 384 Mass. at 12). Although DiGeronimo's telephone was reported to be emitting a busy signal, no effort appears to have been made to determine whether it was the signal of a telephone being used or of one off the hook. When Deshod ultimately gained entry into the apartment, he made no inquiry whether DiGeronimo was injured or required assistance, only whether DiGeronimo had been involved in an accident. Deshod's initial command to DiGeronimo to dress himself implicitly assumed DiGeronimo's ability to do so.

Finally, the record contains no evidence suggesting that either Deshod or his supervisor ever considered, let alone reasonably concluded, that obtaining a warrant (which is available "at any time," G. L. c. 218, Section 35; G. L. c. 276, Section 3A, as amended by St. 1962, c. 328, from an after-hours duty judge or a magistrate on call, either directly or through the State police) would entail so great a delay as to increase any apprehended danger to DiGeronimo's life or limb. See Commonwealth v. Bates, 28 Mass. App. Ct. at 221. Contrast Commonwealth v. Bradshaw, 385 Mass. 244, 256 (1982) (Where, in the circumstances of that case, "the Commonwealth ha[d] shown, as required by our cases, that it was impracticable for the police to obtain a warrant"). Indeed, as just discussed, the known facts surrounding the accident indicate that no such consideration could reasonably have entered into their calculations.

In sum, Deshod's subjective good faith belief that DiGeronimo might be in need of assistance did not justify either the entry or the subsequent search and arrest. See Illinois v. Rodriguez, 497 U.S. 177, 185 (1990), quoting from Hill v.

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California, 401 U.S. 797, 803-804 (1971). The objective circumstances did not reasonably support a genuine concern on Deshod's part that DiGeronimo might have been so severely injured in the accident as to be in a life-threatening situation requiring immediate, warrantless entry and assistance. The judge's finding in that respect was clearly erroneous. The circumstances presented to the officer were not remotely analogous to the factual urgencies of the cases in which the emergency exception has been held to apply. [Note 13]

The "destruction of evidence" exception to the warrant requirement. The only other exception cited by the judge and

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proffered by the Commonwealth as validating the warrantless entry is that recognized -- particularly in illegal drug cases -- when entry was reasonably believed to be necessary to prevent the imminent destruction or removal of incriminating evidence. See Commonwealth v. Hall, 366 Mass. 790, 800-804 (1975); Commonwealth v. Amaral, 16 Mass. App. Ct. 230, 233-234 (1983). [Note 14]

The judge observed that "[t]here was some urgency in locating [DiGeronimo] . . . to determine if he was under the influence and was avoiding detection. In such matters, time delays are critical . . . ." The Commonwealth's brief glosses this generalized concern by positing that "Officer Deshod knew that the alcohol in the defendant's system was dissipating and that any delay would decrease the evidentiary value of any observations of the defendant's physical condition."

The "destruction of the evidence" exception to the warrant requirement does not, however, apply here for several reasons. First, the record does not support it. Deshod's and his supervisor's only expressed rationale for entering the apartment was "to check on [DiGeronimo's] welfare." Nothing in his or any other testimony or exhibit raises the possible loss of evidence of intoxication as an objective motivation for the entry. To the contrary, the almost hour-long delay (between the time Deshod discerned at the scene that DiGeronimo might have caused the accident while driving under the influence of alcohol and the time Deshod arrived at DiGeronimo's apartment) belies the formation of any such police determination in this regard. Either Deshod or the police cruiser that had preceded him to the scene could have immediately proceeded to DiGeronimo's nearby apartment had there actually existed police apprehension over the "dissipation" of evidence of the apparent offense.

Such an unexplained delay, "in the absence of additional facts explaining why it was `impracticable for the police to

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obtain a warrant' . . . precludes a finding . . . justifying the warrantless entry into the apartment. . . . No such additional facts were adduced. . . ." Commonwealth v. Bates, 28 Mass. App. Ct. at 221. See also Commonwealth v. Forde, 367 Mass. at 807. No "exigency" sufficient to exonerate the extraordinary act of warrantless police intrusion into a private dwelling exists when the eventual juncture was a reasonably foreseeable result of earlier police inaction. See id. at 803; Commonwealth v. Sergienko, 399 Mass. 291, 297 (1987); Commonwealth v. Wigfall, 32 Mass. App. Ct. 582, 587-588 (1992).

The court's and the Commonwealth's assumptions about Deshod's unarticulated desire to obtain imminently evanescing evidence may appear plausible. [Note 15] However, the finding of such an exigency cannot rest on an after-the-fact discovery of a justification that never occurred to, nor was mentioned by, the police but is subsequently imputed to them in an effort to salvage a well-intentioned but flawed prosecution -- any more than a rejection of exigent circumstances should be

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based upon "leisured retrospective analysis." Commonwealth v. Young, 382 Mass. at 456. The required exigency can only be founded upon a reasonable conclusion reached by the police at the time of the entry, on the basis of the information then available to them, that there was a specific threat of imminent loss or destruction of important evidence. See Commonwealth v. Hall, 366 Mass. at 802; Commonwealth v. Huffman, 385 Mass. 122, 126 (1982); Commonwealth v. Amaral, 16 Mass. App. Ct. at 233; Commonwealth v. Garcia, 34 Mass. App. Ct. at 394. The instant record contains nothing demonstrating that Deshod or his supervisor had made that crucial determination. "We cannot speculate or go outside of the record to justify the warrantless entry into a private residence." Commonwealth v. Huffman, 385 Mass. at 127. See also Commonwealth v. Garcia, 34 Mass. App. Ct. at 394-395.

Neither the Commonwealth's brief nor the judge's new trial ruling cited a single Massachusetts or Federal authority justifying warrantless intrusion into a suspected drunk driver's home because of the possible loss or destruction of evidence of his inebriation. We view the limited pertinent authority as pointing to an opposite conclusion. As the United States Supreme Court has stated:

". . . a warrantless home arrest cannot be upheld simply because evidence of [the appellant's inebriation] might have dissipated while the police obtained a warrant. To allow a warrantless home entry on these facts would be to approve unreasonable police behavior that the principles of the Fourth Amendment will not sanction." [Note 16]

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Welsh v. Wisconsin, 466 U.S. at 754. Accord Patzner v. Burkett, 770 F.2d 1363 (8th Cir. 1985). Such a result is especially appropriate in this Commonwealth, where the police cannot constitutionally compel a suspect to take a field sobriety, breathalyzer, or blood test, nor can the prosecution introduce evidence of a defendant's refusal to take such tests. Commonwealth v. McGrail, 419 Mass. 774, 777-780 (1995). Contrast City of Oren v. Henrie, 868 P.2d 1384, 1388-1392 (Utah 1994). For this particular offense, Massachusetts police can have no reasonable expectation that a warrantless entry will enable them to obtain or preserve such evidence, even if, unlike the present situation, they consciously intend their entry for that purpose. [Note 17]

The ineffectiveness of counsel. Evidence obtained as the proximate result of unjustified, warrantless police entry into private quarters, in substantial (and not merely technical) violation of the Fourth Amendment, is subject to the exclusionary rule. The direct evidentiary fruits of such an entry are subject to suppression as inadmissible evidence, see Mapp v. Ohio, 367 U.S. 643, 654-655 (1961) (but see United States v. Leon, 468 U.S. 897, 922 [1984]), at least in Massachusetts under art. 14. See Selectmen of Framingham v. Municipal Ct. of the City of Boston, 373 Mass. at 786-788; Commonwealth v. Ford, 394 Mass. 421, 425-427

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(1985); Commonwealth v. Conway, 2 Mass. App. Ct. 547, 553-554 (1974). Cf. Commonwealth v. Rutkowski, 406 Mass. 673, 676-677 (1990). Here, that evidence comprised officer Deshod's observations of DiGeronimo and the breathalyzer test results indicating prima facie intoxication. None of that evidence would have been obtained but for the unlawful entry.

Had that evidence been suppressed, the Commonwealth's case against DiGeronimo would have rested on the lay opinion of the other driver, Eagan, that DiGeronimo appeared drunk, and on the tape of DiGeronimo's telephone call to the police. Although that evidence would have been sufficient to submit the case to the jury, it hardly constituted an overwhelming or even compelling demonstration of the defendant's culpability. We are unable to say that the tainted fruits of the illegal entry -- a police officer's authoritative testimony and opinion regarding DiGeronimo's inebriated condition and, in particular, breathalyzer test results enjoying an aura of scientific reliability, if not conclusiveness -- were without effect on the jury and did not contribute to the guilty verdict. Cf. Commonwealth v. Gilday, 382 Mass. 166, 178 (1980).

A motion to suppress that significant, possibly outcome-determinative, illegally obtained evidence would clearly have represented "better work [that] might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). The unopposed allowance in evidence of those fruits of the improper entry, therefore, constituted ineffective assistance of counsel. It directly resulted in a constitutional error that cannot be deemed (nor has the Commonwealth attempted to meet its burden of proving that it was) harmless beyond a reasonable doubt. See Commonwealth v. Marini, 375 Mass. 510, 520-521 (1978); Commonwealth v. Sinnott, 399 Mass. 863, 872 n.8 (1987). Contrast Commonwealth v. Colon-Cruz, 408 Mass. 533, 558 (1990); Commonwealth v. Garcia, 34 Mass. App. Ct. at 390-391.

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DiGeronimo's new trial motion should have been allowed, and a new trial will be in order. [Note 18]

Order denying motion for new trial reversed.

Judgment reversed.

Verdict set aside.