COMMONWEALTH vs. GERMAINE GENTLE.

KAFKER, J. After he vanished on the fourth day of his trial in November of 2004, the defendant, Germaine Gentle, was convicted of trafficking more than twenty-eight but less than one hundred grams of cocaine in a school zone, G. L. c. 94C, §§ 32E(b), 32J; distribution of cocaine, G. L. c. 94C, § 32A(c); possession of a firearm without a firearm identification card, G. L. c. 269, § 10(h); and possession of ammunition without a firearm identification card, G. L. c. 269, § 10(h).

In October, 2008, the defendant was arrested while traveling from Barbados to Canada, and the Commonwealth arranged to have him returned to Massachusetts. After the default was removed, the defendant was sentenced in February, 2009. The defendant asserts that the introduction of certificates of drug and ballistic analysis without an opportunity to cross-examine the analysts who prepared the certificates violated his right to confront witnesses against him as articulated by the United States Supreme Court in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (Melendez-Diaz). The Commonwealth contends that the defendant should not get the benefit of Melendez-Diaz, which was decided prior to his appeal, because if he had not defaulted, his appeal would have been concluded prior to the decision in Melendez-Diaz. We reject this argument and conclude that Melendez-Diaz requires reversal of his drug and gun convictions. The defendant also challenges the denial of his motion to suppress certain evidence found during a search of his apartment on the ground that the police's failure to obtain a search warrant cannot be justified based on exigent circumstances. As the defendant's exigency argument has evolved substantially on appeal, we conclude that the original argument presented to the motion judge, which was based on the Fourth Amendment to the United States Constitution, was properly denied. The still-evolving claim to the effect that the police created the exigency in violation of art. 14 of the Massachusetts Declaration of Rights is more appropriately raised in a renewed motion to suppress prior to any retrial in this case.

Right of confrontation. In support of the defendant's drug convictions, the Commonwealth introduced laboratory certificates that the material at issue was cocaine and that it had a particular weight. Similarly, the Commonwealth introduced a

Page 245

ballistics certificate to demonstrate that the firearm found in the defendant's apartment was in working order. The defendant's lead argument is that the admission of these certificates without live witnesses violated his right under the Sixth Amendment to the United States Constitution to confront the witnesses against him. The Commonwealth concedes that this was error, and that this error was not harmless beyond a reasonable doubt. Melendez-Diaz, supra at 2532. However, despite the fact that it is well established that Melendez-Diaz applies to cases with appeals pending when Melendez-Diaz was decided, see Commonwealth v. Fluellen, 456 Mass. 517 , 525 (2010), the Commonwealth nevertheless asks us not to do so here. The Commonwealth argues that, had the defendant not fled midtrial, his sentencing would not have been delayed and his direct appeal likely would have concluded before Melendez-Diaz was issued in June, 2009. [Note 1] According to the Commonwealth, applying Melendez-Diaz here would allow the defendant to "benefit" from his wrongdoing. This in turn "would create an incentive for defendants to flee midtrial with the hope that a change in the law in their favor occurs while they are on the run."

The Commonwealth's argument is unpersuasive. The idea that a defendant would base his decision whether to flee on the possibility that the case law might eventually develop in his favor (regarding an issue that his counsel has not pressed) lacks plausibility. [Note 2] Indeed, a defendant also risks an unfavorable change in the law while an appeal is pending. [Note 3] See discussion, infra, regarding the suppression issues. In any event, the Commonwealth has cited no case law that justifies departure from the principle that a criminal defendant is entitled to enjoy the benefit of a newly declared constitutional rule announced while his direct

Page 246

appeal is pending. See Griffith v. Kentucky, 479 U.S. 314, 322 (1987) ("failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication"). Therefore, the constitutional error in the introduction of the drug and ballistics certificates warrants a new trial on the defendant's trafficking, distribution, and unlicensed firearm possession convictions.

Motion to suppress. For purposes of any retrial, we turn next to the defendant's argument regarding suppression of the evidence. The motion judge found that on March 10, 2003, Paul Holey, an undercover police officer in the Lynn police department, while traveling in an unmarked vehicle, observed the defendant's vehicle, a white Hyundai Santa Fe, backed into a parking space in front of a 7-Eleven store. Holey knew of prior drug transactions in the 7- Eleven store parking lot, and Lynn police for months had been investigating the defendant for suspicion of distributing drugs. [Note 4] In the parking lot, Holey observed two men in the front seats of the vehicle engaged in what he concluded was a drug transaction. He believed that the defendant was the driver. Holey observed the passenger, later identified as Eric Griffin, leave the Santa Fe and run toward a waiting vehicle. Holey then saw the defendant drive away in his Santa Fe in the direction of his apartment. Holey stopped the second vehicle and ordered Griffin out of the car. As Griffin did so, a small packet of cocaine fell from his person. Holey arrested Griffin, who said that he had just purchased cocaine from the defendant. According to Holey's testimony, there were two other individuals in Griffin's vehicle, who, together with Griffin, were cooperative with Holey and acknowledged that "they" had just purchased cocaine from the defendant. Nothing in the record indicates anything further about them.

After arresting Griffin, Holey called the dispatcher and requested officers be sent to the defendant's address. Officers found the Santa Fe parked there. When Holey arrived, there were six or seven officers on the scene, and they surrounded the premises. Holey and another officer knocked on the defendant's

Page 247

apartment door but heard no response, although he heard people moving about. He announced his presence and knocked again, stating he was going to obtain a search warrant if the door was not opened. Again he received no response.

At this point, Holey learned from an officer in the side yard of the building that a man had ripped a hole in the window screen of the defendant's apartment and appeared ready to jump. Holey ran outside, and as he arrived in the yard, he heard an object strike a tree and fall to the ground. (The object was later found to be a bag that contained some fifty-five grams of cocaine, a handgun ammunition magazine, and handgun ammunition). Holey and another officer returned to the apartment. Concerned that evidence was being destroyed, officers forced their way into the apartment. They had neither an arrest nor a search warrant, nor had they applied for one.

Inside, officers found four persons seated on a couch: the defendant, a second man, a woman, and a young child. The police arrested the defendant, and while performing a protective sweep of the apartment, they found a handgun protruding from a mattress in a bedroom and a large sum of money hidden in a curtain. [Note 5] Holey decided not to apply for a search warrant because he concluded that officers had gathered all the evidence in the apartment.

The defendant filed a motion to suppress evidence discovered as a result of the warrantless entry, including the handgun. For the reasons discussed below, we conclude that the motion as presented and argued was properly denied, as it made a general exigent circumstances argument under the Fourth Amendment and did not raise an art. 14 based, police-created exigency argument. See Mass.R.Crim.P. 13(a), as appearing in 442 Mass. 1516 (2004) (requiring that a pretrial motion "state the grounds on which it is based . . . with particularity"). Moreover, a

Page 248

renewed motion, based on such an argument, may be presented prior to any retrial on the drug and gun indictments in the instant case. Therefore, there is no reason to decide this issue without comprehensive briefing and fact finding, both of which are absent here in regard to the question whether there was a police-created exigency under art. 14.

In his motion to suppress, the defendant made a general argument to the effect that there was not an exigency justifying the warrantless entry. His argument appears to only rely on and recognize the Fourth Amendment. He argued that "[t]he 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. Angello v. United States, 269 U.S. 20, 32-32 (1925)." He argued further that the police are required to demonstrate exigent circumstances to justify such an entry and that "the Court believed 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. Commonwealth v. Forde, 367 Mass. 798 , 806 (1975)." Nowhere in the motion to suppress does he expressly raise a claim based on art. 14. Nor does he specifically argue that if there were an exigency, it was created by the police themselves.

The motion judge, responding to the arguments made before him, determined that there were exigent circumstances justifying the search. He concluded, quoting from Commonwealth v. Olivares, 30 Mass. App. Ct. 596 , 599 (1991), that "[t]his is a case where 'there existed a real likelihood that the delay attendant upon securing a warrant would facilitate the destruction of evidence.' " He came to that conclusion because the "officers were faced with a chaotic and rapidly deteriorating situation where a series of unforeseen events led [the police officer] to believe that he needed to act quickly or risk the loss of evidence." The motion judge expressly relied on the fact that one officer had observed someone in the apartment rip a hole in a window screen and another had heard an object, apparently thrown from the apartment, strike a tree. The motion judge did not, however, address the issue whether the exigency was of the

Page 249

police's own making when they sought to arrest the defendant at his apartment without a warrant, or whether the exigency existed prior to their arrival at the apartment. [Note 6] Based on the record before us, it does not appear that the issue whether the exigency was created by the police by their appearance at the defendant's apartment was argued to the motion judge.

Moreover, after briefing and oral argument in this case, the United States Supreme Court in Kentucky v. King, 131 S. Ct. 1849 (2011) (King), decided that where "the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed." Id. at 1858. The Court, in an 8-1 decision, held that the police may knock on the door of the suspect and announce their presence, and the exigent circumstances rule may still apply, so long as "the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment." Id. at 1862. According to the Court, "[o]ccupants who choose not to stand on their constitutional rights [not to speak to the officers or allow entry] but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue." Ibid. In the instant case, the police knocked on the door, announced their presence, and stated that they were going to obtain a search warrant if the door was not opened. Such conduct clearly does not violate the Fourth Amendment according to the King standard.

In review, the defendant's motion to suppress was brought pursuant to the Fourth Amendment; the defendant did not argue that the exigency was created by the police; the judge did not address the issue in his fact-findings or legal conclusions; and after King, no such argument could be made under the Fourth Amendment. The motion to suppress was therefore properly denied.

The question then becomes whether we should nonetheless decide the issue of the police-created exigency under art. 14, as

Page 250

the dissent contends. As the Supreme Judicial Court has advised, "[w]e do not normally consider on appeal issues that were not fairly raised below." Commonwealth v. Hilton, 443 Mass. 597 , 618 n.12 (2005), S.C., 450 Mass. 173 (2007). Moreover, there is no necessity to address the issue now as it can be properly presented, argued, and briefed below, and the judge can make all the necessary fact findings after being focused on the issue.

We recognize that the Supreme Judicial Court may very well take a different approach under art. 14. Although the Supreme Judicial Court's interpretation of art. 14 has often converged with the United States Supreme Court's interpretation of the Fourth Amendment, when the Supreme Judicial Court has diverged it has emphasized its obligation to undertake an independent review of the State Constitution and the court's freedom to interpret the State Constitution to provide a different balancing of the interests of privacy and the police, including the imposition of tighter constraints on the actions of individual police officers in the field. See Commonwealth v. Upton, 394 Mass. 363 , 372-373 (1985); Commonwealth v. Gonsalves, 429 Mass. 658 , 667-668 (1999) (both majority and concurring opinions). Moreover, in Commonwealth v. Molina, 439 Mass. 206 , 211 (2003) (Molina), the Supreme Judicial Court articulated a position on police-created exigency that appears to have anticipated the views reflected in the dissent in King. [Note 7] In Molina, the Supreme Judicial Court focused on the issue of a police-created exigency and stated that "[t]he Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights scrupulously guard against the intrusion of the government into a citizen's home without a warrant." Ibid. The court held that "[t]he exigent circumstance requirement is not satisfied by virtue of altercations resulting from a warrantless arrest at the home, where there is no showing of exigent circumstances leading to the warrantless arrest itself." Ibid. Molina did not, however, explain whether it was relying on art. 14, the Fourth Amendment, or both for this proposition. The Supreme Judicial Court did not parse the issue.

Page 251

Molina and King thus appear inconsistent with each other as a matter of Fourth Amendment jurisprudence. The United States Supreme Court's views obviously control Fourth Amendment analysis. To the extent Molina can be based solely on art. 14, a clearer expression to that effect is required to constitute an adequate and independent State ground for decision, at least for review by the United States Supreme Court. See Michigan v. Long, 463 U.S. 1032, 1040-1041 (1983) ("when . . . a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, [the Supreme Court] will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so"). The Supreme Judicial Court has carefully reconstructed its analysis in the past when the Federal basis of its decision has been eliminated by the Supreme Court. See Commonwealth v. Upton, supra at 369-377.

This case exemplifies the importance of potential distinctions between art. 14 and the Fourth Amendment. See Friedman & Thody, The Massachusetts State Constitution 68-69 (2011) ("Though Article XIV served as a model for the Fourth Amendment to the U.S. Constitution, the U.S. Supreme Court and the Supreme Judicial Court have often diverged in their respective interpretations of the protection against unreasonable searches and seizures"). The two provisions provide double protection of individual rights. They also require independent analysis. They may be interpreted to provide similar protection but it cannot be assumed that they will do so absent guidance to that effect by the Supreme Judicial Court. Careful attention to the potential differences between art. 14 and the Fourth Amendment is therefore required at every stage in the proceedings in order to avoid confusion in the individual case and the case law.

In sum, we decide not to resolve prematurely a novel State constitutional question that was not properly presented to the trial court. The facts related to whether the exigency was created by the police were not fully developed. We particularly see no need to do so in a case where the relevant convictions have been reversed and the motion to suppress can be renewed and

Page 252

recast without in any way prejudicing the positions of either the defense or the Commonwealth.

Ammunition conviction. Finally, we address the defendant's conviction of unauthorized possession of ammunition. The defendant has not raised a Melendez-Diaz issue with regard to that conviction. Moreover, that conviction was based not on evidence the police discovered inside the apartment, but on what was found in the bag that was discarded from the apartment before police conducted their warrantless search. The defendant does not argue, nor does he have any basis to argue, that there was any error in the admission of the ammunition in evidence. In fact, although the defendant maintains that all his convictions should be reversed, he has not argued how any error prejudiced him with regard to the ammunition charge. See Commonwealth v. Gray, 423 Mass. 293 , 296-297 (1996) (claims of error "not supported by reasoned argument or citations . . . do not rise to the level of appellate advocacy required under Mass.R.A.P. 16[a] [4], as amended, 367 Mass. 921 [1975]"). [Note 8]

Conclusion. We affirm the judgment of conviction of possession of ammunition without a firearm identification card, G. L. c. 269, § 10(h). We reverse the remaining judgments and set aside the verdicts. We affirm the denial of the defendant's motion to suppress without prejudice to his seeking to raise his art. 14 argument in a new pretrial motion.

So ordered.

MILKEY, J. (dissenting in part) . I agree with most of the majority's thoughtful opinion. However, I do not agree that we should defer addressing the question whether art. 14 of the Massachusetts Declaration of Rights provides greater protection than the Fourth Amendment to the United States Constitution with regard to the police-created exigency doctrine. I write separately to explain why I believe we should reach that issue in the current appeal.

Page 253

As an initial matter, I note that, in arguing the motion to suppress below, the defendant's counsel plainly could have done a far better job of crystallizing the theory of suppression on which he was relying. Given that Mass.R.Crim.P. 13(a), as appearing in 442 Mass. 1516 (2004), requires that a pretrial motion "state the grounds on which it is based . . . with particularity," the defendant arguably did not preserve his police-created exigency argument (whether based on Federal or State law). See Commonwealth v. Lodge, 431 Mass. 461 , 474 (2000). On the other hand, the defendant has at least some argument that his current theory of suppression is subsumed in the arguments he did make below. [Note Dissent-1] In the end, I see no need to resolve the question of waiver, because the Commonwealth has not actually argued that the defendant's police-created exigency argument is not before us. Cf. Commonwealth v. Mubdi, 456 Mass. 385 , 390-391 (2010) (because the Commonwealth did not raise the issue of the particularity of the affidavit or sufficiency of the motion under rule 13 [a][2] below, the Commonwealth waived it). Instead, the Commonwealth expressly invited us to review that argument under a substantial risk of a miscarriage of justice standard of review. [Note Dissent-2]

Page 254

I recognize that the defendant's motion to suppress did not specifically invoke art. 14, and I agree with the majority's statements about the importance of parties (and courts) distinguishing between Federal and State grounds. But the defendant's failure to draw a distinction between State and Federal law is hardly surprising given that, at the time, there was little reason to think that the substance of the police-created exigency doctrine would be any different under the two bodies of law. See Commonwealth v. McAfee, 63 Mass. App. Ct. 467 , 477 n.11 (2005) (noting the absence of a United States Supreme Court opinion on point and discussing how the Massachusetts case law was consistent with that of the United States Court of Appeals for the First Circuit). The apparent divergence between Federal and State law on police-created exigencies became apparent only in the wake of Kentucky v. King, 131 S. Ct. 1849 (2011), which was decided after oral argument in this case. [Note Dissent-3] Moreover, here again, the Commonwealth simply has not argued that the defendant waived his art. 14 grounds.

Of course, just because we could reach the defendant's argument in the current appeal does not mean that we necessarily should do so. The majority suggests that there are prudential reasons for deferring the question, invoking the need for full

Page 255

and complete fact finding. To be sure, the motion judge made no explicit findings on whether the police themselves created the exigency here, [Note Dissent-4] and some argument can be made that appellate review should await such fact finding. [Note Dissent-5] However, every decision to defer carries some opportunity cost, and I believe that another round of fact finding is, on balance, neither necessary nor advisable. At the evidentiary hearing, the burden rested firmly on the Commonwealth to justify the warrantless search, including whether "it was impracticable for the police to obtain a warrant." Commonwealth v. Molina, 439 Mass. at 209, quoting from Commonwealth v. Forde, 367 Mass. 798 , 800 (1975). The Commonwealth utterly failed to meet its burden, and I do not view drawing such a conclusion as inappropriate appellate fact finding. There is no evidence in the current record that the defendant was aware of the police presence until they knocked on his door or that he had been tipped off that they were after him. His customer, Eric Griffin, was in custody, and, although the Commonwealth argues that Griffin's two cohorts "were likely to have alerted the defendant about Griffin's arrest," there is no indication in any testimony provided at the hearing that they even knew the defendant or were able to contact him. [Note Dissent-6] Indeed, the fact that the officer announced that he would obtain a warrant if the defendant did not open the door indicates that he did not believe any exigency justifying entry existed at that moment. Finally, I note that the Commonwealth has not argued that the record below is inadequate to resolve the defendant's arguments.

In short, I believe the art. 14 issue can be addressed on the current appellate record, and, on balance, I see no good reason for an appellate court to defer that important question until

Page 256

another day (especially where neither party has asked us to do so). I would therefore reach the art. 14 issue in the current case. [Note Dissent-7]