Posts tagged "1004017"

Commonwealth v. Tuschall (Lawyers Weekly No. 10-040-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12151   COMMONWEALTH  vs.  KYLE TUSCHALL.       Middlesex.     November 9, 2016. – March 8, 2017.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Constitutional Law, Search and seizure, Probable cause.  Search and Seizure, Emergency, Probable cause, Fruits of illegal search.  Probable Cause.       Indictments found and returned in the Superior Court Department on August 12, 2014.   Pretrial motions to suppress evidence were heard by Thomas P. Billings, J.   An application for leave to prosecute an interlocutory appeal was allowed by Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.  The Supreme Judicial Court granted an application for direct appellate review.     Randall F. Maas, Assistant District Attorney, for the Commonwealth. Jessica LaClair for the defendant.     LOWY, J.  Following a report of a “smell like drugs” emanating from the apartment of the defendant, police made two warrantless entries into his apartment.  Based on observations of paraphernalia related to the manufacture of crystal methamphetamine, the police then obtained a warrant.  The defendant was subsequently arrested and charged with, among other things, drug related offenses. The defendant filed two motions in the Superior Court — one to suppress the evidence seized during the execution of the search warrant and another to suppress statements he made to police following his arrest.  The judge granted both motions after an evidentiary hearing.  With respect to the first motion, the judge determined that no emergency justified the warrantless entries, without which the Commonwealth could not establish the probable cause necessary for the subsequent warrant.  Regarding the second motion, the judge concluded the defendant’s statements to the police were the “fruit of” the defendant’s unlawful arrest. The Commonwealth appealed from the judge’s decision.  A single justice in the county court allowed the Commonwealth’s application for interlocutory review and reported the matter to the Appeals Court.  We subsequently allowed the defendant’s motion for direct appellate review.  We affirm. Background.  The motion judge made the following factual findings, which we accept absent clear error.  Commonwealth v. Entwistle, 463 Mass. 205, 209 (2012), cert. denied, 133 S. Ct. 945 (2013).  We review de novo the judge’s application of constitutional principles to the facts.  Commonwealth v. Phillips, 452 Mass. 617, 624 (2008). On June […]

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Posted by Massachusetts Legal Resources - March 8, 2017 at 9:33 pm

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