Commonwealth v. Tayari T. Cunningham.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-736

COMMONWEALTH

vs.

TAYARI T. CUNNINGHAM.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the denial of his motion to

suppress, which sought to suppress evidence arising out of the

defendant's arrest in January of 2023 and the subsequent

warrantless search of his apartment. On the day in question,

the New Bedford police went to the defendant's apartment and

knocked on the door, after receiving a report from the nearby

Fall River police department that the defendant had threatened

to get his gun and shoot the mother of his child. After the

defendant stepped outside, the police handcuffed the defendant

and removed him downstairs to a police cruiser. Without

providing Miranda warnings, the police questioned the defendant,

who told the police (1) that he had a rifle, and (2) that he
consented to the police entering his apartment to retrieve the

gun. The police then did so, seizing an AR-15 rifle and two

magazines of ammunition.

After an evidentiary hearing, a District Court judge denied

the defendant's motion to suppress the gun, the ammunition, and

the defendant's statements. The motion raises separate

questions as to whether any exceptions to the warrant

requirement apply under the circumstances, and also whether any

exceptions to the dictates of Miranda v. Arizona, 384 U.S. 436

(1966) and its progeny apply under the circumstances. As to the

Miranda issues involving the defendants' statements, we affirm

the denial of the suppression motion. As to the warrantless

search that located the rifle, however, the record is not

sufficient for us to rule. We accordingly vacate the denial as

to that issue, and remand the motion for further proceedings

consistent with this decision.

Background. "We summarize the facts found by the motion

judge following the evidentiary hearing, supplemented where

necessary with undisputed testimony that was implicitly credited

by the judge." Commonwealth v. Oliveira, 474 Mass. 10, 11

(2016). On January 20, 2023, the mother of the defendant's

child reported to the Fall River police department that the

defendant was travelling to New Bedford to retrieve an assault

rifle, and that he had threatened to return to Fall River and

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shoot her. The Fall River police informed the New Bedford

police of the report. Three or four New Bedford police officers

responded to the defendant's apartment and knocked on the door.

Two witnesses testified at the hearing: Officer Hiram

Sanchez of the New Bedford police department, and Shardaye

Todman, the defendant's roommate. After the police officers

knocked on the door, the defendant opened the door and the

officers asked him to step outside; once the defendant did so,

the officers arrested him and handcuffed him, then brought the

defendant downstairs and placed him in a police cruiser. Todman

was present outside the apartment, and followed the defendant

and the officers downstairs.1

Officer Sanchez arrived on the scene as the other officers

were bringing the defendant downstairs. Once the defendant was

in the police cruiser, Officer Sanchez began questioning the

defendant, without first providing Miranda warnings. Officer

Sanchez told the defendant "the reason that we were there and

that Fall River did mention he had a firearm[,] and I asked him

if this was true." The defendant responded that he "[did] have

a rifle." Officer Sanchez then told the defendant that the

officers were concerned about the danger presented by the

1 Todman testified that following the defendant's arrest,
she, the defendant, and the officers were "upstairs for a[]while
before [the officers] took [the defendant] down."

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firearm; he asked the defendant several times for consent to

enter the apartment and seize the rifle. As discussed below,

the record is not clear as to whether Officer Sanchez knew, at

the time he asked for consent, that there were other occupants

in the apartment, although the officers did learn at some point

that there was at least one other roommate (in addition to

Todman) who was inside.2 The defendant eventually gave the

police permission to enter, and told Todman, who was then

standing next to the cruiser, to turn the rifle over.3 Todman

led Officer Sanchez to a bedroom inside the apartment. Officer

Sanchez recovered an AR-15 rifle with two loaded magazines from

under the bed.

The judge did not make findings as to other occupants of

the apartment, but it is undisputed that at least one roommate

other than Todman was in the apartment. As indicated, however,

it is not clear from the testimony when the officers learned of

the presence of these roommates. On direct examination, Officer

2 Todman testified that the third roommate was present
"[w]hen the police tried to get into the apartment."

3 Testimony differed as to the circumstances of the
defendant's consent. Officer Sanchez testified that he "was
talking to [the defendant] normal" when questioning him, and
when asked whether "[any]one was yelling . . . screaming[,] or
otherwise animated," answered no. In contrast, Todman testified
that when the defendant consented to the search, "[the
defendant] was very upset."

4
Sanchez testified that there were others in the apartment, "[a]

male and . . . another female party."4 On cross examination,

Officer Sanchez testified that he asked for permission to enter

the apartment "due to exigent circumstances, you know[,] the

firearm could be unsecured and there were multiple people inside

the apartment." Officer Sanchez did not provide the basis for

his reference to "multiple people inside," nor did he state when

he became aware of the other roommates.

The defendant's motion to suppress was denied following an

evidentiary hearing. The defendant thereafter entered a

conditional guilty plea to possession of a firearm without a

firearm identification (FID) card, G. L. c. 269, § 10 (h) (1);

possession of ammunition without an FID card, G. L. c. 269,

§ 10 (h) (1); and improper storage of a firearm, G. L. c. 140,

§ 131L (a) & (b). The defendant reserved his right to appeal

the denial of his motion to suppress.5

4 It is not clear whether this "female party" was Todman, or
a fourth roommate.

5 The writing submitted by the parties at the time of the
plea complied with the requirement of Mass. R. Crim. P.
12 (b) (6) that it "specify the ruling or rulings that may be
appealed" but did not comply with the requirement that it "must
state that reversal of the ruling or rulings would render the
Commonwealth's case not viable on one or more specified
charges." Here, the Commonwealth stated in writing after the
appeal was entered that "the Commonwealth could not prove any of
the charges if a motion to suppress were allowed," thus
remedying the defect. Trial judges are reminded that they

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Discussion. 1. The Miranda issue. The defendant contends

that the Miranda doctrine requires suppression of his responses

to Officer Sanchez's questioning. There are two statements at

issue: the defendant's admission that he had a gun, and his

consent to search the apartment. We consider each in turn.

a. The admission. It is uncontested that the defendant's

admission that he had a gun resulted from a custodial

interrogation, in which no Miranda warnings were given. See

Commonwealth v. Loadholt, 456 Mass. 411, 417 (2010), vacated on

other grounds, 562 U.S. 956, S.C., 460 Mass. 723 (2011)

("Generally speaking, when a defendant is in custody, any

statement made by the defendant as a result of police

interrogation is inadmissible unless it is preceded by Miranda

warnings"). However, the Commonwealth argues that the admission

need not be suppressed, citing to the holdings of the

Massachusetts and Federal courts that in circumstances

presenting a threat to the public safety, "the police may ask

questions 'necessary to secure their own safety or the safety of

the public' without giving Miranda warnings."6 Loadholt, supra,

should not accept a conditional plea without first obtaining
compliance with Mass. R. Crim. P. 12 (b) (6).

6 The Commonwealth did not argue to the motion judge that
the public safety exception applied. However, "[w]e may affirm
the denial of a motion to suppress on any ground supported by
the record." Commonwealth v. Washington, 449 Mass. 476, 483
(2007).

6
quoting New York v. Quarles, 467 U.S. 649, 659 (1984). In

determining whether the public safety exception applies, we do

not evaluate the subjective motivation of the officers; instead,

we look to whether the police questioning related to "an

objectively reasonable need to protect the police or the public

from any immediate danger associated with the weapon," rather

than questioning for an investigatory purpose. Quarles, 467

U.S. at 656, 659 n.8. See Commonwealth v. Kitchings, 40 Mass.

App. Ct. 591, 598 (1996).

Our courts have applied the public safety exception under

similar factual circumstances to the case at bar. For example,

in Loadholt, officers arrested the defendant in his apartment on

three warrants, one of which was for assault and battery by

means of a dangerous weapon (firearm). Loadholt, 456 Mass. at

413-414. A woman and child were in the apartment at the time of

the arrest. Id. at 414. The officers handcuffed the defendant

and frisked him, finding a live round of ammunition in the

defendant's pocket. Id. At that point an officer asked,

"Where's the gun?" and the defendant told him. Id. at 414-415.

The court held that the public safety exception applied, noting,

among other factors, that the live round of ammunition suggested

an immediate threat to the officers and other occupants of the

apartment, and that "the entire apartment had not yet been

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cleared, so the officers did not know if other individuals were

present." Id. at 419.

Similarly, in Commonwealth v. Alan A., 47 Mass. App. Ct.

271, 272 (1999), the police received reports that a juvenile had

run away from home with his father's gun, and that the gun was

loaded. Id. Subsequently the police received a report that the

juvenile was present in his friend's home. Id. at 272-273. The

police entered the juvenile's friend's house, drew their

weapons, ordered the juvenile to lie on the floor, handcuffed

him, and asked, "Where's the gun?" to which the juvenile

responded, "I don't have it anymore." Id. at 273. The court

affirmed the judge's application of the public safety exception.

Id. at 274-275. In so holding, the court emphasized, among

other factors, that "the police knew the defendant had been in

recent possession of a loaded gun," and that at the time of

questioning "the police had not searched the house and,

therefore, did not know if the gun was still on the premises or

if anyone else, other than [the friend], was in the house." Id.

In the present case, the New Bedford police received a

report from the Fall River police that the defendant possessed

an assault rifle, and that he had recently threatened to shoot

someone with it. The officers did not know the location of the

rifle, or whether it might be accessible to the defendant or

others. Although the defendant was in custody at the time of

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questioning, the officers had not yet searched the apartment and

thus had not confirmed if there was anyone else in the apartment

and whether those people (possible friends of the defendant) had

access to an assault rifle. These circumstances presented an

objectively reasonable public safety risk justifying Officer

Sanchez's question regarding the gun. See Loadholt, 456 Mass.

at 419; Alan A., 47 Mass. App. Ct. at 274-275. Contrast

Commonwealth v. Martin, 444 Mass. 213, 217 n.2 (2005)

(suggesting public safety exception would not apply where

"[defendant] was in custody; his apartment was swept and secured

by the police; and there was no basis to conclude that the

firearm was anywhere other than in the apartment, for which the

police intended promptly to secure a search warrant").

b. The consent. The defendant's motion to suppress also

encompasses the statements he gave that consented to the search.

However, "[t]he overwhelming weight of authority is that a

police request for consent to search from an individual in

custody is not custodial interrogation for purposes of

[Miranda]." Commonwealth v. Costa, 65 Mass. App. Ct. 227, 233

n.8 (2005). As the police did not violate Miranda by asking for

consent to enter the defendant's apartment, the answer itself is

admissible. See id.

2. The warrantless search. The defendant also argues that

the guns and ammunition must be suppressed as the fruit of an

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illegal search. Ordinarily, of course, the police may not

search a home unless they first obtain a warrant. Commonwealth

v. Arias, 481 Mass. 604, 609 (2019), quoting Commonwealth v.

Entwistle, 463 Mass. 205, 213 (2012) (warrantless search of home

"presumptively unreasonable" under State and Federal

constitutions). There are certain narrow exceptions to this

requirement, established in the case law. Before the motion

judge, the Commonwealth argued that the defendant consented to

the search; before this court, the Commonwealth also argues that

there were exigent circumstances justifying the warrantless

entry and search. We address each argument in turn.

a. Consent. The Commonwealth argues that the search was

authorized by the defendant's voluntary consent and therefore

valid. See Commonwealth v. Buckley, 478 Mass. 861, 875 (2018).

"The question whether consent was voluntary is a question of

fact to be determined in the circumstances of each case, with

the burden of proof on the government." Commonwealth v. Carr,

458 Mass. 295, 302 (2010), quoting Commonwealth v. Aguiar, 370

Mass. 490, 496 (1976). "The Commonwealth must prove consent

unfettered by coercion, express or implied, and also something

more than mere acquiescence to a claim of lawful authority"

(quotation and citation omitted). Carr, supra. Relevant

factors include, but are not limited to, "the presence of armed,

uniformed officers; whether the defendant was informed of his

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right to refuse consent; the age, intelligence, and other

personal characteristics of the defendant; and whether the

defendant was in custody when consent was given." Id.

In the present case, the judge made no factual findings as

to the voluntariness of the defendant's consent. The

circumstances were potentially coercive, such that findings were

needed. The defendant was handcuffed, in a police cruiser, with

several uniformed officers present. Furthermore, the testimony

differed as to some relevant circumstances -- Officer Sanchez

testified that no one was "yelling," "screaming," or "otherwise

animated," while Todman stated that the defendant was "very

upset." Accordingly, we remand for further factual findings on

the issue of the voluntariness of consent, and for

reconsideration of the consent issue in light of these findings.

See Commonwealth v. Jones-Pannell, 472 Mass. 429, 437 (2015)

("In the absence of findings on a critical issue . . . remand

may be appropriate").

b. Exigency. The Commonwealth also argues that the denial

of the motion to suppress may be affirmed because the search was

justified by the exigency exception. "To support such a search,

'the Commonwealth must demonstrate that the police had probable

cause and were faced with exigent circumstances such as danger

to their lives, danger to the lives of others, or the

destruction of evidence, such that it would be impracticable to

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obtain a warrant.'" Loadholt, 456 Mass. at 422, quoting

Commonwealth v. Moore, 54 Mass. App. Ct. 334, 338 (2002). "The

existence of an exigency depends on an evaluation of all the

circumstances as they appeared to the police at the time of the

search and seizure." Loadholt, supra.

Although the police had probable cause to believe the gun

was in the apartment, the judge did not make any findings as to

the existence of an exigency, and here there are factual issues

bearing on exigency that must be resolved before the court can

rule. As the Supreme Judicial Court observed in Commonwealth v.

DeJesus, 439 Mass. 616, 623-624 (2003), in the context of a

search of a defendant's residence following the defendant's

arrest, there is "an obvious prerequisite" to the existence of

an exigency -- whether the officers had "an objectively

reasonable belief that someone is inside." The judge made no

factual findings as to the state of the officers' objectively

reasonable belief, at the time of the warrantless entry, as to

whether another roommate was present. While Officer Sanchez

testified that prior to entry he knew "there were multiple

people inside the apartment," Officer Sanchez did not identify

the basis for this knowledge and the judge did not make a

finding on that issue. Furthermore, there is a factual issue as

to whether an exigency actually existed at the time of entry, as

the officers waited for some time (the record is not clear how

12
long) before entering the apartment. See Commonwealth v.

DiGeronimo, 38 Mass. App. Ct. 714, 723, 726-727 (1995) (no

exigency where, among other factors, officer stayed at scene of

accident for almost an hour before proceeding to home of

driver); Commonwealth v. Bates, 28 Mass. App. Ct. 217, 220

(1990), citing State v. Beede, 119 N.H. 620, 627-629 (1979),

cert. denied, 445 U.S. 967 (1980) ("emergency can disappear with

the passage of time"). Accordingly, we remand for the judge to

consider the exigency issue in the first instance, including

further factual findings as necessary.

Conclusion. We affirm so much of the judge's order denying

the motion to suppress the defendant's statements. We vacate so

much of the order denying the motion to suppress the fruits of

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the warrantless search, and remand the matter for further

proceedings consistent with this decision.7

So ordered.

By the Court (Desmond,
Ditkoff & Englander, JJ.8),

Clerk

Entered: July 11, 2025.

7 If the judge ultimately decides that the physical evidence
should be suppressed, we leave it to the judge to proceed under
Mass. R. Crim. P. 12 (b) (6) and allow the defendant the
opportunity to withdraw his guilty pleas.

8 The panelists are listed in order of seniority.

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