Commonwealth v. Iury Sereno Sette.

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

23-P-1319

COMMONWEALTH

vs.

IURY SERENO SETTE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On February 25, 2020, Danvers police officers were

dispatched to a "domestic in progress involving a firearm."

When the police arrived, the 911 caller, William Figueroa, met

the officers outside on the porch and told them the fight over

the gun was ongoing; the officers immediately entered the home.

While inside, officers saw two handguns, a rifle, a bipod rifle

stand, ammunition, and jars of marijuana. Police obtained a

search warrant for the residence and the defendant subsequently

was charged in fourteen indictments with drug and gun offenses.1

In this appeal, the defendant challenges a Superior Court

1On June 28, 2023, the defendant entered a conditional
plea. See Commonwealth v. Gomez, 480 Mass. 240 (2018); Mass. R.
Crim. P. 12 (b) (6), as appearing in 482 Mass. 1501 (2019).
judge's order denying his motion to suppress evidence seized as

a result of the warrantless entry into his home. We conclude

that police entry into the defendant's home was justified by the

emergency aid exception to the warrant requirement and the

officers' actions once inside the home were reasonable under the

circumstances. See Commonwealth v. Entwistle, 463 Mass. 205,

213-214 (2012). Accordingly, we affirm.2

Discussion. "When reviewing a motion to suppress evidence,

we adopt the motion judge's subsidiary findings of fact absent

clear error, but we independently determine the correctness of

the judge's application of constitutional principles to the

facts as found." Commonwealth v. Catanzaro, 441 Mass. 46, 50

(2004). The facts we reference in our discussion are those

found by the motion judge, supplemented with undisputed evidence

from the motion hearing. See Commonwealth v. Garner, 490 Mass.

90, 94 (2022).

1. Emergency aid exception. "A warrantless government

search of a home is presumptively unreasonable under the Fourth

Amendment to the United States Constitution and art. 14 of the

Massachusetts Declaration of Rights." Entwistle, 463 Mass. at

213. "Warrantless searches may be justifiable, however, if the

Because we affirm based on the emergency aid doctrine, we
2

do not reach the defendant's additional challenge to the judge's
finding that entry into the home was supported by Figueroa's
valid consent.

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circumstances of the search fall within an established exception

to the warrant requirement." Commonwealth v. Arias, 481 Mass.

604, 610 (2019), quoting Commonwealth v. Tuschall, 476 Mass.

581, 584 (2017). The emergency aid exception to the warrant

requirement "permits the police to enter a home without a

warrant when they have an objectively reasonable basis to

believe that there may be someone inside who is injured or in

imminent danger of physical harm." Commonwealth v. Peters, 453

Mass. 818, 819 (2009). To justify a warrantless entry into a

dwelling under the emergency aid exception, the Commonwealth

must demonstrate both objectively reasonable grounds to believe

that an emergency existed at the time of entry and that the

officers' conduct after entry was "reasonable under the

circumstances." Arias, supra, citing Entwistle, supra, at 216.

The defendant contends that the motion judge erred in

finding that emergency aid was required, because there was "no

evidence of criminal activity, . . . injuries suffered, or

threats made." He also argues that, even if police entry into

the home was justified as emergency aid, their actions exceeded

the scope of the emergency. We disagree.

a. Reasonableness of officers' entry into the home. We

assess the reasonableness of the entry into a home based on the

totality of the circumstances. Arias, 481 Mass. at 611. "[A]t

the time of entry, there must be an objectively reasonable basis

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for the officers to believe that an emergency exists." Id. at

610. "In determining whether a warrantless entry is objectively

justified, we evaluate it in relation to the scene as it could

appear to the officers at the time, not as it may seem to a

scholar after the event with the benefit of leisured

retrospective analysis" (quotation and citation omitted). Id.

"The law does not require the police to be certain that a

person's life is in danger or to know the precise nature of a

person's injuries, nor are they required to have probable cause

to believe a crime has been committed." Commonwealth v. Gordon,

87 Mass. App. Ct. 322, 329 (2015). See also Commonwealth v.

Knowles, 451 Mass. 91, 96 (2008) (probable cause not required

under emergency exception). "There is a very strong public

policy in this Commonwealth against domestic violence." Gordon,

supra, at 330. Therefore, "[t]he fact that police are

responding to a situation that likely involves domestic violence

may be an important factor in evaluating both the [officers'

belief] that someone likely needs assistance and in assessing

the reasonableness of the officer's belief that there is an

imminent threat of injury" (quotation and citation omitted).

Id. at 331.

Here, officers knew from the police dispatcher that a 911

caller had requested help with family members fighting over a

gun inside 134 High Street. When officers Greene, Santo, and

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Karedis arrived at the address, they were met by the 911 caller,

who identified himself as William Figueroa. Figueroa said he

lived there with his sister, Valdilene Figueroa Sette, his

brother-in-law, Edson Sette, and his nephew, Iury Sette (the

defendant).3 Figueroa told the officers that Edson and defendant

were "currently arguing" upstairs over the defendant's

possession of a "big silver gun" in the house. Based on this

information, the officers entered the home.

We agree with the motion judge that the circumstances known

to the officers -- that a domestic "fight" involving a gun

prompted a 911 call and was ongoing when police arrived at the

home -- provided an objectively reasonable basis for police to

believe that someone inside the home had been harmed or was at

imminent risk of physical injury. Contrast Arias, 481 Mass. at

606, 616 (police responded to report of loaded firearm; no

indication of conflict within home and residents of apartment

building had neither seen nor heard anything indicating imminent

danger). We therefore conclude that police had the right to

enter the home to determine whether any of the occupants needed

emergency aid. See Gordon, 87 Mass. App. Ct. at 334-335.

3 Because some of the parties share a last name, we refer to
those parties by their first names.

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b. Reasonableness of officers' conduct after entry. "To

be reasonable, the warrantless conduct of the officers inside

the dwelling must be strictly circumscribed by the circumstances

of the emergency that justified entry" (quotation omitted).

Arias, 481 Mass. at 612. Once police entered the home, they

immediately went up an open stairway to the second floor. There

was a kitchen on the second floor, directly off the staircase.

From the top of the stairs, Officer Greene could hear "the sound

of an argument" coming from an area to the left of the kitchen.

Officer Greene saw Edson, Valdilene, the defendant, and James

Osmond (the defendant's friend) arguing in a bedroom adjacent to

the kitchen.4 Greene announced the officers' presence and

explained that they were responding to a domestic dispute

involving a firearm. The officers instructed the group to go

into the kitchen, frisked all four people, and asked them where

the gun was located. All four denied that there was a gun in

the house.

Shortly thereafter, the patrol supervisor, Sergeant

Shabowich arrived at the home. Officer Greene met Sergeant

Shabowich on the front porch and briefed him on the situation.

Figueroa, who had made the 911 call, was also present on the

porch. Greene then told Figueroa that "the people upstairs"

4 Police later learned it was the defendant's bedroom.

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denied there was a gun in the house. Figueroa responded that

Edson told him that he saw a gun in the defendant's bedroom and

that they were fighting over the presence of a gun in the house.

Figueroa also said that he last saw the gun in Edson’s

possession. Officer Greene brought Edson downstairs and asked

him again about the gun. Edson admitted that there was a gun

and said that he had given it to Valdilene. Officer Greene went

back upstairs and asked Valdilene to speak with him privately.

He and Valdilene then moved to the primary bedroom, where

Officer Greene asked Valdilene to tell him where the gun was and

told her he needed to remove it from the house. When Valdilene

pulled open a dresser drawer, Officer Greene saw two handguns

inside. After he confirmed the guns were unloaded, Officer

Greene asked Edson, Valdilene, Osmond, and the defendant if they

owned the guns; no one responded. Officer Greene then asked if

anyone in the house had a license to possess a gun; again, no

one responded.

At that point, Edson, Valdilene, Osmond, and the defendant

were still in the kitchen, so Sergeant Shabowich stepped away

"to have some privacy" to call his supervisor. In so doing, he

moved into the bedroom adjacent to the kitchen where the

officers had initially encountered the Sette family members.

Officer Greene joined Sergeant Shabowich in the bedroom to ask

about the plan moving forward. As he waited for the sergeant to

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finish his phone call, Officer Greene saw a rifle barrel

sticking up vertically from behind a laundry hamper. He also

saw a bipod, which is used to steady a rifle while shooting from

the ground or other surface, on top of the same hamper. Officer

Greene immediately recognized the objects as a rifle and bipod

based on his military experience and training. He then saw what

appeared to be marijuana, a loose live round of ammunition on

the floor, and two rounds of ammunition on a bureau. Officer

Greene showed Sergeant Shabowich the rifle, bipod, ammunition,

and drugs, then left the room. Sergeant Shabowich contacted the

criminal investigations division, which subsequently obtained a

search warrant for the residence.

We are not persuaded by the defendant's argument that any

emergency justification for police entry into the home ended

when they determined the four occupants were unarmed. Nor was

the officers' legitimate concern resolved simply by the group

denial that there was a gun in the house. Figueroa's initial

report was detailed and based on personal observations. His

statement that family members were fighting was confirmed when

Officer Greene "heard parties arguing" as he entered the home.

Police had no reason to discredit Figueroa's assertion that he

saw a gun in the house, and Figueroa's subsequent reaffirmation

to police that there was a gun and he had last seen it in

Edson's possession justified the further inquiry of Edson.

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Thus, it was reasonable for the officers to conduct a brief

further investigation before simply leaving the home. See

Commonwealth v. Townsend, 453 Mass. 413, 425–426 (2009) (role of

police includes preventing violence, not simply rendering first

aid to casualties); Commonwealth v. Campbell, 69 Mass. App. Ct.

212, 216 (2007) (duty to investigate cases involving gun where

police perceive danger to themselves or members of public).

Contrast Commonwealth v. Kaeppeler, 473 Mass. 396, 403 (2015)

(emergency justifying entry into home ended when defendant

transported to hospital; continued police presence in home

unreasonable). Here, the officers' continued questioning after

the denials remained focused on the officers' valid concern for

preventing imminent physical harm.

2. Conclusion. We conclude that police permissibly

entered the defendant's home to determine whether any of the

occupants needed emergency aid based on the report of a domestic

dispute involving a firearm. See Gordon, 87 Mass. App. Ct. at

334. The officers' actions in the fluid and potentially

volatile minutes after their entry into the home were directed

at locating the firearm and were necessary to ensure the safety

of the occupants, and thus did not exceed the scope of the

emergency that justified entry. See Arias, 481 Mass. at 612.

Because officers were lawfully present, their observations of

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the rifle, bipod, ammunition, and drugs in plain view did not

constitute an unreasonable search.5 See Entwistle, 463 Mass. at

217.

Order denying motion to
suppress affirmed.

By the Court (Englander,
Hershfang & Brennan, JJ.6),

Clerk

Entered: March 6, 2025.

The defendant does not challenge Officer Greene's plain
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view observations beyond contending that police improperly
entered the home and their ongoing presence after locating the
occupants unharmed and determining no one was in possession of a
weapon exceeded the scope of any emergency.

6 The panelists are listed in order of seniority.

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