I was challenged when I argued in a previous posting that Provincetown police lacked authority to enter upon private property to arrest Barry Scott for allegedly playing loud music and stirring up more noise with a few words of protest. The question is settled by Commonwealth v. Kiser, 48 Mass. App. Ct. 647 (2000), where a warrantless entry in circumstances more compelling than Barry’s case was held to be unlawful. I will excerpt key passages to reiterate the point that I originally made, that loud music or criticism of the police on private property does not justify a warrantless entry and arrest. First the facts, then the legal conclusion:
“Sometime after 3:00 A.M. on October 24, 1996, four police officers returning to their cars from another call were approached by a woman complaining about a noisy party up the street. The officers walked toward the building she had indicated and heard loud music coming from the third floor. They went upstairs and knocked. The defendant answered the door, standing on the threshold “neither in the apartment nor in the hallway.” The officers recognized him as a member of a local gang that had a reputation for narcotics and weapons violations. One of the officers asked the defendant to turn the music down, and he responded “yeah, okay.” Just then, an unidentified male ran from one side of the room to the other, out of the officer’s line of sight. The officer moved forward to get a better view into the room. The defendant pushed the officer back, “although not off his feet or backward any appreciable distance,” and tried to close the door. The officers then forcibly pushed the door open and entered, out of a stated concern for their safety. The officers told everyone who did not live there to leave and ordered those remaining to put their hands on a nearby pool table. The defendant did not leave, and the police asked him for his identification. At first he refused, but then he said it was in his room and asked whether he could retrieve it. Two officers accompanied him into the room. When they saw contraband on top of his dresser in plain view, they placed the defendant under arrest.
“The government claims no warrant was required because the loud music was a breach of the peace, and the police entered under the authority of G. L. c. 41, § 98. 1 The judge rejected that contention and ruled that loud-sounding music was not the sort of riotous behavior that justified entry under the statute. We agree with the judge that if any statute permits a warrantless entry, its application must meet constitutional safeguards. While the Legislature may expand the authority of police to make warrantless arrests for certain misdemeanors, it may do so only if minimum standards set out by the Supreme Court are met. See, e.g., Sibron v. New York, 392 U.S. 40, 61, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968); Commonwealth v. Jacobsen, 419 Mass. 269, 272 n.3, 644 N.E.2d 213 (1995)….
“These criteria clearly do not support any sort of exigency which would justify bursting into the defendant’s apartment to suppress the loud music he had just agreed to turn down. Whatever intimidating — and hence compelling circumstances — the police may have to dispense with the warrant requirement to enter a dwelling, the judge could find, as he did, that this was not the case here. The judge found that the loud music did not amount to a breach of the peace as contemplated by the statute. As the Supreme Court put it, HN8″it is difficult to conceive of a warrantless home arrest that would not be unreasonable under the Fourth Amendment when the underlying offense is extremely minor.” Welsh v. Wisconsin, 466 U.S. 740, 753, 80 L. Ed. 2d 732, 104 S. Ct. 2091 (1984). Playing music — even so loudly that it disturbs the neighbors — is an extremely minor offense.”
Anthony, please take notice of this case if you are a police officer or an attorney advising police officers on questions of search and seizure.