Opinion
14-P-857
03-20-2015
COMMONWEALTH v. HECTOR L. ORTIZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After being charged in the Central Division of the Boston Municipal Court with unlawful possession of a firearm, unlawful possession of ammunition, and possession of marijuana with the intent to distribute, the defendant moved to suppress evidence seized and statements made by him. The evidence seized was the firearm, the ammunition, and the marijuana. After an evidentiary hearing, the motion judge allowed both motions. A single justice of the Supreme Judicial Court granted the Commonwealth leave to file an interlocutory appeal from the allowance of these motions. See Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). We reverse.
"In reviewing a decision on a motion to suppress, 'we accept the judge's subsidiary findings of fact absent clear error "but conduct an independent review of his ultimate findings and conclusions of law."'" Commonwealth v. Molina, 459 Mass. 819, 820 (2011), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
Discussion. We assume without deciding that in this case the defendant did not have to prove that he had a reasonable expectation of privacy in the area searched because he had automatic standing. Commonwealth v. Lawson, 79 Mass. App. Ct. 322, 327 n.5 (2011) (noting tension between holding in Commonwealth v. Mubdi, 456 Mass. 385 [2010], and other Supreme Judicial Court case law). See Commonwealth v. Mubdi, supra at 392. Under this interpretation of the case law, the defendant still has the burden of proving that someone had a reasonable expectation of privacy in the area where the firearm, ammunition, and marijuana were found. See id. at 392-393.
No evidence was presented concerning the defendant's relationship to the backyard. As a result, the defendant did not prove he had a reasonable expectation of privacy in the backyard area under the second-floor porch. There is also no indication that there is a codefendant who did have a reasonable expectation of privacy in the area searched. See Commonwealth v. Carter, 424 Mass. 409, 411 (1997) (defendant does not have to prove he has reasonable expectation of privacy in area searched when he has been charged with constructive possession of property that was in "possession of another at the time of the search").
Here, the defendant did not meet his burden to prove that someone had a reasonable expectation of privacy in the area under the second-floor porch behind the two-family home, such that the entry into the backyard and the observation of items that were not visible from the surveillance area or the driveway was a search in the constitutional sense. , The defendant did not submit any evidence concerning the configuration of the two-family home. No evidence was provided that the area searched was within one household's exclusive control or that only one household routinely used the area. These are critical considerations in the reasonable expectation of privacy analysis. See, e.g., Commonwealth v. Thomas, 358 Mass. 771, 774 (1971) ("In a modern urban multi-family apartment house, the area within the 'curtilage' is necessarily much more limited than in the case of a rural dwelling subject to one owner's control. . . . In such an apartment house, a tenant's 'dwelling' cannot reasonably be said to extend beyond his own apartment and perhaps any separate areas subject to his exclusive control"); Commonwealth v. Montanez, 410 Mass. 290, 302 (1991) ("We have stated that 'an individual can have only a very limited expectation of privacy with respect to an area used routinely by others'"), quoting from Sullivan v. District Ct. of Hampshire, 384 Mass. 736, 742 (1981). See also Commonwealth v. Escalera, 462 Mass. 636, 648 (2012). The defendant did not establish the record necessary to determine whether this area was within the curtilage of someone's home or that someone had a reasonable expectation of privacy in this area. The motion to suppress the evidence seized should have been denied.
Defense counsel argued, and the judge ruled, that an individual has a reasonable expectation of privacy from being observed from a different piece of private property. This is not an accurate statement of law. See, e.g., Commonwealth v. Huffman, 385 Mass. 122, 123 (1982) (officer observed defendants through windows). Furthermore, that the officers committed a technical trespass on land that was a wooded area has no effect on this analysis. See United States v. Jones, 132 S. Ct. 945, 953 (2012) (government's physical intrusion into open field "is of no Fourth Amendment significance").
Although the Commonwealth's witness testified that the building was a multi-family home, the defendant submitted documentary evidence that was accepted into the record that the property was a "two-family" dwelling. The judge's finding that this was a two-family dwelling and not a multi-family dwelling was not clearly erroneous.
We further conclude that the judge was clearly erroneous in finding that the "firearm . . . was not in plainview wrapped in a black T-shirt." The police officer testified that the firearm was partially wrapped in a black T-shirt and the photographs submitted support that testimony. There was no evidence in front of the judge that could support his conclusion that the firearm was completely wrapped in a black T-shirt. See Commonwealth v. Nattoo, 452 Mass. 826, 828 n.1 (2009) ("Disbelief of testimony is not the equivalent of proof of facts contrary to that testimony"), quoting from Commonwealth v. Haggerty, 400 Mass. 437, 442 (1987).
Furthermore, even if the defendant had met his burden and a search had occurred, the warrantless search was "justified by probable cause and exigent circumstances." Commonwealth v. Washington, 449 Mass. 476, 483 (2007). Here, the police observed what appeared to be the sale of marijuana and then confirmed that a sale had just taken place through their search of Kevin Smith, which resulted in finding a "large amount of money." The police had probable cause to believe that evidence of a crime was in the backyard area. See Commonwealth v. Keefner, 461 Mass. 507, 515 (2012) (sale of marijuana remains a crime after possession of one ounce or less was decriminalized).
Therefore, the search was justified if "the Commonwealth met its burden of showing, by strict standards, . . . the existence of exigent circumstances sufficient to excuse the failure of the police to obtain a warrant." Commonwealth v. Lee, 32 Mass. App. Ct. 85, 87 (1992). "[S]pecific information supporting an objectively reasonable belief that evidence will indeed be removed or destroyed unless preventative measures are taken" justifies a warrantless entry. Commonwealth v. Tyree, 455 Mass. 676, 685 (2010), quoting from Commonwealth v. DeJesus, 439 Mass. 616, 621 (2003). See Commonwealth v. DeJesus, supra at 620 n.3 (exigency does not exist where apartment where drugs are believed to be held "appeared to be unoccupied").
Here, the Commonwealth presented evidence that on May 31, 2013, the police observed what they believed to be a drug transaction sometime between 7:00 P.M. and 7:45 P.M. in a backyard area. The defendant placed the contents of the bag, which was believed to be marijuana, on a tray and weighed them. The defendant then placed the tray next to a backpack in the backyard. The police also observed approximately ten people in the driveway area near the backyard. From these observations, it was reasonable to believe that the marijuana either could be distributed among the people already in the driveway and they would disperse, moved to a more secure location than an open tray on the ground in the backyard, or destroyed if the police attempted to secure the scene. See, e.g., Commonwealth v. Washington, 449 Mass. 476, 485 (2007) ("Given the fungible nature of money in general, and the tendency of illicit money to change hands quickly, this evidence would never be found if the police did not search immediately"); Commonwealth v. Lee, 32 Mass. App. Ct. at 89 (although several of the factors regarding exigency did not apply, the "third factor, of crucial significance . . ., is whether delay attendant upon securing a warrant was likely to result in destruction or disappearance of evidence"); Commonwealth v. Lopez, 38 Mass. App. Ct. 748, 749-750 (1995) (exigency existed after controlled buy when "the apartment remained occupied by the defendant and others, . . . any one of whom would have to be stopped and searched if he or she left the premises, unless the police were to risk the loss of evidence; additional visitors could appear at any time; the defendant would have time to secrete the marked bills without leaving the apartment; and a surveillance close enough to avoid the risk of the marked bills being moved from one apartment to another within the building would invite detection, giving the defendant time to destroy evidence"); Commonwealth v. Sueiras, 72 Mass. App. Ct. 439, 442 (2008) (entry into home justified by exigent circumstances where there was probable cause that adult had supplied minors with alcohol, and if officer had simply secured the scene from the outside, it was reasonable to believe that the "empty containers as well as the alcoholic beverages could have been taken out the back door or hidden from him").
In Lee, supra at 88, the police also had "probable cause to believe the suspect committed a felony and strong reason to believe the suspect was present in the place to be entered," factors not present in this case.
Moreover, although the underlying offense that the evidence at issue supports was a misdemeanor, this fact is not dispositive. The defendant relies upon Commonwealth v. Kirschner, 67 Mass. App. Ct. 836, 843 & n.5 (2006), to support his argument that there can be no exigent circumstances if the underlying offense is a misdemeanor. In Kirschner, id. at 843, this court held that the warrantless entry into the defendant's backyard to "look for the persons who had set off the fireworks," a crime that is only a misdemeanor, was not justified by exigent circumstances. However, in Kirschner, the police were told by the son of the homeowner prior to their search that the individuals who set off the fireworks were "unwanted guests" who had left the area. Id. at 838. Despite this information, the police decided "they should check the perimeter of the house to see if the 'unwanted guests' were still around." Ibid. Furthermore, in Kirschner, unlike in this case, there was no indication that the police were looking for any evidence that they had probable cause to believe was in the backyard, and as a result, no exigency could exist from a reasonable belief that evidence would be lost imminently. Id. at 842-843. In addition, the misdemeanor at issue in Kirschner was truly a "minor crime." Id. at 843 ("[M]ore than a minor crime must be involved to justify the warrantless intrusion into a private residence"). See Welsh v. Wisconsin, 466 U.S. 740, 754 (1984) (exigency did not support warrantless entry to arrest defendant when underlying offense was drunk driving, which was a "noncriminal, civil forfeiture offense for which no imprisonment is possible"); Commonwealth v. Kiser, 48 Mass. App. Ct. 647, 651 (2000) (exigency did not support warrantless entry into home when underlying offense was playing loud music that was disturbing neighbors).
While we acknowledge that the Kirschner court stated that the fact that the crime was a misdemeanor was the critical factor in the analysis, see Commonwealth v. Kirschner, 67 Mass. App. Ct. at 843 ("In this case, the officers had probable cause to believe only that a misdemeanor had been committed. . . . For that reason, if no other, we conclude that the police entry into the back yard to look for persons who had set off the fireworks was not justified under the exigent circumstances doctrine"), Kirschner was relying on case law that discussed "minor crimes" and the relevant crime in Kirschner was also a "minor crime." Ibid. The misdemeanor being investigated in Kirschner was setting off fireworks, which is punished by a fine of not less than ten dollars and not more than one hundred dollars. Id. at 843 n.5. Here, the crime being investigated is the possession of marijuana with intent to distribute, which is punished with "imprison[ment] in a jail or house of correction for not more than two years or by a fine of not less than five hundred nor more than five thousand dollars, or both such fine and imprisonment." G. L. c. 94C, § 32C, as appearing in St. 1982, c. 650, § 9.
The warrantless entry was justified because the police directly observed behavior that provided probable cause that a serious misdemeanor had occurred and had specific information that resulted in an objectively reasonable belief that the evidence would be imminently lost if the police did not immediately search the backyard.
We also reverse the order allowing suppression of the defendant's statements. No additional arguments were made concerning why these statements should be suppressed.
The order allowing the motions to suppress is reversed and a new order is to enter denying the motions.
By the Court (Trainor, Vuono & Hanlon, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: March 20, 2015.