COMMONWEALTH vs. BOBBY LESLIE (and five companion cases)
Supreme Judicial Court of Massachusetts
November 7, 2016. - May 9, 2017.
477 Mass. 48 (2017)
Suffolk. Present: GANTS, C.J., BOTSFORD, LENK, HINES, GAZIANO, LOWY, & BUDD, JJ.
A Superior Court judge properly allowed the criminal defendants’ motions to suppress a sawed-off shotgun that police had discovered during a warrantless search of the porch and side yard of a multifamily home where one of the defendants resided, where the side yard was a constitutionally protected area within the home‘s curtilage, and a police officer‘s physical intrusion into that area to search for a weapon therefore implicated the warrant requirement of the Fourth Amendment to the United States Constitution and art. 14 of the Declaration of Rights. [52-58]
This court declined to address claims of error that were not raised in argument before a Superior Court judge and therefore were waived. [58]
INDICTMENTS found and returned in the Superior Court Department on December 16, 2014.
Pretrial motions to suppress evidence were heard by Charles J. Hely, J.
An application for leave to prosecute an interlocutory appeal was allowed by Hines, 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.
Zachary Hillman, Assistant District Attorney, for the Commonwealth.
Patrick Levin, Committee for Public Counsel Services, for Bobby Leslie.
MarySita Miles for Lacy Price.
HINES, J. The defendants, Bobby Leslie and Lacy Price, were indicted on charges of unlawful possession of a sawed-off shot-1
gun,3
The Commonwealth filed a timely appeal from the allowance of the defendants’ motions to suppress. A single justice of this court granted leave to pursue an interlocutory appeal and reported the case to the Appeals Court. We allowed the defendants’ application for direct appellate review to clarify the application of the Jardines warrant requirement to a search in a multifamily home. Following the analytical framework set out in Jardines, 569 U.S. at 5-10, we conclude that the side yard of the defendant‘s multifamily home was a “constitutionally protected area,” and that the intrusion into that area to search for a weapon implicated the warrant requirement of the
Background. We recite the facts as found by the motion judge, “supplemented by evidence in the record that is uncontroverted and that was implicitly credited by the judge.” Commonwealth v. Warren, 475 Mass. 530, 531 (2016), citing Commonwealth v. Melo, 472 Mass. 278, 286 (2015). On May 29, 2014, at around 2 P.M., Boston police Detective Daniel Griffin was working in the
The property at the residence, which is a three-family home, was fenced in on the front and left side. A chain link fence, with an attached gate at the walkway leading to the sidewalk, ran across the edge of the front yard. A tall wooden fence ran along the left side8 of the lot, five to six feet from the side of the porch and the house. The left-side porch area was blocked by a large blue recycling bin, which obstructed the view of the area from Everton Street.
After repositioning his vehicle down from and opposite the residence,9 Detective Griffin observed the four men, including Leslie, enter the front gate of the residence and meet a fifth man,
Next, Detective Griffin observed Price walk over to the side porch area as Leslie had done previously, also swiveling his head in a surveillance-conscious manner, bending down, looking under the porch, and then returning to the group on the front porch. Detective Griffin observed Leslie return to the side porch area two more times, each time swiveling his head as before, bending down, and manipulating something on the ground. On Leslie‘s third trip to the area, as he stood back up after having bent down, he made a distinctive gesture that Detective Griffin described as imitating the firing of a shotgun or rifle in the air. Leslie raised his hands and forearms near his shoulders, with one hand near the trigger area, as he simulated recoil.
From these observations, Detective Griffin suspected that a firearm was hidden under the left-side porch area. He was aware from his experience as a police officer that individuals often place illegal firearms nearby but not on one‘s person, for easy access. Detective Griffin then contacted the other members of his unit and members of the youth violence strike force for assistance. The officers intended to approach the men at the residence to conduct field interrogation observations to “see what [the men] were up to.”10
The officers, seven in total, walked through the front gate at the walkway and proceeded to the front porch. Detective Griffin
Detective Griffin immediately notified the other officers of the presence of the sawed-off shotgun, and Leslie was placed under arrest after officers determined that he did not have a firearm identification card.11 The officers obtained identifying information from the other men on the porch, and following further investigation, Price was also arrested in connection with the weapon. Subsequently, the officers learned that Price lived at the residence in the second-floor apartment,12 but Leslie was not a resident.
Discussion. The judge allowed the motions to suppress, ruling that the search was governed by Jardines, 569 U.S. at 11-12, in which the United States Supreme Court held that a warrantless search of the front porch of a single-family home with a drug-sniffing dog violated the
The Commonwealth claims error in the judge‘s order, arguing that because Jardines does not apply to a multifamily home, the motion properly could be granted only if the defendants estab-
1. Standard of review. “In reviewing a ruling on a motion to suppress, we accept the judge‘s subsidiary findings of fact absent clear error....” Commonwealth v. Fernandez, 458 Mass. 137, 142 (2010), quoting Commonwealth v. Scott, 440 Mass. 642, 646 (2004). “However, ‘[w]e review independently the application of constitutional principles to the facts found.’ ” Warren, 475 Mass. at 534, quoting Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). Where, as here, the issue is whether a search occurred within the curtilage of a home, “we undertake our independent review cognizant that there is no ‘finely tuned formula’ that demarcates the curtilage in a given case.” Fernandez, supra, quoting United States v. Dunn, 480 U.S. 294, 301 (1987).
2. The entry into the side yard. As a threshold matter, we briefly address the issue of standing. “When a defendant is charged with a crime in which possession of the seized evidence at the time of the contested search is an essential element of guilt, the defendant shall be deemed to have standing to contest the legality of the search and the seizure of that evidence.” Commonwealth v. Amendola, 406 Mass. 592, 601 (1990). Here, the defendants were charged with possession of a sawed-off shotgun and ammunition. Therefore, they have standing to challenge the legality of the search and seizure. The Commonwealth argues that even if the defendants have automatic standing, they cannot meet their burden to show that a search in the constitutional sense occurred.
In considering application of Jardines to a multifamily home, we begin with the observation that the Court‘s holding does not rest on the fact that the property was a single-family home. Rather, the warrant requirement followed from the Court‘s determination that the police entry onto the porch of the home with a drug-sniffing dog was an unlicensed “physical intrusion [into] a constitutionally protected area.” Jardines, 569 U.S. at 5, quoting United States v. Knotts, 460 U.S. 276, 286 (1983) (Brennan, J., concurring in the judgment). We interpret the Jardines holding as a clarification of the appropriate framework for the analysis of the applicability of the
We agree also that “[d]istinguishing Jardines based on the differences between the front porch of a stand-alone house and the closed hallways of an apartment building draws arbitrary lines.” United States v. Whitaker, 820 F.3d 849, 854 (7th Cir. 2016). Moreover, “a strict apartment versus single-family house distinction is troubling because it would apportion
In Jardines, 569 U.S. at 6, the Court refocused the analysis of “constitutionally protected area” to emphasize the words of the
In the years since Jardines, the Supreme Court has not directly addressed whether porches and side yards of a multifamily home are within the constitutionally protected curtilage. However, the United States Courts of Appeals overwhelmingly have applied the four-factor test announced in Dunn, 480 U.S. at 301, to determine whether, in the multifamily home and apartment context, a particularly described area is curtilage. See, e.g., United States v. Hopkins, 824 F.3d 726, 731 (8th Cir.), cert. denied, 137 S. Ct. 522 (2016); United States v. Sweeney, 821 F.3d 893, 901 (7th Cir. 2016); United States v. Burston, 806 F.3d 1123, 1127 (8th Cir. 2015); United States v. Jackson, 728 F.3d 367, 373 (4th Cir. 2013), cert. denied, 134 S. Ct. 1347 (2014). Therefore, we rely on these cases for guidance in our analysis whether the side yard of the defendant Price‘s multifamily home was within the curtilage and apply the Dunn factors in resolving this issue. Dunn, 480 U.S. at 301.
In Dunn, the Supreme Court introduced a four-factor test to determine whether an area searched was within the home‘s curtilage: (i) “the proximity of the area claimed to be curtilage to the home“; (ii) “whether the area is included within an enclosure surrounding the home”; (iii) “the nature of the uses to which the area is put“; and (iv) “the steps taken by the resident to protect the area from observation by people passing by.” Id. The Court cautioned, however, that “combining these factors [does not] produce[ ] a finely tuned formula that, when mechanically applied, yields a ‘correct’ answer to all extent-of-curtilage questions.” Id. Instead, “these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration — whether the area in question is so intimately tied to the home itself that it should be placed under the home‘s ‘umbrella’ of
a. Application of the Dunn factors. i. Proximity. The porch was physically connected to the home itself, and as the Court in Jardines noted, “[t]he front porch is the classic exemplar of an area adjacent to the home and ‘to which the activity of home life extends.” Jardines, 569 U.S. at 7, quoting Oliver, 466 U.S. at 182 n.12. Although the sawed-off shotgun was found under the porch area, the side yard was very close in proximity to the porch
ii. Enclosure. The front yard was enclosed with a chain link fence and the left border of the front yard was enclosed with a large wooden fence about five to six feet away from the porch where the sawed-off shotgun was recovered. Additionally, the chain link fence enclosed both the house and the porch area, allowing the inference that the porch and side yard “should be treated as an adjunct to the house.” Dunn, 480 U.S. at 302. As the Supreme Court noted in both Oliver, 466 U.S. at 182 n.12, and Dunn, supra, “for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage — as the area around the home to which the activity of home life extends — is a familiar one easily understood from our daily experience.”
iii. Nature of use. The record reflects that the defendants were using the porch as an extension of Price‘s home. Price waited for his guests on the porch as they arrived, and the five men were on the porch and in the front yard for the entirety of the visit. Price used the porch area as an extension of his living room, to greet and entertain guests. Compare Dunn, 480 U.S. at 303 (strong odor of chemicals and sound of engines running suggested that defendant was not using barn as extension of his home). Although there is no evidence of Price‘s exclusive use of the porch and side yard, that fact is not dispositive, as it is merely a single factor in the calculus. On balance, the nature of Price‘s use of the porch and side yard allows the inference that those areas were intimately connected to his home.
iv. Steps taken to protect from observation. Here, steps were clearly taken to obscure the view of the side yard and the area under the porch where the sawed-off shotgun was found. A large blue recycling bin was placed in front of the area, which obstructed the view from the street. Additionally, the large wooden fence obscured the view of the area from the left side of the yard where the sawed-off shotgun was found. Although Detective Griffin testified that the fence in the front yard did not obstruct his view completely, his testimony established that he could not see what Leslie was manipulating under the porch because his view from the street was obscured.
Taking all four factors into consideration, we conclude that the porch and side yard area at the residence were part of the home‘s
b. Police officer‘s physical intrusion into curtilage. Because we have determined that Detective Griffin entered into a constitutionally protected area, “we turn to the question of whether it was accomplished through an unlicensed physical intrusion.” Jardines, 569 U.S. at 7. If so, the intrusion amounts to a search that must be justified by probable cause and a warrant or exigent circumstances. See id. at 5.
As the Court explained in Jardines, a police officer, like any other citizen, has an implied license to walk up the path to the front door of a home and knock on the front door. That license, however, is limited in scope, purpose, and duration. See id. at 8-9. Here, Detective Griffin and the other officers were entitled to open the front gate, walk up the path and onto the porch, and engage Price and his guests in conversation. In veering off the path and venturing into the side yard of the home for the purpose of conducting a search for the weapon, Detective Griffin engaged in the precise conduct that Jardines found offensive to the
3. Probable cause and exigent circumstances. Having determined that a constitutional search occurred, we briefly address the Commonwealth‘s argument, raised for the first time on appeal, that Detective Griffin demonstrated probable cause and exigent circumstances to justify the warrantless search. Although the motion judge noted in passing that the evidence in this case failed to show probable cause or exigent circumstances, we decline to address the Commonwealth‘s claim of error in that finding on the merits. The Commonwealth failed to raise this argument below, and therefore it is waived.13 “[I]t is rare for us to consider an argument for reversal of a lower court which is first raised on appeal and is dispositive in favor of the party belatedly raising the issue.” Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006), quoting Commonwealth v. Morrissey, 422 Mass. 1, 4 n.5 (1996).
Conclusion. Because we conclude that the sawed-off shotgun was recovered as a result of an unlawful physical intrusion into the curtilage of the residence, and therefore in violation of the warrant requirement of the
So ordered.