429 Mass. 511 | Mass. | 1999
The Commonwealth appeals from an order of a District Court judge allowing the defendant’s motion to suppress all evidence seized during a warrantless entry into the apartment of a third party in which the defendant was present. We reverse the allowance of the motion to suppress because the defendant did not have a cognizable privacy interest in the apartment in question and, in any event, the search was justified by exigent circumstances.
I
On May 23, 1997, three officers of the Amherst police depart
At 3:43 a.m., the same officers returned to the area to investigate a report of a shouting match between a male and a female in the parking lot at the rear of the building adjacent to that in which Daniels had her apartment. The person reporting the incident told the police dispatcher that the female was pregnant and had entered Daniels’ apartment. The officers tried to contact Daniels, both by knocking at her door and by having the station officer telephone her apartment, but received no response. The officers then instructed the dispatcher to contact the apartment manager and request that a keyholder come to the scene so that they might check on Daniels’ well-being. The key-
The defendant moved to dismiss the charge against him (arguing that he could not be charged with violating the order until he had been served with a copy of it) or to suppress all evidence flowing from the warrantless entry and search of Daniels’ residence. The motion judge denied the motion to dismiss but allowed the motion to suppress. The judge held that the Commonwealth had not shown that Morrison did not have a cognizable privacy interest in Daniels’ apartment and thus that the warrantless search was not justified. The concern for Daniels’ safety, although justified, ended once she appeared uninjured and denied the officers’ request for entry. The judge also explained that the entry could not be justified based on probable cause that the defendant was in the apartment in violation of the order, as that violation is a misdemeanor. The Commonwealth was allowed to file an interlocutory appeal in the Appeals Court, and we transferred the matter here on our own initiative.
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A
An overnight guest of a lawful occupant has standing to raise privacy claims in respect to a search of that occupant’s premises. The touchstone of rights under the Fourth Amendment to the United States Constitution, like those under art. 14 of the Massachusetts Declaration of Rights, is a “reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 360 (1947) (Harlan, J., concurring). Commonwealth v. Berry, 420 Mass. 95, 105 (1995). The Supreme Court has held that “[a] subjective expectation of privacy is legitimate if it is ‘one that society is prepared to recognize as “reasonable,” ’ ” and that “status as an overnight guest is alone enough to show that [a person] had an expectation of privacy in the home that society is prepared to recognize as reasonable.” Minnesota v. Olson, 495 U.S. 91,
Although an overnight guest in general may have such an expectation of privacy in the premises as society is prepared to recognize as reasonable, this overnight guest did not. The defendant in this case was the subject of a protective order forbidding his presence on the very premises in which he claims that society should recognize his right to quiet enjoyment. And on the strength of that order he had, just a short time before, been ordered by the police to stay away from that very place. It is simply nonsense to say that society is prepared to recognize his right to be where society by the processes of the law has ordered him not to be. In Minnesota v. Olson, supra, the police had probable cause to believe that the overnight guest had committed an armed robbery, and the defendant in this case argues that it follows a fortiori that his violation of a protective order, which is a mere misdemeanor, cannot deprive him of standing to raise privacy claims. There would be something to this argument, if the Commonwealth’s claim depended on the argument that a person’s violation of the law somehow rendered that person an outlaw, making his presence unlawful anywhere but in the custody of the police. But of course that is not the Commonwealth’s claim. Even an escaped convict, who might quite appropriately be said to belong nowhere but back in prison, is in a better position than the defendant here. What deprives this defendant of a reasonable expectation of privacy is not his status as a law violator in general, but the fact that he was under a specific and valid legal order not to be in this particular place.
B
Whether or not the defendant had standing to claim a privacy right in the premises, the Commonwealth correctly argues that the police acted reasonably in checking Daniels’ apartment to see whether he was there. Finding him there, they were entitled to arrest him. The police were justified in checking the apartment because “[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise il
In this case the police had very good reason to believe that a person subject to a protective order was in the apartment of the woman the order was intended to protect.
The order suppressing the evidence is vacated and the case is remanded to the District Court for further proceedings consistent with this opinion.
So ordered.
The facts are set out in the police report of Officer Charles Nelson of the Amherst police department. Both parties stipulated to the report as an accurate description of the events.
The officers on the scene checked with the station officer who told them that there was no indication that a protective order had ever been served on the defendant. The protective order in issue, while ordering the defendant to refrain from any contact with Daniels, was, in fact, the result of an incident between Daniels and another woman, with whom Morrison lived and had two children. When that woman learned of Daniels’ existence she went to Amherst to confront her, but left before the police arrived.
The defendant argues that the police lacked probable cause to believe that he was in the apartment because they relied in part on the information of an unnamed, unknown informant. The report of a disinterested member of the public carries some weight on its own. See Commonwealth v. Welch, 420 Mass. 646, 652 n.4 (1995) (“Information supplied to the police by citizens is not subject to the same scrutiny as that supplied by unnamed police informants”); Commonwealth v. Carey, 407 Mass. 528, 534-535 n.4 (1990) (same). Here the report was made after the police had left that very scene not so long before and had established the identity and relation of Daniels and the defendant. In those circumstances for them to conclude from the citizen’s report that it was the defendant who had entered Daniels’ apartment was reasonable.