Commonwealth v. Leslie , 477 Mass. 48 ( 2017 )

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SJC-12176
COMMONWEALTH vs. BOBBY LESLIE
(and five companion cases1).
Suffolk. November 7, 2016. - May 9, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.2
Firearms. Practice, Criminal, Motion to suppress.
Constitutional Law, Search and seizure, Privacy. Search
and Seizure, Multiple occupancy building, Curtilage,
Expectation of privacy.
Indictments found and returned in the Superior Court
Department on December 16, 2014.
Pretrial motions to suppress evidence were heard by Charles
M. 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.
1
Two against Bobby Leslie and three against Lacy Price.
2
Justice Botsford participated in the deliberation on this
case prior to her retirement.
2
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
shotgun,3 G. L. c. 269, § 10 (c); unlawful possession of a loaded
firearm, G. L. c. 269, § 10 (n); and possession of ammunition
without a firearm identification card, G. L. c. 269, § 10
(h) (1).4 The indictments arose from a May, 2014, warrantless
search of the porch and side yard of a three-family home in the
Dorchester section of Boston where the defendant Price resided.
The search revealed a loaded sawed-off shotgun under the porch.
Leslie was arrested at the scene, and after further
investigation, Price was arrested. A judge of the Superior
Court allowed the defendants' motions to suppress the sawed-off
shotgun on the ground that a warrant was required to search the
area under the porch in light of Florida v. Jardines, 133 S. Ct.
3General Laws c. 140, § 121, defines a sawed-off shotgun as
"any weapon made from a shotgun, whether by alteration,
modification or otherwise, if such weapon as modified has one or
more barrels less than [eighteen] inches in length or as
modified has an overall length of less than [twenty-six]
inches."
4
Price was also indicted as a subsequent offender on the
charge of unlawful possession of a firearm, G. L. c. 269,
§ 10 (d).
3
1409, 1417 (2013), and art. 14 of the Massachusetts Declaration
of Rights.
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, 133 S. Ct. at 1414-1417, 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 Fourth Amendment to the United States
Constitution and art. 14. Because the warrantless intrusion
into this constitutionally protected area was an unreasonable
search that violated the defendants' Federal and State
constitutional rights, we affirm the order allowing the
defendants' motions to suppress.
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,
4
2014, around 2 P.M., Boston police Detective Daniel Griffin was
working in the drug control unit5 as a plainclothes officer,
driving an unmarked vehicle, in the neighborhood of Bowdoin
Street and Geneva Avenue in Dorchester. Based on information
from Officer Eric Merner, another member of his unit, Detective
Griffin began observing a group of four men walking down Everton
Street from Olney Street, toward Geneva Avenue. The men
appeared "nervous."6 Once Detective Griffin realized that the
men were approaching a certain residence on Everton Street
(residence), he communicated to Officer Merner that the
residence was a known location of gang associates and that the
neighborhood in which the residence is located was a "hotspot"
for shootings and firearms offenses.7
5
The unit consisted of a sergeant detective, Detective
Daniel Griffin, and five other police officers.
6
Although the men were described as looking "nervous,"
Detective Griffin did not see Leslie grab at his waist, which
can indicate that an individual possesses a firearm without a
holster, but he noted that Leslie swiveled his head in a
surveillance-conscious manner while walking towards a certain
residence on Everton Street.
7
Detective Griffin was familiar with that neighborhood of
Dorchester, and specifically with Everton Street, from his
experience in the youth violence strike force and the drug
control unit. He had arrested an individual with a firearm on
the front porch of the residence sometime in the previous five
years, but could not recall the date more specifically.
Additionally, Detective Griffin had previously made other
arrests in that neighborhood and on Everton Street. However,
neither defendant was present during the previous arrest at the
residence and none of the men present at the residence on May
5
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, Price, on the porch. Approximately five minutes after the
men arrived, Leslie walked off the front porch, swiveling his
head from side to side in a surveillance-conscious manner,
toward the left side of the front yard to the side porch area.
Although Detective Griffin's view was obstructed by the
recycling bin, two trees, and some motor vehicles, he was able
29, 2014, was known to Detective Griffin or the other officers
present.
8
The fence was on the left side of the property from a
vantage point of facing the front of the home.
9
Everton Street is a one-way street running from Olney
Street to Geneva Avenue. Detective Griffin initially observed
the residence from the right side of Everton Street directly
across from the residence. However, to avoid detection, he
drove around the block and parked on the right side of Everton
Street, about four houses away. He estimated the trip around
the block took him about ten seconds.
6
to observe Leslie crouch down and appear to manipulate something
under the side porch. Detective Griffin could not see what
object Leslie was manipulating. Based on Detective Griffin's
experience with one hundred or more prior firearm arrests,
Leslie's crouching down and swiveling his head more rapidly as
he approached the side porch area were consistent with an
individual who illegally possessed a firearm.
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
7
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 could not recall whether the gate was open, but it was
not locked. The officers approached the men on the porch and
began to engage them in conversation. Detective Griffin,
however, veered off the walkway and walked to the left side of
the yard, where Leslie and Price previously had gone. He saw a
sawed-off shotgun on the ground under the porch. The wooden
handle of the shotgun protruded out from under the porch.
Although the shotgun was not visible from the street or from the
gate near the sidewalk, it was plainly visible if one were
present in the left side of the yard and walked behind the
recycling bin.
Detective Griffin immediately notified the other officers
of the presence of the sawed-off shotgun, and Leslie was placed
10
"A 'field interrogation observation' . . . has been
described as an interaction in which a police officer identifies
an individual and finds out that person's business for being in
a particular area." Commonwealth v. Warren, 475 Mass. 530, 532
n.5 (2016), quoting Commonwealth v. Lyles, 453 Mass. 811, 813
n.6 (2009).
8
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, 133 S. Ct. at
1417-1418, 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 Fourth Amendment. The
Court reasoned that the porch was part of the curtilage to which
the police could lawfully approach but that in bringing a drug-
sniffing dog, the police exceeded the scope of their implied
license to enter the defendant's property. The judge recognized
that Jardines involved a single-family home, but he concluded
that Price (and by extension Leslie) had a reasonable
expectation of privacy in the side yard of the small three-
family home where the search occurred. The intrusion into the
side yard to search for a suspected hidden weapon was no
11
When Leslie was asked whether he had a license to carry a
firearm he answered, "For what? I don't have a gun on me."
12
Nothing in the record establishes whether Price owned the
residence or whether he resided there as a tenant.
9
different from bringing a drug-sniffing dog to the front porch
of a single-family home. Thus, the search required a warrant.
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
established that Price had either exclusive control over the
home or a reasonable expectation of privacy in the area
searched. The Commonwealth also argues that even if the
intrusion into the side yard was a search of a constitutionally
protected area, the judge erred in finding that the police
lacked probable cause and exigent circumstances to justify the
search. We address these arguments in turn.
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."
10
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, 133 S. Ct.
at 1414, quoting United States v. Knotts, 460 U.S. 276, 286
(1983) (Brennan, J., concurring in the judgment). We interpret
11
the Jardines holding as a clarification of the appropriate
framework for the analysis of the applicability of the Fourth
Amendment protection against an unreasonable search rather than
a pronouncement limited only to single-family homes. Thus, we
decline to limit Jardines' holding to single-family homes or to
fashion a rule categorically excluding areas associated with
multifamily homes as curtilage and thus placing them beyond the
reach of the protections of the Fourth Amendment and art. 14.
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 Fourth
Amendment protections on grounds that correlate with income,
race, and ethnicity." Id. Thus, we reject the Commonwealth's
argument that in cases involving a search in a multifamily home,
the validity of the search turns on the defendant's exclusive
control or expectation of privacy in the area searched. The
teaching of Jardines is that when the search is in or about a
person's home, the essential question is whether the area
searched is within the home or its curtilage.
In Jardines, 133 S. Ct. at 1414, the Court refocused the
analysis of "constitutionally protected area" to emphasize the
12
words of the Fourth Amendment, noting that "[t]he Fourth
Amendment 'indicates with some precision the places and things
encompassed by its protections': persons, houses, papers, and
effects." Id., quoting Oliver v. United States, 466 U.S. 170,
176 (1984). Among the traditional property interests expressly
protected by the Fourth Amendment, "the home is first among
equals." Jardines, supra. Accordingly, Fourth Amendment
jurisprudence has developed to accommodate a home's place in the
hierarchy of protected interests. It regards "the area
'immediately surrounding and associated with the home' -- what
our cases call the curtilage -- as 'part of the home itself for
Fourth Amendment purposes.'" Id., quoting Oliver, supra at 180.
And "[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, supra at 1415, quoting Oliver, supra at
182 n.12. Indeed, the "right [to be free of unreasonable
government intrusion] would be of little practical value if the
State's agents could stand in a home's porch or side garden and
trawl for evidence with impunity." Jardines, supra at 1414.
Thus, the essential question here is whether the side yard of
the home was within the curtilage of the defendant's home. If
so, the police intrusion constituted a search requiring a
warrant.
13
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
14
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 Fourth Amendment protection." Id. Application of the Dunn
factors to the facts found here supports the judge's conclusion
that the porch and side yard of the residence were within the
curtilage. See Fernandez, 458 Mass. at 144-145.
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, 133 S. Ct. at 1415,
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 and, by extension, the house.
This factor weighs in favor of a determination that the porch
and side yard were part of the home's curtilage.
ii. Enclosure. The front yard was enclosed with a chain
link fence and the left border of the front yard was enclosed
15
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
16
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 curtilage and thus entitled to Fourth Amendment and
art. 14 protections against an unreasonable search and seizure.
We emphasize the relevance of the Dunn factors for our courts in
determining whether a challenged police action occurring within
the boundaries of a home, which under the Fourth Amendment is
expressly designated as a "constitutionally protected area," is
compliant with its protections. Application of the Dunn factors
in appropriate cases follows Jardines, eschewing the "reasonable
expectation of privacy" inquiry that is deemed necessary only
17
when the issue is whether the area is a "constitutionally
protected area." Thus, because Detective Griffin's search was a
physical intrusion into the constitutionally protected area of
the residence, Price and by extension Leslie are relieved of the
burden to show that Price had a reasonable expectation of
privacy in the area searched. See Jardines, 133 S. Ct. at 1417,
citing United States v. Jones, 565 U.S. 400, 408-409 (2012)
(reasonable expectation of privacy test "is unnecessary to
consider when the government gains evidence by physically
intruding on constitutionally protected areas"). "That the
officers learned what they learned only by physically intruding
on [Price's] property to gather evidence is enough to establish
that a search occurred." Jardines, supra.
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, 133 S. Ct. at 1415. If so, the intrusion
amounts to a search that must be justified by probable cause and
a warrant or exigent circumstances. See id. at 1413.
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.
18
See id. at 1415-1416. 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 Fourth Amendment. See id.
at 1416 ("the background social norms that invite a visitor to
the front door do not invite him there to conduct a search").
Just as the police officers in Jardines exceeded the scope of
their license when they used a drug-sniffing dog to search the
front porch, here Detective Griffin had neither express nor
implied license to search the side yard and porch area. See id.
at 1417 ("their behavior objectively reveals a purpose to
conduct a search, which is not what anyone would think he had
license to do"). We conclude, therefore, that Detective
Griffin's unlicensed physical intrusion into the curtilage of
the defendant's home was a search for constitutional purposes.
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
19
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 Fourth Amendment and art. 14, the
allowance of the defendants' motions to suppress is affirmed.
So ordered.
13
The Commonwealth similarly failed to raise the argument
that the search could be justified by reasonable suspicion
below. This argument is without merit. The Commonwealth's
citations to Terry-type frisk cases are inapposite. See Terry
v. Ohio, 392 U.S. 1, 21-22 (1968). Our laws do not recognize an
exception to the warrant requirement based solely on reasonable
suspicion, nor do we recognize a legal basis to "frisk" a
private residence without a warrant. "Belief, however well
founded, that an article sought is concealed in a dwelling
house, furnishes no justification for a search of that place
without a warrant." Coolidge v. New Hampshire, 403 U.S. 443,
451 (1971), quoting Agnello v. United States, 269 U.S. 20, 33
(1925).