Massachusetts High Court Rules Seizure of Gun Improper in Multi-Family Search Warrant Case

In the execution of a search warrant by Boston Police of a multi-family home, the Massachusetts Supreme Judicial Court upheld a superior court ruling that the seizure of a shotgun was improper. Clarifying the protections of the 4th Amendment to the United States Constitution, the SJC affirmed intrusion into the “curtilage” of a common area of the multi-family property intruded into a constitutionally protected area and required suppression.

The seizure, therefore, violated the warrant requirement of the Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights.This case stemmed from a drug investigation in Dorchester by the Boston Police Department in the matter of Commonwealth v.Leslie. According to officers, they observed a group of suspicious men, one of whom appeared “nervous”. They say the men approach a multi-family residence and believed that the residence was a location of “gang associates” and a “hotspot” for shootings and firearms crimes.

The multi-family property was a three-family dwelling.  It was fenced in on the sides and in the front with a chain link fence; and had a gate from the walkway leading to the sidewalk that also ran across the edge of the front yard. There was also a 6 foot fence that ran along the left side of the lot by the porch and the house.

Officers saw one of the men, the defendant Leslie, enter the house, and then saw him walk off the front porch. They believed Leslie was engaging in counter-surveillance.  Officers then allegedly saw him kneel down by the porch area and believed that he placed something under the porch. Admittedly, the Boston Police Officers could not see what was in his hands, and what, if anything, he might have placed or “manipulated” under the porch. Based on the police officers’ “training and experience”, however, they believed that Leslie’s actions were “consistent” with an individual who illegally possessed a firearm.

Following these observations, Boston Police then saw another one of the men also come out, also appear to look around as if he was conducting “counter surveillance”, and then bend down under the porch before returning to the group of men.

Leslie then came back to the area, bent down by the porch and she he stood up again, appeared to make “a distinctive imitating the firing of a shotgun or rifle in the air”, simulating the recoil of firing a shotgun.

Based on these observations, Boston Police suspected that these men hid a firearm or shotgun under the porch area. From their experience, they knew that people sometimes his illegal firearms in nearby places for easy access and so that they are not found on their person.

Boston Police then walked onto the property and approached the group by the front porch and engaged them in conversation. One of the detectives walked to the left side of the yard where he had seen the men go by the porch area and he observed a sawed-off shotgun on the ground under the porch, which was protruding from under the porch area. Although it was visible if one approached the porch, it was admittedly not visible from the street.

From these observations, Leslie and another man who resided at the residence were each arrested for illegally possessing a firearm.

Prior to trial, a Suffolk Superior Court judge considered a challenge on the defendant’s motion to suppress the sawed-off shotgun.  The defendant argued that the seizure of the firearm stemmed from a warrantless search of the front porch. The superior court judge ruled that, despite that this residence was a multi-family dwelling, the defendants had a reasonable expectation of privacy in he side yard and a that a warrant was required to search the property.

One of the issues on appeal before the SJC in this case was the reliance by the defendants of a United States Supreme Court Case, Florida v. Jardines. The Jardines case involved a similar intrusion but the residence in that case involved a single-family home. Our SJC noted, however, that the ruling in Jardines did “not rest” on the fact that that property was a single-family home. Rather, the issue really in that was the fact that the police illegally entered on the porch of that home with a drug-sniffing dog into a constitutionally protected area that required a search warrant. In this context, the premise of the Jardines holding focused on the applicability of the 4th Amendment protection in the context of an unreasonable search of the curtilage of a home; and that holding was not “limited” to single-family homes, but applied to a persons residence regardless of whether it was a single family home or a multi-family residence.

In this case, therefore, the SJC rejected the prosecutor’s argument that because it was a multi-family home the issue focused on whether the defendant had exclusive control or an expectation of privacy in the common area search. The issue, rather, is whether the search concerns a persons home and if the area searched is within the home or its “curtilage” (or property surrounding the home to which persons still maintain a reasonable expectation of privacy).

What does “curtilage” of a home a home mean? The classic example is the porch area of a person’s home. In general, the curtilage of a home is the area adjacent to the home “to which the activity of home life extends.”

Whether a portion of the property is considered to be curtilage of the home is determined by several factors. In this case, the SJC adopted a four-factor test that the United States Supreme Court:

  1. The proximity of the area claimed to be curtilage of the home;
  2. Whether the area is included within an enclosure surrounding the home;
  3. The nature of the use to which the area is put; and
  4. The steps taken by the resident to protect the area from observation by people passing by.

In applying these four factors to this case, the Massachusetts Supreme Court affirmed that the lower court judge correctly concluded that the porch and the side yard in this case fell within the curtilage of the home. The porch and side area were therefore entitled to constitutional protection against unreasonable search and seizure.

But the analysis doesn’t end there…

A police officer 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…

In this case, it was legally permissible for the Boston Police Officers to walk up the party and onto the porch and to engage the defendants in conversation. However, the veering off the path and into the side yard of the home for the purpose of conducting a search for the weapon or other evidence was constitutionally improper. In order to do so, the Boston Police were required to obtain a search warrant for that search.

Notably, the result of this case might have been different in other circumstances. Generally, police officers may legally seize evidence that is in their “plain view”. So if, for example, the officers approached the porch area as they were entitled to do they observed the shotgun in “plain view” from the vantage point of where they were legally entitled to be, they could have then legally seized the weapon and rightfully charged these men with illegal possession of a firearm.

In this case, however, it was the act of veering off the path from where the officers were legally entitled to be and actively in engaging in a search for evidence that caused their actions to be constitutionally violative of the defendant’s rights that required them to have obtained a search warrant.

Boston Criminal Appeals Lawyer Lefteris K. Travayiakis.

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