|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. D’ Onofrio,
396
Supreme Judicial Court of Massachusetts,
Argued
Decided
Michael J. Traft, Asst.
Dist. Atty., for the Com.
Edward J. Sweeney, III, Belmont, (William R. Marino,
Belmont, with him), for defendants.
Before HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH
and O'CONNOR, JJ.
O'CONNOR, Justice.
The
defendants are charged in numerous complaints with exposing and keeping
alcoholic beverages for sale without authority, retailing soft drinks without a
license, operating a place of assembly which exceeds the occupancy limit, [396 Mass. 712] and managing unlicensed Sunday dances. (FN2) This is an interlocutory appeal by the
Commonwealth from an order of a judge of the
The judge
ordered the evidence suppressed after conducting an evidentiary hearing on the
defendants' motion to suppress. In a
written memorandum of findings and rulings, the judge stated that the search
warrants were based on two affidavits, each of which contained the following
introductory recitation: "As a
result of a complaint received by the Vice Control Section relative to illegal
activities being conducted at the 'Loft' which is located at 21 Stanhope St.,
Boston, Mass., an investigation was ordered by Lieutenant Edward J. McNelley of the Vice Control Section relative to these
alleged activities, which investigation commenced on March 19, 1983, with an
undercover police operation." The
judge's memorandum then states that following that introductory recitation the
affidavits set forth detailed observations made at The Loft by two undercover
police officers on four different occasions. (FN3)
[1] The
judge reasoned that affidavits in support of search warrants "must stand
or fall solely on their contents," and that the two affidavits in this
case were insufficient to support the issuance of search warrants because they
failed to provide sufficient information about the complaint or the source of
the complaint to which reference was made in the introductory recitation, and
which prompted Lieutenant McNelley's decision to
conduct an undercover investigation at The Loft. The [396
[2] Our
determination that the judge was in error in ruling that the affidavits were
defective because they did not demonstrate that the officer's observations were
made lawfully does not end our inquiry.
Even though there is no requirement that the affidavits themselves
demonstrate that Officer Dovidio's observations were
lawful, if, as a matter of fact, the observations resulted from a violation of
the defendants' Fourth Amendment rights, the observations cannot support the
issuance of search warrants, and any evidence traceable to those observations
must be suppressed. See Maryland v. Macon, 472 U.S. 463, 105 S.Ct. 2778, 2781, 86 L.Ed.2d 370 (1985);
Commonwealth v. Hall, 366 Mass. 790, 792, 323 N.E.2d 319 (1975);
Commonwealth v. Dinnall, 366 Mass. 165,
167, 314 N.E.2d 903 (1974); Commonwealth v. Laudate,
345 Mass. 169, 171, 186 N.E.2d 598 (1962).
Therefore, the question whether the officer's observations, which are
critical to the affidavits, resulted from an intrusion on the defendants'
Fourth Amendment rights must be answered. (FN4)
[396 Mass. 714] The judge did not make detailed findings concerning the
circumstances of the police observations at The Loft. This ordinarily would require our remanding
the case to the trial court for further proceedings. In this case, however, remand is unnecessary
because the evidence introduced at the suppression hearing would not have
warranted a conclusion that the officer's observations set forth in the
affidavits supporting the search warrants were unlawfully made.
It is
undisputed that when Dovidio made the relevant
observations he was inside The Loft without the benefit of a search
warrant. The Commonwealth does not
contend that Dovidio's presence there was justified
by probable cause and exigent circumstances.
Instead, the Commonwealth's position is that when Dovidio
entered The Loft the defendants had no reasonable expectation of privacy there,
and that while Dovidio was located where he had a
right to be he observed the items in plain view described in the affidavits.
Whether or
not Dovidio's observations resulted from a violation
of the defendants' Fourth Amendment rights depends on whether Dovidio intruded on the defendants' reasonable expectation
of privacy. Commonwealth v. Cadoret,
388 Mass. 148, 150, 445 N.E.2d 1050 (1983). Commonwealth v. Simmons, 383 Mass. 46,
54, 417 N.E.2d 1193 (1981). The inquiry
is twofold: (1) Did the defendants
subjectively expect privacy at The Loft?
(2) If so, was their expectation objectively reasonable?
Oliver v. United States, 466 U.S. 170, 104 S.Ct.
1735, 1740, 80 L.Ed.2d 214 (1984). Commonwealth v. Simmons, 392 Mass. 45,
48, 466 N.E.2d 85 (1984). Commonwealth v. Podgurski,
386 Mass. 385, 388, 436 N.E.2d 150 (1982).
Unless the defendants had a reasonable expectation of privacy at The
Loft when the officer made observations there, there was no "search"
within the meaning of the Fourth Amendment,
Maryland v. Macon, supra 105 S.Ct. at 2782; Sullivan
v. District Court of Hampshire, 384 Mass. 736, 741, 429 N.E.2d 335 (1981),
and therefore there was no violation of the defendants' Fourth Amendment
rights.
[3]
Although the burden of establishing that a warrantless
search is reasonable, and therefore lawful, is on the
Commonwealth, Commonwealth v. Antobenedetto, 366 Mass. 51, 57, 315 N.E.2d 530 (1974),
the burden with respect to the threshold question whether a [396 Mass. 715] search
in the Fourth Amendment sense occurred at all is on a defendant. To establish a violation of rights secured by
the Fourth Amendment, the defendants must prove that the officer obtained the
information central to the affidavits by invading their reasonable expectation
of privacy. Rawlings v. Kentucky, 448 U.S. 98, 104‑105,
100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980).
United States v. Hershenow, 680 F.2d 847,
855 (1st Cir.1982). (FN5) Because the
defendants have that burden, they are entitled to an order remanding this case
for findings on the Fourth Amendment issue only if the evidence before the
motion judge would have warranted a conclusion favorable to them. Accordingly, we set forth the evidence at the
suppression hearing that was most favorable to the defendants.
[4] The
Loft Twenty‑One Association, Inc., is a fraternal organization,
structured as a nonprofit corporation, that operates an after‑hours club,
called The Loft, in a building at 21 Stanhope Street in Boston. The defendants are officers of the
corporation and central figures in the management of the club. Individuals seeking membership are required
to complete applications and to pay a membership fee. In addition, members are required to pay a
cover charge of $5 and sign a sign‑in sheet on each occasion they enter
the premises. The sign‑in sheets
contain the following statements:
"By signing this sheet of the Loft Twenty‑One Association I
represent that I am a member ... or a guest of a member, I hereby acknowledge
truthfully and honestly that I am not a member of nor working for the police
department or any other law enforcement agency.
I have no objection to observing or being asked to participate in same
sex dancing or other private expressions of same sex affection or eroticism; I endorse private consensual adult homosexual
activity. Only members or guests who
have signed the above [396 Mass. 716] statement will be permitted to enter
the club facilities." The Loft's
policy is to admit members and guests of members. Guests of members, like members, are required
to pay cover charges and to sign the sign‑in sheets. Club personnel, stationed near the entrance
to the premises, are instructed to check membership cards and to check whether
nonmembers are actually guests of members.
On March
20, 1983, in the early morning, the defendant D'Onofrio
was checking persons entering the premises.
He allowed a group of four people to enter the club. One of the four was a member. Officer Dovidio was
the last person in that group and he told D'Onofrio
that he was a guest of Robert Sterling, who was a member known to D'Onofrio. Dovidio, attired in casual clothes, paid the $5 cover
charge and signed a false name to the sign‑in sheet. On March 27, 1983, Dovidio,
again in civilian attire, paid the cover charge, told D'Onofrio
that he was a guest of a member, signed the sign‑in sheet, and
entered. On this occasion, according to D'Onofrio's testimony, "there were other people lined
up, and there wasn't time to adequately ask everybody who they were with. [D'Onofrio] just
asked them to sign their names. If they
were recognized by [him, he] didn't ask any further questions.... Mr. Dovidio, having
been in the prior week, [D'Onofrio] knew to be a
guest of a member." According to
the testimony, Dovidio entered the premises early in
the morning on April 3 and April 10, 1983, under conditions similar to those of
his earlier visits. On April 10, 1983, Dovidio was evicted from The Loft on the ground that he was
neither a member nor a guest of a member. Within a few minutes thereafter, several
members of the Boston police department entered the premises to execute the
search warrants which are the subject of this dispute.
To
establish a reasonable expectation of privacy, it is not enough for the
defendants to show that they had an unenforced
"policy" of restricting access to The Loft to members and guests of
members. In Commonwealth v. Simmons, 392 Mass. 45, 50, 466 N.E.2d 85 (1984),
we noted the relevancy to "the expectation of privacy calculus" of
"whether the defendant 'took normal precautions to maintain his privacy‑‑that
is, precautions customarily[396
Mass. 717] taken by those seeking privacy.' Rakas v. Illinois, [439 U.S. 128, 152, 99 S.Ct. 421, 435, 58 L.Ed.2d 387 (1978) (Powell, J.,
concurring) ]." We said in Commonwealth v. Cadoret,
388 Mass. at 151, 445 N.E.2d 1050, that "[f]ailure
to enforce limitations on admittance would warrant the conclusion that the
persons operating the club had no reasonable expectation of privacy." That conclusion is required in the absence
of reasonable enforcement efforts. See Commonwealth v. Weimer, 262 Pa.Super. 69, 72, 75‑76, 396 A.2d 649 (1978) (Police
officers gained entrance to a private club in which admission was theoretically
restricted to members. There was one
entrance and it was through a locked door activated by a buzzer system. The door contained a one‑way
mirror. The officers, not in uniform,
gained entrance simply by pressing the doorbell. The court held that the "lax enforcement
of purported security measures indicate[d] that appellees'
expectation of privacy was hardly reasonable or justifiable.").
We have
set forth all the evidence at the suppression hearing having a tendency to show
enforcement of the admissions policy at The Loft. In the absence of evidence that the
defendants made reasonable efforts to corroborate the claims of guest status
made by persons seeking admission to the club, the evidence fails to show that
the public was not freely admitted there.
If the public was freely admitted, the defendants did not have a
reasonable expectation of privacy, and Officer Dovidio's
entrance into the club and observations of things in plain view did not violate
the defendants' Fourth Amendment rights.
As we have said before, "police officers may accept a general
public invitation to enter commercial premises, and while there ... they may
take note of anything in plain view." Commonwealth v. Cadoret,
388 Mass. at 150‑151, 445 N.E.2d 1050.
"What a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment protection." Katz
v. United States, 389 U.S. 347, 351, 88 S.Ct.
507, 511, 19 L.Ed.2d 576 (1967).
Even if
the evidence would have warranted a finding that a policy of excluding police
officers, but not the public, was enforced, that would not have established an
expectation of privacy that is reasonable, and therefore protected, under the
Fourth Amendment. "The test of
[reasonableness] is not whether [396
Mass. 718] the individual chooses to
conceal assertedly 'private' activity. Rather, the correct inquiry is whether the
government's intrusion infringes upon the personal and societal values
protected by the Fourth Amendment." Oliver v. United States, supra 104 S.Ct. at 1743. The
Fourth Amendment was not designed to protect persons from police presence in
areas open to the general public, and the fact, which could be found on the
evidence, that Officer Dovidio falsely denied that he
was a police officer is of no consequence.
"[T]he Government is entitled to use decoys and to conceal the
identity of its agents." Lewis v. United States, 385 U.S. 206,
209, 87 S.Ct. 424, 426, 17 L.Ed.2d 312 (1966).
Commonwealth v. Miller, 361 Mass. 644, 655, 282 N.E.2d 394 (1972).
The
evidence also would have warranted a finding that Dovidio
misrepresented that he was a guest of a member of the club. That misrepresentation, too, is without
consequence in view of the insufficiency of the evidence to show reasonable
enforcement of a policy to exclude persons other than members and their
guests. The defendants' position is not
advanced by viewing Dovidio as a trespasser by reason
of having gained entrance to the
club by misrepresentation. "The
fact that the [officer] may have committed a technical trespass does not create
a Fourth Amendment violation when no expectation of privacy exists. As the United States Supreme Court has noted
on several occasions, 'the Fourth Amendment protects people, not
places.... [t]he premise that property
interests control the right of the Government to search and seize has been
discredited.' Katz v. United States, 389 U.S. 347, 351‑353
[88 S.Ct. 507, 511‑512, 19 L.Ed.2d 576] (1967),
and cases cited." Commonwealth v. Simmons, 392 Mass. 45,
49, 466 N.E.2d 85 (1984).
In
summary, there is no requirement that search warrant affidavits containing the
observations of police officers establish that the observations were made
without infringement on Fourth Amendment rights. However, evidence obtained by the execution
of search warrants issued on the basis of affidavits setting forth observations
made as a result of an unlawful search must be suppressed on a proper
motion. The burden of proving that a
search was made, in the Fourth Amendment sense, is on the defendant. The evidence at the suppression [396 Mass. 719] hearing in these cases was insufficient to warrant a finding that
a search was made. Therefore, the judge
erred in allowing the motion to suppress.
Accordingly, the order allowing the motion to suppress is vacated and
the cases are remanded for further proceedings, including the entry of an order
denying the motion to suppress.
So ordered.
FN1. The
other defendant is Paul Cadoret.
FN2. This court and the Appeals Court have
previously considered the lawfulness of earlier searches conducted at the same
premises. See Commonwealth v. Cadoret, 388 Mass. 148,
445 N.E.2d 1050 (1983); Commonwealth v. Cadoret,
15 Mass.App. 654, 447 N.E.2d 685 (1983).
FN3. The evidence at the suppression hearing
indicated that two officers made observations at The Loft, but the affidavits
referred only to observations made by Officer Daniel Dovidio.
FN4. The defendants' argument is limited to
the Fourth Amendment to the United States Constitution. No separate State constitutional argument has
been advanced.
FN5. In
Commonwealth v. Cadoret, 388 Mass. at 150, 445
N.E.2d 1050, we said: "The
Commonwealth argues that it met its burden (see Commonwealth v. Antobenedetto, 366 Mass.
51, 57 [315 N.E.2d 530] [1974] ) of showing the absence of any reasonable
expectation of privacy because The Loft was a public place." In Cadoret the posture of the burden of proof was not in
issue, and our statement was not intended to be an endorsement of the
Commonwealth's conclusion regarding the burden of proof being on the
Commonwealth.