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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. Panetti, 406
Supreme Judicial Court of Massachusetts,
Argued
Decided
William A. Rota,
Joseph A. Pieropan, Asst.
Dist. Atty., for the Com.
Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.
WILKINS, Justice.
On Friday
night,
In his
appeal, which we transferred here on our own motion, the defendant challenges
only the denial of his motion to suppress evidence. He claims that the crucial information on
which the warrant to search his apartment was based was obtained during a
constitutionally unreasonable search and that all evidence obtained as a result
of that search, including the defendant's statements and controlled substances,
should have been suppressed. (FN2) The focus of the defendant's argument is that
he had a subjectively reasonable and objectively justified expectation of
privacy in the conversations in his apartment that were overheard by Chief Berkel in the crawl space, and that Chief Berkel's action was a constitutionally unreasonable search.
In
deciding whether there has been a search in the Fourth Amendment sense, one must decide whether a person had "a
'constitutionally protected reasonable expectation of privacy.' "
California v. Ciraolo, 476 U.S. 207, 211,
106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986), quoting Katz v. United States, 389 U.S. 347,
360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967)
(Harlan, J., concurring). See Commonwealth v. D'Onofrio,
396 Mass. 711, 714, 488 N.E.2d 410 (1986).
The first aspect of any analysis is whether the defendant had a
subjective expectation of privacy in his conversations, a point the
Commonwealth concedes in this case. The
second aspect is whether society is willing to recognize that expectation as "reasonable"
(California v. Ciraolo,
supra ), "justifiable," or "legitimate" [406 Mass. 232] (Smith v. Maryland, 442
U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220
[1979] ). See Commonwealth v. D'Onofrio, supra.
In
applying these principles, courts have treated as important, but not controlling,
the question whether the person conducting the surveillance was entitled to be
where he was. See Commonwealth v. Hall, 366 Mass. 790, 794‑795, 323 N.E.2d 319
(1975), and cases cited. For example, in
the Hall case the police overheard
conversations by listening from the landing and stairway outside the
defendant's apartment. Because the
hallway was under the exclusive control of the defendant, the defendant had a
justified expectation of privacy, and his conversations were protected. The police had no right to be where they
were.
Commonwealth v. Hall, supra at 795, 323 N.E.2d 319. It was not a common hallway, as in other
cases where eavesdropping was held not to be a search. See, e.g.,
Commonwealth v. Boswell, 374 Mass. 263, 269, 372 N.E.2d 237 (1978);
Commonwealth v. Dinnall, 366 Mass. 165,
166‑167, 314 N.E.2d 903 (1974).
Cf. United States v. Agapito, 620 F.2d 324, 331 (2d Cir.) ("What can be heard by the naked ear,
when the ear is where it has a right to be, is not protected by the Fourth Amendment"),
cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d
40 (1980); Lorenzana v.
Superior Court, 9 Cal.3d 626, 634, 108 Cal.Rptr.
585, 511 P.2d 33 (1973);
("observations of things in plain sight made from a place where a
police officer has a right to be do not amount to a search in the
constitutional sense"). (FN3)
Cases not
involving a surveillance from a public area or from a common area, such as the
case before us, have arisen when the police, lawfully on the premises, have
eavesdropped through a common door between two hotel or motel rooms. Federal courts have held that in these
circumstances suspects have no justifiable expectation of privacy in
conversations audible to police officers in the adjacent room. See
United States v. Hessling, 845 F.2d 617, 619 (6th
Cir.1988); United States v. Agapito,
supra at 330‑332; United States v. [406 Mass. 233]
Jackson, 588 F.2d 1046, 1051‑1052 (5th Cir.), cert. denied, 442 U.S.
941, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979);
United States v. Fisch, 474 F.2d 1071,
1076‑1077 (9th Cir.) (per curiam), cert. denied, 412 U.S. 921, 93 S.Ct.
2742, 37 L.Ed.2d 148 (1973). Our Appeals
Court also has upheld a warrantless surveillance in
such circumstances. Commonwealth v. Collins, 11 Mass.App.Ct. 126, 137‑139, 414 N.E.2d 1008 (1981).
We think
it is clear from the cases we have cited that a person would have no justified
expectation of privacy in conversations that can be heard by the unaided ear of
an eavesdropper lawfully in a contiguous apartment, whether above, beside, or
below that person's apartment. As we
shall explain, the situation here is significantly different.
The
defendant's expectation that no one would be in the crawl space to which
neither the public nor tenants had access was far greater than the expectation
that nobody would be listening at a common door between two hotel rooms. Certainly the circumstances show the
reasonableness of the defendant's subjective expectations. Does that fact also have significance in
determining whether the defendant's expectation of privacy was justified or objectively reasonable? The defendant argues that it does and
receives support from a respected authority on the law of search and
seizure. 1 W. LaFave,
Search and Seizure § 2.3(c), at 392 (2d ed. 1987). Professor LaFave
would treat as an unreasonable search the act of a nontrespassing
police officer overhearing conversations emanating from a residence if the
police officer was positioned where neither neighbors nor the public would
ordinarily be expected to be. (FN4)
[406 Mass. 234] For Fourth Amendment purposes, our task is to determine how the
Supreme Court of the United States would rule on the facts of this case. We know that in 1986 the Supreme Court was
not prepared to recognize and honor as justified a landowner's expectation that
his fenced field of marihuana (within the curtilage
of his home) was protected from observation by police traveling in public
airways.
California v. Ciraolo, 476 U.S. 207, 214‑215,
106 S.Ct. 1809, 1813, 90 L.Ed.2d 210 (1986) (five‑to‑four
decision). Perhaps more instructive for
our purposes is the fact that four Justices disagreed, even when the place from
which the observation was made was public. Id. at 215, 106 S.Ct.
at 1813 (Powell, J., dissenting). We
know of no case since the Katz
opinion that has upheld a warrantless surveillance of
the type conducted here.
Whatever
the Supreme Court of the United States might decide under the Fourth Amendment
to the United States Constitution, we conclude that the search and seizure of
the defendant's conversations violated art. 14 of the Declaration of Rights of
the Constitution of the Commonwealth.
Society should honor the privacy interests that apartment dwellers and
condominium owners have in being free from warrantless
eavesdropping by police who have infiltrated crawl spaces and other areas to
which neither the public nor any other occupant of the multiple dwelling has
access. Because these conversations took
place in the defendant's home, the fact that Chief Berkel
was lawfully where he was and that the defendant had no legal interest in the
crawl space cannot be dispositive of the
question. Intrusions into the privacy of
one's home raise classic search and seizure problems. See
Commonwealth v. Blood, 400 Mass. 61, 68‑69, 507 N.E.2d 1029 (1987);
Commonwealth v. Forde, 367 Mass. 798, 805,
329 N.E.2d 717 (1975). (FN5) The crawl space is not analogous to an
adjoining hotel or motel room. [406 Mass. 235] The subjective expectation of privacy here is more reasonable
than that present in the motel‑hotel room cases. Article 14 justifiably protects that greater
expectation against warrantless eavesdropping on the
defendant's conversations from a crawl space under his own home.
The
Commonwealth grants that, without the information obtained by the
unconstitutional search, the search warrant lacked probable cause. The judgments are reversed and the findings
are set aside. We remand the case for disposition
which, based on the record before us, will result in the indictments being
dismissed.
So ordered.
NOLAN,
Justice (dissenting, with whom LYNCH, Justice, joins).
I
dissent. Admittedly, Chief Berkel was lawfully in the basement area at the defendant's home.
The defendant had no legal interest in such space. The court concludes, however, that the
defendant could reasonably expect that nobody would be in the area, or if
somebody were there, the defendant could deal in drugs and have no fear that
his incriminating conversations could ever be used against him. How reasonable is this?
After
conceding that the defendant would not have a reasonable expectation of privacy
if the basement were an adjoining room in a motel or hotel, quite gratuitously
and without citation of any authority, the court concludes that the area is not
analogous to an adjoining motel or hotel room.
Equally gratuitous is the court's conclusion, despite the absence of any
authority, that seizure of the defendant's conversation violated art. 14 of the
Declaration of Rights of the Massachusetts Constitution. No authority is cited. No analysis is advanced to support this
conclusion. It is simply a naked ipse dixit without logic.
This is a strange result.
(FN1.) The judge who denied the motion to
suppress evidence obtained as a result of the crawl space surveillance referred
to the "basement area of the apartment house" as a "crawl
space." The landlord, who was the
only witness, testified that the area is a five‑foot‑tall basement
that runs underneath the entire apartment building (except for the area of a
central utility room). It can be entered
through floor boards in the utility room, a room that normally is kept
locked. The basement contains plumbing,
a sump pump, a heater, and wiring for electricity, telephones, and cable
television.
(FN2.)
The defendant relied on the Massachusetts and United States Constitutions in
the trial court.
(FN3.)
In the Lorenzana
case, a police officer was trespassing when he looked through the defendant's
window. The court held that the
officer's search was illegal. Id. at 630, 636, 108 Cal.Rptr.
585, 511 P.2d 33. See to the same
effect,
Pate v. Municipal Court, 11 Cal.App.3d 721, 724, 89 Cal.Rptr. 893 (1970).
(FN4.)
Professor LaFave writes: "It is one thing to assert that an
occupant cannot claim a justified expectation of privacy as to activities
within his dwelling when that conduct is carried out in such a manner as to be
readily seen or heard by neighbors or by the passing public. It is quite another to declare that citizens
cannot 'feel safe in leaving their windows uncurtained
to the skies' or in otherwise failing to seal off each and every aperture in
their dwellings. And thus when police
surveillance takes place at a position which cannot be called a 'public vantage
point,' i.e., when the police‑‑though not trespassing upon the
defendant's curtilage‑‑resort to the
extraordinary step of positioning themselves where neither neighbors nor the
general public would ordinarily be expected to be, the observation or
overhearing of what is occurring within a dwelling constitutes a Fourth
Amendment search. This is really what Katz is all about." Id.
(footnotes omitted).
(FN5.)
"The Fourth Amendment, and the personal rights which it secures, have a
long history. At the very core stands
the right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505,
511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734 (1961).