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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. Serbagi, 23 Mass.App.Ct.
57 (1986)
Appeals Court of Massachusetts, Essex.
Argued
Decided
Further Appellate Review Denied
Paul Allen Epstein, Asst. Dist. Atty. (Edward F. Connelly, Sp. Asst. Dist. Atty.,
Herbert F. Travers, III (Albert L. Farrah, Jr.,
Before GRANT, KASS and
WARNER, JJ.
GRANT, Justice.
These are
District Court complaints issued under G.L. c. 94C, §
34. The complaint against Russell C. Serbagi, Sr.
(Senior), charges him with unlawful possession of cocaine. The complaint against Russell C. Serbagi, Jr.
(Junior), charges him with unlawful possession of marihuana as well as
cocaine. Both substances were seized by
the
The
following is a summary of the relevant evidence introduced at the hearing on the
motions. (FN3) At approximately
[23 Mass.App.Ct.
59] Pathiakis
had been told that 105 faced Balmoral Street but did
not know where the entrance to that apartment was. When he parked his cruiser on that street, he
observed Junior and two other people engaged in conversation on the steps of
the exterior entrance to Senior's apartment.
Pathiakis proceeded over a paved walkway which
led from the public sidewalk to the entrance and requested directions to
105. Junior pointed in the direction of
the southwest corner of the building and indicated that Pathiakis
would have to go around to the main entrance on North Main Street and push a
buzzer in order to gain access to 105.
The area between the entrance to 106 and the corner of the building was
a common area (G.L. c. 183A, § 1[5] ) in which,
according to the master deed of the condominium (G.L.
c. 183A, §§ 1 and 8[e ] ), Senior had
an undivided 1.671 percent interest (G.L. c. 183A, §
5[a ] ). The area was grassed.
Pathiakis decided to take a shortcut across the common area
rather than return to the sidewalk on Balmoral Street
and proceed from there to the sidewalk on North Main Street and so on to the
main entrance to the building. He was
aware that in following his intended route he would be crossing private
property. He left the entrance to
Senior's apartment and proceeded over the grass, approximately a foot or a foot
and a half from the side of the building.
The second window which Pathiakis encountered
(on his right) was four or five feet wide; its bottom was approximately three and one
half feet from the ground, and it extended upward for another nine feet. The window was located in the exterior wall
of the living room of Senior's apartment;
it was equipped with drapes which had not been drawn. The room was well lighted.
Something
(it may have been "movements, music [or] people") attracted Pathiakis's attention and caused him to turn his head to
his right. When he did so, he saw six or
seven people clustered around a desk which was located some ten feet from the
window. They were watching Senior, who
was seated at the desk forming lines of cocaine on a small mirror. Pathiakis
immediately backed away, flattened himself against the side of the building,
and radioed for backup assistance. [23 Mass.App.Ct.
60] When he next looked in the
direction of the window, he noticed that the drapes had been drawn. When he looked back in the direction of the
entrance to Senior's apartment, he noticed that Junior was no longer in sight.
When two
backup officers arrived in a second cruiser, Pathiakis
advised them of what he had seen through the window. The three officers entered the apartment,
without a warrant, through the unlocked exterior door. Pathiakis entered
the living room. One of the other officers
came upon Junior in a bedroom, where he was attempting to secrete the mirror,
on which there was a residue of cocaine.
Junior was placed under arrest for unlawful possession of cocaine. A search of his person yielded a quantity of
marihuana. (FN4) Pathiakis then
placed Senior under arrest for unlawful possession of cocaine.
As the
defendants have acquiesced in the motion judge's findings on the questions of
probable cause and exigent circumstances (note 3, supra ), the only question for decision is whether Senior had a
reasonable expectation of privacy in the place where Pathiakis
was standing when he observed Senior forming lines of cocaine.
Commonwealth v. D'Onofrio, 396 Mass. 711,
714, 488 N.E.2d 410 (1986). That
question is primarily one of fact (Commonwealth
v. Cadoret, 388 Mass. 148, 150, 445 N.E.2d 1050
[1983] ), one on which the defendants had the burden of proof.
Commonwealth v. D'Onofrio, 396 Mass. at
715, 488 N.E.2d 410. Commonwealth v. Chappee,
397 Mass. 508, 512, 492 N.E.2d 719 (1986). Commonwealth v. Royce, 20 Mass.App.Ct. 221, 224‑225, 479 N.E.2d 198
(1985). (FN5) "The question whether [any] expectation
[of privacy] was reasonable in the circumstances calls for an ultimate legal
conclusion ... [which is] subject to [appellate] review."
Commonwealth v. Cadoret, 388 Mass. at 150,
445 N.E.2d 1050.
The
judge's findings on this question are sparse.
He found that it would have been virtually impossible for an officer
standing on the sidewalk on Balmoral Street to see
what Senior [23 Mass.App.Ct.
61] was doing with his hands while
seated at the desk. The judge referred
to shrubbery in the common area which, for all that appears, would not have
blocked anyone's view from any vantage point.
(FN6) He paid no heed to his own
finding that the living room drapes had not been drawn. See
Commonwealth v. Simmons, 392 Mass. 45, 50‑51, 466 N.E.2d 85, cert.
denied, 469 U.S. 861, 105 S.Ct. 196, 83 L.Ed.2d 128
(1984). He found that Pathiakis "had no invitation to use the lawn and no
license to pass [over] it." He
took note of Senior's 1.671 percent interest in the common area, although he
conceded that any expectation of privacy which Senior had by reason of that
interest might have been "diluted" by reason of the aggregate (98.329
percent) of the undivided interests in the common area held by the other unit
owners in the condominium. Nowhere did
the judge address the question whether Senior had a reasonable expectation of privacy in the place where Pathiakis was standing when he made his observations.
The
evidence at the suppression hearing was silent on the presence or absence of
any "No Trespassing" signs in or bordering on the common area, as
well as on the presence or absence of any physical obstacle to Pathiakis's entering or crossing the area. Compare
Commonwealth v. Simmons, 383 Mass. 46, 55 n. 4, 417 N.E.2d 1193 (1981), id., 392 Mass. at 47, 48‑49, 50,
466 N.E.2d 85. The judge's finding that
Pathiakis had no invitation or license to pass over
the area does not advance the analysis because "[t]he fact that officers
may have committed a technical trespass does not create a Fourth Amendment
violation when no expectation of privacy exists." Commonwealth v. Simmons,
392 Mass. at 49, 466 N.E.2d 85. Commonwealth v. D'Onofrio,
396 Mass. at 718, 488 N.E.2d 410. That
finding is merely illustrative of the judge's undue emphasis on Senior's
ownership interest in the common area.
Such an interest is but one factor to consider in the expectation‑of‑[23 Mass.App.Ct.
62] privacy analysis.
Commonwealth v. Podgurski, 386 Mass. 385,
392, 436 N.E.2d 150 (1982), cert. denied, 459 U.S. 1222, 103 S.Ct. 1167, 75 L.Ed.2d 464 (1983). "Other relevant factors include whether
a particular place is a common area, whether it was freely accessible to others
besides the defendant, and whether the defendant controlled access to the
area." Sullivan v. District Court of Hampshire,
384 Mass. 736, 742, 429 N.E.2d 335 (1981).
See also Commonwealth v. Cadoret, 388 Mass. at 150, 445 N.E.2d 1050. The defendants offered no evidence of any by‑laws
or rules or regulations governing the use of common areas which might have been
adopted in accordance with the provisions of G.L. c.
183A, § 11(d ) or (e ).
All we know on this point is that no by‑law, rule or regulation
could have given Senior the right to exclude the other unit owners from
entering or using the portion of the lawn located outside his living room
window. See G.L.
c. 183A, § 5(d ).
The case
resolves itself into one in which the defendants have failed to introduce
evidence sufficient to warrant a finding that they had a reasonable expectation
of privacy where the officer was standing when he made the observations which
provided probable cause to believe that a crime was being committed inside the
apartment. Compare Commonwealth v. D'Onofrio, 396 Mass. at
714, 717, 448 N.E.2d 410. The case is
indistinguishable in principle from those in which it has been held that no one
can have a reasonable expectation of privacy in an area to which others have
equal rights to access. See, e.g., Commonwealth v. Thomas, 358 Mass. 771,
773‑774, 267 N.E.2d 489 (1971) (cellar of apartment building to which all
tenants had access); Commonwealth v. Dinnall,
366 Mass. 165, 166‑167, 314 N.E.2d 903 (1974) (unlocked common hallway in
apartment building); Sullivan v. District Court of Hampshire,
384 Mass. at 741‑742, 429 N.E.2d 335 (canteen open to all hospital
employees); Commonwealth v. Podgurski,
386 Mass. at 388, 436 N.E.2d 150 (observation through window of van from parking
lot behind store would have been lawful); Commonwealth v. Frazer, 10 Mass.App.Ct. 429, 431‑432, 408 N.E.2d 884 (1980)
(alleyway between apartment buildings); Commonwealth
v. Myers, 16 Mass.App.Ct. 554, 556, 452
N.E.2d 1170 (1983) (parking lot shared by tenants of several apartment
buildings). Contrast Commonwealth [23 Mass.App.Ct. 63]
v. Hall, 366 Mass. 790, 795, 323 N.E.2d 319 (1975) (locked hallway in
apartment building under exclusive control of defendant).
Order allowing motions to suppress vacated.
(FN1.) Commonwealth vs. Russell C. Serbagi, Jr.
(FN2.)
The defendants do not contend that their rights under art. 14 are any greater
than their rights under the Fourth Amendment.
See Commonwealth v. Ortiz, 376
Mass. 349, 358, 380 N.E.2d 669 (1978); Commonwealth v. Simmons, 392 Mass. 45,
51, 466 N.E.2d 85, cert. denied, 469 U.S. 861, 105 S.Ct.
196, 83 L.Ed.2d 128 (1984). Compare Sullivan v. District Court of Hampshire,
384 Mass. 736, 741 n. 7, 429 N.E.2d 335 (1981); Commonwealth v. Chappee, 397 Mass. 508, 512 n. 1, 492 N.E.2d 719
(1986).
(FN3.)
We omit some of the evidence on the questions of (1) probable cause to believe
that cocaine would be found in Senior's apartment and (2) exigent circumstances
which would excuse the necessity for a warrant.
The motion judge's findings on those questions were adverse to the
defendants and are not challenged in this court. See
Sullivan v. District Court of Hampshire, 384 Mass. at 742‑744, 429
N.E.2d 335.
(FN4.)
Junior does not complain of his arrest or the search of his person if the
original entry of the officers was lawful.
(FN5.)
The Royce case was decided
approximately three months prior to the judge's decision in this case.
(FN6.) At two
different points in his memorandum of decision the judge referred to shrubbery
which was located in the common area between the sidewalk and the window and
which might have blocked any view into the apartment from parts of the
sidewalk. There is no reference to
shrubbery in the testimony at the hearing on the motions to suppress. There is a schematic drawing which was marked
in evidence which depicts what may be shrubbery in parts of the common area,
but the height of any shrubbery is matter of conjecture.