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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. Simmons, 392
Supreme Judicial Court of Massachusetts,
Argued
Decided
Brownlow M. Speer,
Patrick M. Butler, Sp. Asst. Dist. Atty., for the
Commonwealth.
Before WILKINS, ABRAMS, NOLAN and LYNCH, JJ.
LYNCH, Justice.
The
defendant was found guilty of rape, armed assault with intent to murder, and
assault and battery by means of a dangerous weapon. Shortly before the trial was to begin, the
police took the victim to view the defendant's car, which was parked near the
driveway of his mother‑in‑law's house. No search warrant was obtained.
The
defendant was previously before this court, arguing that the identification procedure
employed was impermissibly suggestive and that the "search" of the
vehicle was unreasonable. In Commonwealth v. Simmons, 383
[1] In
summarizing the relevant details, (FN1) we rely heavily upon the judge's
subsidiary findings of fact, which "must stand unless they are clearly
erroneous." Commonwealth v. Cadoret,
388
The victim
was questioned by police that evening while in the hospital. Although she was still in a state of shock,
she managed to describe her attacker's car, characterizing it as a "kind
of a Volkswagen," "light blue," with "two seats in front,
with a gear shift on the floor," and with wires hanging down from underneath
the radio. At a subsequent time she was
also able to identify her assailant from a book of 192 photographs.
At a
pretrial interview with the prosecutor in charge of the case, the victim again
described the motor vehicle. She
recalled its color, the bucket seats, the stick shift, the wires hanging out of
the radio, and other characteristics of the car's interior. However, she identified the automobile as a
"Mustang." On account of this
potential inconsistency in her identification, the prosecutor directed two
police officers to accompany the victim to a house on Falmouth Road in Hyannis,
to "look at a vehicle." This
visit was to the property of the mother‑in‑law of the
defendant. However, the victim was not
told whose car she was going to see nor where she was going.
The two
officers and the victim arrived at the property around noon. One officer knocked several times on the
front door of the residence, and received no response. The other officer and the victim proceeded up
the driveway to look at a vehicle, a [392
Mass. 47] light blue Mustang
automobile which was located between one and two feet from the driveway,
directly across from a flagstone path leading to the front door. While standing in the driveway, the victim
spent a few minutes looking at the vehicle's interior. Neither the victim nor the officer left the
driveway, nor did they open any doors or windows of the vehicle or touch it in
any manner. After about five minutes,
the victim and the two officers left the property. At that time and at trial, the victim
identified the vehicle as being the one driven by her assailant.
The
property in question is located adjacent to Route 28, a heavily traveled road
which serves as one of the main access routes to and from Hyannis. The property is also abutted to the east by a
public parking area. There were no
fences,
shrubs, or gates on the
property preventing access or viewing of the vehicle from Route 28 or the
adjoining parking area, and its exterior could be clearly seen from either
vantage point. The vehicle's interior
could be seen from the driveway, and portions of it could be seen from a
distance of from five to six feet. There
were no "No Trespassing" signs on the property, however there was a
"Beware of Dog" sign located on the garage at the top of the driveway.
Prior to
his arrest in October, 1977, the defendant would occasionally visit his mother‑in‑law
and park his car in the driveway; by his
own account, he never parked the car in the garage. During the summer, boarders lived in the
house; they would walk up the driveway,
which was the normal way to reach the path leading to the front door, and
routinely pass by the car. Also
according to the defendant's testimony, he would often leave the car unlocked
in public parking lots, due to a defect in one of its doors.
After the
defendant's arrest, his wife used the car without restriction. During this time it became disabled and was
towed to the location where it was viewed by the victim. The defendant had no conversations with his
wife or his mother‑in‑law regarding the use of the car after his
arrest, its towing and placement on the property, or its status from the date
it was placed on the property until the defendant's trial in February, 1978.
[392 Mass. 48] In contending that the viewing of the car by the victim should
not cause her identification testimony to be excluded, the Commonwealth makes
two basic arguments. First, it is argued
that an action by police officials which does not intrude upon a legitimate
expectancy of privacy is not a "search" within the context of the
Fourth Amendment to the United States Constitution or art. 14 of the
Massachusetts Declaration of Rights and that the victim's nonintrusive
viewing of the interior of the defendant's vehicle from a point on the driveway
did not violate any such expectation of privacy held by the defendant. Second, the Commonwealth contends that even
if a constitutionally impermissible search occurred, the defendant lacks
standing to object to a search on his mother‑in‑law's property of a
car over which he had relinquished effective control. It is unnecessary for us to reach this latter
argument, since we find that no reasonable expectation of privacy was
compromised by the viewing of the vehicle by the victim and the police
officers.
[2][3][4]
In this area of Fourth Amendment law, the basic determination to be made is
whether a defendant's expectation of privacy "is one which society could
recognize as reasonable." Commonwealth v. Cadoret,
388 Mass. 148, 150, 445 N.E.2d 1050 (1983), quoting Commonwealth v. Podgurski, 386 Mass.
385, 388, 436 N.E.2d 150 (1982), cert. denied, 459 U.S. 1222, 103 S.Ct. 1167, 75 L.Ed.2d 464 (1983). See Rakas v. Illinois, 439 U.S. 128, 151, 99 S.Ct. 421, 434, 58 L.Ed.2d 387 (1978) (Powell, J.,
concurring). The circumstances
surrounding the search at issue must be analyzed; no single factor or characteristic will
typically determine a search's validity.
It is first incumbent on a court to examine the physical milieu in which
a search takes place; in this case, the
driveway of residential property.
"A driveway is only a semiprivate area. The expectation of privacy which a possessor
of land may reasonably have while carrying on activities on his driveway will
generally depend upon the nature of the activities and the degree of visibility
from the street." United States v. Magana, 512 F.2d 1169,
1171 (9th Cir.), cert. denied, 423 U.S. 826, 96 S.Ct.
42, 46 L.Ed.2d 43 (1975), cited in
Commonwealth v. Simmons, 383 Mass. 46, 55 n.4, 417 N.E.2d 1193 (1981). See
United States v. Humphries, 636 F.2d 1172, 1179 (9th Cir.1980). Cf.
Commonwealth v. Colella, 360 Mass. 144, 148, 149,
273 N.E.2d 874 (1971). In the instant
case, the [392 Mass. 49] vehicle was clearly visible from
Route 28, a busy roadway, and from the adjacent public parking area. The driveway was not enclosed by trees, a
fence, shrubbery, or any other obstructions.
Further, the driveway was the normal
means of access to the mother‑in‑law's home, along which
visitors and tenants on the property would pass on the way to the front
door. We therefore conclude that the
vehicle was not in a location that would give rise to a reasonable expectation
of privacy.
[5][6] The
defendant attaches great weight to the fact that the viewing of the interior of
the vehicle occurred on private property (the driveway). The fact that the officers 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. See United States v. Santana, 427 U.S. 38, 42, 96 S.Ct.
2406, 2409, 49 L.Ed.2d 300 (1976).
Although a driveway may be private according to common law concepts of
property, it need not be for purposes of the Fourth Amendment.
United States v. Humphries, supra.
Further
assessment of the defendant's expectation of privacy is aided by examination of
the physical object "searched," i.e., an automobile. The United States Supreme Court has
repeatedly recognized that the expectation of privacy in "an automobile
... [is] significantly different from the traditional expectation of privacy
and freedom in one's residence." United States v. Martinez‑Fuerte, 428 U.S. 543, 561, 96 S.Ct.
3074, 3084, 49 L.Ed.2d 1116 (1976), and cases cited. United States v. Chadwick,
433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538
(1977). The diminished Fourth Amendment
protection accorded automobiles derives from their continual exposure to public
scrutiny: "Automobiles operate on
public streets; they are serviced in
public places; they stop
frequently; they are usually parked in
public places; their interiors are
highly visible; and they are subject to
extensive regulation and inspection." Rakas v. Illinois,
supra at 154 n. 2, 99 S.Ct. at 436 n. 2. However, this is not to say that there
cannot be a reasonable expectation of privacy in certain areas of the interior
of an automobile otherwise placed in the public view. As we
[392 Mass. 50] observed in Commonwealth v. Podgurski,
386 Mass. 385, 389, 436 N.E.2d 150 (1982), "[s]uch
an expectation clearly exists in those areas which would be otherwise free from
observation except by physical intrusion of some sort.... In the typical passenger vehicle, these
places must include at least the trunk, the glove compartment, closed
containers in the interior, and in most cases, the area under the
seats." See Commonwealth v. Hason, 387 Mass. 169,
173, 439 N.E.2d 251 (1982).
[7] In the
instant case, no physical intrusion of any sort was committed. The victim's identification of the
defendant's vehicle was accomplished solely by her observation of the
automobile's exterior and certain aspects of its interior which were in plain
view through the car's windows. The
defendant could not have maintained an expectation of privacy as to the car's
exterior since it could be easily seen from the adjoining road and public
parking area; by his own testimony, the
defendant never availed himself of the opportunity to use the garage at the top
of the driveway. As for the car's
interior, a similar absence of a reasonable expectation of privacy is
evident. Visitors to the defendant's
mother‑in‑law's house and her boarders would pass by the car on the
way to the front door. The defendant
would frequently leave the car unlocked in public parking areas; for a period of time, the car was left in an
inoperable condition in the student parking area where the defendant's wife
attended college. After his arrest, the
defendant placed no restrictions on where his wife should park the car. We can find no reasonable expectation of
privacy connected with the object of the victim's and the officers'
"search," the exterior and plainly visible interior of the
defendant's vehicle.
[8] A
third factor to be weighed in the expectation of privacy calculus is whether the
defendant "took normal precautions to maintain his privacy‑‑that
is, precautions customarily taken by those seeking privacy." Rakas v. Illinois, supra at 152, 99 S.Ct.
at 435. See, e.g., United States v. Chadwick, supra at 11, 97 S.Ct.
at 2483 ("By placing personal effects inside a double‑locked
footlocker, respondents manifested an expectation that the contents would
remain free from public examination").
We have already commented on the failure of the defendant to garage the
vehicle or to conceal it [392 Mass.
51] in any way or to place any
limitations on where it should be parked.
In United States v. Hersh, 464 F.2d 228 (9th Cir.1972), a case in which a
"search" consisting of a police officer on a front porch glancing
through a window of the defendant's home was upheld, the court noted the
absence of a number of measures which would normally create an inference of
privacy: "No Trespassing"
signs, fences or other enclosures, and bushes or other objects obscuring one's
view.
Id. at 230. Such precautions
were similarly lacking in the instant case, a fact that is especially probative
given the property's location adjacent to a major roadway and a public parking
area. Further, the defendant's
relinquishment of any control over the vehicle's usage or location is
significant, since the "already diminished expectation of privacy that
attaches to motor vehicles is still further attenuated when the owner [has]
given over possession to another for the other's own uses."
United States v. Dall, 608 F.2d 910, 915
(1st Cir.1979), cert. denied, 445 U.S. 918, 100 S.Ct.
1280, 63 L.Ed.2d 603 (1980). Cf. Commonwealth v. Hall, 366 Mass. 790,
795, 323 N.E.2d 319 (1975).
[9] Based
on our evaluation of the three factors of the place, the property searched, and
the precautions taken, we conclude that no reasonable expectation of privacy
was violated by the victim's and the police officers' viewing of the exterior
and plainly visible interior of the defendant's vehicle. We reach this conclusion both under the
Fourth Amendment and art. 14. Although
in another context we have recognized that the latter provision "may
afford greater protections to a person in certain circumstances than those
required by Federal decisions interpreting the Fourth Amendment," Commonwealth v. Ortiz, 376 Mass. 349,
358, 380 N.E.2d 669 (1978), there has been no demonstration that such extended
protection would be appropriate here. We
find no error in the judge's denial of the defendant's motion to suppress the
victim's identification testimony.
Judgments affirmed.
(FN1.) A more complete discussion of the facts
appears in Commonwealth v. Simmons,
supra.