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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. Straw, 422
Supreme Judicial Court of Massachusetts,
Argued
Decided
Brownlow M. Speer,
Jane L. McDonough, Assistant District Attorney, for
Commonwealth.
Before LIACOS, C.J., and WILKINS, LYNCH, O'CONNOR,
and GREANEY, JJ.
GREANEY, Justice.
The
defendant, Marlon A. Straw, was convicted by a jury of trafficking in cocaine
in a net weight of 200 grams or more.
G.L. c. 94C, § 32E(b ) (4)
(1994 ed.). Prior to trial, the
defendant moved to suppress a briefcase and its contents (cocaine and other
items) contending that the "briefcase and its contents were seized without
benefit of a warrant." After a
hearing, a judge of the Superior Court denied the motion on the basis that the
defendant had abandoned the briefcase, and, alternatively, that exigent
circumstances[422
The facts,
as found by the judge after an evidentiary hearing, are as follows. On the morning of December 6, 1988, a State
trooper and five other police officers went to 68 Calendar Street in the
Dorchester section of Boston to execute an arrest warrant on the
defendant. The warrant had been issued
following the defendant's default on an assault with intent to murder charge in
the Dorchester District Court. The
police had information that the defendant was at the 68 Calendar Street address. (FN1)
In
response to a knock by the officers, the defendant's mother opened the front
door of the house, and she was advised that the police were there to execute an
arrest warrant for the defendant. The
defendant's mother indicated that her son was upstairs. A police officer encountered the defendant as
he was coming down the stairs from the second floor and placed him under arrest
on the default warrant.
Before the
arrest occurred, a police officer, who had positioned himself behind the house
to intercept the defendant if he tried to flee, saw a window opened on the
second floor and a briefcase thrown to the yard below. The briefcase, which was thrown by the
defendant, landed about six to ten feet from the house in the back yard between
the house and a wrought iron fence that separated the yard from the adjacent
sidewalk.
[422 Mass. 758] The officer who observed the foregoing entered the back yard to
retrieve the briefcase. The officer
noticed that the right side latch of the briefcase was unlocked, leaving that
side slightly ajar. He proceeded to pry
open the right side of the briefcase and to look inside, where he saw a plastic
glassine bag containing a white powdery substance which he believed (correctly,
as it turned out) to be cocaine. The
officer proceeded to explore fully the contents of the briefcase, which
included other bags of white powder (cocaine totalling over 200 grams), an
empty container of a cutting agent, plastic sandwich bags, $1,750 in cash, a
jewelry box with the defendant's name on it, and a receipt for a gold watch.
The
defendant was again placed under arrest, this time for a violation of the
controlled substances laws. At the
police station, the defendant was advised of his Miranda rights and questioned. He admitted to purchasing the cocaine, and he
told the police that, when they arrived at the house, he became
"nervous" and threw the briefcase out of the second‑floor
window.
1. The
parties have treated the defendant's motion to suppress as based solely on the
Fourth Amendment to the United States Constitution. The judge concluded that the police officers
were entitled to seize and search the briefcase since it constituted abandoned
property as to which the defendant had relinquished any reasonable expectation
of privacy when he threw it out the window.
The judge also concluded that exigent circumstances permitted the search
because of the risk that a member of the defendant's family might spirit away
the briefcase before the police could apply to a magistrate for a warrant. We proceed to discuss these conclusions.
The Fourth
Amendment proscribes unreasonable searches and seizures. The United States Supreme Court has construed
the Fourth Amendment to make any government seizure and search of personal
property, located in an area where the owner has a legitimate expectation of
privacy, per se unreasonable unless accomplished pursuant to a properly issued
warrant. See United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 2641,
77 L.Ed.2d 110 (1983); United States v. Chadwick, 433 U.S. 1, 9,
13, 97 S.Ct. 2476, 2482, 2484‑2485, 53 L.Ed.2d 538 (1977); Katz
v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576
(1967).
[1] The
second point relied on by the judge as an applicable exception to the warrant
requirement (exigent circumstances based on a concern that the defendant's
family might recover [422 Mass. 759] and hide or destroy the contents of
the briefcase) need not detain us long.
The police had a right to seize and protect the briefcase without a
warrant because it was observed by an officer who was in a place where the
officer had a right to be in connection with the defendant's lawful arrest on
the default warrant. See United States v. Corral, 970 F.2d 719,
725 (10th Cir.1992). However, once the
briefcase had been seized and taken under the control of the
police, any exigency related to potential loss or destruction of evidence
therein ceased to exist. See United States v. Chadwick, supra at 15,
97 S.Ct. at 2485‑2486. Further,
there is nothing to indicate that the briefcase might have contained any
dangerous instrument or substance, cf.
Commonwealth v. Madera, 402 Mass. 156, 160, 521 N.E.2d 738 (1988), or that
any possible evidence inside might be subject to loss if the briefcase was not
opened immediately. The ground of
exigency, therefore, is not available to justify opening and searching the
briefcase.
The first
point relied on by the judge requires us to examine the question of
abandonment, that is, phrased in Fourth Amendment terms, whether the defendant
discarded the briefcase in a place, and in the circumstances, where he could
not reasonably have any continued expectation of privacy in its contents. See
California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 1628, 100 L.Ed.2d
30 (1988). See also Commonwealth v. Krisco Corp., 421 Mass. 37, 41, 653 N.E.2d 579
(1995), and cases cited; St. Paul v. Vaughn, 306 Minn. 337, 346‑347,
237 N.W.2d 365 (1975); 1 W.R. LaFave,
Search and Seizure § 2.6(b), at 573‑576 (3d ed. 1996). Resolution of the question requires
consideration whether the defendant had a subjective expectation of privacy in
the place searched, and in the contents of the briefcase, which could be
considered objectively reasonable or legitimate. Commonwealth v. Krisco Corp.,
supra at 41‑42, 653 N.E.2d 579.
Put differently, the briefcase and its contents would be abandoned for
Fourth Amendment purposes only if the defendant had voluntarily surrendered all
control over the briefcase in a way which demonstrated that he had relinquished
any continued expectation of privacy.
See Commonwealth v. Battle,
365 Mass. 472, 475‑476, 313 N.E.2d 554 (1974).
[2] We
conclude that the defendant intended to protect his property from any public
scrutiny because he placed the property in a closed and locked briefcase and
disposed of the briefcase by throwing it into the fenced‑in curtilage of
his family's home, an area enjoying full Fourth Amendment protection from
search by the authorities. The reasons
supporting[422 Mass. 760]
this conclusion, and establishing why abandonment has not been shown on
the facts found by the judge, are fully set forth in the dissenting opinion of
the Appeals Court, which we now repeat:
"No
inference of an intent on [the defendant's] part to abandon the briefcase can
be drawn from his throwing it into the fenced‑in back yard of his
family's home.... [H]e enjoyed the same
reasonable expectation of privacy in that location as he did in the home
itself, Commonwealth v. One 1985 Ford
Thunderbird [Auto.], 416 Mass. 603, 608, 624 N.E.2d 547 (1993), and it is
in the home that a person's expectation of privacy is at its highest. See
Commonwealth v. Blinn, 399 Mass. 126, 128, 503 N.E.2d 25, appeal dismissed,
482 U.S. 921, 107 S.Ct. 3202, 96 L.Ed.2d 689 (1987) (under the Fourth Amendment
'sanctity [is] accorded an individual's home'); Commonwealth v. Panetti,
406 Mass. 230, 234 n. 5, 547 N.E.2d 46 (1989) (the home is '[a]t the very core'
of Fourth Amendment rights). See also California v. Ciraolo, 476 U.S. 207,
212‑213, 106 S.Ct. 1809, 1812‑1813, 90 L.Ed.2d 210 (1986) (backyard
of private dwelling is viewed as an extension of the home). [The defendant's] action is entirely, and
more persuasively, consistent with an intent to deprive the police of access to
the briefcase while not precluding his own later reclamation. It is analytically analogous to his having
tried (more adeptly) to conceal the briefcase from the approaching police by
placing it in another area of the home that would have been out of the sight
and beyond the purview of invading authorities not in possession of a search
warrant. Cf. Smith v. Ohio, 494 U.S. 541, 543‑544, 110 S.Ct. 1288, 1290,
108 L.Ed.2d 464 (1990).[ [
(FN2)]
"Nor did any abandonment of the briefcase
occur in fact, because at no time pertinent to the present issue did any member
of the public have legitimate access to the briefcase or any view of its
contents as it sat in the fenced‑in back yard of [the defendant's] family
home. See Commonwealth v.Small, 28 Mass.App.Ct. 533, 537, 552 N.E.2d 599
(1990).
[422 Mass. 761] 'The enclosed back yard in which the thrown
[briefcase] landed was part of the curtilage of the defendant's home and was
subject to the same protection as the home itself.... [E]ven after the [briefcase] was thrown out
it remained upon protected premises.' Hobson v. United States, 226 F.2d 890,
894 (8th Cir.1955). See also Smith v. Ohio, 494 U.S. at 543‑544,
110 S.Ct. at 1290 (when approached by police, defendant threw suspicious bag he
was carrying onto hood of his car;
police search of bag, which contained drug paraphernalia, held
unconstitutional because 'a citizen who attempts to protect his private
property from inspection, after throwing it on a car to respond to a police
officer's inquiry, clearly has not abandoned that property'). Indeed, the judge's alternative 'exigency'
justification for denying suppression implicitly recognized that, objectively,
the briefcase, far from being abandoned, remained readily accessible to members
of [the defendant's] family, who presumably would have taken it in. Contrast
United States v. Morgan, 936 F.2d 1561, 1571 (10th Cir.1991) [, cert.
denied, 502 U.S. 1102, 112 S.Ct. 1190, 117 L.Ed.2d 431] (1992) (not only was
the bag containing incriminating evidence thrown by the defendant into an
unfenced back yard adjacent to an open field and accessible to any passerby,
but the property belonged to a mere acquaintance, and there was no one else
present on the premises who could have helped the defendant protect or recover
the bag)." 38 Mass.App.Ct. at 746‑747,
652 N.E.2d 159 (Laurence, J., dissenting).
[3] The
Commonwealth resists these conclusions by relying on decisions which it argues
have found an abandonment in analogous circumstances. The decisions, however, are not on point,
because in each one the defendant threw, dropped, or left the container, or
some other item, in an area in which, by law, he or she had no reasonable
expectation of privacy. See United States v. Scott, 975 F.2d 927,
929 (1st Cir.1992), cert. denied, 507 U.S. 1042, 113 S.Ct. 1877, 123 L.Ed.2d
495 (1993) (incriminating shredded documents put in garbage bag which was
deposited in a public place and in control of third parties);
United States v. Wider, 951 F.2d 1283, 1285‑1286 (D.C.Cir.1991)
(defendant left brown paper bag in public place and walked away);
United States v. Morgan, 936 F.2d 1561, 1565‑1571 (10th
Cir.1991) (defendant threw bag onto porch within curtilage of someone else's
home), cert. denied, 502 U.S. 1102, 112 S.Ct. 1190, 117 L.Ed.2d 431 (1992);
United States v. Pirolli, 673 F.2d 1200, 1203‑1204 (11th
Cir.) (three vinyl, [422 Mass. 762]
plastic, or leather bags left by defendant outside of curtilage), cert. denied,
459 U.S. 871, 103 S.Ct. 157, 74 L.Ed.2d 131 (1982); United States v. Lewis, 227
F.Supp. 433, 436 (S.D.N.Y.1964) (package containing contraband thrown into
courtyard of a multi‑unit building where tenants and some members of
public had right of access); Commonwealth v. Harper, 485 Pa. 572, 585,
403 A.2d 536 (1979) (handgun thrown from defendant's residence onto roof of a
shed on adjoining property). In none of
these cases did a defendant leave or place a container on property to which
only he and members of his family normally would have a right of access. That difference effectively distinguishes
this case from the cases on which the Commonwealth relies. Here, the Commonwealth runs squarely into the
high degree of protection afforded by the Fourth Amendment to the curtilage of
one's own home, and the accompanying principle that abandonment has not
occurred unless it can be concluded that an owner relinquished property under
circumstances indicating that he retained no justified expectation of privacy
in the property. (FN3)
[4] 2. The
defendant did not expressly move to suppress his admissions to the police. The judge's findings, however, leave no room
for doubt that the admissions were the direct product of the unlawful search of
the briefcase, and, as such, must be suppressed under the "fruit of the
poisonous tree" doctrine set forth in
Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d
441 (1963). See Commonwealth v. Ferguson, 410 Mass. 611, 616, 574 N.E.2d 990
(1991). With the contents of the
briefcase and the defendant's [422
Mass. 763] admissions suppressed,
there is no evidence to support his conviction.
In such circumstances, "[t]he defendant's motion for a required
finding of not guilty must now be allowed." Commonwealth v. Thibeau,
384 Mass. 762, 765, 429 N.E.2d 1009 (1981).
Judgment reversed.
Verdict set aside.
Judgment for the defendant.
LYNCH,
Justice (dissenting).
I agree
with the reasoning of the Appeals Court.
"Here, an inference of an intent to abandon the briefcase is
reasonably supported by the circumstances of this case. It is not reasonable that a person has an
expectation of privacy in a briefcase he pitches out the window as the police
came in the front door." Commonwealth v. Straw, 38 Mass.App.Ct.
738, 742, 652 N.E.2d 159 (1995).
I
respectfully dissent.
(FN1.) At the hearing on the motion to
suppress, there was undisputed testimony that 68 Calendar Street was a three‑story
single‑family home occupied by the defendant's family.
(FN2.)
The United States Supreme Court indicated in
Smith v. Ohio, 494 U.S. 541, 110 S.Ct. 1288, 108 L.Ed.2d 464 (1990), that
no intent to abandon can reasonably be inferred from the act of throwing the
briefcase without reference to the place into which it was thrown. In the
Smith case, Smith, when asked to stop by a police officer, threw a brown
paper grocery bag onto the hood of his automobile. The officer pushed Smith's hand away from the
bag, opened it, and discovered drug paraphernalia. The Supreme Court, affirming the reasoning of
the Ohio Supreme Court, rejected the contention that Smith had abandoned the
bag by throwing it onto his automobile, reasoning that Smith had, instead, been
attempting to protect the bag from inspection. Id. at 543‑544, 110
S.Ct. at 1290.
(FN3.)
For the reasons stated in Commonwealth v.
Straw, 38 Mass.App.Ct. 738, 744 n. 2, 652 N.E.2d 159 (1995) (Laurence, J.,
dissenting), no other exception to the warrant requirement is present to
justify the search of the briefcase beside the abandonment exception. We reject the Commonwealth's argument that
the search was justified under the so‑called "plain view"
exception to the warrant requirement.
"In cases involving closed containers ... the plain view doctrine
may support the warrantless seizure
of a container believed to contain contraband but any subsequent search of the concealed contents of the
container must be accompanied by a warrant or justified by one of the
exceptions to the warrant requirement." United States v. Corral, 970 F.2d 719,
725 (10th Cir.1992). In the Corral case, the court noted that the
warrant requirement would be excused when the contents of a container were
plainly visible, or when the police "possess knowledge approaching
certainty," of a container's contents. Id.
The judge found that the contents of the briefcase were not visible
until an officer pried it open, and there was no evidence that the police had
"knowledge approaching certainty" about those contents before the
briefcase was opened and its contents observed.