Com. v. Hall

Decision Date10 February 1975
PartiesCOMMONWEALTH v. Louis C. HALL.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Michael D. Cutler, Boston, for defendant.

Robert Snider, Sp. Asst. Dist. Atty. (Stephen M. Needle, Rosendale, with him), for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY, and KAPLAN, JJ.

KAPLAN, Justice.

The defendant was convicted after a jury waived trial in the Superior Court on indictments for possession of cocaine with intent to distribute (G.L. c. 94C, §§ 31, 32), possession of marihuana with intent to distribute (id.), and possession of a firearm without an identification card (G.L. c. 140, § 129C). He was sentenced to one year's imprisonment for each offense, the terms to run concurrently.

On this appeal subject to G.L. c. 278, §§ 33A--33G, the assignments of error attack the judge's failure upon voir dire to suppress the cocaine, marihuana, and firearm in question as having been seized illegally by the police. The facts brought out at voir dire were in outline these. Upon an affidavit referring to a tip, surveillance of premises, and overheard conversations, a search warrant issued on October 2, 1972, for 'certain rooms in the 2nd fl apt 2nd fl of 2 1/2 wooden dwelling house' at 22 Rosedale Street, Dorchester, a three-story building with one apartment on each floor. Under the warrant Boston police at about 10:15 P.M. that evening entered and searched the second-floor apartment, in which the defendant Hall and his wife resided, found there a small quantity of marihuana and a handgun, and thereupon arrested the defendant's wife 1 and two other persons present. They found papers indicating that the Halls owned the building (which was the fact); also keys to the front door of the building and to the unoccupied apartment on the third-floor which was in the course of being renovated. One of the officers was called to the street and received information that there was a larger quantity of drugs in the third-floor apartment. Having tried but failed because of the late hour to make arrangements to obtain a fresh search warrant for that apartment, the police after consulting a legal advisor of the Boston police department proceeded to search it nevertheless. Large quantities of cocaine and marihuana were found there sufficient if admissible to support the charges of 'intent to distribute.' The defendant appeared at the apartment with another in the early morning and was also arrested.

The judge at voir dire made findings and rulings holding that the warrant for search of the second-floor apartment was adequately supported and validating also the search of the third-floor apartment by reading the warrant to cover that apartment as an 'extension' of the second-floor apartment. He also found the search, 'under all the circumstances,' reasonable.

The defendant argues on this appeal, first, that all the evidence seized should have been suppressed because the affidavit on which the warrant issued was entirely invalidated by the inclusion in it of information secured through illegal eavesdropping in the hallway outside the second-floor apartment; if this illegality did not taint the entire document, then the rest was anyway insufficient to support the issuance of the warrant. Second, assuming that the warrant legalized search of the second-floor apartment and thus justified seizure of the handgun and its reception in evidence, it could not be read to cover the third-floor apartment, and exigent circumstances did not exist that could legalize a warrantless search of that apartment; so the evidence consisting of the drugs found there should have been suppressed.

Our analysis leads us to the conclusion that the firearm was properly seized in the second-floor apartment and the conviction based thereon should be affirmed; but the seizure of the drugs in the third-floor apartment was illegal and the relevant convictions should be reversed.

1. The valid search of the second-floor apartment. We reproduce in the margin the text of the affidavit presented to the assistant clerk of the Municipal Court of the Dorchester District who issued the warrant. 2 It sets out three pieces of information: an informant's tip, observartions by police officers of 'suspected users and dealers of Narcotics' entering and leaving the premises, and a report of conversations in the second-floor apartment about sale and use of drugs overheard by police officers. As to the overheard conversations, it appeared at voir dire that after receiving the tip (to be described below), the police on two evenings, September 30 and October 1, maintained a surveillance of the building and also eavesdropped on the landing and stairway outside the second-floor apartment.

A word is needed here about the layout of the building. Entrance to 22 Rosedale Street is through an unlocked door into a vestibule with two doors, and three doorbells to ring the three apartments. One of the doors opens into the first-floor apartment which is not a factor in this case. The second opens on an interior staircase leading to the defendant's second-floor apartment and thence to the vacant third-floor apartment. The two doors off the downstairs vestibule are equipped with locks; the second door can be opened either with a key or by a buzzer mechanism from the upstairs apartments. That door was locked on October 2 when the police entered to execute their search under the warrant. However, on the two previous nights the police managed to pass the doorway without themselves using a key or ringing a doorbell as they proceeded to the second floor to listen to the sounds coming from the apartment. 3

The judge concluded that this police eavesdropping did not infringe upon the defendant's right of privacy, but we incline to disagree. The question cannot be answered by classifying 'apartment hallway' as either a 'protected' or 'unprotected' area. Because 'the Fourth Amendment protects people, not places,' Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), we must rather ask what expectation of privacy could be justifiably held by one engaging in conversation inside the particular second-floor apartment. See Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Texas v. Gonzales, 388 F.2d 145 (5th Cir. 1968); Lorenzana v. Superior Court of Los Angeles, 9 Cal.3d 626, 108 Cal.Rptr. 585, 511 P.2d 33 (1973). In a typical apartment building the need of each tenant for privacy competes with the fact that other tenants and their guests and business invitees, the landlord's caretaking employees, and still others, must also use such areas as hallways, stairs, lobbies, and cellars. This necessarily limits the individual tenant's ability to control access to those places, and correspondingly his expectation of privacy. Our court has held, in line with other jurisdictions, that where a common area in an apartment building is not locked off, so that anyone can enter it, a tenant cannot complain if a policeman stationing himself there overhears a conversation in the apartment. COMMONWEALTH V. DINNALL, --- MASS. --- , 314 N.E.2D 903, (1974)A. Cf. Commonwealth v. Thomas, 358 Mass. 771, 267 N.E.2d 489 (1971). For other examples, see United States v. Llanes, 398 F.2d 880 (2d Cir. 1968), cert. den. 393 U.S. 1032, 89 S.Ct. 647, 21 L.Ed.2d 576 (1969); United States v. Freeman, 426 F.2d 1351 (9th Cir. 1970); United States v. Lewis, 227 F.Supp. 433 (S.D.N.Y.1964); People v. Berutko, 71 Cal.2d 84, 77 Cal.Rptr. 217, 453 P.2d 141 (1969). But the present case is quite different from the Dinnall or Thomas case or the like. Here only the defendant lived behind the downstairs vestibule door and off the stairway to the second and third floors. Further, he was the owner of the building, not merely a tenant. The hallway was thus in his exclusive control; he did not share its use with other tenants or with an absentee landlord; and the arrangement made--the lock on the downstairs door and the buzzer system--was designed to exclude members of the public and to admit none but the defendant's own guests and invitees. 4 See Commonwealth v. Dinnall, supra, --- Mass. at --- - ---, b, 314 N.E.2d 903; Commonwealth v. Thomas, supra, 358 Mass. at 773--775, 267 N.E.2d 489. A justified expectation of privacy therefore arose. 5 That the lock on the vestibule door could be and was bypassed on the two occasions when the eavesdropping took place cannot alter the picture, for police do not have carte blanche to pass through doors that are unlocked or even ajar if the area beyond has a private character. See Commonwealth v. Spofford, 343 Mass. 703, 705, 180 N.E.2d 673 (1962); Sabbath v. United States, 391 U.S. 585, 589--591, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); People v. Haven, 59 Cal.2d 713, 715--717, 31 Cal.Rptr. 47, 381 P.2d 927 (1963); People v. Williams, 24 A.D.2d 274, 276, 265 N.Y.S.2d 416 (1965).

It follows that the overheard conversations may not be considered in deciding whether there was probable cause to issue the search warrant. COMMONWEALTH V. PENTA, --- MASS. --- , 282 N.E.2D 674 (1972)C; United States v. Hunt, 496 F.2d 888 (5th Cir. 1974). But the further question for decision is whether reference to those conversations in the affidavit fatally infected the warrant, supposing that the remaining evidence provided in the affidavit was legally obtained and would itself be enough to ground a finding of probable cause. Before the recent decision in United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), the answer would surely have been no. United States v. Sterling, 369 F.2d 799, 802 (3d Cir. 1966); James v. United States, 135 U.S.App.D.C. 314, 418 F.2d 1150, 1151-- 1152 (1969); Howell v. Cupp, 427 F.2d 36, 38 (9th Cir. 1970); United States v. Tarrant, 460 F.2d 701, 703--704 (5th Cir. 1972); United States v. Koonce, 485 F.2d 374, 379 (8th Cir. 1973)....

To continue reading

Request your trial
119 cases
  • State v. Brown
    • United States
    • Supreme Court of Connecticut
    • January 21, 1986
    ...dweller had reasonable expectation of privacy in completely enclosed patio outside his apartment unit); Commonwealth v. Hall, 366 Mass. 790, 794-95, 323 N.E.2d 319 (1975) (tenant has expectation of privacy in areas over which he can control access). In the present case, however, the defenda......
  • Com. v. Skea
    • United States
    • Appeals Court of Massachusetts
    • October 26, 1984
    ...69 S.Ct. at 192-193; Vale v. Louisiana, 399 U.S. 30, 34-35, 90 S.Ct. 1969, 1971-1972, 26 L.Ed.2d 409 (1970), Commonwealth v. Hall, 366 Mass. 790, 800-804, 323 N.E.2d 319 (1975), Commonwealth v. Forde, 367 Mass. 798, 804-805, 329 N.E.2d 717 (1975), Commonwealth v. Huffman, 385 Mass. at 124-1......
  • Com. v. Alvarez
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 28, 1996
    ...371 N.E.2d 777 (1977), aff'd by an equally divided Court, 439 U.S. 280, 99 S.Ct. 712, 58 L.Ed.2d 519 (1978). See Commonwealth v. Hall, 366 Mass. 790, 795, 323 N.E.2d 319 (1975).7 The Commonwealth argues that, where an anonymous tip is just one of several bases for a warrant, the test set ou......
  • Stackhouse v. State
    • United States
    • Court of Appeals of Maryland
    • December 23, 1983
    ...262 Ind. 266, 314 N.E.2d 750 (1974) (presence of fugitives in house and sound of running steps not sufficient); Commonwealth v. Hall, 366 Mass. 790, 323 N.E.2d 319 (1975) (tighter requirement suggested by Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970)); see, e.g., Unit......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT