Com. v. Murphy

• Decision Date: 02 January 1968
• Parties: COMMONWEALTH v. Daniel R. MURPHY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 5

233 N.E.2d 5

353 Mass. 433

COMMONWEALTH v. Daniel R. MURPHY.

Supreme Judicial Court of Massachusetts, Essex.

Argued Oct. 2, 1967.

Decided Jan. 2, 1968.

George Karelitz, Haverhill, for defendant.

Peter F. Brady, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER KIRK and SPIEGEL, JJ.

SPALDING, Justice.

A complaint charged the defendant with having in his possession 438 short lobsters in violation of G.L. c. 130, § 44, as amended by St.1963, c. 300, § 2. Prior to a trial in the Superior Court the defendant made a motion to suppress the evidence, which consisted of lobsters seized in the defendant's garage by officers of the law. The motion was denied. The judge, being of opinion that three questions of law were involved which were 'so important or doubtful' as to require a decision of this court before trial, reported them. The questions reported are: '1. Whether or not the search and seizure involved in this case was legal. 2. Whether or not G.L. c. 130, § 9, is constitutional. 3. Whether or not a single family residence and garage occupied by the defendant and surrounded on three sides by a fence constitutes a dwelling house.' No evidence was introduced in connection with the motion to suppress but a statement of agreed facts was submitted, which incorporated by reference three photographs of the defendant's premises.

We summarize the facts as follows: On July 9, 1964, the defendant and his wife occupied a single family house at 20 Willie Street, Haverhill. A garage, in the rear of but not physically attached to the house, was at the end of a driveway fifty to seventy-five feet in length which ran to Willie Street. A fence enclosed both sides and the rear of the premises.

As a result of information obtained from 'an informer and investigation over a period of time, Natural Resource Officers had the premises under surveillance for approximately three weeks.' On July 9, 1964, one Crossman, a natural resource officer, and a fellow officer, drove to Willie Street about 6:30 P.M. and from their car observed the defendant's premises. About 9:30 P.M. Crossman saw a light in the garage and saw a man, then unknown to him, 'holding up a burlap bag.' It was dark and raining and he could not see what was in the bag. He went to the first street to the right of the defendant's premises, and then proceeded through a field and over a fence and through some brush until he 'got to where he recognized the area as being the house of the defendant.' He 'had nobody's permission to go through any of the yards' and had not asked for such permission; he assumed that he had a right to do what he did. From the rear Crossman could not look into the garage and had 'no knowledge of what was in there, except * * * a man with burlap bag.'

Crossman then looked through a side window into the garage where he saw three men, 'one of whom was the man with the burlap bag.' Remaining there for ten to fifteen minutes, he also observed 'a fish box and open paper bags standing upright side by side on the garage floor.' Crossman then left the premises by the same route he had entered. He, together with three other natural resource officers, walked down the driveway from Willie Street and entered the garage through a partially opened door; they 'had to pull open the door further to gain entrance.' As Crossman 'stood in the driveway * * * just prior to touching the door he could see some lobsters on the floor which in * * * (his) opinion * * * were under the minimum legal length.' Upon entering the garage the officers arrested the defendant. Bags of lobsters were then emptied onto the garage floor. When measured and counted, there were 438 lobsters which were below the legal limit in length. The man first observed holding the burlap bag was the defendant.

Of the questions reported the third seems to us to be the most important and we shall discuss it first. That question is, 'Whether or not a single family residence and garage occupied by the defendant and surrounded on three sides by a fence constitutes a dwelling house.'

General Laws c. 130, § 9, as amended by St.1964, c. 524, § 8, provides in part as follows: 'The director (of the division of marine fisheries), his assistants, a natural resource officer or deputy or a member of the state police may, without a warrant, search any boat, vessel, fish car, bag, box, locker, package, crate, any building other than a dwelling house, any motor vehicle as defined in section one of chapter ninety, or other vehicle, or any other personal property in which he has reasonable cause to believe, and does believe, that fish taken, held, kept, possessed, transported or held for transportation or sale in violation of law, may be found, and may seize any such fish there found, and may seize any boat, vessel, fish car, bag, box, locker, package, crate, any motor vehicle as defined in section one of chapter ninety, or other vehicle, or any other personal property used in a violation of the laws relative to marine fisheries and hold the same for forfeiture. Any such person or officer may arrest without a warrant any person found violation any provision of this chapter.' ¹ The statute expressly exempts a 'dwelling house' from search without a warrant even though there be reasonable cause to believe that fish are there held in violation of law.

As the statute offers no definition of 'dwelling house,' we refer to the common law. It would appear that most of the common law cases bearing on the subject deal with the offences of burglary or arson. In Devoe v. Commonwealth, 3 Met. 316, the court per Shaw, C.J., said at page 325, 'By the common law, every house for the dwelling and habitation of man is taken to be a mansion house, wherein burglary may be committed. * * * The mansion house not only includes the dwellinghouse, but also the outhouses, such as barns, stables, cow-houses, dairyhouses, and the like, if they be parcel of the messuage, though they be not under the same roof, or joining contiguous to it. * * * Any outhouses, within the curtilage or same common fence as the mansion itself, must be considered as parcel of the mansion.' See Commonwealth v. Barney, 10 Cush. 480; Commonwealth v. Certain Intoxicating Liquors, 140 Mass. 287, 3 N.E. 4; 4 Blackstone, Commentaries (1st ed.) pp. 220, 224--225; 1 Hale, P.C. 558, 567; 1 Hawk.P.C. cc. 17 and 18.

In the case at hand the agreed facts and the exhibits make clear that the garage is located close to the rear of the house, and fifty to seventy-five feet from the street. Both garage and house are partially surrounded by a fence which passes around the rear and two sides. Thus under the decisions cited above the garage is located within the curtilage. The words 'dwelling house' have more recently been discussed in connection with questions of search and seizure. It has been held in such cases that buildings within the curtilage are entitled to the same protection as the dwelling house itself. See Roberson v. United States, 165 F.2d 752 (6th Cir.) (smokehouse associated with dwelling and located inside yard fence is part of the curtilage and thus protected); Walker v. United States, 225 F.2d 447 (5th Cir.) (barn held to be protected because within the curtilage); Care v. United States, 231 F.2d 22 (10th Cir.), cert. den. 351 U.S. 932, 76 S.Ct. 788, 100 L.Ed. 1461 (Fourth Amendment applies to buildings within the curtilage which may include garages, barns, smokehouses, chicken houses, or similar buildings); Rosencranz v. United States, 356 F.2d 310 (1st Cir.) (same).

In the light of the common law definitions of a dwelling in the burglary and arson cases and their extension to cases involving searches and seizures, we are of opinion that the defendant's garage falls within the 'dwelling house' exemption contained in § 9 of G.L. c. 130.

As § 9 does not authorize the search of the garage without a warrant, there is no need to answer the second question reported, namely, whether § 9 is constitutional. We proceed, then, to the first question which asks '(w)hether * * * the search and seizure involved in this case was legal.'

The defendant urges that the actions...