Com. v. Pina

• Decision Date: 23 January 1990
• Citation: 549 N.E.2d 106,406 Mass. 540
• Parties: COMMONWEALTH v. Louis PINA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 106

549 N.E.2d 106

406 Mass. 540

COMMONWEALTH v. Louis PINA.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Nov. 6, 1989.

Decided Jan. 23, 1990.

James L. Sultan, Boston, for defendant.

Sharon B. Soffer, Asst. Dist. Atty., for the Com.

Barry Barkow, for Massachusetts Correctional Legal Services, Inc., amicus curiae, submitted a brief.

Louis Pina, pro se, submitted a brief.

Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ. O'CONNOR, Justice.

After a jury trial, the defendant appeals from convictions of breaking and entering a dwelling at night with intent to commit a felony and making an assault therein, and three counts of aggravated rape. ¹ We transferred the case from the Appeals Court to this court on our own initiative. ² We now affirm the convictions.

For background purposes, we state relevant facts which are uncontested except in one identified particular. The alleged crimes occurred at the victim's apartment on Revere Street, Boston, on the night of April 30--May 1, 1983. The victim had been alone. A black man suddenly appeared in the doorway with a blouse owned by the victim's roommate covering his face. After a brief struggle, the man tied the victim's hands together, blindfolded her with the blouse, beat her and repeatedly raped her. The assailant left the victim's apartment at approximately 12:30 A.M. on May 1. The victim called the police and was transported to the hospital. The police collected blood, hair, and semen samples from within the apartment.

At the time of the attack, the defendant resided at Brooke House, a prerelease center or "halfway house" operated privately under a contract with the Department of Correction. The defendant was allowed to leave Brooke House, but he was subject to a curfew. A log kept by Brooke House showed that the defendant signed in at 12:45 A.M. on May 1, 1983, forty-five minutes past his curfew. Although there was conflicting evidence at trial, the jury could have found that Brooke House is approximately an eighteen-minute walk from the victim's apartment.

The principal issue at trial was the identity of the attacker. Prior to trial, the defendant moved to suppress evidence of a ticket to the play, "Amadeus," which the police claimed to have found in a warrantless search of the defendant's wallet. The ticket was highly significant because the victim's roommate would testify at trial that she had left such a ticket on the nightstand in her bedroom on the night of the attack and she never saw it again. The defendant's motion to suppress was denied.

The defendant argues that, in denying his motion to suppress, the judge erred. In the trial court, the defendant relied exclusively on the Fourth Amendment to the United States Constitution. On appeal, he also relies on art. 14 of the Massachusetts Declaration of Rights, as does amicus curiae, Massachusetts Correctional Legal Services, Inc. The theory on which a motion to suppress is presented in the trial court cannot be changed when the motion comes before this court for review. Langton v. Commissioner of Correction, 404 Mass. 165, 167 n. 2, 533 N.E.2d 1375 (1989). Therefore, we limit our review to the Fourth Amendment argument.

In this and the following three paragraphs, we set forth the relevant evidence presented at the hearing on the motion to suppress. At the time of the attack, the defendant resided at Brooke House. Although Brooke House residents typically have employment for which they are allowed to leave the facility daily, they are subject to search at any time, must telephone in every day between 5 P.M. and 7 P.M., and are subject to rules governing such things as curfews, the use of telephones, visitors, and noise level.

The defendant had been transferred from the Department of Correction prerelease center at Massachusetts Correctional Institution, Shirley, to Brooke House in mid-March, 1983, and remained at Brooke House until May 26, 1983. In early June, 1983, about ten days to two weeks after the defendant had left Brooke House, a counselor there found the defendant's wallet in a resident's room. The counselor gave the wallet to Paul Leaman, the director of Brooke House. Leaman examined the wallet to determine its owner. After learning that the wallet was the defendant's, he placed it in the defendant's file. On June 17, 1983, Leaman gave the wallet to Detective Richard Ross. Ross briefly searched the wallet but did not find the ticket. Ross brought the wallet to the police station, where it remained until April, 1985. In April, 1985, Ross reexamined the wallet and found the ticket "tucked" inside the wallet.

When the defendant entered Brooke House, he signed several forms that provided that (1) he would remain under the custody of the Department of Correction; (2) he understood that "all rules and regulations" of the penal institution from which he had come would be "in effect"; (3) that he would submit to a search "as deemed necessary by staff"; and (4) that room searches "are conducted by the staff on a regular basis."

On cross-examination of Leaman, the defendant introduced a letter that Leaman had sent to the defendant on October 21, 1983, in response to a letter from the defendant. Leaman's letter stated that the defendant had written to Leaman on or about September 29, 1983, to inquire about some items of property that the defendant had left behind at Brooke House. There was nothing to suggest that the wallet was one of the items inquired about. The defendant submitted his affidavit at the suppression hearing. In it, he stated that he had "secured" his wallet by leaving it in "the area of [his] bed" at Brooke House, and then, after being transferred to Massachusetts Correctional Institution, Concord, he had telephoned a resident at Brooke House asking him to retrieve it.

In denying the motion to suppress, the judge made the following statement: "[I]n the context of this case, first of all there was no activity that would have required a search warrant. Secondly, the items were obtained within the Brooke House facility, and the employees therein had the right to search, but in any event, it appears that the item was left on the Brooke House facility subsequent to the time when [the defendant] had left the facility, at least ten days to two weeks later.

"For these reasons, as a matter of law I find no basis upon which the motion to suppress relied, and I deny it."

Unless the ticket was discovered in a "search" in the Fourth Amendment sense of that word, the defendant was not entitled to its suppression despite the lack of a warrant. Whether the government's activity amounted to a search depends on whether the activity intruded on the defendant's reasonable expectation of privacy. Rawlings v. Kentucky, 448 U.S. 98, 104-106, 100 S.Ct. 2556, 2561-2562, 65 L.Ed.2d 633 (1980). Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). Katz v. United States, 389 U.S. 347, 360-361, 88 S.Ct. 507, 516-517, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). Commonwealth v. Chappee, 397 Mass. 508, 512, 492 N.E.2d 719 (1986). For a search to have taken place, the defendant must have had a subjective expectation of privacy, and that expectation must have been one that society recognizes as objectively reasonable. Commonwealth v. Panetti, 406 Mass. 230, 230, 231-232, 547 N.E.2d 46 (1989). Commonwealth v. D'Onofrio, 396 Mass. 711, 714, 488 N.E.2d 410 (1986). In connection with a suppression motion, a defendant has the burden of establishing that the government has intruded on his or her reasonable expectation of privacy, thus establishing that a search has taken place. Id. at 714-715, 488 N.E.2d 410. Then, but only then, the government has the burden to show that its search was reasonable and therefore lawful. Commonwealth v. Antobenedetto, 366 Mass. 51, 57, 315 N.E.2d 530 (1974).

It is clear that the judge determined that no search within the meaning of the Fourth Amendment had taken place, and that therefore it was unnecessary for him to consider whether a warrantless search of the defendant's wallet would have been lawful. It is less clear whether the judge found as a fact that, at the time the ticket was found, the defendant had no expectation of privacy, or instead ruled, either on the basis of unarticulated findings, or as a matter of law on the evidence, that the defendant's privacy expectation with respect to his wallet was not reasonable. See Commonwealth v. Cadoret, 388 Mass. 148, 150, 445 N.E.2d 1050 (1983) (the reasonableness of an expectation, found to have existed as a matter of fact, is a legal conclusion subject to the court's de novo review). In any event, we are satisfied that the judge's conclusion that no "search" had taken place, and that therefore the reasonableness of the "intrusion" into the wallet is not a relevant inquiry, was correct. The judge's conclusion was correct because the evidence at the suppression hearing as a matter of law did not warrant a finding that any expectation of privacy that the defendant might have had with respect to the wallet was a reasonable one.

We may look to several factors in determining the reasonableness of an individual's expectation of privacy. The nature of the place where the government activity occurs, while not controlling, is nevertheless relevant, 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); Commonwealth v. Chappee, supra 397 Mass. at 512, 492 N.E.2d 719, as is the question whether the defendant owned the place, Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); Commonwealth v. Mora, 402 Mass. 262, 265, 521 N.E.2d 745 (1988), or controlled access to it. Sullivan v. District Ct. of Hampshire, 384 Mass. 736, 742, 429 N.E.2d 335 (1981). Also, consideration of whether the defendant had a possessory or ownership interest in the item taken or inspected is...