Commonwealth v. FERNANDEZ

• Decision Date: 04 October 2010
• Docket Number: SJC-10617.
• Citation: 458 Mass. 137,934 N.E.2d 810
• Parties: COMMONWEALTH v. Carlos FERNANDEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

458 Mass. 137

934 N.E.2d 810

COMMONWEALTH

v.Carlos FERNANDEZ.

SJC-10617.

Supreme Judicial Court of Massachusetts,Middlesex.

Argued May 3, 2010.

Decided Oct. 4, 2010.

COPYRIGHT MATERIAL OMITTED.

Brownlow M. Speer, Committee for Public Counsel Services, for the defendant.

Robert J. Bender, Assistant District Attorney (David M. Solet, Assistant District Attorney, with him) for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

CORDY, J.

A jury convicted the defendant, Carlos Fernandez, of possessing of cocaine with intent to distribute, G.L. c. 94C, § 32A( c ); and for doing so within one hundred feet of a public park, G.L. c. 94C, § 32J. ¹ At a subsequent jury-waived trial, the defendant's convictions were found to be subsequent offenses. G.L. c. 94C, § 32A( d ). We granted the defendant's application for direct appellate review in order to consider whether it was error to admit certain evidence at trial, including evidence seized from the defendant's automobile that was parked in a driveway adjacent to his residence, the results of field drug tests, and laboratory certificates of drug analysis. We conclude that it was not error to admit the first two categories of evidence, but that the erroneous admission of the certificates requires reversal of the defendant's convictions and remand for a new trial.

1. Evidence at trial. In early 2005, members of a drug task force began surveilling the defendant. On seven occasions, undercover police officers collected bags of trash left on the street outside the defendant's residence. The officers were able to identify the defendant's trash based on the presence of letters and bulk mail addressed to him. Each week, small plastic bags were discovered in the defendant's trash. ² The corners of many of the plastic bags had been cut off, consistent with drug distribution, and many of the plastic bags contained a white powder residue that was visually consistent with cocaine. ³ On multiple occasions, undercover officers observed the defendant being driven around in various vehicles and engaging in behavior consistent with drug distribution, including performing hand-to-hand transactions with other individuals.

The jury heard testimony that the police conducted tests on the residue of at least one plastic bag pulled from the defendant's trash each week. The procedure was described as a “presumptive test” or a “field test” designed to detect the presence of cocaine through the use of a chemically treated swab that turned from pink to blue in the case of a positive result. ⁴ All the field tests performed on the plastic bags found in the defendant's trash returned positive results for the presence of cocaine. ⁵ After testing, the police discarded the testing swabs. ⁶

In addition to performing field tests, the police sent all the plastic bags in which white powder residue was visible-forty-seven in total-to be analyzed by a State criminal laboratory. The laboratory aggregated the residue from all forty-seven bags to obtain a single, testable sample. That is, it did not test each plastic bag individually for the presence of cocaine. Through the testimony of the police officer who gathered the plastic bags to be analyzed, the Commonwealth introduced a certificate of analysis from the Department of Public Health stating that the aggregated residue from the forty-seven plastic bags tested positive for cocaine. ⁷

In March, 2005, the police obtained a warrant to search the defendant's apartment. As the police arrived at the residence to perform the search, the defendant pulled into the driveway in a Toyota automobile registered to his girl friend. He was placed in handcuffs, and a cellular telephone, $1,493 in cash, and keys to both the Toyota and a Honda automobile were taken from his person. The Honda, known to be registered to the defendant, was parked in the driveway alongside the home.

The ensuing search of the apartment turned up little evidence of drug use or distribution. While large sums of money were discovered, as were unused latex gloves and plastic bags of the kind that had been found in the defendant's trash, no cocaine or implements of the drug trade, such as scales or diluting materials, were found.

The police then turned their attention to the vehicles parked in the driveway of the residence, the Toyota and the Honda. A search of the Honda produced two pieces of inculpatory evidence: a small plastic bag containing one-half gram of cocaine and a black “magic marker” that had been hollowed out so that small items could be concealed within its cavity. ⁸ A second certificate of analysis was introduced at trial confirming that the substance in the bag was cocaine. The defendant did not object to the introduction of the certificate.

In closing argument, defense counsel emphasized that the evidence that the defendant had distributed cocaine, rather than merely possessed it, was weak. For example, he argued that the aggregation technique used to test the defendant's trash did not indicate that drugs were present each week. The prosecutor countered that the direct evidence that was recovered supported the inferences available from the field tests and the laboratory tests, namely that the defendant had possessed drugs with an intent to distribute them.

2. Claims of error. The defendant contends that the most damning evidence against him-the fruits of the search of the Honda, the field test testimony, and the certificates of analysis from the laboratory-should not have been admitted at trial. We take each up in turn.

a. Search of defendant's Honda. The police obtained a warrant to search the defendant's residence, the first-floor apartment of the building. At the time of the search, a blue Honda automobile, known to be registered to the defendant, was parked alongside the building in a narrow driveway, but the search warrant did not include the automobile expressly as a location to be searched. ⁹ At some point, the defendant's girl friend, who was present during the search of the residence, informed the police that the defendant used the Honda to distribute narcotics and that there was a concealed compartment in the car used to hide drugs. Acting on this information, the police searched the automobile and recovered the hollowed out marker and the small bag of cocaine.

Prior to trial, the defendant filed a motion to suppress the evidence obtained from the search of the Honda, arguing that the search warrant for his apartment did not extend to this vehicle because it was not within the “curtilage” of the apartment. ¹⁰ The motion judge denied the motion, concluding that the warrant's scope included the vehicle because the driveway where it was parked was “intimately tied” to the defendant's residence. ¹¹ The defendant filed a motion for reconsideration, which the judge allowed, but which was followed by a renewed denial of the defendant's underlying motion to suppress.

“In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of [the judge's] ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). In the context of a curtilage determination, we undertake our independent review cognizant that there is no “finely tuned formula” that demarcates the curtilage in a given case. See Commonwealth v. McCarthy, 428 Mass. 871, 874, 705 N.E.2d 1110 (1999) ( McCarthy ), quoting United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) ( Dunn ). A “ ‘correct’ answer to all extent-of-curtilage questions” is not always available. Dunn, supra. This is especially true when multi-unit dwellings with various “common areas” are at issue. See Commonwealth v. Dora, 57 Mass.App.Ct. 141, 144, 781 N.E.2d 62 (2003) (“Whether [an] occupant of a multi-unit apartment building has a reasonable expectation of privacy [in common areas] is a question that cannot be answered categorically”); United States v. Stanley, 597 F.2d 866, 870 (4th Cir.1979) (“ ‘common area’ curtilage issue has been a thorny one for the courts”).

The defendant argues that two of our cases, Commonwealth v. Thomas, 358 Mass. 771, 774-775, 267 N.E.2d 489 (1971); and McCarthy, supra, stand for the proposition that the driveway of a multi-unit dwelling cannot come within the curtilage of any individual unit. See Commonwealth v. Thomas, supra (“In a modern urban multi-family apartment house, the area within the ‘curtilage’ is necessarily much more limited than in the case of a rural dwelling subject to one owner's control”). But the Thomas and McCarthy decisions did not establish a bright line rule that shared or common driveways connected to multi-unit dwellings are never within the curtilage of one of the units. There is no such bright line. See United States v. Diehl, 276 F.3d 32, 39 (1st Cir.), cert. denied, 537 U.S. 834, 123 S.Ct. 143, 154 L.Ed.2d 52 (2002). Rather, it is the policy of the United States Supreme Court and of this court to approach curtilage questions on a case-by-case basis. See Dunn, supra; McCarthy, supra. If a vehicle parked in a driveway is within the curtilage, it may be searched pursuant to a warrant issued to search the accompanying residence. Commonwealth v. Signorine, 404 Mass. 400, 403, 535 N.E.2d 601 (1989).

In determining whether a particular parking area is within the curtilage of a residence, we consider four factors: “(1) the proximity of the area to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observations by people passing by.” McCarthy, supra, citing Dunn, supra. However, these four factors ( Dunn factors) cannot be “mechanically applied.” Dunn, sup...