Commonwealth v. Leslie

• Decision Date: 09 May 2017
• Docket Number: SJC-12176
• Citation: 477 Mass. 48,76 N.E.3d 978
• Parties: COMMONWEALTH v. Bobby LESLIE (and five companion cases ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

477 Mass. 48
76 N.E.3d 978

COMMONWEALTH
v.
Bobby LESLIE (and five companion cases ¹ ).

SJC-12176

Supreme Judicial Court of Massachusetts, Suffolk..

Argued November 7, 2016
Decided May 9, 2017

Zachary Hillman , Assistant District Attorney, for the Commonwealth.

Patrick Levin , Committee for Public Counsel Services, for Bobby Leslie.

MarySita Miles , Boston, for Lacy Price.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.²

HINES, J.

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The defendants, Bobby Leslie and Lacy Price, were indicted on charges of unlawful possession of a sawed-off shotgun,

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³ G. L. c. 269, § 10 (c ) ; unlawful possession of a loaded firearm, G. L. c. 269, § 10 (n ) ; and possession of ammunition without a firearm identification card, G. L. c. 269, § 10 (h ) (1).⁴ The indictments arose from a May, 2014, warrantless search of the porch and side yard of a three-family home in the Dorchester section of Boston where the defendant Price resided. The search revealed a loaded sawed-off shotgun under the porch. Leslie was arrested at the scene, and after further investigation, Price was arrested. A judge of the Superior Court allowed the defendants' motions to suppress the sawed-off shotgun on the ground that a warrant was required to search the area under the porch in light of Florida v. Jardines , ––– U.S. ––––, 133 S.Ct. 1409, 1417, 185 L.Ed.2d 495 (2013), and art. 14 of the Massachusetts Declaration of Rights.

The Commonwealth filed a timely appeal from the allowance of the defendants' motions to suppress. A single justice of this court granted leave to pursue an interlocutory appeal and reported the case to the Appeals Court. We allowed the defendants' application for direct appellate review to clarify the application of the Jardines warrant requirement to a search in a multifamily home. Following the analytical framework set out in Jardines , 133 S.Ct. at 1414–1417, we conclude that the side yard of the defendant's multifamily home was a "constitutionally protected area," and that

76 N.E.3d 981

the intrusion into that area to search for a weapon implicated the warrant requirement of the Fourth Amendment to the United States Constitution and art. 14. Because the warrantless intrusion into this constitutionally protected area was an unreasonable search that violated the defendants' Federal and State constitutional rights, we affirm the order allowing the defendants' motions to suppress.

Background . We recite the facts as found by the motion judge, "supplemented by evidence in the record that is uncontroverted and that was implicitly credited by the judge." Commonwealth v. Warren , 475 Mass. 530, 531, 58 N.E.3d 333 (2016), citing Commonwealth v. Melo , 472 Mass. 278, 286, 34 N.E.3d 289 (2015). On May 29, 2014, around 2 P.M. , Boston police Detective Daniel Griffin was working in the

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drug control unit⁵ as a plainclothes officer, driving an unmarked vehicle, in the neighborhood of Bowdoin Street and Geneva Avenue in Dorchester. Based on information from Officer Eric Merner, another member of his unit, Detective Griffin began observing a group of four men walking down Everton Street from Olney Street, toward Geneva Avenue. The men appeared "nervous."⁶ Once Detective Griffin realized that the men were approaching a certain residence on Everton Street (residence), he communicated to Officer Merner that the residence was a known location of gang associates and that the neighborhood in which the residence is located was a "hotspot" for shootings and firearms offenses.⁷

The property at the residence, which is a three-family home, was fenced in on the front and left side. A chain link fence, with an attached gate at the walkway leading to the sidewalk, ran across the edge of the front yard. A tall wooden fence ran along the left side⁸ of the lot, five to six feet from the side of the porch and the house. The left-side porch area was blocked by a large, blue recycling bin, which obstructed the view of the area from Everton Street.

After repositioning his vehicle down from and opposite the residence,⁹ Detective Griffin observed the four men, including Leslie, enter the front gate of the residence and meet a fifth man,

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Price, on the porch. Approximately five minutes after the men arrived, Leslie walked off the front porch, swiveling his head from side

76 N.E.3d 982

to side in a surveillance-conscious manner, toward the left side of the front yard to the side porch area. Although Detective Griffin's view was obstructed by the recycling bin, two trees, and some motor vehicles, he was able to observe Leslie crouch down and appear to manipulate something under the side porch. Detective Griffin could not see what object Leslie was manipulating. Based on Detective Griffin's experience with one hundred or more prior firearm arrests, Leslie's crouching down and swiveling his head more rapidly as he approached the side porch area were consistent with an individual who illegally possessed a firearm.

Next, Detective Griffin observed Price walk over to the side porch area as Leslie had done previously, also swiveling his head in a surveillance-conscious manner, bending down, looking under the porch, and then returning to the group on the front porch. Detective Griffin observed Leslie return to the side porch area two more times, each time swiveling his head as before, bending down, and manipulating something on the ground. On Leslie's third trip to the area, as he stood back up after having bent down, he made a distinctive gesture that Detective Griffin described as imitating the firing of a shotgun or rifle in the air. Leslie raised his hands and forearms near his shoulders, with one hand near the trigger area, as he simulated recoil.

From these observations, Detective Griffin suspected that a firearm was hidden under the left-side porch area. He was aware from his experience as a police officer that individuals often place illegal firearms nearby but not on one's person, for easy access. Detective Griffin then contacted the other members of his unit and members of the youth violence strike force for assistance. The officers intended to approach the men at the residence to conduct field interrogation observations to "see what [the men] were up to."¹⁰

The officers, seven in total, walked through the front gate at the walkway and proceeded to the front porch. Detective Griffin

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could not recall whether the gate was open, but it was not locked. The officers approached the men on the porch and began to engage them in conversation. Detective Griffin, however, veered off the walkway and walked to the left side of the yard, where Leslie and Price previously had gone. He saw a sawed-off shotgun on the ground under the porch. The wooden handle of the shotgun protruded out from under the porch. Although the shotgun was not visible from the street or from the gate near the sidewalk, it was plainly visible if one were present in the left side of the yard and walked behind the recycling bin.

Detective Griffin immediately notified the other officers of the presence of the sawed-off shotgun, and Leslie was placed under arrest after officers determined that he did not have a firearm identification card.¹¹ The officers obtained identifying information from the other men on the porch, and following further investigation, Price was also arrested in connection with the weapon. Subsequently, the officers learned that Price lived at the residence in

76 N.E.3d 983

the second-floor apartment,¹² but Leslie was not a resident.

Discussion . The judge allowed the motions to suppress, ruling that the search was governed by Jardines , 133 S.Ct. at 1417–1418, in which the United States Supreme Court held that a warrantless search of the front porch of a single-family home with a drug-sniffing dog violated the Fourth Amendment. The Court reasoned that the porch was part of the curtilage to which the police could lawfully approach but that in bringing a drug-sniffing dog, the police exceeded the scope of their implied license to enter the defendant's property. The judge recognized that Jardines involved a single-family home, but he concluded that Price (and by extension Leslie) had a reasonable expectation of privacy in the side yard of the small three-family home where the search occurred. The intrusion into the side yard to search for a suspected hidden weapon was no different from bringing a drug-sniffing dog to the front porch of a single-family home. Thus, the search required a warrant.

The Commonwealth claims error in the judge's order, arguing that because Jardines does not apply to a multifamily home, the motion properly could be granted only if the defendants established

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that Price had either exclusive control over the home or a reasonable...