Commonwealth v. Yusuf

• Citation: 173 N.E.3d 378,488 Mass. 379
• Decision Date: 10 September 2021
• Docket Number: SJC-12989
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Abdirahaman YUSUF.

488 Mass. 379

173 N.E.3d 378

COMMONWEALTH

v.Abdirahaman YUSUF.

SJC-12989

Supreme Judicial Court of Massachusetts, Suffolk.

Argued February 3, 2021.

Decided September 10, 2021.

Patrick Levin, Committee for Public Counsel Services, for the defendant.

Elisabeth Martino, Assistant District Attorney, for the Commonwealth.

Present: Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

WENDLANDT, J.

Responding to a call about a domestic disturbance at the defendant's home, a Boston police department (BPD) officer, who was equipped with a body-worn camera, created a digital recording of the encounter; the recording captured the intimate details of the parts of the home through which the officer traveled as he provided the requested assistance. The resulting video footage was stored by the BPD and then retrieved and reviewed, without a search warrant, in connection with an independent investigation to confirm a suspicion that the defendant was engaged in criminal activity.

On the basis of that review, a BPD detective obtained a search warrant to search the defendant's home; the subsequent search yielded, inter alia, a firearm and ammunition. The defendant's motion to suppress the fruits of the search was denied by a Superior Court judge (motion judge). Following a jury-waived trial before a different Superior Court judge (trial judge), the defendant was convicted of unlawful possession of a firearm and possession of ammunition without a firearm identification card.

This case presents two issues of first impression in Massachusetts: first, whether the warrantless use of the body-worn camera that recorded the interior of the home, the most sacred, constitutionally protected area, comprised a violation of the Fourth Amendment to the United States Constitution or art. 14 of the Massachusetts Declaration of Rights; and, second, whether the subsequent review of the footage obtained, for investigative purposes unrelated to the incident giving rise to its creation, constituted a warrantless search.

We conclude that the use of the body-worn camera within the home was not a search in the constitutional sense, because it documented the officer's plain view observations during his lawful presence in the home. The later, warrantless, investigatory review of the video footage, however, unrelated to the domestic disturbance call, was unconstitutional. That review resulted in an additional invasion of privacy, untethered to the original authorized intrusion into the defendant's home; absent a warrant, it violated the defendant's right to be protected from unreasonable searches guaranteed by the Fourth Amendment and art. 14.

The record is insufficient to determine whether the Commonwealth met its burden to establish that the decision to seek the search warrant was not prompted by the unlawful review of the video footage. See Commonwealth v. Pearson, 486 Mass. 809, 813-814, 162 N.E.3d 645 (2021). Therefore, the order denying the motion to suppress must be vacated and set aside, and the matter remanded to the Superior Court for further proceedings.

1. Background. a. Facts. We recite the facts found by the motion judge, supplemented by our independent review of the video footage from the body-worn camera.¹ See Commonwealth v. Ramos, 470 Mass. 740, 742, 25 N.E.3d 849 (2015) ; Commonwealth v. Clarke, 461 Mass. 336, 341, 960 N.E.2d 306 (2012) ("we are in the same position as the [motion] judge in viewing the videotape" [citation omitted]).

On February 10, 2017, BPD officers responded to a dispatch call regarding a domestic disturbance request for "removal" of an individual at the defendant's residence. Specifically, the defendant's sister requested police assistance in removing the defendant's girlfriend from the home. The sister told the responding officers that the defendant and his girlfriend were "doing too much arguing" and were "punching walls" and that she wanted the girlfriend to leave.

After the first responding officers had entered the apartment, another officer arrived who was equipped with a body-worn camera, which recorded the areas of the home through which he moved, as well as his interactions with the defendant, his sister, and others in the apartment, including a number of police officers. The video footage obtained shows that when the officer arrived at the home, the door was ajar; he entered the living room, where at least two other officers were present; later, it appears from the footage, at least seven officers were present in the small space. Some of those officers spoke to the defendant's sister and another woman. The women were standing at the base of a stairwell, in a narrow hallway on the ground floor.

The sister yelled at the defendant and his girlfriend, who were upstairs. The officer wearing the camera walked past the defendant's sister and ascended the stairs. Standing at the top of the staircase, he spoke with the defendant, who was standing at the threshold of a bedroom. Through the open bedroom door, the camera captured a woman in the background. The woman was zipping her coat. Floral-printed curtains adorned the bedroom window just behind the area where the woman was dressing.

The sister shouted from downstairs, and the defendant yelled "shut up." He explained to the officer with the camera that the girlfriend could not be rushed, as she was getting dressed, but that they would leave shortly. Once dressed, the girlfriend and the defendant moved toward the stairs; they were stopped by the officer.

The officer directed the sister, who had remained at the bottom of the stairwell, to step aside. Other officers escorted the defendant's sister and the other woman into the living room, thus clearing the landing at the bottom of the stairs. The defendant and his girlfriend descended the stairs and left the house. Other officers remained inside to take a report;² the officer who was wearing the camera walked outside and turned it off. Thereafter, the footage from the body-worn camera was uploaded to a BPD-owned and -managed computer system where the data were available to other officers.³

After the BPD's response to the domestic disturbance call, an officer downloaded a copy of the body-worn camera footage onto a digital video disc (DVD) and placed it in one of his desk drawers.⁴ The officer notified a detective who was assigned to the BPD's youth violence strike force (gang unit) that the officer was in possession of a copy of the video footage, in the event that it should prove useful. The gang unit had been conducting an ongoing, six-month investigation of the defendant for firearms offenses, and the detective had been tasked with discovering a basis for obtaining a search warrant of the defendant's home in connection with the investigation.

The detective and other members of the gang unit had been following one of the defendant's social media accounts over the course of their investigation.⁵ Two weeks after the domestic disturbance call, the detective noticed that the defendant had posted what the officer believed to be a recently created video recording⁶ of the defendant holding a firearm in a bedroom, with floral-printed curtains visible in the background. After he saw the posted recording,⁷ the detective retrieved the DVD containing the body-worn camera footage from his colleague and reviewed it. Peering into the defendant's home caught on the body-worn camera footage, the detective saw the defendant's girlfriend zipping her coat in the defendant's bedroom, while standing next to what the detective believed were the same distinctive curtains visible in the posted video recording. This was significant to the detective because it established the location of the posted video recording that had showed the defendant apparently holding a firearm.

Thereafter, the detective sought and obtained a search warrant to search the defendant's residence and to seize, inter alia, weapons, weapons-associated objects, and identifying documents. The warrant affidavit stated that the detective had probable cause to believe weapons would be found at the residence, which was known to be the defendant's address. The affidavit asserted that there had been numerous social media posts showing the defendant with firearms. The affidavit further explained that the curtains visible in a recent post matched those in the bedroom seen in the body-worn camera footage of the defendant's home.

After executing the search warrant, officers found narcotics and a firearm in the house, and ammunition and marijuana in what they believed to be the defendant's brother's bedroom. The defendant and his brother were arrested at that time.

b. Prior proceedings. The defendant was indicted on charges of unlawful possession of a firearm, G. L. c. 269, § 10 (h ), as an armed career criminal, G. L. c. 269, § 10G (a ) ; unlawful possession of a large capacity feeding device, G. L. c. 269, § 10 (m ) ; and possession of ammunition without a firearm identification card, G. L. c. 269, § 10 (h ). He moved to suppress the video recording that had been posted on his social media account, the video recording from the body-worn camera, the fruits of the search warrant, and statements he made during booking.⁸ After an evidentiary hearing, the motion judge denied the motion.

Following a jury-waived trial, the defendant was found guilty of unlawful possession of a firearm and unlawful possession of ammunition; the Commonwealth entered a nolle prosequi on the element that charged the defendant with being an armed career criminal. The defendant was acquitted of unlawful possession of a large capacity feeding device.

The defendant appealed to the Appeals Court from the decision denying his motion to suppress. He argued that the motion should have been allowed because the use of the body-worn camera in his home during the police response to the domestic disturbance call, as well as the subsequent investigatory review of the video footage, violated his rights under the Fourth Amendment and ...