Commonwealth v. Sanchez , 89 Mass. App. Ct. 249 ( 2016 )

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14-P-1392 Appeals Court
COMMONWEALTH vs. LUIS SANCHEZ.
No. 14-P-1392.
Bristol. February 5, 2016. - March 23, 2016.
Present: Green, Hanlon, & Henry, JJ.
Controlled Substances. Search and Seizure, Curtilage, Warrant.
Witness, Privilege. Practice, Criminal, Motion to
suppress, Required finding, Assistance of counsel,
Instructions to jury. Evidence, Constructive possession.
Indictment found and returned in the Superior Court
Department on September 28, 2012.
A pretrial motion to suppress evidence was heard by Renée
P. Dupuis, J., and the case was tried before Robert J. Kane, J.
Brad P. Bennion for the defendant.
Tara L. Blackman, Assistant District Attorney, for the
Commonwealth.
GREEN, J. Among various challenges to his conviction of
trafficking in one hundred grams or more of "crack" cocaine, in
violation of G. L. c. 94C, § 32E, the defendant contends that a
search warrant authorizing a search of his apartment did not
2
extend to a free-standing shed in the backyard outside the
three-unit apartment building.1 We conclude that the motion
judge correctly concluded that the shed was a part of the
curtilage of the apartment, so that the search authorized by the
warrant properly extended to the shed. Discerning no merit in
the defendant's other claims of error, we affirm.
Background. We summarize the findings of the motion judge
on the defendant's motion to suppress, reserving other facts for
our discussion of the defendant's other claims. On August 28,
2012, New Bedford police Officer Jason Gangi and other members
of the New Bedford police department executed a search warrant
authorizing a search of the third-floor apartment at 101 Coffin
Avenue and any persons present. The building at 101 Coffin
Avenue is a multi-family dwelling consisting of three
apartments. Police set up surveillance at the target location.
Two vehicles approached the location, and the defendant was a
passenger in one of the vehicles. Police stopped the defendant
and obtained a set of keys from him.2 Using a key from the set,
1
The defendant also claims error in the conclusion by the
trial judge that the defendant's brother had a privilege under
the Fifth Amendment to the United States Constitution not to
testify at trial, and in various aspects of the judge's
instructions; he also contends that his trial counsel was
constitutionally ineffective for failing to renew a motion for a
required finding of not guilty at the close of all the evidence.
2
The defendant does not challenge the propriety of the stop
or the seizure of the keys.
3
police opened the door to the third-floor apartment. Within
minutes after gaining entry to the apartment, Officer Gangi went
to the backyard to search. The entire backyard was fenced.
While in the yard, Officer Gangi discovered a locked shed and,
using one of the keys on the key ring obtained from the
defendant, unlocked a padlock on the shed door and gained access
to the interior of the shed. Inside the shed, Officer Gangi
observed a black BMW motor vehicle, a dirt bike, some tools, and
a shopping bag. Officer Gangi determined that another key on
the key ring obtained from the defendant fit the BMW. Officer
Gangi also found and seized a substantial quantity of cocaine
hidden above a ceiling panel within the shed.
Among other items found in and seized from the third-floor
apartment were rent receipts indicating that the defendant
rented the shed from the owner of the apartment building. In
the affidavit in support of the application for the search
warrant Officer Gangi averred that he confirmed that the
utilities for the third-floor apartment were in the names of the
defendant and Ana Perez.3 The affidavit also related information
obtained from a confidential informant regarding sales of
cocaine by the defendant from the third-floor apartment, and
describing the informant's personal observation of cocaine
3
Perez is the defendant's grandmother.
4
packaged for sale in the apartment within the seventy-two hours
preceding the warrant application.
Search of the shed. "The curtilage concept originated at
common law to extend to the area immediately surrounding a
dwelling house the same protection under the law of burglary as
was afforded the house itself." Commonwealth v. McCarthy, 428
Mass. 871, 873 (1999), quoting from United States v. Dunn, 480
U.S. 294, 300 (1987). "When used in the Fourth Amendment
context, curtilage helps to define those areas that the police
generally cannot search without a warrant. In the present
context, however, curtilage serves a different function -- it
helps to define where the police can search pursuant to a
warrant." Commonwealth v. McCarthy, supra at 874. In Dunn, the
United States Supreme Court set out four factors to be
considered when deciding whether a particular area is within the
curtilage of a particular home: "(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."
Commonwealth v. McCarthy, supra.
The Dunn factors support the motion judge's conclusion
that, here, the shed is a part of the curtilage of the third-
floor apartment. The shed is within the backyard immediately
5
adjacent to the building in which the apartment is located. See
Commonwealth v. Murphy, 353 Mass. 433, 436 (1968). The yard
itself is enclosed by a fence. Most importantly, the defendant
rented the shed from the building owner, and restricted access
to it by means of the padlock he placed on the door. The
defendant accordingly enjoyed exclusive access to, and use of,
the shed, at least in comparison to the occupants of the other
two apartments in the building, or other members of the public.4
See Commonwealth v. Escalera, 462 Mass. 636, 648 (2012);
Commonwealth v. Pierre, 71 Mass. App. Ct. 58, 63 (2008). See
also Commonwealth v. Thomas, 358 Mass. 771, 774-775 (1971)
(emphasizing significance of exclusive control in identifying
areas of urban apartment building outside apartment unit that
may be considered part of apartment's curtilage). Compare
Commonwealth v. McCarthy, supra at 875 (parking space within
shared parking lot in multi-unit apartment complex not part of
apartment's curtilage). We discern no error in the conclusion
by the motion judge that the shed was part of the curtilage of
4
We note that there was evidence at trial that other
occupants of the defendant's apartment may have enjoyed access
to the shed, by virtue of the fact that the defendant
occasionally left the key to the shed hanging on a rack in the
apartment to which other residents of the apartment had access.
That evidence, however, was not presented at the evidentiary
hearing on the motion to suppress. In any event, it does not
derogate from the relationship between the shed and the
defendant's apartment, as compared to the other apartment units
in the building.
6
the defendant's apartment; thus the warrant authorizing search
of the apartment also authorized search of the shed.
Other issues. The defendant's remaining claims require
only brief discussion. We discern no abuse of discretion by the
trial judge in his conclusion that the defendant's brother had a
privilege under the Fifth Amendment to the United States
Constitution not to testify for the prosecution, as his
testimony could have implicated him as a potential coventurer
with the defendant. The defendant's claim of prejudice from the
judge's conclusion only illustrates its correctness; the
defendant claims that he was deprived of the opportunity, as
part of his third-party culprit theory of defense, to establish
through cross-examination of his brother that the brother had
access to the shed and accordingly that the drugs seized from
the garage could have been his.5 There is likewise no merit in
the defendant's claim that his trial counsel was ineffective by
reason of his failure to renew his motion for a required finding
of not guilty, first raised at the close of the Commonwealth's
case, following the close of all the evidence.6 See Commonwealth
5
We note that the defense in any event would have needed to
establish not merely that the defendant's brother possessed the
drugs, but that his possession was exclusive, and that the
defendant did not jointly possess them.
6
The defendant rightly does not challenge the sufficiency
of the evidence as it stood at the close of the Commonwealth's
case. The defendant's suggestion that his motion for a required
7
v. Conceicao, 388 Mass. 255, 264 (1983). Put simply, nothing in
the defendant's case caused the Commonwealth's case to
deteriorate.7
Finally, there is no merit to the defendant's several
claims of error in the judge's jury instructions. None of the
defendant's claims was preserved by objection at trial; we
accordingly consider whether any error created a substantial
risk of a miscarriage of justice.8 See Commonwealth v. Alphas,
430 Mass. 8, 13 (1999). Contrary to the defendant's contention,
the judge did not in his preliminary instruction describing the
indictment remove from the jury's consideration an essential
element of fact by instructing that the defendant in fact
finding of not guilty should (by reason of the judge's ruling
that the defendant's brother had the privilege to refuse to
testify) have received the benefit of a presumption that the
brother likely had access to the garage finds no support in law,
and in any event suffers from the deficiency observed in note 5,
supra.
7
To the extent that the defendant's argument rests on the
premise that testimony by Perez, the defendant's grandmother,
raised the possibility that other persons besides the defendant
had access to the shed, the argument ignores the fact that the
jury were not required to credit her testimony, and it again
fails to recognize that the defendant could constructively
possess the drugs found in the shed even if someone else
possessed them jointly with him.
8
Though the defendant objected at trial to the judge's use
of an analogy to explain the concept of constructive possession,
the defendant's objection to that portion of the instruction
relied on a theory different from the argument he advances on
appeal.
8
possessed the drugs seized from the shed. Instead, the judge
merely explained initially that the indictment charged the
defendant with possessing the drugs, and clearly went on to
explain that the question before the jury was whether the
defendant possessed the drugs.9 Likewise unavailing is the
defendant's challenge to an analogy used by the trial judge in
his final instructions to explain the concept of constructive
possession; the analogy was apt, and no undue prejudice nor
potential for confusion flowed from the fact that (similar to
the circumstances of the present case) the analogy used actual
possession of keys to illustrate constructive possession of an
item held in another area.10 Finally, there was nothing improper
9
The relevant portion of the instruction is as follows:
"I will give you a very preliminary description of
what that indictment means. It means that the defendant
had in his possession cocaine in the amount of at least one
hundred grams. And you're going to hear that there are
stipulations in this case. Both parties agree that cocaine
was found. Both parties agree that there was cocaine
amounting to more than one hundred grams. But the question
is this. Who possessed it? Who possessed it? And it is
the Commonwealth's responsibility as part of its case to
prove beyond a reasonable doubt that Luis Sanchez possessed
it, either individually or jointly."
10
We again quote the relevant portion of the instruction:
"And we'll compare actual possession to constructive
possession so that you can appreciate it. When I speak of
actual possession, jurors, that's actual possession. Those
keys are in my hand. . . . And it's very obvious that
these keys to my car and my house are going to be under my
dominion and control. Now, what's constructive possession?
9
about the judge's instruction that if the jury found that the
defendant constructively possessed the drugs, it did not matter
whether someone else jointly possessed the drugs with him. The
instruction was a correct statement of the law. See
Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting
from Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984)
("Possession implies 'control and power,' . . . exclusive or
joint . . . , or, in the case of 'constructive possession,'
knowledge coupled with the ability and intention to exercise
dominion and control"). There was no error in the judge's
instruction, and hence no substantial risk of a miscarriage of
justice.
Judgment affirmed.
Well, I don't have my briefcase in my hand, do I? My
briefcase is right in that lobby, and that lobby's locked.
But I have a key to that lobby. So I have access to that
lobby, and I know that that leather briefcase is right
there."