Before reviewing the agreement, he had no basis to believe that the occupants lacked authority to operate the Malibu. See Commonwealth v. Campbell, 475 Mass. 611, 622, 59 N.E.3d 394 (2016) ("absence of the defendant's name on the rental agreement provided [the officer] with a basis to investigate whether the authorized renter had permitted the defendant to use the vehicle"). iii.
Upon the defendants' interlocutory appeals, we affirmed in an unpublished memorandum pursuant to rule 1:28. Commonwealth v. Marinez, 89 Mass. App. Ct. 1123 (2016). The Supreme Judicial Court denied the defendants' petitions for further appellate review without prejudice, see 476 Mass. 1108 (2017), but remanded the cases to this court for reconsideration in light of its decision in Commonwealth v. Campbell, 475 Mass. 611 (2016). We now reverse.
We have more recently indicated, however, that the crime of use without authority under G. L. c. 90, § 24 (2) (a ), is in fact "aimed at protecting the public from harm caused by a user of a motor vehicle who is not readily identifiable." Commonwealth v. Campbell, 475 Mass. 611, 619, 59 N.E.3d 394 (2016). As we (more recently) explained, "the Legislature apparently assumed that a person who uses a vehicle without authority is more likely to use it recklessly or negligently than a person who uses the vehicle with authority."
Commonwealthv.Campbell, 475 Mass. 611, 615 (2016).
He therefore allowed the motion to suppress.The Commonwealth moved for reconsideration and the motion judge, relying on Commonwealth v. Campbell, 475 Mass. 611, 619 (2016), rejected the argument that the defendant, as an authorized driver, did not have implicit authority to allow others to drive the vehicle.Discussion.
The judge dismissed the use without authority charge prior to arraigning the defendant on that charge. The Commonwealth filed the instant appeal. However, due to the pending release of the Supreme Judicial Court decision in Commonwealth v. Campbell, 475 Mass. 611, 59 N.E.3d 394 (2016), the appellate proceedings for this case were stayed. We now address the Commonwealth's appeal.
Thus, even if a defendant has established standing, he or she also must show an expectation of privacy in the place searched. See Commonwealth v. Lawson, 79 Mass. App. Ct. 322, 326, 945 N.E.2d 976 (2011), overruled on other grounds by Commonwealth v. Campbell, 475 Mass. 611, 59 N.E.3d 394 (2016) (defendant charged with possessory offenses has automatic standing but no reasonable expectation of privacy in place searched where he was in position of trespasser). In other words, where standing is not automatic and is not based on a reasonable expectation of privacy, but rather on presence or a possessory interest, a defendant also must show that his or her own expectation of privacy was intruded upon.
"[O]ur duty is to make an independent determination of the correctness of the [motion] judge's application of constitutional principles to the facts as found" (citation omitted). Commonwealth v. Campbell, 475 Mass. 611, 615, 59 N.E.3d 394 (2016). On the morning of June 14, 2016, Lynn police officers responded to a report of a home invasion.
Specifically, he contends that the inventory search was pretextual and investigatory, and that any evidence subsequently seized is thus fruit of the poisonous tree., In reviewing a ruling on a motion to suppress, we accept the judge's findings of fact absent clear error, but review independently the judge's ultimate findings and conclusions of law. Commonwealth v. Campbell, 475 Mass. 611, 615, 59 N.E.3d 394 (2016). The defendant does not contest that police had reasonable suspicion for the initial traffic stop.
See Steagald v. United States , 451 U.S. 204, 209, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (government may forfeit argument that defendant lacks reasonable expectation of privacy in area searched where issue not raised "in a timely fashion during the litigation"). See also Commonwealth v. Lawson , 79 Mass.App.Ct. 322, 327, 945 N.E.2d 976 (2011), overruled on other grounds by Commonwealth v. Campbell , 475 Mass. 611, 59 N.E.3d 394 (2016) ("Whether a defendant has a reasonable expectation of privacy may not be challenged for the first time on appeal by the Commonwealth ..."); Commonwealth v. Martinez , 74 Mass.App.Ct. 240, 249-250, 905 N.E.2d 592 (2009) (same). Furthermore, we decline the Commonwealth's invitation to apply the doctrine that allows an appellate court "to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings."