Opinion
19-P-897
10-27-2020
COMMONWEALTH v. Jennifer JORGE (and a companion case ).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants appeal from an order of a Superior Court judge, denying their joint motions to suppress evidence seized and a statement made as a result of a search during the execution of an arrest warrant. We affirm.
A single justice of the Supreme Judicial Court allowed the defendants' petition for interlocutory appeal.
Background. The pertinent facts are as follows. On the morning of January 25, 2018, between the hours of 6 and 7 A . M ., police officers went to a home in Ludlow to execute an arrest warrant for defendant Jeffrey Marques. Marques's mother was present; her son was not. Officers learned that Marques might be in the company of defendant Jennifer Jorge, and they determined, through a search of the police department's database, that she resided in an apartment in Springfield.
We summarize the facts from the motion judge's findings, supplemented by the unchallenged testimony from the motion to suppress hearing that the judge explicitly or implicitly credited. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).
As Jennifer Jorge shares a surname with her mother, Mary Jorge, we use first names to avoid confusion.
Officers arrived at the apartment building in Springfield at approximately 10 A . M . and positioned themselves on all sides of the building. The apartment was on the second floor of the building; the officers positioned at the rear went up the stairs to the second floor and waited on the back porch. The officers who were positioned at the front door, and in possession of the arrest warrant for Marques, knocked but received no answer. Within a few minutes, a woman responded at the rear door.
It was undisputed at the motion hearing that the rear door was used by the apartment's residents as the main entrance.
The woman who emerged from the rear door identified herself as Mary Jorge; the officers at the rear door radioed to their colleagues at the front door to request that they bring the arrest warrant to the rear entrance. The officers then asked Mary whether Jennifer was home. Mary replied that she was, and that she would bring her to the door. When Jennifer came to the door, the officers asked if they could come inside. Mary invited the officers in and the officers explained that they were looking for Marques and that they had a warrant for his arrest. They showed the women the arrest warrant and asked whether he was present. Jennifer confirmed that he was in the apartment, and told the officers that he was in the front bedroom.
Having confirmed that Marques, the subject of the arrest warrant, was present in the apartment, the officers said to the women, "Just why don't you stay here, we're going to just place him into custody." Four officers made their way to the front bedroom, found Marques in bed, and took him into custody without incident. As Marques was not wearing shoes, the arresting officers asked him where his shoes were and he replied that they were in the living room. Two officers went to the living room to retrieve Marques's shoes.
In addition to finding Marques's shoes, the two officers discovered a large amount of heroin and "crack" cocaine, hypodermic needles, and other drug paraphernalia on a table, in plain view. A third officer went into the living room and, after observing the contraband himself, went into the kitchen to speak with Jennifer and Mary. When Mary indicated that she held the lease on the apartment, the officer brought her into the living room and asked, "Were you aware what was going on in your house?" Mary said she was not and the officer brought her back into the kitchen. The officer told the women, "They're in your house, the drugs, you're all being arrested for the drugs," and placed both women in handcuffs. Jennifer blurted out that her mother "had nothing to do with it, [the drugs] are mine and [Marques's]." At the time that Jennifer made this statement, the officers had not read Jennifer her Miranda rights.
As a result of the discovery of the contraband, and Jennifer's statement, both defendants were charged with various drug offenses. The motion judge concluded that entry into the apartment was proper "where valid consent ... gave the police a lawful basis to enter," and that the consent was not limited in scope. The judge further concluded that Jennifer was not subject to custodial interrogation, but rather that she "volunteered the information without prompting by the officers."
On February 15, 2018, Jennifer was indicted on charges of unlawful possession of heroin with intent to distribute, G. L. c. 94C, § 32 (a ) ; and trafficking in cocaine, G. L. c. 94C, § 32E (b ) (1). On February 15, 2018, Marques was indicted on charges of unlawful possession of buprenorphine, G. L. c. 94C, § 34 ; unlawful possession of heroin with intent to distribute, G. L. c. 94C, § 32 (a ) ; and trafficking in cocaine, G. L. c. 94C, § 32E (b) (1).
Discussion. On appeal, the defendants present three main arguments: first, that the police entered the curtilage of the apartment without a reasonable belief that Marques was present; second, that the police entered the apartment without valid consent; and third, that Jennifer's admission that the contraband belonged to her and Marques was the product of custodial interrogation made before she was advised of her Miranda rights. "[W]e adopt the motion judge's subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Buckley, 478 Mass. 861, 864 (2018), quoting Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004).
The defendants' briefs also assert their standing to challenge the search. The motion judge questioned this assertion, presumably on the failure of their affidavits to show a reasonable expectation of privacy in the apartment. Both defendants have been charged with possessory offenses, and thus are conferred with automatic standing. See Commonwealth v. Mubdi, 456 Mass. 385, 392 (2010) ("[A]rt. 14 gives a defendant automatic standing to challenge a search of a private place ... in which the object he is alleged to possess was found"). Moreover, and in spite of the affidavits' deficiencies, the judge found that Marques was an overnight guest, and testimony during the hearing established that Jennifer lived at the apartment. See Commonwealth v. Morrison, 429 Mass. 511, 513 (1999) ("An overnight guest of a lawful occupant has standing to raise privacy claims in respect to a search of that occupant's premises").
1. The entry onto back porch. The defendants argue that the officers' presence on the back porch of the apartment, without a reasonable belief that Marques was inside, constituted an unconstitutional entry onto the apartment's curtilage. We note that this claim was not explicitly raised in the proceedings below; nonetheless, the record is sufficient for review on the merits to determine whether there was error, and if so, whether that error created a substantial risk of miscarriage of justice. Commonwealth v. Santos, 95 Mass. App. Ct. 791, 795 (2019).
The Fourth Amendment to the United States Constitution regards the area " ‘immediately surrounding and associated with the home' -- what our cases call the curtilage -- as ‘part of the home itself ....’ " Florida v. Jardines, 569 U.S. 1, 6 (2013), quoting Oliver v. United States, 466 U.S. 170, 180 (1984). However, "a police officer, like any other citizen, has an implied license to walk up the path to the front door of a home and knock on the front door." Commonwealth v. Leslie, 477 Mass. 48, 57 (2017). The "scope, purpose, and duration" of an officer's presence on the curtilage of a defendant's home guides a determination of whether that officer is acting within the implied license. Id.
It is unnecessary to decide whether the back porch was part of the curtilage because, regardless of its status under the Fourth Amendment, the officers' presence on it did not exceed the scope of their implied license. Leslie instructs that entry onto the curtilage is only a search if it "was accomplished through an unlicensed physical intrusion" (citation omitted). Id. at 57. Here, the officers walked up to the back porch to ensure that Marques, if present, did not flee while other officers attempted to contact the apartment's residents. Mary opened the rear door only a few minutes after the police arrived, at which point they engaged her in conversation. But see id. (police "veer[ed] off the path and ventur[ed] into the side yard of the home for the purpose of conducting a search for the weapon"). The officers' conduct does not "objectively reveal[ ] a purpose to conduct a search," but rather an attempt to make contact with the residents of the apartment safely and efficiently. Id. at 58, quoting Jardines, 569 U.S. at 10.
Because we hold that the officers were within their implied license to approach the back porch, the question whether the police had a reasonable belief that Marques was present at the apartment becomes irrelevant.
The officers' presence on the back porch does not rise to the level of intrusion that is found where police "impound" a residence to prevent the destruction of evidence. Their conduct here is easily distinguishable from that described in the cases Marques cites in support of this argument. See Commonwealth v. DeJesus, 439 Mass. 616, 621 (2003) ("We conclude that there is a fundamental difference between securing or controlling the perimeter of a dwelling from the outside and the entry and physical surveillance of a dwelling from the inside").
Marques argues that, without direct evidence that an officer knocked on the rear door, the officers exceeded their implied license and all evidence flowing from their entry on the back porch must be suppressed. This argument fails. There is no dispute that the officers at the front door knocked, and that Mary responded to their knocking at the rear door. The officers' reasonable but erroneous belief that the front door was the main entrance to the apartment does not invalidate their otherwise proper purpose. Compare Commonwealth v. Miller, 78 Mass. App. Ct. 860, 866 (2011) (requiring suppression of evidence obtained as result of stop based on mistake of law), with Commonwealth v. Rivas, 77 Mass. App. Ct. 210, 216 n.6 (2010), quoting United States v. Coplin, 463 F.3d 96, 101 (1st Cir. 2006) ("Stops premised on mistakes of fact, however, generally have been held constitutional so long as the mistake is objectively reasonable"). Where, as here, the record reflects an attempt to make contact with the apartment's residents rather than an unlawful search for evidence, application of the exclusionary rule would not further its purpose. See Commonwealth v. Nelson, 460 Mass. 564, 570-571 (2011), citing Commonwealth v. Brown, 456 Mass. 708, 715 (2019) ("The exclusionary rule is a remedy to an illegal search; its purpose is to deter police misconduct and preserve judicial integrity by dissociating courts from unlawful conduct. ... Rigid adherence to a rule of exclusion is unnecessary in situations where these purposes are not furthered").
2. Entry into apartment. "Warrantless entries into the home are prohibited by the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights absent either probable cause and exigent circumstances, or consent." Commonwealth v. Rogers, 444 Mass. 234, 236 (2005). When a warrantless entry is justified on the basis of consent, the Commonwealth must show "consent unfettered by coercion, express or implied, and also something more than ‘mere acquiescence to a claim of lawful authority.'" Commonwealth v. Voisine, 414 Mass. 772, 783 (1993), quoting Commonwealth v. Walker, 370 Mass. 548, 555 (1976), cert. denied, 429 U.S. 943 (1976).
The defendants argue that Mary, intimidated by the presence of the police, merely acquiesced to the officers' request to enter. However, there is sufficient evidence in the record to support the judge's finding of consent. The officers identified themselves when Mary answered the door and spoke in conversational tones when they requested permission to come inside. After Mary allowed the officers to enter, they clearly stated their purpose -- to find and arrest Marques. Jennifer's response, that Marques was in the front bedroom, was reasonably construed as an invitation to go to the bedroom to execute the arrest warrant. See Voisine, 414 Mass. at 783 ("consent [was communicated] by pointing in the direction of the bedroom where the defendant was hiding"). "In light of the substantial deference due the determinations of the judge, we are unprepared to hold that the consent given by the defendant was involuntary as a matter of law." Commonwealth v. Buchanan, 384 Mass. 103, 107 (1981).
3. Statement. The judge denied Jennifer's motion to suppress an incriminating statement made after she was placed in custody but prior to receiving a Miranda warning. As the Commonwealth conceded that Jennifer was in custody when she made the statement, the issue before us is whether she was subject to interrogation.
"The procedural safeguards of Miranda are required not where a suspect is merely in police custody, but rather where a suspect is subjected to custodial interrogation." Commonwealth v. Torres, 424 Mass. 792, 796 (1997), citing Rhode Island v. Innis, 446 U.S. 291, 300 (1980). Custodial interrogation exists when "a person in custody is subjected to either express questioning or its functional equivalent." Id. at 797, quoting Innis, supra at 300-301. "Functional equivalence is based on an ‘objective assessment as to whether the police statements and conduct would be perceived as interrogation by a reasonable person in the same circumstances.’ " Commonwealth v. Martin, 467 Mass. 291, 308 (2014), quoting Torres, supra at 797. "Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence." Commonwealth v. Chipman, 418 Mass. 262, 272-273 (1994), quoting Miranda v. Arizona, 384 U.S. 436, 478 (1966).
There is nothing in the record to indicate that Jennifer's statement was made in response to custodial interrogation or its functional equivalent. Prior to placing her in custody, the officer stated, "They're in your house, the drugs, you're [ ] being arrested for the drugs." We agree with the judge that this statement, in conjunction with the act of handcuffing her, was nothing more than what is "normally attendant to arrest and custody" (citation omitted). Torres, 424 Mass. at 797. See Commonwealth v. Clark C., 59 Mass. App. Ct. 542, 545 (2003) (informing suspect that they are under arrest does not constitute interrogation). The officers did not question Jennifer after she was placed in custody. Instead, without prompting or probing, Jennifer volunteered that the drugs belonged to her and Marques. "Spontaneous or unprovoked statements are not the product of custodial interrogation," and are therefore admissible. Martin, 467 Mass. at 309.
The defendant's reliance on Commonwealth v. Rubio, 27 Mass. App. Ct. 506 (1989), is misplaced. In Rubio, police officers, after searching the defendant's apartment, arrested the defendant and confronted him with cocaine that they had discovered during the search, effectively implying the question: "Is this yours?" Id. at 513. No such conduct occurred here. The officer explained the reason for the arrest; he did not confront either woman with the contraband after she was placed in handcuffs. Nor does the initial detention of Jennifer's mother render Jennifer's statement involuntary, as the discovery of contraband in Mary's apartment implicated her in criminal activity. See Commonwealth v. Berg, 37 Mass. App. Ct. 200, 205-206 (1994) (motive to protect mother from criminal charges did not render defendant's incriminating statement involuntary).
Order denying motions to suppress affirmed.