Opinion
16-P-468
05-01-2017
COMMONWEALTH v. Marcus Allen JUBREY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Marcus Jubrey, appeals after a bench trial in Superior Court from convictions of distribution of a Class B substance (cocaine) (subsequent offense), and unlawful possession of a Class B substance (cocaine) with intent to distribute (subsequent offense). See G. L. c. 94C, § 32A(c ), (d ). He argues that the judge erred in denying his motion to suppress evidence resulting from a search of his person after his arrest and that the resulting lack of evidence requires reversal of his convictions. The Commonwealth has conceded the issue, and we agree.
"[W]e independently review to determine whether, as matter of law, reversal is compelled. Confessions of error are ... entitled to and given great weight, but they do not relieve this [c]ourt of the performance of the judicial function." Commonwealth v. Buswell, 83 Mass. App. Ct. 1, 6 (2012) (quotations omitted).
We recite the facts from the judge's findings, supplemented by undisputed testimony of the police officers who were involved in the arrest. During a narcotics detail patrol, two Springfield police officers observed the defendant park and get out of a car. A third officer, Officer Goggins, saw the defendant walk to the passenger side of an occupied Chrysler vehicle already parked on the street. The defendant bent down, reached into the car, and seconds later, removed his hand. The defendant then put his hand in his pocket and walked away. The officer testified that it looked like the defendant "placed something in his pocket."
The Chrysler drove off and was stopped a few minutes later by other officers; a single rock of what was suspected to be crack cocaine was discovered on the passenger seat. The discovery of the suspected crack was reported by radio transmission to Officer Goggins, who made a determination to arrest the defendant. The defendant, meanwhile, had crossed the street and entered a two-unit house. Several officers followed the defendant, passing through the front gate of a chain link fence and then through the unlocked gate of a wooden privacy fence. The wooden fence enclosed a yard on the side of the house that contained an entrance leading only to the defendant's unit. When the defendant reemerged into the yard, the officers handcuffed and searched him. The search turned up suspected crack cocaine and $590 in cash.
Prior to trial, the defendant moved to suppress the evidence seized from him, arguing that the police arrested him without probable cause and that the arrest occurred in the curtilage of his home and was therefore unlawful. Following an evidentiary hearing, the judge concluded that the arrest was supported by probable cause and that the arrest, which occurred outside the residence, was lawful. On appeal, the defendant argues the judge erred in denying his motion to suppress.
Our conclusion that there were no exigent circumstances justifying the officers' warrantless entry into the curtilage of the defendant's residence makes it unnecessary to address the issue of probable cause. See Commonwealth v. Pietrass, 392 Mass. 892, 897 (1984).
Curtilage. There must be probable cause and exigent circumstances to justify police entering a dwelling without a warrant. Commonwealth v. Pietrass, 392 Mass. 892, 897 (1984). The Commonwealth conceded at the motion hearing that exigent circumstances did not exist at the time of the defendant's arrest.
"The essence of an exigency is the existence of circumstances known to the police which prevent them from taking the time to obtain a warrant because to do so would thwart ... the arrest." Commonwealth v. Huffman, 385 Mass. 122, 126 (1982) (quotation omitted). Considering the factors listed in Commonwealth v. Forde, 367 Mass. 798, 807 (1975), a finding of exigent circumstances was unwarranted.
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"Curtilage is treated as an extension of the home, both for extending Fourth Amendment protections and for defining the scope of search warrants.... [A]n area is within the curtilage of a residence only when it is so intimately tied to the home itself that an individual reasonably may expect that the area in question [will] be treated as the home itself." Commonwealth v. McCarthy, 428 Mass. 871, 874 (1999) (quotations omitted). We consider the four factors enumerated in UnitedStates v. Dunn, 480 U.S. 294, 301 (1987) : "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by."
Here, the defendant's arrest occurred in an enclosed yard located directly outside the side door that led exclusively to his residence. Likewise, the yard provided access only to the defendant's second-floor apartment, and not to the other unit. Compare Commonwealth v. Fernandez, 458 Mass. 137, 145 (2010) (area in question was "closer to the defendant's first-floor apartment than to the other apartments"). The entire premises was enclosed by two fences: a chain link fence that enclosed the entire multifamily building and a second wooden fence that further enclosed the yard adjacent to the aforementioned side door. See Commonwealth v. Straw, 422 Mass. 756, 760-761 (1996) (enclosed backyard was part of curtilage). The wooden fence was six feet tall and was affixed with a "no trespass sign"; it may be reasonably inferred that the fence was intended to obscure the view of outsiders. Police officers testified they had to pass through both fences to arrest the defendant. Considering these factors in their totality, it was error to conclude that the yard in which the defendant was arrested was not within the curtilage of the home.
Judgments reversed.
Findings set aside.