Commonwealth v. Brandao

82 Mass.App.Ct. 1120

978 N.E.2d 106

COMMONWEALTH

v.Joao BRANDAO.

No. 11–P–1065.

Appeals Court of Massachusetts.

November 8, 2012.

OPINION TEXT STARTS HEREBy the Court (BERRY, GREEN & MEADE, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant was convicted of possession of a class D controlled substance.¹ On appeal, the defendant claims the denial of his motion to suppress was error. We affirm.²

On appeal, the defendant claims the police officers' entry into the curtilage on the front yard of 23 Olney Street in the Dorchester section of Boston requires suppression. We disagree. As the judge found, one of the officers knew the defendant and had arrested him in the past for drug offenses. To enter the front yard of the property, the officers walked past a “partial gate” onto the front lawn. As the officers approached the two men, one officer smelled marijuana, and he asked if the defendant and Goncalves had been smoking marijuana. Goncalves replied that they had been “smoking weed out back.” During the exchange, one of the officers saw the defendant throw an item to the ground and step on it. The officer asked the defendant to lift his foot, the defendant complied, and a bag of marijuana was revealed. When asked, the defendant disclosed that additional marijuana could be found under the front porch. ³ Even if the defendant could establish the necessary factors from which we could conclude the officers' initial entry was into an area within the curtilage of 23 Olney Street, see Commonwealth v. McCarthy, 428 Mass. 871, 873 (1999), and that the initial encounter with the police amounted to a seizure (which we do not conclude),⁴ he would still have to establish that he had an expectation of privacy within that area. As the judge properly found, the defendant did not meet his burden to do so. There was no evidence that the defendant lived at this address, and his affidavit in support of the motion to suppress did not aver that he lived at that address. In addition, there was no evidence that demonstrated that the area in question was not accessible to the public or that the area in question was free from public observation. Although Goncalves resided at 23 Olney Street, he was released and not charged with any crime in this case. In these circumstances, the defendant failed to show that he had a reasonable expectation of privacy in the area where he threw the marijuana on the ground or in the area under the porch.

Judgment affirmed.

1. The defendant was arrested prior to the effective date of G.L.c. 94C, §§ 32L–32N. He was acquitted of possession of a class D controlled substance with intent to distribute, and of...