Commonwealth v. Dejesus

489 Mass. 292

182 N.E.3d 280

COMMONWEALTH

v.Christopher DEJESUS.

SJC-13171

Supreme Judicial Court of Massachusetts, Bristol.

Argued December 6, 2021.

Denied March 15, 2022.

Thomas E. Hagar, Wayland, for the defendant.

Shoshana Stern, Assistant District Attorney, for the Commonwealth.

Patrick Levin, Committee for Public Counsel Services, & Katharine Naples-Mitchell, for Committee for Public Counsel Services & another, amici curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

LOWY, J.

The defendant was convicted of possessing a firearm without a license and possessing a large capacity feeding device. He contends on appeal that the firearm and the attached large capacity feeding device should have been suppressed as the fruits of a warrantless search and that there was insufficient evidence that he possessed the firearm or the feeding device. We affirm.¹

We also take this opportunity to abolish the separate standing requirement in the search and seizure context and clarify that under art. 14 of the Massachusetts Declaration of Rights, as under the Fourth Amendment to the United States Constitution, a defendant need show only a reasonable expectation of privacy in the place searched to contest a search or seizure. In almost all situations, a defendant contesting a search or seizure will need to show his or her own reasonable expectation of privacy in the place searched. In one situation, however, a defendant will be deemed to have another's reasonable expectation of privacy: where the defendant has been charged with possessing contraband at the time of the search and, also at the time of the search, the property was in the actual possession of a codefendant² or in a place where the codefendant had a reasonable expectation of privacy, the defendant may assert the same reasonable expectation of privacy as the codefendant.

Nothing in this opinion should be read to impede a defendant's ability to litigate his or her own reasonable expectation of privacy or to restrict the reach of such an expectation of privacy as it exists under our current case law.^{3 ,4}

Background. The evidence at trial and at the hearing on the motion to suppress was as follows.⁵

A police officer saw video recordings (videos) on a social media platform that showed the defendant brandishing a firearm with an extended magazine.⁶ The videos led officers to a multifamily dwelling that was not the defendant's home, where they found the defendant and others. Officers went through a partially open door in the rear of the house leading to a basement that appeared to be where the videos had been filmed. There they found a firearm with an extended magazine inside an open backpack. The firearm appeared to be the same one that the defendant had been holding in the videos. The defendant was arrested at the scene.

Before trial, the defendant moved to suppress the firearm on the ground that it was obtained pursuant to an unlawful warrantless entry. The judge (motion judge) denied the motion after an evidentiary hearing. At the close of the Commonwealth's case at trial, the defendant moved for a required finding of not guilty. The trial judge, who was different from the motion judge, denied the motion as to the charges of possessing a firearm and possessing a large capacity feeding device. A jury then found the defendant guilty of those charges.⁷ The defendant appealed, and the Appeals Court affirmed. Commonwealth v. DeJesus, 99 Mass. App. Ct. 275, 283, 165 N.E.3d 1048 (2021). We granted the defendant's application for further appellate review.

Discussion. 1. Motion to suppress. The defendant contends that the evidence found in the basement should have been suppressed as the fruit of a warrantless search. We conclude that the motion judge did not err in denying the defendant's motion to suppress because the defendant did not have a reasonable expectation of privacy in the basement.⁸ a. Abolishing separate standing requirement. "Article 14 and the Fourth Amendment protect individuals from unreasonable, governmental searches and seizures." Commonwealth v. Delgado-Rivera, 487 Mass. 551, 554, 168 N.E.3d 1083 (2021), cert. denied, ––– U.S. ––––, 142 S. Ct. 908, ––– L.Ed.2d –––– (2022). Under the Fourth Amendment, a defendant may contest a search or seizure that violated his or her reasonable expectation of privacy. Id. at 556, 168 N.E.3d 1083, citing Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The art. 14 analysis, in contrast, has a separate standing requirement. Under our current art. 14 jurisprudence, "we determine initially whether the defendant has standing to contest the search and then whether she [or he] had an expectation of privacy in the area searched." Delgado-Rivera, supra at 555, 168 N.E.3d 1083, quoting Commonwealth v. Williams, 453 Mass. 203, 207-208, 900 N.E.2d 871 (2009). A defendant, therefore, generally may challenge the constitutionality of a search or seizure under our current art. 14 jurisprudence only if he or she has both standing and a reasonable expectation of privacy. Pursuant to this current framework, a defendant "has standing to challenge a government search [under art. 14] either [(1)] if he or she has a possessory interest in the place searched or in the property seized or [(2)] if he or she was present when the search occurred" (alterations omitted). Delgado-Rivera, supra at 555-556, 168 N.E.3d 1083, quoting Williams, supra at 208, 900 N.E.2d 871.

Article 14's separate standing requirement poses a potential constitutional dilemma, as it "might lead to the untenable result that the Massachusetts Declaration of Rights does not protect rights guaranteed by the Federal Constitution (i.e., where a defendant has no possessory interest in the area or item searched, but does have a reasonable expectation of privacy in it)." Delgado-Rivera, 487 Mass. at 559, 168 N.E.3d 1083. Such a situation is most likely to arise in the context of electronic data. A defendant with a reasonable expectation of privacy in such data might have a difficult time asserting possession of it or presence at the time of the search. See id. at 558-559, 168 N.E.3d 1083. "For example, a defendant could send a text message using an encrypted messaging service, where the message subsequently was acquired from the recipient device by law enforcement. Assuming that the defendant could establish a reasonable expectation of privacy based on the use of the encryption technology employed, the defendant would have standing under the Fourth Amendment to contest the search that yielded the text message. Using the two-part analysis under art. 14, however, the defendant likely would be unable to establish standing if he or she had no possessory interest in the recipient device and was not present during the search. This discrepancy cannot stand." Id. at 558 n.6, 168 N.E.3d 1083.

Because the Massachusetts Constitution may not provide less protection to defendants than the Federal Constitution, we hereby abandon the separate standing requirement and conclude that under art. 14, as under the Fourth Amendment, a defendant need show only a reasonable expectation of privacy in the place searched to contest a search or seizure. See Wilkins, Judicial Treatment of the Massachusetts Declaration of Rights in Relation to Cognate Provisions of the United States Constitution, 14 Suffolk U. L. Rev. 887, 889 (1980) ("The state court is bound by federal requirements and may invoke the state constitution only to provide greater safeguards"). Cf. Commonwealth v. Torres-Pagan, 484 Mass. 34, 36-39, 138 N.E.3d 1012 (2020) (clarifying standard for patfrisks to ensure Massachusetts Constitution does not provide less protection than Federal Constitution).

In doing so, we follow in the footsteps of the United States Supreme Court, which formally abandoned the separate standing analysis over four decades ago. See Rakas, 439 U.S. at 139, 99 S.Ct. 421 ("the better analysis forth-rightly focuses on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing"). See also Minnesota v. Carter, 525 U.S. 83, 87, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (United States Supreme Court in Rakas case "expressly rejected" "the rubric of ‘standing’ doctrine").⁹

b. Reasonable expectation of privacy. In almost all situations, a defendant contesting a search or seizure will need to show his or her own reasonable expectation of privacy in the place searched. See Delgado-Rivera, 487 Mass. at 554, 168 N.E.3d 1083 (rights secured by art. 14 and Fourth Amendment "are specific to the individual"). In one limited situation, however, a defendant may rely on another's reasonable expectation of privacy: where the defendant has been charged with possessing contraband at the time of the search and, also at the time of the search, the property was in the actual possession of a codefendant or in a place where the codefendant had a reasonable expectation of privacy, the defendant may assert the same reasonable expectation of privacy as the codefendant. Commonwealth v. Carter, 424 Mass. 409, 410-411, 676 N.E.2d 841 (1997). Commonwealth v. Gomes, 59 Mass. App. Ct. 332, 336, 795 N.E.2d 1217 (2003). See Commonwealth v. Ware, 75 Mass. App. Ct. 220, 229-230, 913 N.E.2d 869 (2009) (defendant did not need to show personal expectation of privacy in codefendant's home). "Such a defendant and his confederate are treated, in effect, as one for the purpose of deciding whether there was a reasonable expectation of privacy, otherwise the person who carried the contraband might go free (because of suppression of the evidence) and the defendant confederate would not." Carter, supra at 411, 676 N.E.2d 841.¹⁰

c. Application to the present case. Because the defendant here did not have a reasonable expectation of privacy in the basement, his motion to suppress properly was denied.

As a...