NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

14-P-1392                                               Appeals Court

                   COMMONWEALTH   vs.   LUIS SANCHEZ.


                            No. 14-P-1392.

        Bristol.       February 5, 2016. - March 23, 2016.

                Present:   Green, Hanlon, & Henry, JJ.


Controlled Substances. Search and Seizure, Curtilage, Warrant.
     Witness, Privilege. Practice, Criminal, Motion to
     suppress, Required finding, Assistance of counsel,
     Instructions to jury. Evidence, Constructive possession.



     Indictment found and returned in the Superior Court
Department on September 28, 2012.

     A pretrial motion to suppress evidence was heard by Renée
P. Dupuis, J., and the case was tried before Robert J. Kane, J.


     Brad P. Bennion for the defendant.
     Tara L. Blackman, Assistant District Attorney, for the
Commonwealth.


    GREEN, J.    Among various challenges to his conviction of

trafficking in one hundred grams or more of "crack" cocaine, in

violation of G. L. c. 94C, § 32E, the defendant contends that a

search warrant authorizing a search of his apartment did not
                                                                     2


extend to a free-standing shed in the backyard outside the

three-unit apartment building.1   We conclude that the motion

judge correctly concluded that the shed was a part of the

curtilage of the apartment, so that the search authorized by the

warrant properly extended to the shed.    Discerning no merit in

the defendant's other claims of error, we affirm.

     Background.   We summarize the findings of the motion judge

on the defendant's motion to suppress, reserving other facts for

our discussion of the defendant's other claims.     On August 28,

2012, New Bedford police Officer Jason Gangi and other members

of the New Bedford police department executed a search warrant

authorizing a search of the third-floor apartment at 101 Coffin

Avenue and any persons present.   The building at 101 Coffin

Avenue is a multi-family dwelling consisting of three

apartments.   Police set up surveillance at the target location.

Two vehicles approached the location, and the defendant was a

passenger in one of the vehicles.   Police stopped the defendant

and obtained a set of keys from him.2    Using a key from the set,


     1
       The defendant also claims error in the conclusion by the
trial judge that the defendant's brother had a privilege under
the Fifth Amendment to the United States Constitution not to
testify at trial, and in various aspects of the judge's
instructions; he also contends that his trial counsel was
constitutionally ineffective for failing to renew a motion for a
required finding of not guilty at the close of all the evidence.
     2
       The defendant does not challenge the propriety of the stop
or the seizure of the keys.
                                                                    3


police opened the door to the third-floor apartment.    Within

minutes after gaining entry to the apartment, Officer Gangi went

to the backyard to search.    The entire backyard was fenced.

While in the yard, Officer Gangi discovered a locked shed and,

using one of the keys on the key ring obtained from the

defendant, unlocked a padlock on the shed door and gained access

to the interior of the shed.    Inside the shed, Officer Gangi

observed a black BMW motor vehicle, a dirt bike, some tools, and

a shopping bag.    Officer Gangi determined that another key on

the key ring obtained from the defendant fit the BMW.     Officer

Gangi also found and seized a substantial quantity of cocaine

hidden above a ceiling panel within the shed.

     Among other items found in and seized from the third-floor

apartment were rent receipts indicating that the defendant

rented the shed from the owner of the apartment building.     In

the affidavit in support of the application for the search

warrant Officer Gangi averred that he confirmed that the

utilities for the third-floor apartment were in the names of the

defendant and Ana Perez.3    The affidavit also related information

obtained from a confidential informant regarding sales of

cocaine by the defendant from the third-floor apartment, and

describing the informant's personal observation of cocaine


     3
         Perez is the defendant's grandmother.
                                                                    4


packaged for sale in the apartment within the seventy-two hours

preceding the warrant application.

    Search of the shed.    "The curtilage concept originated at

common law to extend to the area immediately surrounding a

dwelling house the same protection under the law of burglary as

was afforded the house itself."    Commonwealth v. McCarthy, 428

Mass. 871, 873 (1999), quoting from United States v. Dunn, 480

U.S. 294, 300 (1987).   "When used in the Fourth Amendment

context, curtilage helps to define those areas that the police

generally cannot search without a warrant.   In the present

context, however, curtilage serves a different function -- it

helps to define where the police can search pursuant to a

warrant."   Commonwealth v. McCarthy, supra at 874.   In Dunn, the

United States Supreme Court set out four factors to be

considered when deciding whether a particular area is within the

curtilage of a particular home:    "(1) the proximity of the area

to the home, (2) whether the area is included within an

enclosure surrounding the home, (3) the nature of the uses to

which the area is put, and (4) the steps taken by the resident

to protect the area from observations by people passing by."

Commonwealth v. McCarthy, supra.

    The Dunn factors support the motion judge's conclusion

that, here, the shed is a part of the curtilage of the third-

floor apartment.   The shed is within the backyard immediately
                                                                        5


adjacent to the building in which the apartment is located.       See

Commonwealth v. Murphy, 353 Mass. 433, 436 (1968).     The yard

itself is enclosed by a fence.   Most importantly, the defendant

rented the shed from the building owner, and restricted access

to it by means of the padlock he placed on the door.    The

defendant accordingly enjoyed exclusive access to, and use of,

the shed, at least in comparison to the occupants of the other

two apartments in the building, or other members of the public.4

See Commonwealth v. Escalera, 462 Mass. 636, 648 (2012);

Commonwealth v. Pierre, 71 Mass. App. Ct. 58, 63 (2008).       See

also Commonwealth v. Thomas, 358 Mass. 771, 774-775 (1971)

(emphasizing significance of exclusive control in identifying

areas of urban apartment building outside apartment unit that

may be considered part of apartment's curtilage).    Compare

Commonwealth v. McCarthy, supra at 875 (parking space within

shared parking lot in multi-unit apartment complex not part of

apartment's curtilage).   We discern no error in the conclusion

by the motion judge that the shed was part of the curtilage of

     4
       We note that there was evidence at trial that other
occupants of the defendant's apartment may have enjoyed access
to the shed, by virtue of the fact that the defendant
occasionally left the key to the shed hanging on a rack in the
apartment to which other residents of the apartment had access.
That evidence, however, was not presented at the evidentiary
hearing on the motion to suppress. In any event, it does not
derogate from the relationship between the shed and the
defendant's apartment, as compared to the other apartment units
in the building.
                                                                     6


the defendant's apartment; thus the warrant authorizing search

of the apartment also authorized search of the shed.

     Other issues.    The defendant's remaining claims require

only brief discussion.    We discern no abuse of discretion by the

trial judge in his conclusion that the defendant's brother had a

privilege under the Fifth Amendment to the United States

Constitution not to testify for the prosecution, as his

testimony could have implicated him as a potential coventurer

with the defendant.    The defendant's claim of prejudice from the

judge's conclusion only illustrates its correctness; the

defendant claims that he was deprived of the opportunity, as

part of his third-party culprit theory of defense, to establish

through cross-examination of his brother that the brother had

access to the shed and accordingly that the drugs seized from

the garage could have been his.5   There is likewise no merit in

the defendant's claim that his trial counsel was ineffective by

reason of his failure to renew his motion for a required finding

of not guilty, first raised at the close of the Commonwealth's

case, following the close of all the evidence.6   See Commonwealth


     5
       We note that the defense in any event would have needed to
establish not merely that the defendant's brother possessed the
drugs, but that his possession was exclusive, and that the
defendant did not jointly possess them.
     6
       The defendant rightly does not challenge the sufficiency
of the evidence as it stood at the close of the Commonwealth's
case. The defendant's suggestion that his motion for a required
                                                                    7


v. Conceicao, 388 Mass. 255, 264 (1983).   Put simply, nothing in

the defendant's case caused the Commonwealth's case to

deteriorate.7

     Finally, there is no merit to the defendant's several

claims of error in the judge's jury instructions.   None of the

defendant's claims was preserved by objection at trial; we

accordingly consider whether any error created a substantial

risk of a miscarriage of justice.8   See Commonwealth v. Alphas,

430 Mass. 8, 13 (1999).   Contrary to the defendant's contention,

the judge did not in his preliminary instruction describing the

indictment remove from the jury's consideration an essential

element of fact by instructing that the defendant in fact



finding of not guilty should (by reason of the judge's ruling
that the defendant's brother had the privilege to refuse to
testify) have received the benefit of a presumption that the
brother likely had access to the garage finds no support in law,
and in any event suffers from the deficiency observed in note 5,
supra.
     7
       To the extent that the defendant's argument rests on the
premise that testimony by Perez, the defendant's grandmother,
raised the possibility that other persons besides the defendant
had access to the shed, the argument ignores the fact that the
jury were not required to credit her testimony, and it again
fails to recognize that the defendant could constructively
possess the drugs found in the shed even if someone else
possessed them jointly with him.
     8
       Though the defendant objected at trial to the judge's use
of an analogy to explain the concept of constructive possession,
the defendant's objection to that portion of the instruction
relied on a theory different from the argument he advances on
appeal.
                                                                    8


possessed the drugs seized from the shed.     Instead, the judge

merely explained initially that the indictment charged the

defendant with possessing the drugs, and clearly went on to

explain that the question before the jury was whether the

defendant possessed the drugs.9     Likewise unavailing is the

defendant's challenge to an analogy used by the trial judge in

his final instructions to explain the concept of constructive

possession; the analogy was apt, and no undue prejudice nor

potential for confusion flowed from the fact that (similar to

the circumstances of the present case) the analogy used actual

possession of keys to illustrate constructive possession of an

item held in another area.10    Finally, there was nothing improper


     9
          The relevant portion of the instruction is as follows:

          "I will give you a very preliminary description of
     what that indictment means. It means that the defendant
     had in his possession cocaine in the amount of at least one
     hundred grams. And you're going to hear that there are
     stipulations in this case. Both parties agree that cocaine
     was found. Both parties agree that there was cocaine
     amounting to more than one hundred grams. But the question
     is this. Who possessed it? Who possessed it? And it is
     the Commonwealth's responsibility as part of its case to
     prove beyond a reasonable doubt that Luis Sanchez possessed
     it, either individually or jointly."
     10
          We again quote the relevant portion of the instruction:

          "And we'll compare actual possession to constructive
     possession so that you can appreciate it. When I speak of
     actual possession, jurors, that's actual possession. Those
     keys are in my hand. . . . And it's very obvious that
     these keys to my car and my house are going to be under my
     dominion and control. Now, what's constructive possession?
                                                                     9


about the judge's instruction that if the jury found that the

defendant constructively possessed the drugs, it did not matter

whether someone else jointly possessed the drugs with him.     The

instruction was a correct statement of the law.   See

Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting

from Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984)

("Possession implies 'control and power,' . . . exclusive or

joint . . . , or, in the case of 'constructive possession,'

knowledge coupled with the ability and intention to exercise

dominion and control").   There was no error in the judge's

instruction, and hence no substantial risk of a miscarriage of

justice.

                                    Judgment affirmed.




    Well, I don't have my briefcase in my hand, do I? My
    briefcase is right in that lobby, and that lobby's locked.
    But I have a key to that lobby. So I have access to that
    lobby, and I know that that leather briefcase is right
    there."
