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SJC-12176

                   COMMONWEALTH vs. BOBBY LESLIE
                     (and five companion cases1).



            Suffolk.     November 7, 2016. - May 9, 2017.

 Present:    Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
                             Budd, JJ.2


Firearms. Practice, Criminal, Motion to suppress.
     Constitutional Law, Search and seizure, Privacy. Search
     and Seizure, Multiple occupancy building, Curtilage,
     Expectation of privacy.



     Indictments found and returned in the Superior Court
Department on December 16, 2014.

     Pretrial motions to suppress evidence were heard by Charles
M. Hely, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Hines, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by her to
the Appeals Court. The Supreme Judicial Court granted an
application for direct appellate review.




     1
         Two against Bobby Leslie and three against Lacy Price.
     2
       Justice Botsford participated in the deliberation on this
case prior to her retirement.
                                                                   2


     Zachary Hillman, Assistant District Attorney, for the
Commonwealth.
     Patrick Levin, Committee for Public Counsel Services, for
Bobby Leslie.
     MarySita Miles for Lacy Price.


     HINES, J.   The defendants, Bobby Leslie and Lacy Price,

were indicted on charges of unlawful possession of a sawed-off

shotgun,3 G. L. c. 269, § 10 (c); unlawful possession of a loaded

firearm, G. L. c. 269, § 10 (n); and possession of ammunition

without a firearm identification card, G. L. c. 269, § 10

(h) (1).4   The indictments arose from a May, 2014, warrantless

search of the porch and side yard of a three-family home in the

Dorchester section of Boston where the defendant Price resided.

The search revealed a loaded sawed-off shotgun under the porch.

Leslie was arrested at the scene, and after further

investigation, Price was arrested.   A judge of the Superior

Court allowed the defendants' motions to suppress the sawed-off

shotgun on the ground that a warrant was required to search the

area under the porch in light of Florida v. Jardines, 133 S. Ct.



     3
       General Laws c. 140, § 121, defines a sawed-off shotgun as
"any weapon made from a shotgun, whether by alteration,
modification or otherwise, if such weapon as modified has one or
more barrels less than [eighteen] inches in length or as
modified has an overall length of less than [twenty-six]
inches."
     4
       Price was also indicted as a subsequent offender on the
charge of unlawful possession of a firearm, G. L. c. 269,
§ 10 (d).
                                                                  3


1409, 1417 (2013), and art. 14 of the Massachusetts Declaration

of Rights.

    The Commonwealth filed a timely appeal from the allowance

of the defendants' motions to suppress.   A single justice of

this court granted leave to pursue an interlocutory appeal and

reported the case to the Appeals Court.   We allowed the

defendants' application for direct appellate review to clarify

the application of the Jardines warrant requirement to a search

in a multifamily home.   Following the analytical framework set

out in Jardines, 133 S. Ct. at 1414-1417, we conclude that the

side yard of the defendant's multifamily home was a

"constitutionally protected area," and that the intrusion into

that area to search for a weapon implicated the warrant

requirement of the Fourth Amendment to the United States

Constitution and art. 14.   Because the warrantless intrusion

into this constitutionally protected area was an unreasonable

search that violated the defendants' Federal and State

constitutional rights, we affirm the order allowing the

defendants' motions to suppress.

    Background.   We recite the facts as found by the motion

judge, "supplemented by evidence in the record that is

uncontroverted and that was implicitly credited by the judge."

Commonwealth v. Warren, 475 Mass. 530, 531 (2016), citing

Commonwealth v. Melo, 472 Mass. 278, 286 (2015).   On May 29,
                                                                   4


2014, around 2 P.M., Boston police Detective Daniel Griffin was

working in the drug control unit5 as a plainclothes officer,

driving an unmarked vehicle, in the neighborhood of Bowdoin

Street and Geneva Avenue in Dorchester.   Based on information

from Officer Eric Merner, another member of his unit, Detective

Griffin began observing a group of four men walking down Everton

Street from Olney Street, toward Geneva Avenue.   The men

appeared "nervous."6   Once Detective Griffin realized that the

men were approaching a certain residence on Everton Street

(residence), he communicated to Officer Merner that the

residence was a known location of gang associates and that the

neighborhood in which the residence is located was a "hotspot"

for shootings and firearms offenses.7


     5
       The unit consisted of a sergeant detective, Detective
Daniel Griffin, and five other police officers.
     6
       Although the men were described as looking "nervous,"
Detective Griffin did not see Leslie grab at his waist, which
can indicate that an individual possesses a firearm without a
holster, but he noted that Leslie swiveled his head in a
surveillance-conscious manner while walking towards a certain
residence on Everton Street.
     7
       Detective Griffin was familiar with that neighborhood of
Dorchester, and specifically with Everton Street, from his
experience in the youth violence strike force and the drug
control unit. He had arrested an individual with a firearm on
the front porch of the residence sometime in the previous five
years, but could not recall the date more specifically.
Additionally, Detective Griffin had previously made other
arrests in that neighborhood and on Everton Street. However,
neither defendant was present during the previous arrest at the
residence and none of the men present at the residence on May
                                                                    5


     The property at the residence, which is a three-family

home, was fenced in on the front and left side.    A chain link

fence, with an attached gate at the walkway leading to the

sidewalk, ran across the edge of the front yard.    A tall wooden

fence ran along the left side8 of the lot, five to six feet from

the side of the porch and the house.    The left-side porch area

was blocked by a large, blue recycling bin, which obstructed the

view of the area from Everton Street.

     After repositioning his vehicle down from and opposite the

residence,9 Detective Griffin observed the four men, including

Leslie, enter the front gate of the residence and meet a fifth

man, Price, on the porch.   Approximately five minutes after the

men arrived, Leslie walked off the front porch, swiveling his

head from side to side in a surveillance-conscious manner,

toward the left side of the front yard to the side porch area.

Although Detective Griffin's view was obstructed by the

recycling bin, two trees, and some motor vehicles, he was able


29, 2014, was known to Detective Griffin or the other officers
present.
     8
       The fence was on the left side of the property from a
vantage point of facing the front of the home.
     9
       Everton Street is a one-way street running from Olney
Street to Geneva Avenue. Detective Griffin initially observed
the residence from the right side of Everton Street directly
across from the residence. However, to avoid detection, he
drove around the block and parked on the right side of Everton
Street, about four houses away. He estimated the trip around
the block took him about ten seconds.
                                                                     6


to observe Leslie crouch down and appear to manipulate something

under the side porch.    Detective Griffin could not see what

object Leslie was manipulating.    Based on Detective Griffin's

experience with one hundred or more prior firearm arrests,

Leslie's crouching down and swiveling his head more rapidly as

he approached the side porch area were consistent with an

individual who illegally possessed a firearm.

    Next, Detective Griffin observed Price walk over to the

side porch area as Leslie had done previously, also swiveling

his head in a surveillance-conscious manner, bending down,

looking under the porch, and then returning to the group on the

front porch.    Detective Griffin observed Leslie return to the

side porch area two more times, each time swiveling his head as

before, bending down, and manipulating something on the ground.

On Leslie's third trip to the area, as he stood back up after

having bent down, he made a distinctive gesture that Detective

Griffin described as imitating the firing of a shotgun or rifle

in the air.    Leslie raised his hands and forearms near his

shoulders, with one hand near the trigger area, as he simulated

recoil.

    From these observations, Detective Griffin suspected that a

firearm was hidden under the left-side porch area.    He was aware

from his experience as a police officer that individuals often

place illegal firearms nearby but not on one's person, for easy
                                                                   7


access.   Detective Griffin then contacted the other members of

his unit and members of the youth violence strike force for

assistance.   The officers intended to approach the men at the

residence to conduct field interrogation observations to "see

what [the men] were up to."10

     The officers, seven in total, walked through the front gate

at the walkway and proceeded to the front porch.   Detective

Griffin could not recall whether the gate was open, but it was

not locked.   The officers approached the men on the porch and

began to engage them in conversation.   Detective Griffin,

however, veered off the walkway and walked to the left side of

the yard, where Leslie and Price previously had gone.   He saw a

sawed-off shotgun on the ground under the porch.   The wooden

handle of the shotgun protruded out from under the porch.

Although the shotgun was not visible from the street or from the

gate near the sidewalk, it was plainly visible if one were

present in the left side of the yard and walked behind the

recycling bin.

     Detective Griffin immediately notified the other officers

of the presence of the sawed-off shotgun, and Leslie was placed


     10
       "A 'field interrogation observation' . . . has been
described as an interaction in which a police officer identifies
an individual and finds out that person's business for being in
a particular area." Commonwealth v. Warren, 475 Mass. 530, 532
n.5 (2016), quoting Commonwealth v. Lyles, 453 Mass. 811, 813
n.6 (2009).
                                                                   8


under arrest after officers determined that he did not have a

firearm identification card.11   The officers obtained identifying

information from the other men on the porch, and following

further investigation, Price was also arrested in connection

with the weapon.   Subsequently, the officers learned that Price

lived at the residence in the second-floor apartment,12 but

Leslie was not a resident.

     Discussion.   The judge allowed the motions to suppress,

ruling that the search was governed by Jardines, 133 S. Ct. at

1417-1418, in which the United States Supreme Court held that a

warrantless search of the front porch of a single-family home

with a drug-sniffing dog violated the Fourth Amendment.    The

Court reasoned that the porch was part of the curtilage to which

the police could lawfully approach but that in bringing a drug-

sniffing dog, the police exceeded the scope of their implied

license to enter the defendant's property.   The judge recognized

that Jardines involved a single-family home, but he concluded

that Price (and by extension Leslie) had a reasonable

expectation of privacy in the side yard of the small three-

family home where the search occurred.   The intrusion into the

side yard to search for a suspected hidden weapon was no

     11
       When Leslie was asked whether he had a license to carry a
firearm he answered, "For what? I don't have a gun on me."
     12
       Nothing in the record establishes whether Price owned the
residence or whether he resided there as a tenant.
                                                                      9


different from bringing a drug-sniffing dog to the front porch

of a single-family home.     Thus, the search required a warrant.

    The Commonwealth claims error in the judge's order, arguing

that because Jardines does not apply to a multifamily home, the

motion properly could be granted only if the defendants

established that Price had either exclusive control over the

home or a reasonable expectation of privacy in the area

searched.   The Commonwealth also argues that even if the

intrusion into the side yard was a search of a constitutionally

protected area, the judge erred in finding that the police

lacked probable cause and exigent circumstances to justify the

search.   We address these arguments in turn.

    1.    Standard of review.    "In reviewing a ruling on a motion

to suppress, we accept the judge's subsidiary findings of fact

absent clear error . . . ."     Commonwealth v. Fernandez, 458

Mass. 137, 142 (2010), quoting Commonwealth v. Scott, 440 Mass.

642, 646 (2004).   "However, '[w]e review independently the

application of constitutional principles to the facts found.'"

Warren, 475 Mass. at 534, quoting Commonwealth v. Wilson, 441

Mass. 390, 393 (2004).     Where, as here, the issue is whether a

search occurred within the curtilage of a home, "we undertake

our independent review cognizant that there is no 'finely tuned

formula' that demarcates the curtilage in a given case."
                                                                    10


Fernandez, supra, quoting United States v. Dunn, 480 U.S. 294,

301 (1987).

    2.    The entry into the side yard.   As a threshold matter,

we briefly address the issue of standing.    "When a defendant is

charged with a crime in which possession of the seized evidence

at the time of the contested search is an essential element of

guilt, the defendant shall be deemed to have standing to contest

the legality of the search and the seizure of that evidence."

Commonwealth v. Amendola, 406 Mass. 592, 601 (1990).    Here, the

defendants were charged with possession of a sawed-off shotgun

and ammunition.   Therefore, they have standing to challenge the

legality of the search and seizure.    The Commonwealth argues

that even if the defendants have automatic standing, they cannot

meet their burden to show that a search in the constitutional

sense occurred.

    In considering application of Jardines to a multifamily

home, we begin with the observation that the Court's holding

does not rest on the fact that the property was a single-family

home.    Rather, the warrant requirement followed from the Court's

determination that the police entry onto the porch of the home

with a drug-sniffing dog was an unlicensed "physical intrusion

[into] a constitutionally protected area."    Jardines, 133 S. Ct.

at 1414, quoting United States v. Knotts, 460 U.S. 276, 286

(1983) (Brennan, J., concurring in the judgment).    We interpret
                                                                    11


the Jardines holding as a clarification of the appropriate

framework for the analysis of the applicability of the Fourth

Amendment protection against an unreasonable search rather than

a pronouncement limited only to single-family homes.     Thus, we

decline to limit Jardines' holding to single-family homes or to

fashion a rule categorically excluding areas associated with

multifamily homes as curtilage and thus placing them beyond the

reach of the protections of the Fourth Amendment and art. 14.

    We agree also that "[d]istinguishing Jardines based on the

differences between the front porch of a stand-alone house and

the closed hallways of an apartment building draws arbitrary

lines."   United States v. Whitaker, 820 F.3d 849, 854 (7th Cir.

2016).    Moreover, "a strict apartment versus single-family house

distinction is troubling because it would apportion Fourth

Amendment protections on grounds that correlate with income,

race, and ethnicity."    Id.   Thus, we reject the Commonwealth's

argument that in cases involving a search in a multifamily home,

the validity of the search turns on the defendant's exclusive

control or expectation of privacy in the area searched.     The

teaching of Jardines is that when the search is in or about a

person's home, the essential question is whether the area

searched is within the home or its curtilage.

    In Jardines, 133 S. Ct. at 1414, the Court refocused the

analysis of "constitutionally protected area" to emphasize the
                                                                     12


words of the Fourth Amendment, noting that "[t]he Fourth

Amendment 'indicates with some precision the places and things

encompassed by its protections':     persons, houses, papers, and

effects."     Id., quoting Oliver v. United States, 466 U.S. 170,

176 (1984).     Among the traditional property interests expressly

protected by the Fourth Amendment, "the home is first among

equals."    Jardines, supra.   Accordingly, Fourth Amendment

jurisprudence has developed to accommodate a home's place in the

hierarchy of protected interests.     It regards "the area

'immediately surrounding and associated with the home' -- what

our cases call the curtilage -- as 'part of the home itself for

Fourth Amendment purposes.'"     Id., quoting Oliver, supra at 180.

And "[t]he front porch is the classic exemplar of an area

adjacent to the home and 'to which the activity of home life

extends.'"     Jardines, supra at 1415, quoting Oliver, supra at

182 n.12.     Indeed, the "right [to be free of unreasonable

government intrusion] would be of little practical value if the

State's agents could stand in a home's porch or side garden and

trawl for evidence with impunity."     Jardines, supra at 1414.

Thus, the essential question here is whether the side yard of

the home was within the curtilage of the defendant's home.     If

so, the police intrusion constituted a search requiring a

warrant.
                                                                  13


    In the years since Jardines, the Supreme Court has not

directly addressed whether porches and side yards of a

multifamily home are within the constitutionally protected

curtilage.   However, the United States Courts of Appeals

overwhelmingly have applied the four-factor test announced in

Dunn, 480 U.S. at 301, to determine whether, in the multifamily

home and apartment context, a particularly described area is

curtilage.   See, e.g., United States v. Hopkins, 824 F.3d 726,

731 (8th Cir.), cert. denied, 137 S. Ct. 522 (2016); United

States v. Sweeney, 821 F.3d 893, 901 (7th Cir. 2016); United

States v. Burston, 806 F.3d 1123, 1127 (8th Cir. 2015); United

States v. Jackson, 728 F.3d 367, 373 (4th Cir. 2013), cert.

denied, 134 S. Ct. 1347 (2014).   Therefore, we rely on these

cases for guidance in our analysis whether the side yard of the

defendant Price's multifamily home was within the curtilage and

apply the Dunn factors in resolving this issue.   Dunn, 480 U.S.

at 301.

    In Dunn, the Supreme Court introduced a four-factor test to

determine whether an area searched was within the home's

curtilage:   (i) "the proximity of the area claimed to be

curtilage to the home"; (ii) "whether the area is included

within an enclosure surrounding the home"; (iii) "the nature of

the uses to which the area is put"; and (iv) "the steps taken by

the resident to protect the area from observation by people
                                                                       14


passing by."   Id.   The Court cautioned, however, that "combining

these factors [does not] produce[] a finely tuned formula that,

when mechanically applied, yields a 'correct' answer to all

extent-of-curtilage questions."    Id.    Instead, "these factors

are useful analytical tools only to the degree that, in any

given case, they bear upon the centrally relevant consideration

-- whether the area in question is so intimately tied to the

home itself that it should be placed under the home's 'umbrella'

of Fourth Amendment protection."    Id.    Application of the Dunn

factors to the facts found here supports the judge's conclusion

that the porch and side yard of the residence were within the

curtilage.   See Fernandez, 458 Mass. at 144-145.

    a.    Application of the Dunn factors.     i.   Proximity.   The

porch was physically connected to the home itself, and as the

Court in Jardines noted, "[t]he front porch is the classic

exemplar of an area adjacent to the home and 'to which the

activity of home life extends.'"    Jardines, 133 S. Ct. at 1415,

quoting Oliver, 466 U.S. at 182 n.12.      Although the sawed-off

shotgun was found under the porch area, the side yard was very

close in proximity to the porch and, by extension, the house.

This factor weighs in favor of a determination that the porch

and side yard were part of the home's curtilage.

    ii.   Enclosure.   The front yard was enclosed with a chain

link fence and the left border of the front yard was enclosed
                                                                     15


with a large wooden fence about five to six feet away from the

porch where the sawed-off shotgun was recovered.     Additionally,

the chain link fence enclosed both the house and the porch area,

allowing the inference that the porch and side yard "should be

treated as an adjunct to the house."     Dunn, 480 U.S. at 302.    As

the Supreme Court noted in both Oliver, 466 U.S. at 182 n.12,

and Dunn, supra, "for most homes, the boundaries of the

curtilage will be clearly marked; and the conception defining

the curtilage -- as the area around the home to which the

activity of home life extends -- is a familiar one easily

understood from our daily experience."

    iii.    Nature of use.   The record reflects that the

defendants were using the porch as an extension of Price's home.

Price waited for his guests on the porch as they arrived, and

the five men were on the porch and in the front yard for the

entirety of the visit.   Price used the porch area as an

extension of his living room, to greet and entertain guests.

Compare Dunn, 480 U.S. at 303 (strong odor of chemicals and

sound of engines running suggested that defendant was not using

barn as extension of his home).    Although there is no evidence

of Price's exclusive use of the porch and side yard, that fact

is not dispositive, as it is merely a single factor in the

calculus.   On balance, the nature of Price's use of the porch
                                                                    16


and side yard allows the inference that those areas were

intimately connected to his home.

    iv.   Steps taken to protect from observation.   Here, steps

were clearly taken to obscure the view of the side yard and the

area under the porch where the sawed-off shotgun was found.     A

large, blue recycling bin was placed in front of the area, which

obstructed the view from the street.   Additionally, the large

wooden fence obscured the view of the area from the left side of

the yard where the sawed-off shotgun was found.   Although

Detective Griffin testified that the fence in the front yard did

not obstruct his view completely, his testimony established that

he could not see what Leslie was manipulating under the porch

because his view from the street was obscured.

    Taking all four factors into consideration, we conclude

that the porch and side yard area at the residence were part of

the home's curtilage and thus entitled to Fourth Amendment and

art. 14 protections against an unreasonable search and seizure.

We emphasize the relevance of the Dunn factors for our courts in

determining whether a challenged police action occurring within

the boundaries of a home, which under the Fourth Amendment is

expressly designated as a "constitutionally protected area," is

compliant with its protections.   Application of the Dunn factors

in appropriate cases follows Jardines, eschewing the "reasonable

expectation of privacy" inquiry that is deemed necessary only
                                                                  17


when the issue is whether the area is a "constitutionally

protected area."   Thus, because Detective Griffin's search was a

physical intrusion into the constitutionally protected area of

the residence, Price and by extension Leslie are relieved of the

burden to show that Price had a reasonable expectation of

privacy in the area searched.   See Jardines, 133 S. Ct. at 1417,

citing United States v. Jones, 565 U.S. 400, 408-409 (2012)

(reasonable expectation of privacy test "is unnecessary to

consider when the government gains evidence by physically

intruding on constitutionally protected areas").   "That the

officers learned what they learned only by physically intruding

on [Price's] property to gather evidence is enough to establish

that a search occurred."   Jardines, supra.

    b.   Police officer's physical intrusion into curtilage.

Because we have determined that Detective Griffin entered into a

constitutionally protected area, "we turn to the question of

whether it was accomplished through an unlicensed physical

intrusion."   Jardines, 133 S. Ct. at 1415.   If so, the intrusion

amounts to a search that must be justified by probable cause and

a warrant or exigent circumstances.   See id. at 1413.

    As the Court explained in Jardines, 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.    That

license, however, is limited in scope, purpose, and duration.
                                                                  18


See id. at 1415-1416.   Here, Detective Griffin and the other

officers were entitled to open the front gate, walk up the path

and onto the porch, and engage Price and his guests in

conversation.   In veering off the path and venturing into the

side yard of the home for the purpose of conducting a search for

the weapon, Detective Griffin engaged in the precise conduct

that Jardines found offensive to the Fourth Amendment.    See id.

at 1416 ("the background social norms that invite a visitor to

the front door do not invite him there to conduct a search").

Just as the police officers in Jardines exceeded the scope of

their license when they used a drug-sniffing dog to search the

front porch, here Detective Griffin had neither express nor

implied license to search the side yard and porch area.     See id.

at 1417 ("their behavior objectively reveals a purpose to

conduct a search, which is not what anyone would think he had

license to do").   We conclude, therefore, that Detective

Griffin's unlicensed physical intrusion into the curtilage of

the defendant's home was a search for constitutional purposes.

    3.   Probable cause and exigent circumstances.   Having

determined that a constitutional search occurred, we briefly

address the Commonwealth's argument, raised for the first time

on appeal, that Detective Griffin demonstrated probable cause

and exigent circumstances to justify the warrantless search.

Although the motion judge noted in passing that the evidence in
                                                                    19


this case failed to show probable cause or exigent

circumstances, we decline to address the Commonwealth's claim of

error in that finding on the merits.   The Commonwealth failed to

raise this argument below, and therefore it is waived.13    "[I]t

is rare for us to consider an argument for reversal of a lower

court which is first raised on appeal and is dispositive in

favor of the party belatedly raising the issue."     Commonwealth

v. Bettencourt, 447 Mass. 631, 633 (2006), quoting Commonwealth

v. Morrissey, 422 Mass. 1, 4 n.5 (1996).

     Conclusion.   Because we conclude that the sawed-off shotgun

was recovered as a result of an unlawful physical intrusion into

the curtilage of the residence, and therefore in violation of

the warrant requirement of the Fourth Amendment and art. 14, the

allowance of the defendants' motions to suppress is affirmed.

                                   So ordered.




     13
        The Commonwealth similarly failed to raise the argument
that the search could be justified by reasonable suspicion
below. This argument is without merit. The Commonwealth's
citations to Terry-type frisk cases are inapposite. See Terry
v. Ohio, 392 U.S. 1, 21-22 (1968). Our laws do not recognize an
exception to the warrant requirement based solely on reasonable
suspicion, nor do we recognize a legal basis to "frisk" a
private residence without a warrant. "Belief, however well
founded, that an article sought is concealed in a dwelling
house, furnishes no justification for a search of that place
without a warrant." Coolidge v. New Hampshire, 403 U.S. 443,
451 (1971), quoting Agnello v. United States, 269 U.S. 20, 33
(1925).
