Opinion
No. 11–P–1065.
2012-11-8
COMMONWEALTH v. Joao BRANDAO.
By 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. On appeal, the defendant claims the denial of his motion to suppress was error. We affirm.
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 doing so within a school zone.
Although the judge erred in his determination that the defendant lacked standing to contest the seizure of the multiple bags of marijuana found under the porch area of 23 Olney Street, see Commonwealth v. Amendola, 406 Mass. 592, 601 (1990), this does not require reversal for two reasons. The marijuana behind the house was not the only marijuana at issue, and the defendant failed to establish that he had an expectation of privacy in the places searched. See Commonwealth v. Williams, 453 Mass. 203, 207–208 (2009) (standing and expectation of privacy are interrelated concepts that require separate inquiry).
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. 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), 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.
During booking, the police recovered another bag of marijuana from the defendant.
No seizure occurred when the officers engaged the defendant and Goncalves in conversation regarding their activities. Not every encounter between the police and members of the public may be elevated to a matter of constitutional concern. See, e.g., Commonwealth v. Stoute, 422 Mass. 782, 786 (1996). The officers did not draw their weapons, touch the two men, or make commands that would objectively indicate that the men were not free to leave. Even after the defendant voluntarily revealed the marijuana under his foot, he continued to speak to the officers. Once the police smelled marijuana, and found the marijuana under his foot, they had probable cause to arrest him.
Judgment affirmed.