Opinion
No. 15–P–1024.
11-25-2016
COMMONWEALTH v. Edwin J. DOBSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a hearing on the defendant's motion to suppress, the judge allowed the motion and suppressed evidence obtained from a warrantless stop on the defendant's property. The Commonwealth brings this interlocutory appeal, arguing that the police officer lawfully seized the defendant based on a reasonable suspicion that he had committed a crime; in addition, the Commonwealth argues that the defendant's driveway was not within the curtilage of his home. We agree, and reverse.
Background. We supplement the judge's careful findings with uncontested facts from the hearing. On September 23, 2014, Sheffield Police Officer Brendan Polidoro was on patrol at 3:30 A.M. in a marked police car when he observed the defendant backing his car out of a private driveway at 197 Main Street. As Polidoro approached, he slowed to watch the defendant's "unusual" progress. The defendant's car left the driveway as it was backing up, and backed across the front yard of the property, hitting and knocking over a large cement pillar. The defendant then drove over the sidewalk attempting to drive out onto Main Street, a public way. After Polidoro passed the defendant's location, he "made a U-turn to go back and investigate." By the time he had returned to the driveway, the defendant was driving on Main Street in the direction Polidoro was coming from. Polidoro then turned around again in order to follow him.
Polidoro testified, "I was approaching [the defendant's motor vehicle] as it was backing off of the driveway, and I slowed my speed down, continued to observe the operation and I saw it back into the cement pillar, where it continued to back over and knock the pillar over." The cement pillar was approximately five feet tall and used as a "post" in the yard of the home the defendant was leaving.
The defendant passed three or four houses (traveling "a couple hundred yards") before turning into his own residential driveway at 163 Main Street. Polidoro pulled into the driveway behind the defendant, turning on his white "spot light" and "takedown lights ." The judge found that the defendant drove down to the end of his driveway where he came to a stop; the officer "pulled down the driveway and stopped directly behind [the defendant's] vehicle." Polidoro testified that the driveway was not gated, or enclosed in any manner. He observed the defendant "making movements" in the car, then crawling over the center console and exiting from the front passenger-side door. As the defendant was walking away, Polidoro asked him to come back and speak to him. The defendant then became "uncooperative," and told Polidoro, "You're in my fucking driveway." Polidoro approached the defendant to explain what he had witnessed and smelled a strong odor of alcohol coming from the defendant; he saw that the defendant's eyes were bloodshot and glassy, and also observed that his speech was slurred. After the field sobriety tests indicated to Polidoro that the defendant was impaired, he was placed under arrest. Polidoro testified that he initially followed the defendant into his driveway because he believed he had witnessed the defendant commit a crime while driving his car erratically.
In allowing the defendant's motion to suppress, the judge concluded that Polidoro did not have reasonable suspicion to follow the defendant into his driveway. He based that conclusion on the fact that the driving behavior that caught the officer's attention had occurred on private property and not on a public way or a "place to which the public has a right of access as invitees or licensees. The driveway to a private residence [where the defendant had knocked over the pillar] is none of these." For this reason, the judge concluded that there had been "no civil motor vehicle infraction or criminal motor vehicle offense."
The Commonwealth filed a motion to reconsider, arguing that, at the time of the stop, Polidoro had probable cause to believe that the defendant had "violate[d] ... G.L. c. 266, § 127 —Wanton Destruction of Personal Property." The judge did not "find the Commonwealth's argument persuasive," and denied the motion to reconsider.
Because the parties had argued the motion to suppress largely on the issue whether the defendant's driveway was part of the curtilage of his residence, the judge also addressed that issue, so that we would have the benefit of his findings. In so doing, the judge found that the defendant had pulled his car to the end of the long driveway; the driveway was bordered by "a tall stockade (privacy type) fence," with a "tree line" along the fence, separating the defendant's property from that of his next door neighbor on the driveway side of the house. The front door to the house faces the street and is not directly accessible from the driveway; the front door would be used by the general public. The back door is accessed from the end of the driveway, and "[i]t would appear that occupants or regular visitors would access the home from the rear door/driveway area." Based on these facts, the judge found that the driveway area in which the defendant was "seized" was part of the curtilage of the home, observing that "the [defendant's] driveway area is more like the area contemplated in U.S. v. Dunn, 480 U.S. 294 (1987), and Comm[onwealth] v. McCarthy, 428 Mass. 871 (1999) (proximate to a single family home, enclosed by a privacy fence, reasonably shielded from the view of neighbors or the public)."
In Dunn, the United States Supreme Court concluded "that the [defendant's] barn and the area around it lay outside the curtilage of the house" (emphasis added). Dunn, supra at 296. In McCarthy, the court "conclude[d] that the visitor's parking space [in the defendant's apartment parking lot] is not within the curtilage of the defendant's apartment." McCarthy, supra at 875.
Discussion. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of [the judge's] ultimate findings and conclusions of law.’ " Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). Here, we conclude that Polidoro lawfully stopped and briefly detained the defendant, as he had at the very least a reasonable suspicion that the defendant had committed a crime, and also that the defendant was not within the curtilage of his home when Polidoro approached him.
First, in a recent decision, released after the judge decided this case, the Supreme Judicial Court made clear that the public way element is not, in fact, necessary to the crime of leaving the scene of an accident after causing property damage. See Commonwealth v. LeBlanc, 475 Mass. 820, 822–823 (2016), where the defendant's conviction was affirmed on the basis of facts very similar to those in this case, at least as they relate to the accident in a driveway. As a result, we are satisfied that Polidoro had reasonable suspicion to stop the defendant after observing him backing over a nearby yard, hitting and knocking over a cement pillar, and then driving over the sidewalk in order to pull onto Main Street. Based on that suspicion, Polidoro was warranted in following and briefly detaining the defendant "in order to ‘investigate the circumstances that provoke[d] suspicion.’ " Commonwealth v. Butterfield, 44 Mass.App.Ct. 926, 928 (1998), quoting from Berkemer v. McCarty, 468 U.S. 420, 439 (1984). Polidoro's observations while questioning the defendant about the property damage he had witnessed gave Polidoro probable cause to believe that the defendant was impaired from alcohol, prompting the field sobriety tests. See Butterfield, supra.
Based on the facts found by the judge, and considering the defendant's erratic driving, which was not contested, Polidoro reasonably could have suspected the defendant of more than one crime; in addition to leaving the scene of an accident after causing property damage, the defendant could have been suspected of wanton destruction of personal property, as the Commonwealth argued in its motion to reconsider, or operating a motor vehicle while under the influence of alcohol.
The second issue is whether, at the time the defendant encountered Polidoro in his driveway, he was within the curtilage of his property, thus affording him Fourth Amendment to the United States Constitution protection. "In determining whether a particular parking area is within the curtilage of a residence, we consider four factors: ‘(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. Fernandez, 458 Mass. 137, 143 (2010), quoting from McCarthy, 428 Mass. at 874. See Dunn, 480 U.S. at 301.
"A driveway is only a semiprivate area" and, thus, "may be private according to common law concepts of property, [but] it need not be for purposes of the Fourth Amendment." Butterfield, supra at 928, quoting from Commonwealth v. Simmons, 392 Mass. 45, 48–49 (1984). "The expectation of privacy which a possessor of land may reasonably have while carrying on activities on his driveway will generally depend upon the nature of the activities and the degree of visibility from the street." Butterfield, supra, quoting from Simmons, supra at 48.
Here, the photographs admitted in evidence show that, after parking, the defendant's car would have been clearly visible from the street; although a stockade fence and trees bordered the driveway along the side of it, there was "no fence at all ... closer to the street [in front of the driveway]." In front of the house, the photographs admitted in evidence show a low picket fence, coming to the height of the bottom of the front porch of the house. As a result, neighbors and passersby had a full view of the property, at least from the street running in front of it. The walkway leading to the back door (on which the defendant testified he was standing when confronted by Polidoro) is a pathway that, as the judge determined, a regular visitor would access to reach the back door. See Commonwealth v. Hurd, 51 Mass.App.Ct. 12, 15–16 (2001), quoting from Simmons, supra at 48. "This area, like the driveway, lacked characteristics that would create an inference of privacy." Butterfield, supra at 929. "Such areas are not part of the curtilage entitled to Fourth Amendment protection. See Commonwealth v. Pietrass, 392 Mass. [892,] 901 [ (1984) ] (concluding that if a porch is one that a visitor would normally expect to pass through to gain access to the front door, it is not part of the curtilage)." Ibid.
We acknowledge that the judge distinguished this case from the facts in Simmons, supra, by noting that in Simmons, the driveway was "adjacent to a busy state highway, unscreened by fence or foliage, abutting a public parking lot." However, that contention is undermined by the court's language in Commonwealth v.. A Juvenile (No. 2), 411 Mass. 157, 162 n.5 (1991) ("One of the juvenile's arguments merits brief discussion. The juvenile contends that the driveway in Simmons abutted a major roadway and a public parking area. The police, however, have a right to be on any public way—regardless of its size or volume of traffic. Likewise, an individual who lives on a relatively small public road has no greater expectation of privacy than one who lives on a large public road. Absent some effort to conceal the driveway from public view, the relative seclusion of the neighborhood does not heighten an individual's expectation of privacy in a driveway").
In this case, Polidoro observed the defendant driving erratically, apparently damaging property and then driving away. Polidoro did not know the defendant or know that the driveway the defendant entered was his own. It was reasonable, therefore, for the officer to pull into the driveway behind the defendant in order to identify him and to conduct a threshold inquiry. Soon after he began the threshold inquiry, the defendant's impairment became obvious and Polidoro then had probable cause to conduct a further inquiry.
As the Commonwealth argues, these facts are similar to those in Butterfield, supra at 928 ("The record indicates that Officer Miller parked his cruiser on the roadway and proceeded into the defendant's driveway. Officer Miller asked the defendant, who was on the walkway and within ten to fifteen feet of the back door, to return to the driveway. The defendant refused but answered Officer Miller's questions. Officer Miller walked toward him to continue the questioning until he was within a couple feet of the defendant. During part of the questioning, the defendant was leaning against his house"). There, "[w]e conclude[d] that Officer Miller did not intrude upon a legitimate expectation of privacy by entering the defendant's driveway." Id. at 929. So, too, here, we are satisfied that Officer Polidoro did not intrude upon a legitimate expectation of privacy by following the defendant into his driveway.
Order allowing motion to suppress reversed.