Opinion
19-P-492
04-24-2020
COMMONWEALTH v. Kevin M. WATSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from the allowance of a motion to suppress evidence of child pornography found in a car parked in the driveway of the defendant's home. The Commonwealth contends that the motion judge erred in finding that the defendant's driveway was outside the curtilage of the residence described in the search warrant. We affirm.
Background. We recite the facts as found by the motion judge, supplemented by the uncontroverted evidence from the suppression hearing, which is consistent with the judge's findings. See Commonwealth v. Alexis, 481 Mass. 91, 93 (2018).
In August 2016, the Massachusetts State Police conducted a cybercrime investigation of the defendant's use of child pornography. Trooper Robert Smith applied for and was granted a search warrant, which contained the following description of the place to be searched:
"The residence of Kevin M. Watson, located at 47 Sandy Lane, Hanson, MA 02341. The residence is more particularly described as a two story single family style home with light grey siding and white trim, and an attached single car garage situated on the left side. The driveway is situated to the left side of the residence, which is wide enough for motor vehicles to be parked side by side, and the numerals "47" are affixed to the mailbox which is situated to the left of the driveway near the street."
At the hearing on the motion to suppress, the trooper described the residence as a single-family home. A driveway abuts the side of the property and leads up to a single-car garage next to the home. The house is accessed by means of a driveway and an adjoining path. There is no pathway from the sidewalk to the door, though a visitor could walk from the sidewalk across the grass to the front door. A mailbox stands to the side of the driveway closest to the street. At the time the warrant was served, there were no fencing, trees, no trespassing sign, or other obstructions blocking access to the home or to the driveway.
On the evening of August 25, 2016, a team of State troopers executed the search warrant. After about an hour, the defendant arrived in his truck, which he parked in the driveway. The troopers then searched the truck, and found a bag with a laptop computer (laptop). Images of child pornography were found on the laptop.
Based on his personal observations and the truck's registration, the trooper also confirmed that the defendant drove a maroon pickup truck, which was often parked in the driveway.
No argument was made before the motion judge or on appeal that the laptop was in plain view.
Discussion. "In reviewing a ruling on a motion to suppress, ‘we adopt the motion judge's subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge's application of constitutional principles to the facts as found.’ " Commonwealth v. Larose, 483 Mass. 323, 326 (2019), quoting Commonwealth v. Buckley, 478 Mass. 861, 864 (2018).
" ‘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.’ United States v. Dunn, 480 U.S. 294, 300 (1987). It has since been applied to define those areas associated with a dwelling house that the police may not search without a warrant. Commonwealth v. McCarthy, 428 Mass. 871, 873-874 (1999). In a ‘unique twist in the law,’ United States v. Stanley, 597 F.2d 866, 870 (4th Cir. 1979), ‘[i]n the present context ... curtilage serves a different function -- it helps define where the police can search pursuant to a warrant.’ Commonwealth v. McCarthy, supra at 874." Commonwealth v. Fernandez, 458 Mass. 137, 142 n.10 (2010).
Although the truck was not specifically mentioned in the warrant, the Commonwealth contends that the driveway was within the curtilage of the home, and that the truck therefore fell within the warrant to search the residence. "The scope of a warrant authorizing the search of a particularly described residence includes any automobiles, owned or controlled by the owner of such residence, which are located within the curtilage of the premises at the time the warrant is executed." McCarthy, 428 Mass. at 873, quoting Commonwealth v. Signorine, 404 Mass. 400, 403 (1989). We examine "curtilage questions on a case-by-case basis." Fernandez, 458 Mass. at 143.
When deciding whether a particular area is within the curtilage of a home, we consider four factors, originally set out in Dunn, 480 U.S. at 301 : "[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 passing by." Commonwealth v. Leslie, 477 Mass. 48, 55 (2017), citing Dunn, supra; McCarthy, 428 Mass. at 874. The Dunn factors are not mechanically applied; rather "they bear on the centrally relevant question -- 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." Leslie, supra, quoting Dunn, supra.
Applying these four factors, we conclude that this case is controlled in all material respects by Commonwealth v. Greineder, 458 Mass. 207 (2010). In Greineder, the driveway was held to be outside of the curtilage of the home where the driveway was visible in its entirety from the street, and there were no fences, trees, or gates enclosing it. Id. at 254-255. As in Greineder, the driveway here ran from the garage to the street, was not enclosed, and was accessible to anyone passing the house. There was no fencing, shrubbery, or gate blocking entrance to the driveway. In addition, the driveway is the primary means of access to the home. Contrast Leslie, 477 Mass. at 55-56 ; Fernandez, 458 Mass. at 145-146. Absent a reference to the truck in the warrant, there was no valid basis on which to search the truck outside of the curtilage. See McCarthy, 428 Mass. at 872 n.3.
The Commonwealth contends that McCarthy has been implicitly overruled by Leslie and that "the law should be that anywhere the owner would normally park his or her automobile on his private property, should be considered within the curtilage of the home." The Commonwealth further contends that "in making any curtilage determination, the fact that an individual may traverse part of the driveway in which the defendant's vehicle was parked should not be considered." Greineder forecloses this argument. Moreover, we do not understand Leslie to overrule McCarthy.
Order allowing motion to suppress affirmed.