Heard: November 7, 2016.
found and returned in the Superior Court Department on
December 16, 2014. Pretrial motions to suppress evidence were
heard by Charles M. Hely, J.
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.
Zachary Hillman, Assistant District Attorney, for the
Patrick Levin, Committee for Public Counsel Services, for
MarySita Miles for Lacy Price.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy,
& Budd, JJ.
defendants, Bobby Leslie and Lacy Price, were indicted on
charges of unlawful possession of a sawed-off shotgun,
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) . 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. 1409, 1417 (2013), and art. 14 of the Massachusetts
Declaration of Rights.
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.
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, 2014, around 2 £.M., Boston
police Detective Daniel Griffin was working in the drug
control unit 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." 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
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 side 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.
repositioning his vehicle down from and opposite the
residence,  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 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.
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.
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 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."
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.
Griffin immediately notified the other officers of the
presence of the sawed-off shotgun, and Leslie was placed
under arrest after officers determined that he did not have a
firearm identification card. 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,  but Leslie was not a resident.