Commonwealth v. Martel Mubdi, March 29, 2010
456 Mass. 385
The defendant was charged with possession of marijuana, possession of marijuana with intent to distribute, and possession of marijuana with intent to distribute within 1,000 feet of a school or public park. The marijuana with which he is charged of possessing and distributing was confiscated after the police conducted a stop and protective search of the defendant’s car. The trial judge denied the defendant’ motion to suppress evidence, finding reasonable suspicion and reasonable protective search. The defendant appealed, the Appeals Court affirmed the denial. The SJC reversed the denial of the motion to suppress.
Affidavit Adequacy; Reasonable Expectation of Privacy; Standing.
The SJC first addressed the grounds upon which the Appeals Court affirmed the motion denial: the defendant’s failure in his affidavit (under Mass. R. Crim. P. 13(a)(2)) to assert that he had an expectation of privacy in his vehicle and that he failed to establish his reasonable expectation of privacy in the vehicle at the evidentiary hearing. The SJC reviewed pretrial motion requirements as specified under 13(a)(2) and noted that in a motion to suppress alleging unconstitutional search or seizure, the defendant’s motion and affidavit must be sufficient to achieve two principal purposes: (1) it must be sufficient so as to enable a judge to determine whether to conduct an evidentiary hearing and (2) it must be sufficiently detailed so as to give the Commonwealth fair notice as to what specifically the defendant is challenging (so that the prosecution may determine which witnesses to call, what evidence to present). The SJC found that the defendant had automatic standing but that the affidavit was not sufficiently detailed – it did not make clear that the defendant was contesting the constitutionality of the vehicle and search. The court also found, however, that because the Commonwealth did not submit any motion or challenges to the affidavit, it waived any objection to the particularity of the defendant’s motion.
The Commonwealth argued that the defendant did not meet his burden of proving reasonable expectation of privacy in the vehicle. The SJC observed that while under the Fourth Amendment the question of standing to challenge the constitutionality of a search or seizure is merged with the determination of reasonable expectation of privacy, under article 14 of the Massachusetts Declaration of Rights, the questions are separate. In a possessory offense under article 14, a defendant is given automatic standing to challenge the constitutionality of a search – and thus he is not required to show a reasonable expectation of privacy of the place searched. The defendant is, however, still required to show that a search in the constitutional sense did take place, i.e. that someone had a reasonable expectation of privacy in the place searched. The search here was that of an automobile and reasonable expectation thus depends on the degree of visibility of the automobile’s interior from the outside. Accordingly, a reasonable expectation of privacy exists in those parts of a vehicle that are not observable unless there is some type of physical intrusion, such as the trunk, glove compartment, closed containers, and under the seats. The police in the case at question searched the center console of the automobile, a portion that is not observable from the exterior, and thus a search in the constitutional sense did take place. Because the defendant is charged with a possessory offense, he has automatic standing to challenge the constitutionality.
Reasonable Suspicion; Protective Sweep; Automobile; Search and Seizure.
The SJC then addressed the question of whether the Commonwealth met its burden of proving that the police officer who approached the defendant had reasonable suspicion to stop (and thus protectively sweep) the defendant and his vehicle. The police stopped the defendant in reliance on a police dispatch. Such a stop is lawful only if the Commonwealth is able to establish both “(1) that the information on which the dispatch was based had sufficient indicia of reliability and (2) that the description of the suspect conveyed by the dispatch had sufficient particularity that it was reasonable for the police to suspect a person matching that description.” Regarding the latter, the SJC found sufficient particularity – the dispatch contained the type, color, registration and location of the vehicle as well as the number of individuals within the vehicle and their race and gender. Regarding the former, however, the SJC found that the information upon which the dispatch was based (an anonymous call to the police station) did not contain sufficient indicia of reliability because the Commonwealth did not establish the caller’s veracity. The court accordingly was unable to determine who called, their state of mind, their motivation, their previous reliability, or their reputation. The SJC also found insufficient police corroboration of the information provided to rectify the missing information about the caller, as well as no predictive information that the police could have corroborated and no suspicious activity by the defendant that the police potentially could have observed. The court therefore concluded that the investigatory stop and protective sweep conducted by the police were not justified by reasonable suspicion and violated article 14.
