Massachusetts Supreme Judicial Court Rules Search of Porch in Multifamily Home Required a Warrant

In an important decision delivered earlier this week, the Massachusetts Supreme Judicial Court held that police officers need a warrant to search the porch of a multifamily home.  The name of the case is Commonwealth v. Leslie. 

Boston police officers assigned to the drug control unit were conducting undercover surveillance in Dorchester on the afternoon of May 29, 2014.  The cops saw a group of four men walking toward a property that had been associated with gang activity.  One of the officers had previously arrested someone on the residence’s front porch for violating the gun laws.  The building on the property was a three-family home.  It was bordered by a chain link fence across the front of the property and a tall wooden fence on the left side.  The left side of the porch was blocked by a large recycling bin, which obstructed the view from the street.  The cops watched as the men walked past the front fence and congregated on the porch (meeting a fifth man).  The men appeared to be manipulating an object under the left side of the porch, all while looking around in what appeared to be “counter-surveillance” activity.  The cops ultimately concluded the men were handling a gun and decided to enter the property.  Seven officers walked through the unlocked front gate and up to the porch.  One of the cops walked to the left side of the yard and saw a sawed-off shotgun in plain view underneath the porch.  When it was learned the defendants did not have licenses to carry the gun, they were arrested and charged.  The defendants filed a motion to suppress the gun, arguing the cops needed a warrant to enter the property.  A superior court judge agreed and suppressed the gun.  The Commonwealth appealed and the SJC affirmed.

The Court relied heavily on a recent United States Supreme Court decision that held a warrantless search of the front porch of a single-family residence with a drug-sniffing dog was unconstitutional.  In this case, the Commonwealth argued the Supreme Court case was inapplicable because this case involves a multi-family residence (instead of a single-family home).  The Court shot down the Commonwealth’s argument, writing that such a distinction would impact Fourth Amendment analysis based on income, race, and ethnicity.  A person who owns a single-family home is not entitled to greater constitutional protection than someone living in a multi-family apartment building.  The question, according to the Court, was whether the area searched by the police was within the building’s curtilage.

Curtilage is that area of a home that immediately surrounds it and is considered a part of the home for Fourth Amendment analysis.  In determining whether an area is within the curtilage of a home, courts consider four factors: (1) how close is the area that is searched?; (2) is the area within an enclosure that surrounds the home?; (3) what is the area used for?; and (4) did the resident take steps to avoid the area from being observed?  In this case, the porch was attached to the home and it was surrounded on two sides by a fence.  The porch was being used on the date in question as an extension of the home and the residents took steps to prevent a passerby from observing any objects contained therein.  Therefore, the gun was discovered in the curtilage of the home.

The court concluded the cops did not have the right to enter into the yard and search under the area of the left side of the porch without a warrant.  Accordingly, the gun will not be admissible at trial and the Commonwealth will be forced to dismiss the case.