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NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Tatum 466 Mass. 45 (2013)

CONTRIBUTING EDITOR: ROBERT WILLIAMS I. Procedural History

Pursuant to a search warrant, the defendant was indicted and tried in the Superior Court on charges of (1) trafficking in cocaine in an amount of 200 Grams or more and (2) possession with intent to distribute marijuana. 1 A jury found the defendant guilty of both offenses, and he appealed to the Appeals Court alleging the police violated his Fourth Amendment rights under the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.2 The Appeals Court affirmed his convictions.3 The Supreme Judicial Court (SJC) then granted the defendants application for further appellate review and ultimately affirmed the convictions.4 II. Facts The police obtained a no-knock search warrant to search a third partys residence for the defendant, who was the subject of active arrest warrants for firearm and drug trafficking offenses. 5 Upon executing the warrant, the special tactical operations (STOP) unit found and arrested Michael Goler-Branch, a codefendant at one point in the case, after the officers found a gun near his foot.6 Officers then located the defendant in a basement bedroom that contained two large rolls of cash, an electronic scale, a sizeable bag of what appeared to be marijuana, and a cardboard
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Commonwealth v. Tatum, 466 Mass. 45, 45-46 (2013). Id. at 46, S.C. 81 Mass. App. Ct. 1101, 1101 (2011). Id. Id. at 46, 55. Id. at 46-47. Id.

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box containing what appeared to be several clear plastic bags of cocaine.7 The defendant was then arrested too.8 Based on these observations, the police applied for and obtained a second search warrant to search the third partys residence for narcotics, firearms, and evidence of drug distribution.9 The subsequent search yielded cash, large quantities of marijuana and cocaine packaged in a manner consistent with distribution, and other items.10 The defendant was indicted for trafficking in 200 or more grams of cocaine and possession with intent to distribute a class D substance: marijuana.11 To obtain the first search warrant, and the grounds on which the defendant challenged, the police conducted undercover surveillance of the third partys residence to confirm the defendants presence and requisite probable cause necessary to obtain the warrant. 12 To get within close proximity of the third party residence without being noticed, one police officer wore a Verizon telephone utility helmet and blue jeans, and carried a clipboard.13 He walked down the driveway, entered the back porch that provided access to the first floor of the third party s residence, and observed the defendant one to two feet away. 14 The officer then briefly talked to the defendant and handed him a disengaged window screen before leaving.15 The police applied for and obtained the first search warrant using this information.16 Thereafter, the STOP unit proceeded to execute the search warrant issued, which triggered the events described above.17 The defendant contended that the search conducted pursuant to the first search warrant was illegal and tainted the second warrant that yielded the evidence connected to the charges. 18 III. Issue Presented 1. Whether a defendant, who is the subject of an arrest warrant, may challenge the admittance of evidence seized from a third party s home, which is then used against the defendant, on the grounds that the police

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Commonwealth v. Tatum, supra at 47. Id. 9 Id. 10 Id. 11 Id. 12 Id. at 47-49. 13 Commonwealth v. Tatum, supra at 49. 14 Id. at 49-50. 15 Id. at 50. 16 Id. 17 Id. at 50. 18 Id. at 48.

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did not obtain a valid search warrant and therefore seized the evidence in violation of the defendants Fourth Amendment and art. 14 rights.19 IV. Holding and Reasoning Following the majority view, the subject of an arrest warrant does not have a right to insist that the search warrant be obtained before entry can be made into a third partys home.20 Prior precedent made plain the following:
[T]hat the subject of a valid arrest warrant whom the police arrest in his own home has no right to insist on a search warrant as a condition of police entry;21 the arrest warrant is sufficient to satisfy the arrestees Fourth Amendment and art. 14 rights, so long as the police have reasonable belief that he will be present in his home.22

Logically following, when an arrestee is present in a third partys home rather than his own, the arrestee has the same rights under the Fourth Amendment and art. 14 to require that the police have reasonable basis to believe that he or she will be present when the police enter the home in search of that person, but nothing more.23 To hold otherwise would create an unacceptable paradox, because the subject of an arrest warrant would own greater rights in the home of another than in his or her own home.24 Therefore, the proper focus at issue is whether the police had reasonable belief that the defendant would be present on the date of the original search warrant. 25 The police clearly met this burden through a tip from a confidential informant that the defendant was living at the third party residence, the police had seen the defendants half-brother at the location several times during the defendants believed residency, and based on the undercover officers conversation with the defendant while he was inside the residence.26 Moreover, because the defendant was subject to an arrest warrant, he did not have the right to challenge the lawfulness of the police entering the curtilage of the third partys residence to establish probable cause for the search warrant. 27 Because the defendant could not

Id. at 51. Commonwealth v. Tatum, supra 51-53. 21 Id. at 52, citing Payton v. New York, 455 U.S. 573, 603 (1980); Commonwealth v. Silva, 440 Mass. 772, 778 (2004).
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Id. at 52. Id. Id. at 53, citing Commonwealth v. Allen, 28 Mass. App. Ct. 589, 593 (1990). See id. Id. Commonwealth v. Tatum, supra at 54.

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assert that the warrant violated the Fourth Amendment and art. 14, requiring suppression of all items seized pursuant to the ensuing searches, the judgments were affirmed.28 V. Dissent Justice Lenk dissented and Justices Ireland, C.J. and Duffly, joined in the dissent.29 Justice Lenk opines that this decision, which allows for the police to use evidence that may have been obtained improperly, fails to deter improper police conduct. 30 The dissent believes that because the decision requires the third-party householder be arrested to challenge the validity of a search warrant, the police will have little if any incentive to obtain a search warrant before entering the third party s home when there is no reason to arrest that party. 31 The dissent further states that this decision will allow police, in order to form the reasonable belief of the suspects presence in the third partys house, to physically intrude upon the third partys house.32 Moreover, the dissent analogizes the defendant s status at the third party home to that of an overnight guest.33 Because the Supreme Court has held that the warrantless arrest of an overnight guest in a third partys home violated the Fourth Amendment, Justice Lenk believes that the defendants status as an overnight guest provided him a legitimate expectation of privacy and therefore a recognized reason for challenging the validity of the original search warrant. 34 VI. Impact on This Area of the Law In Commonwealth v. Tatum, the SJC adopted the majority rule in holding that a defendant subject to a valid arrest warrant who police arrest in a third partys home may not challenge evidence seized from that home on the ground that the police did not obtain a valid search warrant before entering.35 No Massachusetts or Supreme Court decision prior to Tatum

28 Id. at 54-55. The defendant argued additionally that the police unlawfully entered the curtilage of the third partys residence, that the police failed to establish probable cause to justify a no-knock warrant, and several other arguments. Id. However, the court sided with the Appeals Court, stating that the defendant could not challenge the validity of the first search warrant and that there was sufficient evidence supporting the warrant application to justify issuing a no-knock warrant. Id. 29 30 31 32 33 34 35

Id. at 56. Id. at 58. Commonwealth v. Tatum, supra at 58. Id. Id. at 61. Id. Id. at 52-55.

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addressed the question of whether the subject of an arrest warrant present in a third partys home may challenge the validity of the search warrant. 36 Reasoning that the SJC had previously held that a resident subject to a valid arrest warrant has no right to demand a valid search warrant as a condition of the police entry, so long as the police have reasonable belief that the he will be present in his home, the court determined that to afford a nonresident superior rights inside a third party s residence would be inconsistent.37

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Id. at 51. Commonwealth v. Tatum, supra at 52-53.