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19-P-1431 Appeals Court
COMMONWEALTH vs. CHRISTOPHER DeJESUS.
No. 19-P-1431.
Bristol. November 17, 2020. - March 1, 2021.
Present: Kinder, Shin, & Hand, JJ.
Firearms. Constitutional Law, Search and seizure, Standing to question constitutionality, Privacy. Search and Seizure, Standing to object, Expectation of privacy. Privacy. Evidence, Firearm. Practice, Criminal, Motion to suppress, Motion for a required finding.
Indictments found and returned in the Superior Court Department on September 6, 2018.
A pretrial motion to suppress evidence was heard by Renee P. Dupuis, J., and the cases were tried before Thomas F. McGuire, Jr., J.
Thomas E. Hagar for the defendant. Tara L. Johnston, Assistant District Attorney, for the Commonwealth.
HAND, J. The defendant, Christopher DeJesus, was indicted
in the Superior Court on three counts -- (1) unlawful possession
of a firearm without a license, G. L. c. 269, § 10 (a); (2) 2
unlawful possession of a large capacity feeding device, G. L.
c. 269, § 10 (m); and (3) unlawful possession of ammunition,
G. L. c. 260, § 10 (h).1 He was charged after police identified
him in several Snapchat2 videos posing with a firearm. As we
discuss in greater detail, infra, the firearm was one of several
items recovered in the course of a warrantless search of the
basement of a multifamily home that had also been depicted in
some of the Snapchat videos.
Prior to trial, the defendant filed a motion to suppress
evidence recovered during the search. Following an evidentiary
hearing, a judge (motion judge) concluded that the defendant had
neither standing to contest the search nor a reasonable
expectation of privacy in the area searched, and denied the
motion.
After a jury trial, the defendant was convicted of two
charges -- unlawful possession of both a firearm and a large
capacity feeding device -- and acquitted of the remaining
1 He was also charged as an armed career criminal in connection with the first and third indictments. G. L. c. 269, § 10G (a).
2 "Snapchat is a social media application that allows users to send or post still images or videos. . . . A user may post images or videos to their 'story,' which allows all those individuals with whom the user is 'friends' to view them on the user's Snapchat page, but they remain available for viewing only for twenty-four hours." Commonwealth v. Watkins, 98 Mass. App. Ct. 419, 420 (2020). 3
charges in the indictments.3 The trial judge sentenced the
defendant to concurrent terms of from two and one-half years to
five years in State prison.
On appeal, the defendant argues that the motion judge erred
in denying his motion to suppress evidence obtained in the
course of the warrantless search of the basement of a
multifamily home, and that the trial judge erred in denying his
motion for a required finding of not guilty of possession of the
firearm at issue and the large capacity feeding device attached
to it. We conclude that the defendant did not have standing to
challenge the search, and that even if he did, he had no
reasonable expectation of privacy in the area searched. We are
also satisfied that the evidence was sufficient to prove the
defendant's possession of the firearm and the large capacity
feeding device. Accordingly, we affirm the judgments.
Discussion. 1. Motion to suppress. "In reviewing a
ruling on a motion to suppress, we accept the judge's subsidiary
findings of fact absent clear error 'but conduct an independent
review of his ultimate findings and conclusions of law.'"
Commonwealth v. Medina, 485 Mass. 296, 299-300 (2020), quoting
3 The trial judge allowed the defendant's motion for a required finding of not guilty on the indictment for illegal possession of ammunition and, after a jury-waived trial, found the defendant not guilty of the armed career criminal enhancements. 4
Commonwealth v. Cawthron, 479 Mass. 612, 616 (2018). The
defendant does not challenge the motion judge's factual findings
as erroneous, and we summarize them here, supplementing as
necessary with uncontroverted testimony from the motion hearing.
In the summer of 2018, following a series of shootings in
Fall River, the Fall River police department organized a task
force to address growing violence within the city. As part of
this task force, Detective Matthew Mendes, a member of the
department's gang unit, monitored the social media accounts of
various individuals suspected of contributing to the violence.
On July 26, 2018, Mendes was monitoring the Snapchat account of
Darius Hunt, an individual known to Mendes as a member of a gang
with a presence in Fall River. Mendes observed a number of
videos on Hunt's Snapchat account (videos), which he identified
as being taken within twenty-four hours prior to his having
viewed them. These videos depicted Hunt, the defendant, and a
third individual. In several of the videos, the defendant was
"holding a black semi-automatic pistol with an extended magazine
and a distinct tan/cream colored grip"; the videos also depicted
a basement area and the outside of a three-family dwelling at 14
Downing Street in Fall River (the premises).4
4 As we note, infra, the defendant did not live at the premises and does not claim that he was an overnight guest there. 5
Mendes and several other officers traveled to the premises,
intending to conduct further investigation. On arrival, the
officers observed a number of individuals, including Hunt and
the defendant, standing outside on the premises; when the police
approached, the individuals dispersed. Some of the individuals
ran to the back yard while the defendant walked down the
sidewalk toward the home of his girlfriend and her mother, at 4
Downing Street. Mendes ran around to the back of the premises,
chasing Hunt. Although the back yard was empty when he arrived,
Mendes observed that the rear door to the basement was ajar, and
he heard people running in the basement.
Mendes and two other officers followed the footsteps and
entered the basement through the open door. The basement, a
common area utilized by the residents of the apartments on the
premises, had no locks on the doors leading into it. Once
inside the basement, the officers observed a firearm in plain
view in an open bag placed on a table; the firearm appeared to
be the same one the police saw in the videos being handled by
Hunt and the defendant. The police "seized the scene," obtained
a search warrant, and later took possession of the bag
containing the firearm and other items. The defendant was
arrested on the sidewalk between 14 Downing Street and 4 Downing
Street. 6
The defendant moved to suppress evidence seized from the
basement of the premises, including the firearm and ammunition,
arguing that the evidence was discovered in the course of an
improper warrantless search of the basement.5 The motion judge
denied the motion, concluding that the defendant lacked both
standing to challenge the search of the basement at the premises
and a reasonable expectation of privacy in the area searched.
in these conclusions; more specifically, he contends that he was
entitled to automatic standing to challenge the search under
art. 14 of the Massachusetts Declaration of Rights and the cases
stemming from the Supreme Judicial Court's ruling in
Commonwealth v. Amendola, 406 Mass. 592, 600-601 (1990). We are
not persuaded.
The automatic standing rule, set forth by the United States
Supreme Court in Jones v. United States, 362 U.S. 257 (1960),
provides that "defendants charged with crimes of possession have
standing to challenge the search."6 Commonwealth v. Frazier, 410
5 We glean this from the motion judge's detailed memorandum of decision denying the motion to suppress. The record does not include a copy of the defendant's motion.
6 Although the rule was abandoned by the Federal courts in United States v. Salvucci, 448 U.S. 83 (1980), it continues to be recognized under Massachusetts State law. See Commonwealth v. Amendola, 406 Mass. at 601 ("we hold today that the automatic standing rule survives in Massachusetts as a matter of State constitutional law"). See, e.g., Commonwealth v. Mubdi, 456 7
Mass. 235, 241 (1991), citing Jones, supra at 263. It applies
where "possession of the seized evidence at the time of the
contested search is an essential element of guilt."7 Frazier,
supra at 243, quoting Amendola, 406 Mass. at 601.
"Under the Fourth Amendment to the United States
Constitution, the question whether the defendant has standing to
challenge the constitutionality of a search or seizure is merged
with the determination whether the defendant had a reasonable
expectation of privacy in the place searched," and therefore, "a
defendant has no standing if he has no reasonable expectation of
privacy in the place searched." Commonwealth v. Mubdi, 456
Mass. 385, 391 (2010), citing Rakas v. Illinois, 439 U.S. 128,
138-139 (1978). Under art. 14, "the question of standing
remains separate from the question of reasonable expectation of
privacy." Mubdi, supra. See Commonwealth v. Williams, 453
Mass. 203, 208 (2009) ("Although the two concepts [of standing
Mass. 385, 390 (2010); Commonwealth v. Frazier, 410 Mass. 235, 241 (1991); Commonwealth v. Ware, 75 Mass. App. Ct. 220, 227 (2009).
7 It is immaterial whether the defendant is charged with possession on a theory of constructive possession or actual possession, so long as he or she is charged with possession at the time of the search or seizure. See, e.g., Commonwealth v. Carter, 424 Mass. 409, 410-411 (1997) ("We have granted a defendant automatic standing to challenge the seizure of property in the possession of another at the time of the search, if the defendant has been charged with the constructive possession of that property at that time"). 8
and expectation of privacy] are interrelated, [under art. 14] we
consider them separately"). Thus, using an art. 14 analysis,
where automatic standing applies, the defendant need not
demonstrate his or her own personal privacy interest, see Mubdi,
supra at 392; instead, a defendant with automatic standing need
only "show that there was a search in the constitutional sense,
that is, that someone had a reasonable expectation of privacy in
the place searched." Id. at 393.
a. Standing. It is undisputed that the defendant was not
in possession -- actual or constructive -- of the firearm at the
time of the search.8 Thus, automatic standing does not apply on
the basis of the defendant's possession. Cf. Commonwealth v.
Ware, 75 Mass. App. Ct. 220, 227 (2009), quoting Amendola, 406
Mass. at 601 ("[w]hen a defendant is charged with a crime in
which possession of the seized evidence at the time of the
contested search is an essential element of guilt, the defendant
shall be deemed to have standing to contest the legality of the
search and the seizure of that evidence" [emphasis added]).9
8 This distinction was later made clear to the jury through the trial judge's instructions that "the [d]efendant is not charged with possession of a firearm . . . at the time the police entered the basement and seized certain objects. The [d]efendant is charged with possession of a firearm . . . at the time the video recording was made."
9 To the extent the defendant argues that he is entitled to automatic standing as a consequence of his presence on the premises at the time of the search, we note the motion judge's 9
The defendant has not met his burden of demonstrating his
automatic standing to challenge the search of the premises.10
b. Expectation of privacy. Even had the defendant shown
that he had automatic standing to challenge the search, his
entitlement to protection under the automatic standing rule
falters on his inability to demonstrate that he, or anyone else,
had a reasonable expectation of privacy in the area searched,
and thus, that a search in the constitutional sense had taken
place. See Mubdi, 456 Mass. at 393 ("that someone had a
reasonable expectation of privacy in the place searched"). See
also Commonwealth v. Johnson, 481 Mass. 710, 715, cert. denied,
140 S. Ct. 247 (2019) (defendant bears burden of demonstrating
violation of reasonable expectation of privacy); Commonwealth v.
Rice, 441 Mass. 291, 295 (2004) (same). Relevant to this
determination is the character of the location involved, whether
the defendant owned or had access to the area, and the area's
accessibility to others. See Williams, 453 Mass. at 208, citing
Commonwealth v. Welch, 420 Mass. 646, 653-654 (1995).
finding that the defendant was no longer on the premises at the time of the officers' search.
10Because the defendant has failed to demonstrate either "a possessory interest in the place searched or in the property seized," or that he was "present when the search occurred," he has not otherwise demonstrated his standing. Williams, 453 Mass. at 208. 10
The search was conducted in the basement of a home that the
defendant concedes he does not own or occupy; the defendant does
not claim to have been a guest in the home. Even if we were to
conclude that the defendant had a subjective expectation of
privacy in the basement -- which we do not -- given the nature
of access to the area and that the defendant neither owned nor
controlled the area, that expectation would have been
unreasonable. See Commonwealth v. Carter, 39 Mass. App. Ct.
439, 442 (1995), S.C., 424 Mass. 409 (1997) (expectation of
privacy not objectively reasonable where "defendant did not own
the place involved, was not a tenant, and was not an invitee of
the . . . apartment dweller"). See also Sullivan v. District
Court of Hampshire, 384 Mass. 736, 742 (1981) ("an individual
can have only a very limited expectation of privacy with respect
to an area used routinely by others").
Assessing the defendant's showing of an objective
expectation of privacy -- that is, whether anyone had a
reasonable expectation of privacy in the items and area searched
-- we consider whether "(i) [an] individual has 'manifested a
subjective expectation of privacy in the object of the search,'
and (ii) 'society is willing to recognize that expectation as
reasonable' (citation omitted)." Johnson, 481 Mass. at 715,
quoting Commonwealth v. Augustine, 467 Mass. 230, 242 (2014),
S.C., 470 Mass. 837 and 472 Mass. 448 (2015). "This 11
determination turns on whether the police conduct has intruded
on a constitutionally protected reasonable expectation of
privacy." Commonwealth v. Montanez, 410 Mass. 290, 301 (1991).
Here, neither consideration is present.
Generally, tenants in a multiunit home do not have a
reasonable expectation of privacy in common areas. See
Williams, 453 Mass. at 209 (no reasonable expectation of privacy
in basement common area accessed by unlocked door); Montanez,
410 Mass. at 302 (no reasonable expectation of privacy, and
therefore no constitutional search, in "common area, accessible
to the public, that was freely and frequently used by people
other than the defendant"). See also Commonwealth v. Sorenson,
98 Mass. App. Ct. 789, 792 (2020), quoting Commonwealth v.
Escalera, 462 Mass. 636, 648 (2012) (curtilage "applied narrowly
to multiunit apartment buildings"). Nor do we find authority to
suggest that landlords have a reasonable expectation of privacy
in the areas freely accessible to their tenants. The basement
searched in the present case was readily available to use by all
tenants in the building, as well as their invitees and the
landlord, and none exerted exclusive control. Additionally,
none of the doors leading into the area had locks. Thus, in
this case, "the relevant criteria and pertinent case law would
appear to place [the area] beyond any constitutionally protected 12
privacy zone." Commonwealth v. Dora, 57 Mass. App. Ct. 141, 145
(2003).
Absent a constitutionally protected reasonable expectation
of privacy held by anyone, the motion judge properly denied the
motion to suppress.11
2. Sufficiency of the evidence. The defendant moved for a
required finding of not guilty on all counts at the close of the
Commonwealth's case, arguing that the evidence was insufficient
to allow the jury to find that the gun at issue qualified as a
"firearm" for the purposes of G. L. c. 140, § 121; the motion
was renewed when the defendant rested.12 The trial judge allowed
the motion as to the indictment for unlawful possession of
ammunition,13 but denied it as to the firearm and the large
capacity feeding device. On appeal, the defendant changes tack,
arguing instead that the evidence was insufficient to prove that
the defendant's brief handling of the firearm as depicted in the
11In light of our conclusion that the defendant did not have a reasonable expectation of privacy over the premises or standing to challenge the entry and search of the premises, we need not reach the defendant's challenges to the existence of probable cause or exigent circumstances justifying the search.
12The defendant cross-examined the Commonwealth's witnesses; as was his right, he chose not to put on evidence of his own.
13The trial judge's ruling was based on his determination that the ammunition was not visible in the videos. 13
videos amounted to his "possession" of the gun.14 We are not
persuaded.
A motion for a required finding of not guilty is a
challenge to the sufficiency of the evidence, see, e.g.,
Commonwealth v. Jones, 432 Mass. 623, 625 (2000), and we review
the judge's ruling under the Latimore standard, "viewing the
evidence in the light most favorable to the Commonwealth and
ask[ing] whether the evidence and inferences reasonably drawn
therefrom were 'sufficient to persuade a rational jury beyond a
reasonable doubt of the existence of every element of the crime
charged.'" Commonwealth v. Squires, 476 Mass. 703, 708 (2017),
quoting Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C.,
450 Mass. 215 (2007) and 460 Mass. 12 (2011). See Commonwealth
v. Latimore, 378 Mass. 671, 676-677 (1979).
Under G. L. c. 269, § 10 (a), the Commonwealth must prove
the defendant knowingly possessed an item that meets the legal
definition of a firearm. See Commonwealth v. White, 452 Mass.
133, 136 (2008); Commonwealth v. Watkins, 98 Mass. App. Ct. 419,
421-422 (2020). "[P]ossession does not depend on the duration
14Although this argument is raised for the first time on appeal, "a conviction premised on legally insufficient evidence always creates a substantial risk of a miscarriage of justice." Commonwealth v. Kurko, 95 Mass. App. Ct. 719, 722 (2019), quoting Commonwealth v. Montes, 49 Mass. App. Ct. 789, 792 n.4 (2000). We review any error against that standard. See Commonwealth v. Silvelo, 96 Mass. App. Ct. 85, 104 n.13 (2019) (Shin, J., dissenting). 14
of time elapsing after one has an object under his control so
long as, at the time of contact with the object, the person has
the control and the power to do with it what he or she wills."
Commonwealth v. Hall, 80 Mass. App. Ct. 317, 330 (2011), citing
Commonwealth v. Harvard, 356 Mass. 452, 457-458 (1969).
The defendant argues that it is not possible to determine
from the video evidence whether he owned the firearm or was
temporarily holding it and that, if he only had momentary
possession of the firearm, it would not be sufficient to sustain
a finding of possession.
We are satisfied that the evidence in this case was
sufficient to prove the defendant had possession of the firearm
and the large capacity feeding device at the time of the videos,
which clearly show the defendant holding the firearm and
posturing with it, pointedly displaying the attached feeding
device, and mimicking the action of aiming and firing the
weapon.15 See Commonwealth v. Seay, 376 Mass. 735, 737-738
15The defendant offers an analogy to Commonwealth v. Atencio, 345 Mass. 627, 628, 631 (1963), in which participants in a game of "Russian roulette" were found to have only temporary possession of a firearm, having each held the gun and pulled the trigger once. The basis of the court's determination in Atencio was that the defendants did not carry the firearm within the meaning of G. L. c. 269, § 10, as it existed at the time, where "[t]he idea conveyed by the statute is that of movement, [that the defendant] 'carries on his person or under his control in a vehicle.'" Atencio, supra at 631. Since that time, and as the defendant acknowledges, the statute has been amended; the requirement that the Commonwealth show that the 15
(1978) (defendant handling gun in foyer and stairway area of his
apartment building prior to sale more than momentary);
Commonwealth v. Stallions, 9 Mass. App. Ct. 23, 25 (1980)
(defendant's taking gun, walking fifteen to twenty feet, and
returning gun within one to two minutes of having taken it "far
more than momentary"). We are satisfied that at the time of the
videos' recording, the defendant had control and power over the
firearm and large capacity feeding device such that a rational
jury could have concluded that the defendant was in possession
of them for that period of time. We discern no error in the
judge's denial of the motion for a required finding of not
guilty.
Conclusion. The defendant failed to demonstrate that he
had standing to challenge the warrantless search of the common
area in which the firearm and other contraband were found, or
that anyone had a reasonable expectation of privacy in the
contraband left there. Accordingly, the motion to suppress was
properly denied. Because the evidence was sufficient to
establish the defendant's possession of the firearm at issue and
defendant "carrie[d] [the firearm] on his person" has been eliminated. Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 153 n.4 (2008) ("the cases relied upon by the defendant all predate the 1990 amendment to G. L. c. 269, § 10 [a], which eliminated the words 'carries on his person' from § 10 [a]. See St. 1990, c. 511, § 2. Since the time of that amendment, § 10 [a] has simply prohibited the knowing possession of a firearm without a license"). 16
the large capacity feeding device, there was no error in the
denial of the motion for a required finding.
Judgments affirmed.