on 10/4/2010 the SJC decided in COMMONWEALTH vs. CARLOS FERNANDEZ 458 Mass. 137 (2010) that a vehicle in the driveway of a multi family dwelling could be searched persuant to a warrant, but remanded the case for a new trial due to the admission of drug certificates (Melendez Diaz once again).
The court in deciding stated “CORDY, J. A jury convicted the defendant, Carlos Fernandez, of possession of cocaine with intent to distribute, G. L. c. 94C, § 32A (c); and for doing so within one hundred feet of a public park, G. L. c. 94C, § 32J. At a subsequent jury-waived trial, the defendant’s convictions were found to be subsequent offenses. G. L. c. 94C, § 32A (d). We granted the defendant’s application for direct appellate review in order to consider whether it was error to admit certain evidence at trial, including evidence seized from the defendant’s automobile that was parked in a driveway adjacent to his residence, the results of field drug tests, and laboratory certificates of drug analysis. We conclude that it was not error to admit the first two categories of evidence, but that the erroneous admission of the certificates requires reversal of the defendant’s convictions and remand for a new trial.
a. Search of defendant’s Honda. The police obtained a warrant to search the defendant’s residence, the first-floor apartment of the building. At the time of the search, a blue Honda automobile, known to be registered to the defendant, was parked alongside the building in a narrow driveway, but the search warrant did not include the automobile expressly as a location to be searched. At some point, the defendant’s girl friend, who was present during the search of the residence, informed the police that the defendant used the Honda to distribute narcotics and that there was a concealed compartment in the car used to hide drugs. Acting on this information, the police searched the automobile and recovered the hollowed out marker and the small bag of cocaine.
Prior to trial, the defendant filed a motion to suppress the evidence obtained from the search of the Honda, arguing that the search warrant for his apartment did not extend to this vehicle because it was not within the “curtilage” of the apartment. The motion judge denied the motion, concluding that the warrant’s scope included the vehicle because the driveway where it was parked was “intimately tied” to the defendant’s residence. The defendant filed a motion for reconsideration, which the judge allowed, but which was followed by a renewed denial of the defendant’s underlying 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 [the judge’s] ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). In the context of a curtilage determination, we undertake our independent review cognizant that there is no “finely tuned formula” that demarcates the curtilage in a given case. See Commonwealth v. McCarthy, 428 Mass. 871, 874 (1999) (McCarthy), quoting United States v. Dunn, 480 U.S. 294, 301 (1987) (Dunn). A ” ‘correct’ answer to all extent-of-curtilage questions” is not always available. Dunn, supra. This is especially true when multi-unit dwellings with various “common areas” are at issue. See Commonwealth v. Dora, 57 Mass. App. Ct. 141, 144 (2003) (“Whether [an] occupant of a multi-unit apartment building has a reasonable expectation of privacy [in common areas] is a question that cannot be answered categorically”);United States v. Stanley, 597 F.2d 866, 870 (4th *143 Cir. 1979) (” ‘common area’ curtilage issue has been a thorny one for the courts”).
The defendant argues that two of our cases, Commonwealth v. Thomas, 358 Mass. 771, 774-775 (1971); and McCarthy, supra, stand for the proposition that the driveway of a multi-unit dwelling cannot come within the curtilage of any individual unit. See Commonwealth v. Thomas, supra (“In a modern urban multi-family apartment house, the area within the ‘curtilage’ is necessarily much more limited than in the case of a rural dwelling subject to one owner’s control”). But the Thomas and McCarthy decisions did not establish a bright line rule that shared or common driveways connected to multi-unit dwellings are never within the curtilage of one of the units. There is no such bright line. See United States v. Diehl, 276 F.3d 32, 39 (1st Cir.), cert. denied, 537 U.S. 834 (2002). Rather, it is the policy of the United States Supreme Court and of this court to approach curtilage questions on a case-by-case basis. SeeDunn, supra; McCarthy, supra. If a vehicle parked in a driveway is within the curtilage, it may be searched pursuant to a warrant issued to search the accompanying residence. Commonwealth v. Signorine, 404 Mass. 400, 403 (1989).
In determining whether a particular parking area is within the curtilage of a residence, we consider four factors: “(1) the proximity of the area to thehome, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observations by people passing by.” McCarthy, supra, citing Dunn, supra. However, these four factors (Dunn factors) cannot be “mechanically applied.” Dunn, supra. They are “useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration — whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of . . . protection [under the Fourth Amendment to the United States Constitution].” Id.
McCarthy involved the search of an automobile parked in a parking space of a common parking lot that could accommodate fifty vehicles. McCarthy,supra at 872 n.4. The police had obtained a search warrant only for the defendant’s apartment. Id. at 872. The parking space in McCarthy was twenty-five feet from the entrance of the apartment building; it was a space assigned to visitors of the building; and the parking lot itself frequently was used by tenants, visitors, delivery people, maintenance workers, “and anyone else with business at the building.” Id. at 872, 875. The parking lot was large, and it was free from any landscaping or other design features that made any single parking space more private than the others. Id. at 875 & n.5.
Applying the four Dunn factors, we concluded that the space in which the defendant parked his automobile was not proximate to his apartment; the space was not enclosed in any manner; the space was used by many individuals without exclusion; and the defendant took no steps to protect the space from observation. Id. at 875-876. In particular, we noted that the defendant had parked in a space designated for visitors, rather than his assigned space. Id. at 872 & n.4. For the parking space to be within the curtilage of the defendant’s apartment in these circumstances would have required us to adopt a “roaming zone of curtilage that would follow the defendant’s car to whichever parking space he select[ed] at the apartment complex on a given day.” Id. at 874. That we would not do, concluding that “neither the physical layout of the parking lot, nor the nature of its regular and intended uses, would give tenants any reasonable expectation that it would be ‘treated as the home itself.’ ” Id. at 875, quoting Dunn, supra at 300.
The present case differs in significant ways. Here, the defendant lived in the first-floor apartment of a “three-family home,” not an “apartment complex.” Directly adjacent to the house was a narrow driveway, approximately the width of one vehicle and the length of two, as compared to a lot that could accommodate fifty automobiles. There is no evidence that there was a side door or other way to gain access to the driveway from any of the other apartments. No one seeking to enter or visit the home would have had reason to traverse the driveway. Additionally, during the course of their surveillance, the police officers saw only vehicles associated with the defendant — his blue Honda, for one — parked in the driveway.
Applying the Dunn factor analysis to the facts found in this case supports the motion judge’s conclusion that the driveway in the present case was within the curtilage of the defendant’s apartment.
i. Proximity. The driveway was highly proximate to the defendant’s apartment, both in absolute terms (it bordered it) and in relative terms (the driveway was closer to the defendant’s first-floor apartment than to the other apartments). In McCarthy, we emphasized that between the parking space and the defendant’s apartment “presumably lay common hallways, entrances, and exits,” indicating that the parking space was attenuated from the apartment. McCarthy, supra at 875. The record in the present case indicates that the house had a common front door, through which individuals entering and leaving the apartments would pass. But the attenuation caused by such common passage is significantly less than was present in McCarthy, and the motion judge found that tenants and visitors of the defendant’s building would have had no reason to traverse the driveway to enter. Passage through common areas was required to reach the driveway, but passage through the driveway was not required to reach the common areas.
ii. Enclosure. In the context of curtilage determinations, whether an area is enclosed is a question whether it is marked in such a fashion that connects it to or encompasses it within the curtilage of the home in question. See Dunn, supra at 302 (area searched was not within fence surrounding main house); McCarthy, supra at 875 (parking lot enclosed, but enclosed to all tenants generally). Here, the photographic evidence submitted during the hearing on the motion to suppress shows a fence along the driveway separating it from the neighboring building and connecting it to the defendant’s building. It was thus enclosed in relation to the building itself, but nothing indicated that the driveway was enclosed to the defendant’s individual apartment. In the language of the United States Court of Appeals for the Fourth Circuit, the enclosure of the driveway in this case did not show that the driveway was “annexed to” the defendant’s apartment. United States v. Stanley, 597 F.2d 866, 870 (4th Cir. 1979). However, compared to the circumstances in McCarthy, the driveway was enclosed to far fewer possible tenants, and no visitor parking existed.
iii. Use. In Dunn, the Court discussed the fact that the area in question — a barn some distance away from the main house — was not being used as an extension of the home. Id. at 302-303. The police smelled strong chemical odors and heard engines running inside the barn, suggesting that the barn was not being put to domestic use and cutting against its inclusion within the curtilage of the dwelling. Id. In McCarthy, supra at 875, we emphasized that the parking lot was used by “anyone . . . with business at the building.” As in Commonwealth v. Thomas, 358 Mass. 771, 774 (1971), the defendant inMcCarthy exercised no control over the parking lot, or even the space in which he parked.
Here, the motion judge found that the driveway was not used by nontenants because it was not necessary to traverse the driveway to enter or exit the building. He also credited testimony that the police officers did not observe anyone using the driveway except the defendant and individuals associated with him. In sum, all the evidence at the hearing pointed to the driveway belonging to the defendant’s exclusive use.
iv. Steps taken to protect from observation. There is no evidence in this case that the defendant took any steps to conceal the Honda from observation. The automobile was visible from the street. See Commonwealth v. Simmons, 392 Mass. 45, 46-49, cert. denied, 469 U.S. 861 (1984). However, in order to see into the car, an observer would have been required to depart from the path used to reach the front door, and travel along the side of the house down the driveway.
Accordingly, pursuant to the “well-settled principle . . . that the scope of a warrant authorizing the search of a particularly described premises, includes automobiles owned or controlled by the owner thereof, which are found on the premises,” Commonwealth v. Signorine, 404 Mass. 400, 403 (1989), the police were authorized to search the defendant’s Honda. The evidence that resulted was properly admitted.
3. Conclusion. Because the admission of the two certificates of analysis was not harmless beyond a reasonable doubt, we reverse the judgments, set aside the verdicts, and remand the cases for a new trial. On retrial, if the Commonwealth seeks to introduce field test evidence, the judge should engage in a new Lanigan analysis.”
The case covers a few areas of importance for police. First, the case gets thrown back for a new trial by the SJC due to the admission of the drug certificates. It isn’t fatal to the case, but is a problem. Second and more important to the street cop if the application of the so called Dunn factors which are used to determine if a vehicle is within the curtilage of a residence. the Dunn factors ((1) the proximity of the area to thehome, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observations by people passing by).
Attorney Ronald A. Sellon