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19-P-1170 Appeals Court

COMMONWEALTH vs. ERICH SORENSON.

No. 19-P-1170.

Middlesex. September 8, 2020. - November 16, 2020.

Present: Green, C.J., Milkey, & Wendlandt, JJ.

Arrest. Search and Seizure, Curtilage, Arrest. Constitutional 

Law, Assistance of counsel, Arrest, Search and seizure.

Due Process of Law, Assistance of counsel. Practice, 

Criminal, Assistance of counsel, Motion to suppress.

Indictments found and returned in the Superior Court 

Department on June 22, 2012.

Following review by this court, 93 Mass. App. Ct. 1108 

(2018), a motion for a new trial, filed on April 8, 2019, was 

considered by Robert L. Ullmann, J., and a motion for 

reconsideration also was considered by him.

Sara A. Laroche for the defendant.

Kevin J. Curtin, Assistant District Attorney, for the 

Commonwealth.

WENDLANDT, J. In this case we consider the issue whether 

trial counsel provided ineffective assistance by failing to move 

to suppress evidence garnered during the defendant's warrantless 
2

arrest in the hallway immediately adjacent to the apartment of 

the multiunit, three-story apartment building in which he was 

living. The motion judge denied the defendant's motion for a 

new trial, holding that the hallway was not a constitutionally 

protected area and therefore counsel's failure to file such a 

motion did not constitute ineffective assistance under the 

familiar Saferian test.1,2 Concluding that the denial of the 

motion for a new trial was not an abuse of discretion because 

the common hallway at issue did not constitute the apartment's

curtilage and, therefore, there was no abuse of discretion in 

denying the defendant's motion for reconsideration, we affirm.

Background. The defendant was convicted of armed assault 

with intent to rob, G. L. c. 265, § 18 (b); and assault and 

battery by means of a dangerous weapon causing serious bodily 

injury, G. L. c. 265, § 15A (c) (i), stemming from the stabbing 

of the victim. An eyewitness, who was familiar with the 

defendant, identified him to the police as the assailant and 

told them the street address where the defendant lived and that 

 

1 Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

2 The defendant also filed a timely motion for 

reconsideration and appeals only from the order denying it. 

Because the timely motion for reconsideration incorporates most 

of the same arguments made in the motion for a new trial, our 

review requires determination whether the motion for a new trial 

correctly was decided. The Commonwealth does not contend 

otherwise. 
3

he lived in "an apartment on the third floor, in the back righthand side apartment." When Lowell Police Sergeant Joseph Murray 

arrived at the address, he observed a "three-story building with 

numerous apartments on each floor." 

Sergeant Murray knocked on the door of the unit. A woman 

answered the door, and Murray asked whether the defendant was 

home. At that moment, the defendant came walking toward the 

door from inside the apartment. Murray asked the defendant "to 

step out in the hallway." The defendant complied, and Murray 

proceeded to arrest him.

In his direct appeal, the defendant conceded that there was

probable cause to arrest him, but argued for the first time that 

the fruits of his warrantless arrest3 should have been suppressed 

because the arrest occurred in the curtilage of the apartment. 

Commonwealth v. Sorenson, 93 Mass. App. Ct. 1108 (2018). We 

affirmed, holding that because the defendant raised the argument 

for the first time on appeal, it was waived. Id. 

 

3 As Murray was handcuffing the defendant and explaining 

that he was being arrested in connection with "a stabbing that 

occurred the other night," the defendant responded, "I was here 

all Saturday." Murray had not told him that the stabbing 

occurred on Saturday. Murray also noticed during the arrest 

that the defendant had a band-aid on his finger and later, after 

the band-aid had been removed, observed a laceration on that 

finger. Murray found the injury significant because "it's not 

uncommon when somebody is involved in a stabbing that they get 

cut themselves." 
4

In his motion for new trial, the defendant contended that 

he was provided constitutionally ineffective counsel because 

counsel failed to make the curtilage argument. As discussed 

supra, the motion judge, who was also the trial judge, denied 

the motion.

Discussion. "The trial judge upon motion in writing may 

grant a new trial at any time if it appears that justice may not 

have been done." Mass. R. Crim. P. 30 (b), as appearing in 435 

Mass. 1501 (2001). We review the denial of a motion for a new 

trial for an abuse of discretion. See Commonwealth v. 

Fernandes, 485 Mass. 172, 187 n.10 (2020). "We afford 

particular deference to a decision on a motion for a new trial 

based on claims of ineffective assistance where the motion judge 

was, as here, the trial judge." Commonwealth v. Diaz Perez, 484 

Mass. 69, 73 (2020), quoting Commonwealth v. Martin, 467 Mass. 

291, 316 (2014).

The defendant claims entitlement to a new trial because, he 

contends, his counsel provided constitutionally deficient 

assistance. Claims of ineffective assistance of counsel require 

examination of counsel's performance to determine (1) "whether 

there has been serious incompetency, inefficiency, or 

inattention of counsel -- behavior of counsel falling measurably 

below that which might be expected from an ordinary fallible 

lawyer," and, if so, (2) "whether it has likely deprived the 
5

defendant of an otherwise available, substantial ground of 

defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). 

The defendant maintains that his counsel's performance was 

constitutionally deficient because counsel did not seek to

suppress evidence collected during the defendant's warrantless 

arrest in the curtilage of his residence -- an arrest, he 

contends, that violated his rights under the Fourth Amendment to 

the United States Constitution and art. 14 of the Massachusetts 

Declaration of Rights. "In order to succeed on a claim of 

ineffective assistance of counsel based on the failure to file a 

motion to suppress evidence, the defendant must show that he 

would have prevailed on such a motion." Commonwealth v. 

Johnston, 467 Mass. 674, 688 (2014). See Commonwealth v. Lally, 

473 Mass. 693, 703 n.10 (2016), quoting Commonwealth v. 

Satterfield, 373 Mass. 109, 115 (1977) ("question is whether 

filing of the motion 'might have accomplished something material 

for the defense'"). Because the record does not support a 

conclusion that the hallway where the defendant was arrested 

constituted the curtilage of his residence, the defendant has 

failed to make the necessary showing.

Curtilage.4 In determining whether an area outside of the

home constitutes the constitutionally protected curtilage of the

 

4 Absent justification, the police cannot intrude upon a 

constitutionally protected area, including the curtilage of the 
6

home, "the central component of [the] inquiry [is] whether the 

area harbors the 'intimate activity associated with the sanctity 

of a [person's] home and the privacies of life'" (quotation 

omitted). United States v. Dunn, 480 U.S. 294, 300 (1987), 

quoting Oliver v. United States, 466 U.S. 170, 180 (1984). 

Although the concept of curtilage is to be assessed on a caseby-case basis, the Supreme Judicial Court has cautioned that it 

"is applied narrowly to multiunit apartment buildings." 

Commonwealth v. Escalera, 462 Mass. 636, 648 (2012) (locked 

basement area exclusively accessible by tenants of apartment 

within curtilage of defendant's apartment).5

 

home, without a warrant. See Florida v. Jardines, 569 U.S. 1, 

5-6, 11 (2013). This constitutional protection of the home and 

its curtilage does not require a showing that the defendant has 

a reasonable expectation of privacy; instead, the protection is 

grounded in property rights. Id. at 11 (unnecessary to consider 

reasonable expectation of privacy test when government gains 

evidence by physically intruding on constitutionally protected 

areas). "One virtue of the Fourth Amendment's property-rights 

baseline is that it keeps easy cases easy." Id.

5 The defendant maintains that the view espoused by the 

court in Escalera no longer represents the current approach to 

the question of curtilage. Compare Commonwealth v. Leslie, 477 

Mass. 48, 54 (2017) ("we reject the Commonwealth's argument that 

in cases involving a search in a multifamily home, the validity 

of the search turns on the defendant's exclusive control or 

expectation of privacy in the area searched"; "the essential 

question is whether the area searched is within the home or its 

curtilage"), with Escalera, 462 Mass. at 648 ("The concept of 

curtilage is applied narrowly to multiunit apartment 

buildings. . . . [A multiunit] tenant's 'dwelling' cannot 

reasonably be said to extend beyond his own apartment and 

perhaps any separate areas subject to his exclusive control"

[quotation and citation omitted]). See Commonwealth v. Thomas, 
7

On appeal, the defendant incorrectly contends that the 

judge erred by applying the four factors set forth in Dunn to 

determine whether the hallway constituted curtilage.6 The four 

factors are: (i) "the proximity of the area claimed to be 

curtilage to the home"; (ii) "whether the area is included 

within an enclosure surrounding the home"; (iii) "the nature of 

the uses to which the area is put"; and (iv) "the steps taken by 

the resident to protect the area from observation by people 

passing by." Dunn, 480 U.S. at 301. Contrary to the 

 

358 Mass. 771, 774-775 (1971) ("In a modern urban multifamily 

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"). Nothing in Leslie, supra at 57, which 

emphasizes the relevance of the Dunn factors, is inconsistent 

with our approach or conclusion in this case.

6 The defendant contends that our decision in Commonwealth

v. Street, 56 Mass. App. Ct. 301 (2002), abrogated in part on

other grounds by Commonwealth v. Tyree, 455 Mass. 676, 697-700 

(2010), is controlling. In Street, however, the defendant was 

inside his apartment or "on or at" the threshold when the arrest 

was effected, id. at 306–307, 307 n.11 (defendant opened door to

his apartment and arrest occurred while police stood in 

hallway). In contrast, the record in the present case reveals

that the defendant was in the hallway, outside of the apartment 

and its threshold when he was arrested. The defendant's 

reliance on Commonwealth v. Molina, 439 Mass. 206, 207-208, 211 

(2003); Commonwealth v. Marquez, 434 Mass. 370, 375 (2001); and 

United States v. Allen, 813 F.3d 76, 78 (2d Cir. 2016), each of 

which involved an arrest effected inside the defendant's home, 

is similarly unavailing. See Allen, supra at 78 ("This is a 

liminal case, which presents a close line-drawing problem. . . . 

If the officers had gone into [the defendant's] apartment 

without a warrant to effect the arrest, the arrest would violate 

the Constitution; if [the defendant] had come out of the 

apartment into the street and been arrested there, no warrant 

would be required").
8

defendant's contention, the Supreme Judicial Court has 

"emphasize[d] the relevance of the Dunn factors for our courts 

in determining whether a challenged police action occurr[ed] 

within the boundaries of a home." Commonwealth v. Leslie, 477 

Mass. 48, 57 (2017) (applying Dunn factors to determine whether 

side yard and porch of multifamily home were part of curtilage). 

While the factors do not constitute a "finely tuned formula" 

that ought to be "mechanically applied," 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 Fourth 

Amendment protection." Id. at 55, quoting Dunn, supra. Thus, 

the judge here did not err in analyzing the defendant's claim by 

application of the Dunn factors.

Nor did the judge err in concluding, after weighing the 

Dunn factors, that the common hallway adjacent to the 

defendant's residence was not curtilage. Indeed, the only Dunn

factor that favors the defendant's position is the first -- the 

proximity of the hallway to the defendant's home. The record 

shows that the hallway was physically adjacent to the apartment 

unit.

The remaining three factors do not support extending the 

concept of curtilage. Specifically, with regard to the second 
9

Dunn factor, the record is devoid of any information as to 

whether the hallway was enclosed; certainly, there is nothing in 

the record suggesting that it was enclosed relative to the 

defendant's individual apartment. See Commonwealth v. McCarthy, 

428 Mass. 871, 875 (1999) (noting second Dunn factor does not 

favor finding area curtilage where "[t]o whatever extent the 

parking lot is enclosed, it is an enclosure encompassing a 

common area utilized by all the tenants and visitors of the 

building").

Nor does the third Dunn factor -- the nature of the uses of 

the hallway -- favor the defendant's position. From the record, 

it appears the hallway was a common hallway used by the 

residents of the building (and their guests) to reach each 

separate unit. See McCarthy, 428 Mass. at 875 (lot used by 

tenants, guests, maintenance workers, and anyone else with 

business at building not curtilage).

Furthermore, nothing in the record supports a finding that

any steps were taken to obscure the hallway from view -- the 

fourth Dunn factor. To the contrary, it appears to have been 

open to residents and guests. See McCarthy, 428 Mass. at 875 

(lot not curtilage where "freely visible" to anyone entering 

it). Contrast Commonwealth v. Fernandez, 458 Mass. 137, 145–146 

(2010) (curtilage extended to driveway where fence separated 

driveway from neighboring building, other residents and their 
10

guests had no need to traverse driveway, and police did not 

observe driveway being used by anyone other than defendant and 

his guests).

In sum, the present record does not support the defendant's 

position that the hallway was an area that "harbors the 

'intimate activity associated with the sanctity of a [person's] 

home and the privacies of life'" (quotation omitted). Dunn, 480 

U.S. at 300, quoting Oliver, 466 U.S. at 180. In fact, the 

defendant cites no authority holding that the common hallway of 

a multiunit apartment complex is curtilage. Our own review 

reveals no Massachusetts case addressing such a common hallway; 

indeed, cases in other jurisdictions addressing a similar claim 

hold that a common hallway of a multiunit apartment complex is 

not curtilage in contexts comparable to those present in this 

case. See United States v. Trice, 966 F.3d 506, 515 (6th Cir. 

2020) (applying Dunn factors and holding "hallway in . . . a 

common area open to the public to be used by other apartment 

tenants to reach their respective units" not curtilage). See 

also United States v. Makell, 721 Fed. Appx. 307, 308 (4th Cir. 

2018) (per curiam) ("the common hallway of the apartment 

building, including the area in front of [the defendant's] door, 

was not within the curtilage of his apartment"); Lindsey v. 

State, 226 Md. App. 253, 281 n.8 (Md. Ct. Spec. App. 2015) (area 

in front of defendant's apartment door not curtilage); State v. 
11

Edstrom, 916 N.W.2d 512, 520 (Minn. 2018) ("privacies" of home 

life "do not extend . . . immediately outside [defendant's] 

apartment"); State v. Nguyen, 841 N.W.2d 676, 682 (N.D. 2013), 

cert. denied, 576 U.S. 1054 (2015) ("common hallway is not . . . 

within the curtilage of [defendant's] apartment").

Accordingly, we hold that the judge did not abuse his 

discretion in concluding that trial counsel's assistance was not 

ineffective by not bringing a motion to suppress on this basis. 

Johnston, 467 Mass. at 688 (performance of counsel not 

ineffective where motion to suppress would not have succeeded).7

Seizure. The defendant also asserts, in the alternative,

that he was seized inside his residence at the moment Murray 

knocked on the door and asked the defendant to step out into the 

hallway. The failure to raise such an argument, the defendant 

 

7 The defendant argues alternatively that he had a 

reasonable expectation of privacy in the common hallway. See 

Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., 

concurring). The cases relied on by the defendant are readily 

distinguished. See Commonwealth v. Porter P., 456 Mass. 254, 

259-261 (2010) (discussing juvenile's reasonable expectation of 

privacy inside his locked room at transitional shelter where he 

kept his personal belongings); Commonwealth v. Hall, 366 Mass. 

790, 794-795 (1975) (tenant who was also owner of apartment 

building had reasonable expectation of privacy in hallway solely

used and controlled by owner and accessed by locked door and

buzzer system controlled by owner). Nothing in the record --

such as exclusive or even restricted use, control, or access --

supports an inference that the defendant harbored any reasonable 

expectation of privacy in the common hallway at issue.
12

apparently claims, rendered trial counsel's performance

constitutionally deficient.

A seizure occurs when, "in view of all the circumstances 

surrounding the incident, a reasonable person would have 

believed that he was not free to leave." Commonwealth v. 

Barros, 435 Mass. 171, 173–174 (2001), quoting United States v. 

Mendenhall, 446 U.S. 544, 554 (1980). See Commonwealth v. 

Matta, 483 Mass. 357, 362 (2019) ("the . . . pertinent question 

is whether an officer has, through words or conduct, objectively 

communicated that the officer would use his or her police power 

to coerce that person to stay"). "[T]he police do not 

effectuate a seizure merely by asking questions unless the 

circumstances of the encounter are sufficiently intimidating 

that a reasonable person would believe that he was not free to 

turn his back on his interrogator and walk away." Barros, supra

at 174. Police officers "may make inquiry of anyone they wish 

and knock on any door, so long as they do not implicitly or 

explicitly assert that the person inquired of is not free to 

ignore their inquiries." Id., quoting Commonwealth v. Murdough, 

428 Mass. 760, 763 (1999). Contrast Johnson v. United States, 

333 U.S. 10, 13-15 (1948) (officer's entry into defendant's 

living quarters without exigency cannot be justified as incident 

to arrest).
13

Here, Murray knocked on the defendant's door and asked him 

to step into the hallway. Without more, the record does not 

support the defendant's contention that the request constituted 

a seizure. Barros, 435 Mass. at 174. Accordingly, counsel's 

assistance was not ineffective in failing to raise this 

alternative ground. Johnston, 467 Mass. at 688.8 Thus, the 

motion for new trial and the motion for reconsideration properly 

were denied.

Order denying motion for

 reconsideration affirmed.

 

8 To the extent the defendant's other arguments have not 

been explicitly addressed, they "have not been overlooked. We 

find nothing in them that requires discussion." Commonwealth v. 

Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. 

Domanski, 332 Mass. 66, 78 (1954).