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14-P-1392 Appeals Court

COMMONWEALTH vs. LUIS SANCHEZ.

No. 14-P-1392.

Bristol. February 5, 2016. - March 23, 2016.

Present: Green, Hanlon, & Henry, JJ.

Controlled Substances. Search and Seizure, Curtilage, Warrant. 

Witness, Privilege. Practice, Criminal, Motion to 

suppress, Required finding, Assistance of counsel, 

Instructions to jury. Evidence, Constructive possession.

Indictment found and returned in the Superior Court 

Department on September 28, 2012. 

A pretrial motion to suppress evidence was heard by Renée 

P. Dupuis, J., and the case was tried before Robert J. Kane, J. 

Brad P. Bennion for the defendant.

Tara L. Blackman, Assistant District Attorney, for the 

Commonwealth.

GREEN, J. Among various challenges to his conviction of 

trafficking in one hundred grams or more of "crack" cocaine, in 

violation of G. L. c. 94C, § 32E, the defendant contends that a 

search warrant authorizing a search of his apartment did not 
2

extend to a free-standing shed in the backyard outside the 

three-unit apartment building.

1 We conclude that the motion 

judge correctly concluded that the shed was a part of the 

curtilage of the apartment, so that the search authorized by the 

warrant properly extended to the shed. Discerning no merit in 

the defendant's other claims of error, we affirm.

Background. We summarize the findings of the motion judge 

on the defendant's motion to suppress, reserving other facts for 

our discussion of the defendant's other claims. On August 28, 

2012, New Bedford police Officer Jason Gangi and other members 

of the New Bedford police department executed a search warrant 

authorizing a search of the third-floor apartment at 101 Coffin 

Avenue and any persons present. The building at 101 Coffin 

Avenue is a multi-family dwelling consisting of three 

apartments. Police set up surveillance at the target location. 

Two vehicles approached the location, and the defendant was a 

passenger in one of the vehicles. Police stopped the defendant 

and obtained a set of keys from him.2 Using a key from the set, 

 

1 The defendant also claims error in the conclusion by the 

trial judge that the defendant's brother had a privilege under 

the Fifth Amendment to the United States Constitution not to 

testify at trial, and in various aspects of the judge's 

instructions; he also contends that his trial counsel was 

constitutionally ineffective for failing to renew a motion for a 

required finding of not guilty at the close of all the evidence.

2 The defendant does not challenge the propriety of the stop 

or the seizure of the keys.
3

police opened the door to the third-floor apartment. Within 

minutes after gaining entry to the apartment, Officer Gangi went 

to the backyard to search. The entire backyard was fenced. 

While in the yard, Officer Gangi discovered a locked shed and, 

using one of the keys on the key ring obtained from the 

defendant, unlocked a padlock on the shed door and gained access 

to the interior of the shed. Inside the shed, Officer Gangi 

observed a black BMW motor vehicle, a dirt bike, some tools, and 

a shopping bag. Officer Gangi determined that another key on 

the key ring obtained from the defendant fit the BMW. Officer 

Gangi also found and seized a substantial quantity of cocaine 

hidden above a ceiling panel within the shed. 

Among other items found in and seized from the third-floor 

apartment were rent receipts indicating that the defendant 

rented the shed from the owner of the apartment building. In 

the affidavit in support of the application for the search 

warrant Officer Gangi averred that he confirmed that the 

utilities for the third-floor apartment were in the names of the 

defendant and Ana Perez.3 The affidavit also related information 

obtained from a confidential informant regarding sales of 

cocaine by the defendant from the third-floor apartment, and 

describing the informant's personal observation of cocaine 

 

3 Perez is the defendant's grandmother.
4

packaged for sale in the apartment within the seventy-two hours 

preceding the warrant application.

Search of the shed. "The curtilage concept originated at 

common law to extend to the area immediately surrounding a 

dwelling house the same protection under the law of burglary as 

was afforded the house itself." Commonwealth v. McCarthy, 428 

Mass. 871, 873 (1999), quoting from United States v. Dunn, 480 

U.S. 294, 300 (1987). "When used in the Fourth Amendment 

context, curtilage helps to define those areas that the police 

generally cannot search without a warrant. In the present 

context, however, curtilage serves a different function -- it 

helps to define where the police can search pursuant to a 

warrant." Commonwealth v. McCarthy, supra at 874. In Dunn, the 

United States Supreme Court set out four factors to be 

considered when deciding whether a particular area is within the 

curtilage of a particular home: "(1) the proximity of the area 

to the home, (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." 

Commonwealth v. McCarthy, supra.

The Dunn factors support the motion judge's conclusion 

that, here, the shed is a part of the curtilage of the thirdfloor apartment. The shed is within the backyard immediately 
5

adjacent to the building in which the apartment is located. See 

Commonwealth v. Murphy, 353 Mass. 433, 436 (1968). The yard 

itself is enclosed by a fence. Most importantly, the defendant 

rented the shed from the building owner, and restricted access 

to it by means of the padlock he placed on the door. The 

defendant accordingly enjoyed exclusive access to, and use of, 

the shed, at least in comparison to the occupants of the other 

two apartments in the building, or other members of the public.

4 

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

Commonwealth v. Pierre, 71 Mass. App. Ct. 58, 63 (2008). See 

also Commonwealth v. Thomas, 358 Mass. 771, 774-775 (1971) 

(emphasizing significance of exclusive control in identifying 

areas of urban apartment building outside apartment unit that 

may be considered part of apartment's curtilage). Compare 

Commonwealth v. McCarthy, supra at 875 (parking space within 

shared parking lot in multi-unit apartment complex not part of 

apartment's curtilage). We discern no error in the conclusion 

by the motion judge that the shed was part of the curtilage of 

 

4 We note that there was evidence at trial that other 

occupants of the defendant's apartment may have enjoyed access 

to the shed, by virtue of the fact that the defendant 

occasionally left the key to the shed hanging on a rack in the 

apartment to which other residents of the apartment had access. 

That evidence, however, was not presented at the evidentiary 

hearing on the motion to suppress. In any event, it does not 

derogate from the relationship between the shed and the 

defendant's apartment, as compared to the other apartment units 

in the building.
6

the defendant's apartment; thus the warrant authorizing search 

of the apartment also authorized search of the shed.

Other issues. The defendant's remaining claims require 

only brief discussion. We discern no abuse of discretion by the 

trial judge in his conclusion that the defendant's brother had a 

privilege under the Fifth Amendment to the United States 

Constitution not to testify for the prosecution, as his 

testimony could have implicated him as a potential coventurer 

with the defendant. The defendant's claim of prejudice from the 

judge's conclusion only illustrates its correctness; the 

defendant claims that he was deprived of the opportunity, as 

part of his third-party culprit theory of defense, to establish 

through cross-examination of his brother that the brother had 

access to the shed and accordingly that the drugs seized from 

the garage could have been his.5 There is likewise no merit in 

the defendant's claim that his trial counsel was ineffective by 

reason of his failure to renew his motion for a required finding 

of not guilty, first raised at the close of the Commonwealth's 

case, following the close of all the evidence.6 See Commonwealth

 

5 We note that the defense in any event would have needed to 

establish not merely that the defendant's brother possessed the 

drugs, but that his possession was exclusive, and that the 

defendant did not jointly possess them.

6 The defendant rightly does not challenge the sufficiency 

of the evidence as it stood at the close of the Commonwealth's 

case. The defendant's suggestion that his motion for a required 
7

v. Conceicao, 388 Mass. 255, 264 (1983). Put simply, nothing in 

the defendant's case caused the Commonwealth's case to 

deteriorate.7 

Finally, there is no merit to the defendant's several 

claims of error in the judge's jury instructions. None of the 

defendant's claims was preserved by objection at trial; we 

accordingly consider whether any error created a substantial 

risk of a miscarriage of justice.8 See Commonwealth v. Alphas, 

430 Mass. 8, 13 (1999). Contrary to the defendant's contention, 

the judge did not in his preliminary instruction describing the 

indictment remove from the jury's consideration an essential 

element of fact by instructing that the defendant in fact 

 

finding of not guilty should (by reason of the judge's ruling 

that the defendant's brother had the privilege to refuse to 

testify) have received the benefit of a presumption that the

brother likely had access to the garage finds no support in law, 

and in any event suffers from the deficiency observed in note 5, 

supra.

7 To the extent that the defendant's argument rests on the 

premise that testimony by Perez, the defendant's grandmother,

raised the possibility that other persons besides the defendant 

had access to the shed, the argument ignores the fact that the 

jury were not required to credit her testimony, and it again 

fails to recognize that the defendant could constructively 

possess the drugs found in the shed even if someone else 

possessed them jointly with him.

8 Though the defendant objected at trial to the judge's use 

of an analogy to explain the concept of constructive possession, 

the defendant's objection to that portion of the instruction 

relied on a theory different from the argument he advances on 

appeal.
8

possessed the drugs seized from the shed. Instead, the judge 

merely explained initially that the indictment charged the 

defendant with possessing the drugs, and clearly went on to 

explain that the question before the jury was whether the 

defendant possessed the drugs.9 Likewise unavailing is the 

defendant's challenge to an analogy used by the trial judge in 

his final instructions to explain the concept of constructive 

possession; the analogy was apt, and no undue prejudice nor 

potential for confusion flowed from the fact that (similar to 

the circumstances of the present case) the analogy used actual 

possession of keys to illustrate constructive possession of an 

item held in another area.

10 Finally, there was nothing improper 

 

9 The relevant portion of the instruction is as follows:

"I will give you a very preliminary description of 

what that indictment means. It means that the defendant 

had in his possession cocaine in the amount of at least one 

hundred grams. And you're going to hear that there are 

stipulations in this case. Both parties agree that cocaine 

was found. Both parties agree that there was cocaine 

amounting to more than one hundred grams. But the question 

is this. Who possessed it? Who possessed it? And it is 

the Commonwealth's responsibility as part of its case to 

prove beyond a reasonable doubt that Luis Sanchez possessed 

it, either individually or jointly."

10 We again quote the relevant portion of the instruction:

"And we'll compare actual possession to constructive 

possession so that you can appreciate it. When I speak of 

actual possession, jurors, that's actual possession. Those 

keys are in my hand. . . . And it's very obvious that 

these keys to my car and my house are going to be under my 

dominion and control. Now, what's constructive possession? 
9

about the judge's instruction that if the jury found that the

defendant constructively possessed the drugs, it did not matter 

whether someone else jointly possessed the drugs with him. The 

instruction was a correct statement of the law. See 

Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting 

from Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984)

("Possession implies 'control and power,' . . . exclusive or 

joint . . . , or, in the case of 'constructive possession,'

knowledge coupled with the ability and intention to exercise 

dominion and control"). There was no error in the judge's 

instruction, and hence no substantial risk of a miscarriage of 

justice.

Judgment affirmed.

 

Well, I don't have my briefcase in my hand, do I? My 

briefcase is right in that lobby, and that lobby's locked. 

But I have a key to that lobby. So I have access to that 

lobby, and I know that that leather briefcase is right 

there."