NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

37

Commonwealth v. Magri,

462 Mass. 360 (2012)

CONTRIBUTING EDITOR: SARAH K. HAWKINS

I. Procedural History

A grand jury indicted the defendant on thirty-two charges stemming from his alleged participation in a string of break-ins.1 A Superior Court jury convicted the defendant on twenty-three of the charged offenses.2 The

Appeals Court affirmed twenty-two of the defendant’s convictions.3 The Supreme Judicial Court granted the defendant’s application for further review.4

II. Facts

From June to August, 2007, Pittsfield police investigated a string of residential burglaries and automobile break-ins.5 These crimes were similar in the methods employed and items stolen.6 Police suspected the defendant’s involvement and placed him under surveillance.7 While under surveillance, the defendant approached an unattended, parked car.8 With two lookouts in place, the defendant reached through an open window and

opened an interior compartment, triggering his arrest.9 Thereafter, two police officers, without a warrant, visited the apartment in which the defendant had been staying.10 The tenant provided oral and written

1 Commonwealth v. Magri, 462 Mass. 360, 360-361 (2012). 2 Id. at 361. 3 Id., citing Commonwealth v. Magri, 77 Mass. App. Ct. 1117 (2010), S.C., 462 Mass. 360

(2012). 4 Id. 5 Id. 6 Id. 7 Commonwealth v. Magri, supra at 362. 8 Id. 9 Id. 10 Id. at 365-366.

38 New Eng. L . Rev . Mass . Crim. Dig . v. 47 | 37

consent to search the apartment.11 The tenant pointed the officers to two bags––a gray backpack and a white shopping bag––belonging to the defendant.12 The tenant indicated to police that the defendant was no longer welcome to stay in her apartment––a fact of which the defendant

was likely unaware.13 Officers seized the two bags.14 At the police station, officers opened each bag, examined the contents, and found items linking the defendant to several of the charged crimes.15

III. Issues Presented

1. Was the defendant unduly prejudiced by the joinder of thirty-two charges in a single trial?16

2. Were the defendant’s rights under the U.S. Constitution and the Massachusetts Declaration of Rights violated when police searched his

bags, barring admission of the discovered evidence at trial?17

IV. Holdings and Reasoning

The thirty-two charges against the defendant were properly joined for trial in accordance with Mass. R. Crim. P. 9(a).18 A trial judge shall join

charges on related offenses for trial, unless the judge finds the joinder “not in the best interests of justice.”19 Related offenses are properly joined when the totality of the evidence “shows a common scheme and pattern of operation that tends to prove all the indictments.”20 In this case, the trial judge found that the defendant’s alleged offenses were similar to one another, occurred in a discrete geographic region over a two-month period,

and often involved the same lookouts.21 Because the alleged offenses shared a common modus operandi––that is, “a common motive and method united both the acquisition and disposition of the stolen items”––the judge concluded that the offenses warranted joinder.22 This was a

11 Id. at 366. 12 Id. 13 Commonwealth v. Magri, supra at 366, 367. 14 Id. 15 Id. at 366. 16 Id. 361. 17 Id. 18 Id. at 363. 19 Commonwealth v. Magri, supra at 364, quoting Mass. R. Crim. P. 9(a)(3) (internal

quotation marks omitted). 20 Id. at 364, citing Commonwealth v. Delaney, 425 Mass. 587, 594 (1997), cert. denied, 522

U.S. 1058 (1998), quoting Commonwealth v. Feijoo, 419 Mass. 486, 494-495 (1995) (internal

quotation marks omitted). 21 Id. 22 Id. at 365.

2013 Common weal th v . Magri 39

permissible finding and not an abuse of the judge’s discretion.23

The defendant’s motion to suppress the contents of two bags seized by

police should have been granted.24 The defendant had a reasonable expectation of privacy in the contents of the two bags,25 because he was an overnight guest and “maintain[ed] an expectation of privacy in luggage stored in [the] host’s dwelling.”26 That the bags in this case were not traditional luggage is immaterial: “[T]here is no reasoned basis to draw a legal distinction between a guest’s containers based on the materials from

which they are made, their shape, or the mechanism by which they are closed.”27 The tenant’s statement to police that the defendant was no longer welcome in her apartment did not terminate the defendant’s overnight-guest status or the reasonable expectation of privacy flowing therefrom.28 The defendant may not have known that, at the time of the search, he was no longer welcome in the tenant’s dwelling.29 Because the defendant had a

reasonable expectation of privacy, police could not conduct a warrantless search of the two bags’ contents absent exigent circumstances or valid consent.30 The Commonwealth argued consent, not exigent circumstances.31 The tenant’s consent to search her apartment did not justify the police’s warrantless search of the defendant’s bags: “In cases involving closed containers . . . the plain view doctrine may support a warrantless seizure of

a container believed to contain contraband but any subsequent search of the concealed contents of the container must be accompanied by a warrant or justified by one of the exceptions to the warrant requirement.”32 Moreover, the tenant, having no interest in the defendant’s bags, lacked authority to consent to their search.33 The warrantless search violated the defendant’s rights under the Fourth Amendment and art. 14 of the Massachusetts

Declaration of Rights.34 The trial court’s error in denying the defendant’s motion to suppress was not harmless and the defendant was entitled to a new trial on the charges impacted by the improperly obtained evidence.35

23 Id. at 364-365. 24 Id. at 366. 25 Commonwealth v. Magri, supra at 367. 26 Id. at 367. 27 Id. 28 Id. 29 Id. 30 Id. at 366. 31 See Commonwealth v. Magri, supra at 368. 32 Id. at 368, citing Commonwealth v. Straw, 422 Mass. 756, 762 n.3 (1996), quoting United

States v. Corral, 970 F.2d 719, 725 (10th Cir. 1992). 33 Id. 34 Id. at 366. 35 Id. at 369.