Commonwealth v. Sorenson

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

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 right-

hand 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 case-

by-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).