Commonwealth v. DeJesus

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19-P-1431 Appeals Court

COMMONWEALTH vs. CHRISTOPHER DeJESUS.

No. 19-P-1431.

Bristol. November 17, 2020. - March 1, 2021.

Present: Kinder, Shin, & Hand, JJ.

Firearms. Constitutional Law, Search and seizure, Standing to
question constitutionality, Privacy. Search and Seizure,
Standing to object, Expectation of privacy. Privacy.
Evidence, Firearm. Practice, Criminal, Motion to suppress,
Motion for a required finding.

Indictments found and returned in the Superior Court
Department on September 6, 2018.

A pretrial motion to suppress evidence was heard by Renee
P. Dupuis, J., and the cases were tried before Thomas F.
McGuire, Jr., J.

Thomas E. Hagar for the defendant.
Tara L. Johnston, Assistant District Attorney, for the
Commonwealth.

HAND, J. The defendant, Christopher DeJesus, was indicted

in the Superior Court on three counts -- (1) unlawful possession

of a firearm without a license, G. L. c. 269, § 10 (a); (2)
2

unlawful possession of a large capacity feeding device, G. L.

c. 269, § 10 (m); and (3) unlawful possession of ammunition,

G. L. c. 260, § 10 (h).1 He was charged after police identified

him in several Snapchat2 videos posing with a firearm. As we

discuss in greater detail, infra, the firearm was one of several

items recovered in the course of a warrantless search of the

basement of a multifamily home that had also been depicted in

some of the Snapchat videos.

Prior to trial, the defendant filed a motion to suppress

evidence recovered during the search. Following an evidentiary

hearing, a judge (motion judge) concluded that the defendant had

neither standing to contest the search nor a reasonable

expectation of privacy in the area searched, and denied the

motion.

After a jury trial, the defendant was convicted of two

charges -- unlawful possession of both a firearm and a large

capacity feeding device -- and acquitted of the remaining

1 He was also charged as an armed career criminal in
connection with the first and third indictments. G. L. c. 269,
§ 10G (a).

2 "Snapchat is a social media application that allows users
to send or post still images or videos. . . . A user may post
images or videos to their 'story,' which allows all those
individuals with whom the user is 'friends' to view them on the
user's Snapchat page, but they remain available for viewing only
for twenty-four hours." Commonwealth v. Watkins, 98 Mass. App.
Ct. 419, 420 (2020).
3

charges in the indictments.3 The trial judge sentenced the

defendant to concurrent terms of from two and one-half years to

five years in State prison.

On appeal, the defendant argues that the motion judge erred

in denying his motion to suppress evidence obtained in the

course of the warrantless search of the basement of a

multifamily home, and that the trial judge erred in denying his

motion for a required finding of not guilty of possession of the

firearm at issue and the large capacity feeding device attached

to it. We conclude that the defendant did not have standing to

challenge the search, and that even if he did, he had no

reasonable expectation of privacy in the area searched. We are

also satisfied that the evidence was sufficient to prove the

defendant's possession of the firearm and the large capacity

feeding device. Accordingly, we affirm the judgments.

Discussion. 1. 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 his ultimate findings and conclusions of law.'"

Commonwealth v. Medina, 485 Mass. 296, 299-300 (2020), quoting

3 The trial judge allowed the defendant's motion for a
required finding of not guilty on the indictment for illegal
possession of ammunition and, after a jury-waived trial, found
the defendant not guilty of the armed career criminal
enhancements.
4

Commonwealth v. Cawthron, 479 Mass. 612, 616 (2018). The

defendant does not challenge the motion judge's factual findings

as erroneous, and we summarize them here, supplementing as

necessary with uncontroverted testimony from the motion hearing.

In the summer of 2018, following a series of shootings in

Fall River, the Fall River police department organized a task

force to address growing violence within the city. As part of

this task force, Detective Matthew Mendes, a member of the

department's gang unit, monitored the social media accounts of

various individuals suspected of contributing to the violence.

On July 26, 2018, Mendes was monitoring the Snapchat account of

Darius Hunt, an individual known to Mendes as a member of a gang

with a presence in Fall River. Mendes observed a number of

videos on Hunt's Snapchat account (videos), which he identified

as being taken within twenty-four hours prior to his having

viewed them. These videos depicted Hunt, the defendant, and a

third individual. In several of the videos, the defendant was

"holding a black semi-automatic pistol with an extended magazine

and a distinct tan/cream colored grip"; the videos also depicted

a basement area and the outside of a three-family dwelling at 14

Downing Street in Fall River (the premises).4

4 As we note, infra, the defendant did not live at the
premises and does not claim that he was an overnight guest
there.
5

Mendes and several other officers traveled to the premises,

intending to conduct further investigation. On arrival, the

officers observed a number of individuals, including Hunt and

the defendant, standing outside on the premises; when the police

approached, the individuals dispersed. Some of the individuals

ran to the back yard while the defendant walked down the

sidewalk toward the home of his girlfriend and her mother, at 4

Downing Street. Mendes ran around to the back of the premises,

chasing Hunt. Although the back yard was empty when he arrived,

Mendes observed that the rear door to the basement was ajar, and

he heard people running in the basement.

Mendes and two other officers followed the footsteps and

entered the basement through the open door. The basement, a

common area utilized by the residents of the apartments on the

premises, had no locks on the doors leading into it. Once

inside the basement, the officers observed a firearm in plain

view in an open bag placed on a table; the firearm appeared to

be the same one the police saw in the videos being handled by

Hunt and the defendant. The police "seized the scene," obtained

a search warrant, and later took possession of the bag

containing the firearm and other items. The defendant was

arrested on the sidewalk between 14 Downing Street and 4 Downing

Street.
6

The defendant moved to suppress evidence seized from the

basement of the premises, including the firearm and ammunition,

arguing that the evidence was discovered in the course of an

improper warrantless search of the basement.5 The motion judge

denied the motion, concluding that the defendant lacked both

standing to challenge the search of the basement at the premises

and a reasonable expectation of privacy in the area searched.

On appeal, the defendant argues that the motion judge erred

in these conclusions; more specifically, he contends that he was

entitled to automatic standing to challenge the search under

art. 14 of the Massachusetts Declaration of Rights and the cases

stemming from the Supreme Judicial Court's ruling in

Commonwealth v. Amendola, 406 Mass. 592, 600-601 (1990). We are

not persuaded.

The automatic standing rule, set forth by the United States

Supreme Court in Jones v. United States, 362 U.S. 257 (1960),

provides that "defendants charged with crimes of possession have

standing to challenge the search."6 Commonwealth v. Frazier, 410

5 We glean this from the motion judge's detailed memorandum
of decision denying the motion to suppress. The record does not
include a copy of the defendant's motion.

6 Although the rule was abandoned by the Federal courts in
United States v. Salvucci, 448 U.S. 83 (1980), it continues to
be recognized under Massachusetts State law. See Commonwealth
v. Amendola, 406 Mass. at 601 ("we hold today that the automatic
standing rule survives in Massachusetts as a matter of State
constitutional law"). See, e.g., Commonwealth v. Mubdi, 456
7

Mass. 235, 241 (1991), citing Jones, supra at 263. It applies

where "possession of the seized evidence at the time of the

contested search is an essential element of guilt."7 Frazier,

supra at 243, quoting Amendola, 406 Mass. at 601.

"Under the Fourth Amendment to the United States

Constitution, the question whether the defendant has standing to

challenge the constitutionality of a search or seizure is merged

with the determination whether the defendant had a reasonable

expectation of privacy in the place searched," and therefore, "a

defendant has no standing if he has no reasonable expectation of

privacy in the place searched." Commonwealth v. Mubdi, 456

Mass. 385, 391 (2010), citing Rakas v. Illinois, 439 U.S. 128,

138-139 (1978). Under art. 14, "the question of standing

remains separate from the question of reasonable expectation of

privacy." Mubdi, supra. See Commonwealth v. Williams, 453

Mass. 203, 208 (2009) ("Although the two concepts [of standing

Mass. 385, 390 (2010); Commonwealth v. Frazier, 410 Mass. 235,
241 (1991); Commonwealth v. Ware, 75 Mass. App. Ct. 220, 227
(2009).

7 It is immaterial whether the defendant is charged with
possession on a theory of constructive possession or actual
possession, so long as he or she is charged with possession at
the time of the search or seizure. See, e.g., Commonwealth v.
Carter, 424 Mass. 409, 410-411 (1997) ("We have granted a
defendant automatic standing to challenge the seizure of
property in the possession of another at the time of the search,
if the defendant has been charged with the constructive
possession of that property at that time").
8

and expectation of privacy] are interrelated, [under art. 14] we

consider them separately"). Thus, using an art. 14 analysis,

where automatic standing applies, the defendant need not

demonstrate his or her own personal privacy interest, see Mubdi,

supra at 392; instead, a defendant with automatic standing need

only "show that there was a search in the constitutional sense,

that is, that someone had a reasonable expectation of privacy in

the place searched." Id. at 393.

a. Standing. It is undisputed that the defendant was not

in possession -- actual or constructive -- of the firearm at the

time of the search.8 Thus, automatic standing does not apply on

the basis of the defendant's possession. Cf. Commonwealth v.

Ware, 75 Mass. App. Ct. 220, 227 (2009), quoting Amendola, 406

Mass. at 601 ("[w]hen a defendant is charged with a crime in

which possession of the seized evidence at the time of the

contested search is an essential element of guilt, the defendant

shall be deemed to have standing to contest the legality of the

search and the seizure of that evidence" [emphasis added]).9

8 This distinction was later made clear to the jury through
the trial judge's instructions that "the [d]efendant is not
charged with possession of a firearm . . . at the time the
police entered the basement and seized certain objects. The
[d]efendant is charged with possession of a firearm . . . at the
time the video recording was made."

9 To the extent the defendant argues that he is entitled to
automatic standing as a consequence of his presence on the
premises at the time of the search, we note the motion judge's
9

The defendant has not met his burden of demonstrating his

automatic standing to challenge the search of the premises.10

b. Expectation of privacy. Even had the defendant shown

that he had automatic standing to challenge the search, his

entitlement to protection under the automatic standing rule

falters on his inability to demonstrate that he, or anyone else,

had a reasonable expectation of privacy in the area searched,

and thus, that a search in the constitutional sense had taken

place. See Mubdi, 456 Mass. at 393 ("that someone had a

reasonable expectation of privacy in the place searched"). See

also Commonwealth v. Johnson, 481 Mass. 710, 715, cert. denied,

140 S. Ct. 247 (2019) (defendant bears burden of demonstrating

violation of reasonable expectation of privacy); Commonwealth v.

Rice, 441 Mass. 291, 295 (2004) (same). Relevant to this

determination is the character of the location involved, whether

the defendant owned or had access to the area, and the area's

accessibility to others. See Williams, 453 Mass. at 208, citing

Commonwealth v. Welch, 420 Mass. 646, 653-654 (1995).

finding that the defendant was no longer on the premises at the
time of the officers' search.

10Because the defendant has failed to demonstrate either "a
possessory interest in the place searched or in the property
seized," or that he was "present when the search occurred," he
has not otherwise demonstrated his standing. Williams, 453
Mass. at 208.
10

The search was conducted in the basement of a home that the

defendant concedes he does not own or occupy; the defendant does

not claim to have been a guest in the home. Even if we were to

conclude that the defendant had a subjective expectation of

privacy in the basement -- which we do not -- given the nature

of access to the area and that the defendant neither owned nor

controlled the area, that expectation would have been

unreasonable. See Commonwealth v. Carter, 39 Mass. App. Ct.

439, 442 (1995), S.C., 424 Mass. 409 (1997) (expectation of

privacy not objectively reasonable where "defendant did not own

the place involved, was not a tenant, and was not an invitee of

the . . . apartment dweller"). See also Sullivan v. District

Court of Hampshire, 384 Mass. 736, 742 (1981) ("an individual

can have only a very limited expectation of privacy with respect

to an area used routinely by others").

Assessing the defendant's showing of an objective

expectation of privacy -- that is, whether anyone had a

reasonable expectation of privacy in the items and area searched

-- we consider whether "(i) [an] individual has 'manifested a

subjective expectation of privacy in the object of the search,'

and (ii) 'society is willing to recognize that expectation as

reasonable' (citation omitted)." Johnson, 481 Mass. at 715,

quoting Commonwealth v. Augustine, 467 Mass. 230, 242 (2014),

S.C., 470 Mass. 837 and 472 Mass. 448 (2015). "This
11

determination turns on whether the police conduct has intruded

on a constitutionally protected reasonable expectation of

privacy." Commonwealth v. Montanez, 410 Mass. 290, 301 (1991).

Here, neither consideration is present.

Generally, tenants in a multiunit home do not have a

reasonable expectation of privacy in common areas. See

Williams, 453 Mass. at 209 (no reasonable expectation of privacy

in basement common area accessed by unlocked door); Montanez,

410 Mass. at 302 (no reasonable expectation of privacy, and

therefore no constitutional search, in "common area, accessible

to the public, that was freely and frequently used by people

other than the defendant"). See also Commonwealth v. Sorenson,

98 Mass. App. Ct. 789, 792 (2020), quoting Commonwealth v.

Escalera, 462 Mass. 636, 648 (2012) (curtilage "applied narrowly

to multiunit apartment buildings"). Nor do we find authority to

suggest that landlords have a reasonable expectation of privacy

in the areas freely accessible to their tenants. The basement

searched in the present case was readily available to use by all

tenants in the building, as well as their invitees and the

landlord, and none exerted exclusive control. Additionally,

none of the doors leading into the area had locks. Thus, in

this case, "the relevant criteria and pertinent case law would

appear to place [the area] beyond any constitutionally protected
12

privacy zone." Commonwealth v. Dora, 57 Mass. App. Ct. 141, 145

(2003).

Absent a constitutionally protected reasonable expectation

of privacy held by anyone, the motion judge properly denied the

motion to suppress.11

2. Sufficiency of the evidence. The defendant moved for a

required finding of not guilty on all counts at the close of the

Commonwealth's case, arguing that the evidence was insufficient

to allow the jury to find that the gun at issue qualified as a

"firearm" for the purposes of G. L. c. 140, § 121; the motion

was renewed when the defendant rested.12 The trial judge allowed

the motion as to the indictment for unlawful possession of

ammunition,13 but denied it as to the firearm and the large

capacity feeding device. On appeal, the defendant changes tack,

arguing instead that the evidence was insufficient to prove that

the defendant's brief handling of the firearm as depicted in the

11In light of our conclusion that the defendant did not
have a reasonable expectation of privacy over the premises or
standing to challenge the entry and search of the premises, we
need not reach the defendant's challenges to the existence of
probable cause or exigent circumstances justifying the search.

12The defendant cross-examined the Commonwealth's
witnesses; as was his right, he chose not to put on evidence of
his own.

13The trial judge's ruling was based on his determination
that the ammunition was not visible in the videos.
13

videos amounted to his "possession" of the gun.14 We are not

persuaded.

A motion for a required finding of not guilty is a

challenge to the sufficiency of the evidence, see, e.g.,

Commonwealth v. Jones, 432 Mass. 623, 625 (2000), and we review

the judge's ruling under the Latimore standard, "viewing the

evidence in the light most favorable to the Commonwealth and

ask[ing] whether the evidence and inferences reasonably drawn

therefrom were 'sufficient to persuade a rational jury beyond a

reasonable doubt of the existence of every element of the crime

charged.'" Commonwealth v. Squires, 476 Mass. 703, 708 (2017),

quoting Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C.,

450 Mass. 215 (2007) and 460 Mass. 12 (2011). See Commonwealth

v. Latimore, 378 Mass. 671, 676-677 (1979).

Under G. L. c. 269, § 10 (a), the Commonwealth must prove

the defendant knowingly possessed an item that meets the legal

definition of a firearm. See Commonwealth v. White, 452 Mass.

133, 136 (2008); Commonwealth v. Watkins, 98 Mass. App. Ct. 419,

421-422 (2020). "[P]ossession does not depend on the duration

14Although this argument is raised for the first time on
appeal, "a conviction premised on legally insufficient evidence
always creates a substantial risk of a miscarriage of justice."
Commonwealth v. Kurko, 95 Mass. App. Ct. 719, 722 (2019),
quoting Commonwealth v. Montes, 49 Mass. App. Ct. 789, 792 n.4
(2000). We review any error against that standard. See
Commonwealth v. Silvelo, 96 Mass. App. Ct. 85, 104 n.13 (2019)
(Shin, J., dissenting).
14

of time elapsing after one has an object under his control so

long as, at the time of contact with the object, the person has

the control and the power to do with it what he or she wills."

Commonwealth v. Hall, 80 Mass. App. Ct. 317, 330 (2011), citing

Commonwealth v. Harvard, 356 Mass. 452, 457-458 (1969).

The defendant argues that it is not possible to determine

from the video evidence whether he owned the firearm or was

temporarily holding it and that, if he only had momentary

possession of the firearm, it would not be sufficient to sustain

a finding of possession.

We are satisfied that the evidence in this case was

sufficient to prove the defendant had possession of the firearm

and the large capacity feeding device at the time of the videos,

which clearly show the defendant holding the firearm and

posturing with it, pointedly displaying the attached feeding

device, and mimicking the action of aiming and firing the

weapon.15 See Commonwealth v. Seay, 376 Mass. 735, 737-738

15The defendant offers an analogy to Commonwealth v.
Atencio, 345 Mass. 627, 628, 631 (1963), in which participants
in a game of "Russian roulette" were found to have only
temporary possession of a firearm, having each held the gun and
pulled the trigger once. The basis of the court's determination
in Atencio was that the defendants did not carry the firearm
within the meaning of G. L. c. 269, § 10, as it existed at the
time, where "[t]he idea conveyed by the statute is that of
movement, [that the defendant] 'carries on his person or under
his control in a vehicle.'" Atencio, supra at 631. Since that
time, and as the defendant acknowledges, the statute has been
amended; the requirement that the Commonwealth show that the
15

(1978) (defendant handling gun in foyer and stairway area of his

apartment building prior to sale more than momentary);

Commonwealth v. Stallions, 9 Mass. App. Ct. 23, 25 (1980)

(defendant's taking gun, walking fifteen to twenty feet, and

returning gun within one to two minutes of having taken it "far

more than momentary"). We are satisfied that at the time of the

videos' recording, the defendant had control and power over the

firearm and large capacity feeding device such that a rational

jury could have concluded that the defendant was in possession

of them for that period of time. We discern no error in the

judge's denial of the motion for a required finding of not

guilty.

Conclusion. The defendant failed to demonstrate that he

had standing to challenge the warrantless search of the common

area in which the firearm and other contraband were found, or

that anyone had a reasonable expectation of privacy in the

contraband left there. Accordingly, the motion to suppress was

properly denied. Because the evidence was sufficient to

establish the defendant's possession of the firearm at issue and

defendant "carrie[d] [the firearm] on his person" has been
eliminated. Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 153
n.4 (2008) ("the cases relied upon by the defendant all predate
the 1990 amendment to G. L. c. 269, § 10 [a], which eliminated
the words 'carries on his person' from § 10 [a]. See St. 1990,
c. 511, § 2. Since the time of that amendment, § 10 [a] has
simply prohibited the knowing possession of a firearm without a
license").
16

the large capacity feeding device, there was no error in the

denial of the motion for a required finding.

Judgments affirmed.