Commonwealth v. Tatum (Lawyers Weekly No. 10-139-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC‑11167 COMMONWEALTH vs. JUSTIN TATUM. Plymouth. December 3, 2012. ‑ July 22, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Controlled Substances. Search and Seizure, Warrant, Arrest, Forcible entry by police, Standing to object. Constitutional Law, Arrest, Search and seizure. Practice, Criminal, Warrant. Arrest. Indictments found and returned in the Superior Court Department on March 16, 2007. The cases were tried before Elizabeth B. Donovan, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Alison R. Bancroft for the defendant. Gail M. McKenna, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. Armed with three active arrest warrants for the defendant, a State police officer applied for and obtained a search warrant to search for him in someone else’s residence. When the police executed the warrant, they found and arrested the defendant inside the residence, but in doing so, they also observed in plain view what they believed to be cocaine, marijuana, and other items consistent with drug distribution. Based on this evidence, which was seized during a subsequent search of the residence pursuant to a second search warrant, the defendant was indicted and tried in the Superior Court on charges of trafficking in cocaine in an amount of 200 grams or more, G. L. c. 94C, § 32E (b), and possession with intent to distribute marijuana, G. L. c. 94C, § 32C (a).[1] A jury found him guilty of both offenses, and the defendant appealed to the Appeals Court, which affirmed his convictions in a decision issued pursuant to its rule 1:28. See Commonwealth v. Tatum, 81 Mass. App. Ct. 1101 (2011). We granted the defendant’s application for further appellate review. The principal issue the defendant raises concerns the validity of the first search warrant obtained by the State police to search for him at the third party’s residence. The defendant argues that the affidavit submitted in support of that search warrant application was based on information obtained by the police trespassing into the curtilage of the residence, in violation of his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. We conclude that a person who is the subject of a […]