1. DEFENDANT NEED NOT SHOW THAT HE HAD A REASONABLE EXPECTATION OF PRIVACY IN THE AUTOMOBILE AS HE HAS AUTOMATIC STANDING.

In 1990, the Supreme Judicial Court declined to follow the Supreme Courts lead, see United States v. Salvucci, 448 U.S. 83, 85 (1980), and retained the concept of automatic standing to allow those charged with possessory offenses to challenge the search which located the items which they were charged with possessing. Commonwealth v. Amendola, 406 Mass. 592 (1990). In Amendola, the SJC held that defendant had standing to challenge the search of an automobile which recovered cocaine. The car was owned by a person apparently not present at the scene;1 the police claimed to have seen defendant driving the car, which he denied. There was no mention of whether defendant had obtained permission to drive the car. As this search recovered the controlled substance defendant was charged with possessing, he was allowed to challenge the search. Conversely, the Court ruled that he needed to establish a reasonable expectation of privacy to challenge the search of a second car, as that search recovered only a scale, not an item which in and of itself would have been sufficient to convict the defendant for the possessory crimes of which he was accused. Id at 602. Since then, the SJC has consistently held that one who has automatic standing may challenge the legality of a search without establishing that he or she had a reasonable expectation of privacy in the area searched. See Commonwealth v. Gomes, 408 Mass. 43 (1990) (search of apartment in which defendant did not reside); Commonwealth v. Frazier, 410 Mass. 235, 245 (1991) (search of co-Ds handbag which located drugs as to possession charge, but not as to conspiracy charge as
1

The person in whose name the car was registered shared a last name with the codefendant.

[p]ossession of the cocaine is not an essential element of the conspiracy charge.); Commonwealth v. One 1985 Ford Thunderbird Auto, 416 Mass. 603, (1993) (search of parents house as claimant admitted owning marijuana plants that were found); Commonwealth v. Alvarado, 420 Mass. 542 1995 (search incident to arrest of codefendant which recovered drugs); Commonwealth v. Santana, 420 Mass. 205 (1995) (search of vehicle in which defendant was a passenger); Commonwealth v. Watson, 430 Mass. 725 (2000) (search of bags of which each codefendant disclaimed ownership); Commonwealth v. Catanzaro, 441 Mass. 46, (2004) (search of codefendants handbag); Commonwealth v. Bostock, 450 Mass. 616 (2008) (search of bags in which he disclaimed ownership found in truck later found to be unregistered.) To be sure, defendant must show that the area searched was not accessible to members of the public, Commonwealth v. Montanez, 410 Mass. 290 (1991) (common area of apartment building), Commonwealth v. Welch, 420 Mass. 646, 653 (1995) (firefighters shared locker room).2 In other words, a defendant must only show that someone possessed a reasonable expectation of privacy in the place searched. In Commonwealth v. Carter, 424 Mass. 409 (1997), the Court held that defendant could not challenge the seizure of drugs found on a second floor porch where defendant, a visitor in the first floor apartment, fled to the roof in an attempt to avoid the police who were attempting to serve an arrest warrant, discarding the drugs on the way. Although someone (occupants of the second floor) had an expectation of privacy, there was no connection between defendant and these occupants. Also, the Court did not wish to reward defendant for fleeing from police, nor to punish police for their actions. Id

The SJC reached this result despite the undoubtedly brilliant arguments of defense counsel.

at 412 (the police conduct in this case is a far cry from the type of conduct that should be deterred by application of an exclusionary rule in favor of the defendant). Carter merely established a limit on the breadth of automatic standing, that limit being that an expectation of privacy by someone wholly unassociated with defendant will not suffice. It did not impose a requirement that defendants must always show a personal expectation of privacy in the area searched. This is shown by the statement in Carter that a defendant and his confederate are treated, in effect, as one for the purpose of deciding whether there was a reasonable expectation of privacy. Here, defendants confederates were the passengers in the car. It does not matter that they are no longer codefendants.3 The Commonwealth has not and cannot claim that passengers do not have both automatic standing and a reasonable expectation of privacy in the vehicle in which they are riding. Commonwealth v. Podgurski, 386 Mass. 385, 389 (1982), cert. denied, 459 U.S. 1222 (1983); Santana, supra at 210 n.4. Decisions of the Appeals Court, however, on this issue have been quite inconsistent (to put it kindly). Compare Commonwealth v. Lawson, 79 Mass.App.Ct. 322, 325-326 (2011), with Commonwealth v. Lopes, 78 Mass.App.Ct. 1123 (2011) (Rule 1:28 decision) (copy attached as Exhibit H).4 See also DM. Defendant suggests

Obviously, the viability of codefendants McCarthy motions cannot be dispositive of Carneys motion to suppress. In fact, according to Mubdi, it would not matter if there were no passengers in the car. Id. at 393 n.7 (automatic standing represents a limited exception to the requirement that a defendant establish a reasonable expectation of privacy in the area searched and applies even if there are no codefendants. 4 Part of the problem is that the Appeals Court sometimes has seized upon certain language in Carter to claim that it established a requirement that defendant needs to establish a reasonable expectation of privacy in the area searched. See, e.g., Commonwealth v. Phillip, 75 Mass.App.Ct. 1107 (2009) (Rule 1:28 decision) (Copy attached as Exhibit I); Commonwealth v. Gooden, 74 Mass.App.Ct 1120 (2009) (Rule 1:28 decision) (Copy attached as Exhibit J).

that Mubdi, supra at 392-393 was intended to clarify the issue once and for all.5 It states clearly: Where the defendant has automatic standing, the defendant need not show that he has a reasonable expectation of privacy in the place searched. The practical consequence of automatic standing is that, if a defendant is charged with illegally possessing drugs or firearms that were seized during a search, the defendant may succeed in suppressing such evidence where the search was unconstitutional, regardless of whether he has a subjective or objectively reasonable expectation of privacy in the place where the drugs or firearms were found. (footnotes omitted)

Given the various interpretations of the law by the judge, prosecutor and defense counsel in this case, it may not have succeeded.