COMMONWEALTH vs. ELBERT CARTER, JR.

DREBEN, J. Notified that the defendant, for whom an arrest warrant was outstanding, [Note 1] might be at 158 Bradford Street in Pittsfield, Detective David Granger and other members of the Pittsfield police department went to that location. [Note 2] Although the defendant attempted to elude the police, Granger eventually arrested him and escorted him, handcuffed, to a police cruiser. Prior to the defendant's arrest, Granger had seen him crouching in a corner of an enclosed second-floor porch. After placing the defendant in the cruiser, Granger reentered the house and went to the corner of the second-floor porch where he had seen the defendant. There, among a pile of boxes containing empty bottles and debris, he saw a wallet, later determined to be the defendant's, and a plastic bag. In the bag were thirty-nine smaller bags containing white chunks, later determined to consist of 4.81 grams of cocaine. The defendant was subsequently indicted and convicted of possession with intent to distribute a class B substance.

In his appeal from that conviction, the defendant argues that Granger's warrantless reentry of the house to search the porch after the defendant had been arrested was illegal and that the drugs, the fruits of the illegal search, should not have been admitted in evidence. He also claims error in the exclusion of the defendant's statement to a witness that she should not use cocaine. We affirm the defendant's conviction.

1. Suppression of drugs. Although the defendant sought by motion prior to trial to suppress his inculpatory statements, he did not move to suppress the drugs. At trial he claimed this failure was because the police report indicated that the search took place at the same time as the arrest, and he only discovered through Granger's testimony at trial that the search of the porch occurred after the defendant's arrest and placement in the cruiser. Contrary to the Commonwealth's contention, a review of the police report and the

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trial testimony supports the defendant's position that the chronological order of events was not known prior to trial. [Note 3] Accordingly, the defendant cannot be faulted for failing to comply with Mass.R.Crim.P. 13(c) (2), 378 Mass. 873 (1979). [Note 4] See Commonwealth v. Adams, 389 Mass. 265, 270 n.1 (1983); Mass.R.Crim.P. 15(c), 378 Mass. 884 (1979); Smith, Criminal Practice & Procedure Section 1288 (2d ed. 1983 & Supp. 1995).

We need not pass on the defendant's claim that the judge's reasons for denying the defendant's attempt to exclude the evidence were insufficient [Note 5] as there is another valid basis for the admission of the drugs. See Commonwealth v. Signorine, 404 Mass. 400, 403 n.1 (1989) ("Although . . . neither the Commonwealth nor the judge relied on this theory, the general rule is that, if the evidence is admissible, `it is of no consequence whether the reason assigned by the judge was accurate'"). See also Commonwealth v. Osorno, 30 Mass. App. Ct. 327, 332 n.8 (1991); Commonwealth v. Dise, 31 Mass. App. Ct. 701, 705 (1991).

In contrast to the Federal rule, see United States v. Salvucci, 448 U.S. 83, 90-92 (1980), which abolished the

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rule of automatic standing established in Jones v. United States, 362 U.S. 257 (1960), in Massachusetts, under State constitutional law, a defendant who 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," has automatic standing to challenge the legality of a search in a house. Commonwealth v. Amendola, 406 Mass. 592, 601 (1990). As explained in Commonwealth v. Frazier, 410 Mass. 235, 244 n.3 (1991), and in Commonwealth v. Montanez, 410 Mass. 290, 301-303 (1991), that, however, does not end the inquiry. Once automatic standing has been established, a determination that is dependent on the allegations made by the Commonwealth, Commonwealth v. Frazier, 410 Mass. at 244 n.3, a separate question arises under State law, namely, whether a search in the constitutional sense has taken place. Ibid. Commonwealth v. Montanez, 410 Mass. at 301. While Massachusetts courts "do not necessarily reach the same result as under Fourth Amendment analysis," the question is "whether the police conduct has intruded on a constitutionally protected reasonable expectation of privacy. The measure of the defendant's expectation of privacy is (1) whether the defendant has manifested a subjective expectation of privacy in the object of the search, and (2) whether society is willing to recognize that expectation as reasonable." 410 Mass. at 301 (citations omitted).

Even if the defendant may have had a subjective expectation of privacy in the second-floor porch, that expectation was not reasonable. The building was a four-family house with two apartments on the second floor and two on the first floor. The defendant did not own the place involved, was not a tenant, and was not an invitee of the second-floor apartment dweller. He had merely visited a friend on the first floor. Since the defendant had no constitutionally protected reasonable expectation of privacy in the second-floor porch, the conduct of the police did not constitute a search as to

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him in the constitutional sense. [Note 6] The drugs were properly admitted.

2. Exclusion of witness's statement. During the direct examination of a defense witness, the friend whom the defendant had visited, the judge sustained the Commonwealth's objection to defense counsel's questioning about the conversation the defendant had had with the witness. In reply to the judge's inquiry as to what he expected from the witness that would not be hearsay, defense counsel stated: "Well, I expect they ha[d] a conversation about her use of cocaine, and he told her not to use it."

At trial, defense counsel did not state the precise legal grounds for his objection, see Mass.R.Crim.P. 22, 378 Mass. 892 -893 (1979), and only on appeal takes the position that the evidence was offered to show the defendant's state of mind. Moreover, and more important, whether the defendant told his friend that she should not use drugs is not relevant to the question whether he possessed the cocaine that was found on the porch with an intent to distribute it. He was not charged with distribution to the friend, and his statement does not bear on his intent to sell the cocaine to others. There was no error in excluding the defendant's statement.

Judgment affirmed.