COMMONWEALTH vs. JOHN DORA.

JACOBS, J. The defendant was convicted by a Superior Court jury of breaking and entering (G. L. c. 266, § 15) and indecent assault and battery (G. L. c. 265, § 13H). [Note 1] In this appeal, he argues that his motion to suppress should have been allowed because the warrantless entry of police through the locked outer door of his apartment building into the common areas of the building violated his constitutional right to privacy. He also claims that a photographic array used to identify him was impermissibly suggestive and that the judge considered improper factors in sentencing him. We affirm.

1. The motion to suppress. We summarize the factual findings of the motion judge, supplemented by uncontroverted evidence from the motion hearing. Commonwealth v. Torres, 433 Mass. 669 , 670 (2001). In the early morning of July 24, 1998, a man entered the victim's apartment and sexually assaulted her while she slept. When the victim awoke, the man retreated and jumped through a window. The victim found keys in her home that she could not identify and that she later turned over to police. A neighbor told police that she had seen a man jump out of the victim's window and run off and that she saw the man later that morning looking around on the ground under a tree on her lawn. The police stopped the defendant, who fit the general description given to them by the victim and her neighbor, approximately one quarter-mile from the scene of the crime. Upon request, the defendant provided identification that included his address. He also made statements about losing his keys that the police regarded as suspicious. [Note 2] The neighbor came upon the police officers while they were speaking with the defendant and told them that she recognized the defendant as the man she had seen earlier on her lawn.

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Later that morning, the police went to the address the defendant had given. That address was within an apartment complex consisting of four buildings, each containing six floors and approximately 120 apartments. Using the keys found in the victim's bedroom, the police were able to open the main entry door to one of the buildings. Passing through the entry door and to the fourth floor by elevator, the police arrived at the hallway outside of the defendant's apartment. [Note 3] They inserted a key from the same set of keys into the lock of the apartment door, found that it fit, and turned the lock. They did not open the door after testing the key. The defendant subsequently was arrested.

The defendant's initial argument, that the police did not have probable cause to believe that the keys found in the victim's apartment were his, need not long detain us. In Commonwealth v. Alvarez, 422 Mass. 198 , 209-210 (1996), the court noted that "[o]ther courts . . . have found that inserting a key into an apartment lock did not require probable cause" and concluded that "the police needed only a founded or reasonable suspicion to insert the key." [Note 4] We agree with the motion judge's conclusion that this standard was amply met. [Note 5] When the police tested the defendant's apartment lock, they knew that he (1) had been in the area of the crime scene; (2) met the victim's general description of her assailant; (3) had admitted that he had lost his keys; (4) had made suspicious responses to their inquiries; and (5) essentially had been identified by the neighbor as the man she had seen jumping from the victim's window and later searching her lawn. They also knew that one of the keys found at the crime scene fit the main entry door to one of the buildings

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in the apartment complex in which he resided. [Note 6]

The defendant's principal argument, citing both the Fourth Amendment to the United States Constitution and art. 14 of the Declaration of Rights of the Massachusetts Constitution, [Note 7] is that he had a constitutionally protected expectation of privacy in the common areas of his apartment building interior to the locked main door and that the unauthorized unlocking of that door and entry into those common areas by the police violated that right of privacy. Consequently, he claims that evidence obtained by the police officers after entering those common areas must be suppressed. See Wong Sun v. United States, 371 U.S. 471, 488 (1963).

"[W]hether a search in the constitutional sense has taken place . . . turns on whether the police conduct has intruded on a constitutionally protected reasonable expectation of privacy." Commonwealth v. Montanez, 410 Mass. 290 , 301 (1991). Assuming the defendant had subjective privacy expectations in the hallway common area, the determinative issue is whether such expectations are reasonable. "That question generally is framed in terms of 'whether society is prepared to recognize such an expectation as reasonable,' Commonwealth v. Mamacos, [ 409 Mass. 635 , 639 (1991),] and is treated on review as presenting a question of law." Commonwealth v. Starr, 55 Mass. App. Ct. 590 , 593 (2002).

Whether the occupant of a multi-unit apartment building has a reasonable [Note 8] expectation of privacy in its hallways is a question that cannot be answered categorically. Commonwealth v.

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Hall, 366 Mass. 790 , 794 (1975). "In evaluating the reasonableness of an individual's expectation of privacy, we look to a number of factors, including the character of the location involved . . . whether the defendant controlled access to the area . . . and whether the area was freely accessible to others." Commonwealth v. Montanez, supra at 301-302. It is well established that "an individual can have only a very limited expectation of privacy with respect to an area used routinely by others." Sullivan v. District Ct. of Hampshire, 384 Mass. 736 , 742 (1981). Commonwealth v. Montanez, supra at 302. Given that the hallways of the defendant's apartment building were accessible to approximately 120 tenants and their invitees, the relevant criteria and pertinent case law would appear to place them beyond any constitutionally protected privacy zone. See Commonwealth v. Thomas, 358 Mass. 771 , 774-775 (1971) ("In a modern urban multi-family apartment house . . . a tenant's 'dwelling' cannot reasonably be said to extend beyond his own apartment and perhaps any separate areas subject to his exclusive control"). See also United States v. Hawkins, 139 F.3d 29, 32 (1st Cir.), cert. denied, 525 U.S. 1029 (1998) ("It is now beyond cavil in this circuit that a tenant lacks a reasonable expectation of privacy in the common areas of an apartment building").

The defendant argues, however, that the locked outer door distinguishes this case and, noting that there are no Massachusetts cases directly on point, claims that a warrantless, unjustified entry into a locked common area, not accessible to the general public, is an unconstitutional search. In support, he relies on Commonwealth v. Hall, supra; Commonwealth v. Cadoret, 388 Mass. 148 (1983); and appellate decisions in other jurisdictions that focus on the fact that the police were not authorized to enter a locked common area.

The case before us is readily distinguishable from the Hall and Cadoret cases because, unlike the defendants in those cases, the defendant here did not enjoy or exercise exclusive control of the areas in issue. [Note 9] Moreover, the fact that members of the public were denied entry does not significantly alter the reality

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that the hallways were accessible to a large number of persons. The exclusion of the general public for purposes of security cannot reasonably engender an expectation of privacy in an area accessible to 120 apartment occupants and their invitees. See United States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1977) ("The locks on the doors to the entrances of the apartment complex were to provide security to the occupants, not privacy in common hallways"). Compare United States v. Holland, 755 F.2d 253, 256 (2d Cir.), cert. denied, 471 U.S. 1125 (1985) ("[W]e never have held that the common areas must be accessible to the public at large nor have we required a quantified amount of daily traffic through the area as a basis for determining that a common area is beyond an individual's protected zone of privacy").

There is a split among the authorities as to the effect of an unauthorized police entry into the locked common area of a multi-unit apartment building. [Note 10] The defendant relies upon cases holding that a police trespass into a locked common area essentially constitutes a per se unlawful search under the Fourth Amendment. [Note 11] Informed by observations in Commonwealth v. Thomas, 358 Mass. 771 , 773-774 (1971), and Commonwealth v. Simmons, 392 Mass. 45 , 48- 49, cert. denied, 469 U.S. 861 (1984), we believe the opposing authorities, which include a majority of the Federal Courts of Appeals that have addressed

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the issue, [Note 12] to be better reasoned. In Thomas, police acting without invitation or authority entered the cellar of a three-story, six-apartment building. Noting that the cellar was a common area outside the exclusive control of the defendant the court stated: "The search following the entry was not rendered illegal because it was a trespass against the owner of the building." Commonwealth v. Thomas, supra at 775. In Simmons, which involved the unauthorized entry by police onto the driveway of private property to view a motor vehicle, the court stated: "The fact that the officers may have committed a technical trespass does not create a Fourth Amendment violation when no expectation of privacy exists. As the United States Supreme Court has noted on several occasions, 'the Fourth Amendment protects people, not places . . . [t]he premise that property interests control the right of the Government to search and seize has been discredited.' Katz v. United States, 389 U.S. 347, 351-353 (1967), and cases cited." Commonwealth v. Simmons, supra at 49. Such marginalization of property law concepts is especially appropriate when apartment building common areas are in issue. Analytical focus on police trespass to property only detracts from the principal consideration -- the reasonableness of privacy expectations in the area subjected to police activity. See Ouimette v. Howard, 468 F.2d 1363, 1365 (1st Cir. 1972). [Note 13] Here, the controlling circumstance was the accessibility of the hallways of the apartment building to many

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persons other than the defendant and his invitees. While a technical trespass by police officers theoretically may have civil implications, how they gain access to the common hallways of a multi-unit apartment building is of no constitutional consequence. "An expectation of privacy necessarily implies an expectation that one will be free of any intrusion, not merely unwarranted intrusions." United States v. Eisler, 567 F.2d at 816 (emphasis in original).

Unable to make effective constitutional challenge to the presence of the police in the hallway outside his door, the defendant cannot complain of the officers' testing of the lock of that door. "[A]ny expectation of privacy in the contents of the lock tumbler was minimal." Commonwealth v. Alvarez, 422 Mass. at 210. As we have noted, the police had the requisite reasonable suspicion for such an "unobtrusive search." Ibid.

2. The photographic array. Conceding that the issue was not raised in the trial court, the defendant argues that the victim's unobjected-to trial identification of him should not have been admitted in evidence. He argues that the identification was based upon an impermissibly suggestive photographic array shown to the victim soon after the attack. Because the defendant did not pursue suppression of this evidence before trial and did not seek a voir dire hearing or object at trial, this issue is waived. Commonwealth v. Shine, 398 Mass. 641 , 652-653 (1986). See Commonwealth v. Coburn, 5 Mass. App. Ct. 781 , 782 (1977). In any event, our examination of the array of photographs and our review of the record reveals no substantial risk of a miscarriage of justice, see Commonwealth v. Miranda, 22 Mass. App. Ct. 10 , 21 (1986), nor any constitutional invalidity. [Note 14] The photographic identification procedure was not "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United

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States, 390 U.S. 377, 384 (1968). See Commonwealth v. Thornley, 406 Mass. 96 , 98-99 (1989).

3. Sentencing. The defendant argues that his sentence should be vacated because the judge improperly considered defense counsel's trial tactics and factors inherent in the crime of breaking and entering in the nighttime. [Note 15] Preliminary to announcing that he was going to exceed certain proposed guidelines, [Note 16] the judge, in explaining his sentence, stated that "breaking into somebody's house at night has to be one of the most offensive acts one person can do to another." We do not read these remarks as reflecting anything other than a consideration of "nature of the offense and the circumstances surrounding the commission of the crime," Commonwealth v. Coleman, 390 Mass. 797 , 805 (1984), especially in view of the fact that the sentence imposed was well within the statutory maximum of twenty years. See G. L. c. 266, § 15. The judge's ambiguous and brief reference to defense counsel's tactics was made after his announcement that he intended to exceed the guideline and immediately before his indication of the clarity of the "facts" before the jury. There was no error.

Judgments affirmed.