-: SJC 13239 Commonwealth versus John B. Witty.
-: Okay, attorney Curhan.
-: Good morning.
May I please the court? Dana Curhan for John Witty,
we challenge the denial of the motion to suppress.
The issue is Trooper walked up the driveway,
a very long driveway of this house
and made observations of a vehicle sitting in the driveway.
-: Mr. Curhan, I might be turned around
on some of the photographs,
so if you could help me out, please.
Mr. Curhan: Yes.
-: Because obviously they don't know
this is gonna be the big issue.
This, the photographs aren't there.
Mr. Curhan: Of course.
-: Great.
But I'm looking at exhibits 9 and 10 on the record.
Appendix record appendix 96 and 95.
I'm just wondering,
there's a Yaris and a Sienna.
Is the Yaris parked closer to the walkway
or was it the Sienna park closer to the walkway
-: It's the Sienna, and you can see this on,
you can see this on exhibit 3 on page 94.
The Yaris is actually behind the house,
sort of the,
to the right is are the two garage doors.
Justice Gaziano: Right so.
-: And sort of behind them is the Yaris.
The Sienna is to the, on the right,
on that picture in front of the Yaris,
but parallel to the garage doors.
-: Oh, okay.
So, oh, sorry, I had,
they're not side by side.
The Sienna was in front of the Yaris.
Mr. Curhan: Yes.
-: Okay.
That, that clarifies.
-: But the judge actually.
-: In and closer to the walkway. The Sienna.
-: No, the walkway is to the right
is the walkway.
If you were facing the two vehicles
and you're walking up the driveway.
On your left,
there's a path that goes up to the front door and-
-: Yeah, I'm gonna look at 96.
So the, if I'm looking at 96,
the walkway is on the right and it,
snakes into the front
of the structure, correct?
-: It's on the right as you're facing it.
Justice Gaziano: Right.
-: But as you're walking up the driveway,
it's on your left.
Justice Gaziano: Yep. Yep. No, I'm no longer spun around.
I get, I think I understand now.
So if you were, if you walked down the driveway,
you would pass in front of the Sienna
making your way up to the front door?
-: No, judge made that finding,
but that's not accurate.
-: Okay, tell me why.
-: You get because the Trooper never actually testified
that he had to pass the Sienna.
He testified that he was walking up the driveway and,
the Sienna was visible the whole, as he was walking.
-: That's, so you're walking up the driveway,
that Sienna's gonna be right in front of you.
-: It would be, it would be straight ahead.
Justice Gaziano: Yep.
-: Then you get to the walkway to the front door
and you turn left.
Justice Gaziano: Yep.
-: You still have to walk,
keep walking if you want to get to the Sienna.
Now the pictures show that, in particular,
the first photograph on page 92,
there's the vehicle,
and then up ahead,
it looks like maybe two car lanes up.
There are three troopers standing there.
They're about parallel with where the walkway is.
Now, when you look at the search warrant affidavits,
all four affidavits say
that the vehicle is parked
across from the garage doors.
-: How do you win on the Dunn factors where the,
driveway is accessible from the road.
There's no fence in, there's no nothing.
And if you were a UPS driver,
that's where you pull up to make a delivery.
-: Well, I mean, I think that,
I think when you're talking about curtilage,
you look at two parts.
You don't look at the entire driveway.
So I'd say maybe the,
from the street.
-: Well, we look at four,
there's four factors in the task.
-: Right.
But from the street up to the walkway,
that's probably outside of the curtilage
because anybody making a delivery
or visiting the house,
would have to walk up that part of the driveway
and get to the front path.
Now, when you then continue down the driveway
and you go to a place where nobody has any business going.
-: Has anybody ever said
we're gonna separate parts of the driveway
from in the curtilage analysis on a Dunn.
-: You're basically saying two-thirds of the driveway is,
non curtilage and one-third of the driveway is curtilage.
-: Yeah. I mean, I think that,
courts have made that distinction.
I don't think I,
they've ever discussed
what happens when you have a driveway
that's a quarter of a mile long.
But what happens when you have a vehicle
that is parked next to the house?
It is parked in an area where nobody would ever have to walk
in order to visit that house.
You know, if you look at the,
there's a photograph of the back of the house,
with the Yaris, and there's a couple of bird feeders there,
and you can see that, you know,
the walkway to the back door is not even cleared.
So nobody has any business going
anywhere beyond that pathway to the front door.
-: If you're familiar with it,
how does the argument you just made
fit into Commonwealth versus Dobson?
Which is really about,
is the driveway being used functionally
for anything beside parking cars?
Because if it's for parking cars,
it suggests less of a expectation of privacy.
-: Well, I mean, I think the,
when you look at all of the I mean,
there are two lines of cases.
There's a line of cases that are like this case
where what we're trying to do is
we're trying to show that the vehicle
is not within the curtilage.
-: It depends if the Commonwealth wants to win or lose.
Mr. Curhan: That's right.
-: Right?
Mr. Curhan: Exactly.
And there's-
-: That's what it turns on,
whether they got a warrant or not.
-: Right.
And, if they,
if Mr. Witty had been a drug dealer
and you wanna show that the
vehicle was in the curtilage,
there are a lot of cases saying that, you know,
parking a vehicle next to the house
or next to the garage,
or in a parking space that is exclusively yours,
brings it within the curtilage.
So if they have a warrant for the house,
but not for the car,
they can go search the car.
-: It's our job to be consistent no matter what the
Commonwealth wants. So.
-: That's, that's right.
-: I just find that the cases are ironic,
basically based on that factor.
-: It is a little bit of, you know, heads you win,
tails you lose.
-: So it's difficult here because
we need to apply whether or not
the police officers decided to take a little bit of a detour
on the way to the house.
But do we have the,
the facts to be able to dig down into that?
-: I think we do.
Trooper Short testified that he was
instructed to go down and talk to
Witty's late girlfriend's grandson,
but he was also instructed go look at the tires on that car.
-: Is it a subjective test in that sense?
Whether or not this is within a the curtilage,
I mean, it seems to me that you're
suggesting that what the purpose of the officer was,
this particular officer is relevant
to our inquiry under the Dunn factors.
And I'm wondering what is legal authority for that?
-: Well, I mean,
I think he was instructed to go look at the vehicle.
-: Right, but is that relevant to our determination
as to whether or not that's curtilage?
-: I think it a it could be.
-: Under what legal authority.
I mean, what case do you have for the proposition
that what the officer went to do
is relevant to whether or not the
interests of privacy are triggered
for this particular defendant?
-: I'm not sure if there's any,
law on this particular issue.
I know that it's generally objective.
-: I think it's the law is the other way.
Mr. Curhan: I'm sorry.
-: I think the law the other way on,
it's an expectation of private.
If there's no search then there's no search.
-: Well, I mean, it's objective on the part of,
the defendant.
If it was his intention to protect the vehicle
by parking it in an area
where he might have an expectation of privacy
and therefore it's within the curtilage of the house,
you know, that's sort of the subjective element
as far as what the police officer may have intended.
I'm not sure if there is case law talking about that.
-: [Justice Wendlandt] Right.
-: I think that, you know, it may.
-: So, so I guess the bottom line are to the Dunn factors,
whether there's four or we've considered them in total,
and some of them are triggered as the question is,
you know did,
is this area intimately associated
with the things that we
associate inside a home?
And I guess I'm wondering
what the record evidence is on that.
-: I think the.
-: Do we, you know,
do we have him doing picnics
on this part of the driveway?
Do we have him inviting guests,
hosting any sort of events,
basketball even, I don't know.
-: We don't have any of that one way or the other.
-: And which way does that cut in terms of the curtilage?
-: I don't think that I mean,
I think the driveway is used for parking.
-: [Justice Wendlandt] Yeah.
-: This portion of the driveway.
-: And isn't that a problem for you then?
-: It's not a problem for me in that
when you're looking at,
I think the, probably the most critical factor is, you know,
well, aside from is it visible from the street,
but is it in an area where you would have to
go past to get to the entrance?
A visitor would have to go to the,
get to the entrance of the house.
So a UPS driver would certainly
be able to park in the driveway
and would certainly be able to go to the front door.
Would a UPS driver have any business going down
beyond that two car lanes down
to the driveway area
or the garage area where the vehicle's parked.
-: If they were dumping a large package
near the garage doors they would.
-: Where's the oil going to be delivered to.
(Judge Cypher laughing)
-: I, we don't have any.
-: Let me ask you,
are you aware of any cases that
section off a driveway
under the curtilage analysis?
-: I'm, well, I mean,
I know that there's, the, was it,
I don't remember if it's Fernandez,
the one where the car is parked in the alley.
There are other cases where,
and what they discuss is
if you park in a generic parking space
in front of a building that anybody has access to.
-: Yeah. Fernandez has a protected driveway though, right?
That's all different.
I think it's fenced in
or there's something about the Fernandez driveway.
-: There, there was, there's one driveway that's,
I apologize.
I don't, I never remember names of cases.
There's one driveway that is.
-: I'm cheating cause I have it in front of me.
-: Oh, okay.
There's, one driveway
where it's sort of next to an apartment building
and the defendant has the first floor unit.
And this is a drug case.
-: That's Fernandez.
-: That's Fernandez. Okay.
So, you know, and,
they said that's part of the curtilage.
And you know, I think we have the same situation here.
If this is a drug case,
I think the Commonwealth would be up here saying,
hey, it's, nobody has any business going there
except to the defendant to park his own vehicles.
It's in front of his garage.
It's not near the front path.
Anybody going there.
-: How far away from the front path was it?
Did you say Mr. Curhan?
-: It, you know, we didn't have great testimony on this.
It looks from the first picture on page 92,
it looks like about
a couple of car lanes
and it's on the opposite side of the driveway.
-: It's visible though, right?
-: It's visible. Of course.
I don't contest that it's,
probably not visible from the road,
but it is from the driveway and.
-: It's cause of the rural street, correct?
-: It is. And so, you know, one of the things that, you know,
a lot of the urban cases say is, well,
if it was a rural street
and you couldn't see it from the street,
then that's, you know,
that's one that's a factor.
And these cases are on a case by case basis.
And I think we have a situation where, yes,
we have a rural driveway.
And I'm not gonna say that the first part of the driveway
is within the curtilage of the house.
Maybe I could make an argument, but I don't think I have to.
-: But didn't the judge find,
that you had to walk up the driveway to get to the house
to get the, that the trooper would have to do that?
-: The judge found that he would,
that he actually had to walk past the car
in order to get to the pathway,
that's not supported by the record.
Because again.
-: Well he had to walk within a few,
I guess it depends on the word pass.
I it's a distance away.
It's not right there.
The vehicle from the path.
-: Yeah, the trial prosecutor argued that,
you know,
it was on the driveway and the trooper
had to necessarily had to walk past it
to get through the front door.
You know,
that was an argument that the trooper didn't say that
the photographs don't show that.
And the search warrants,
the four search warrant affidavits,
don't say that either.
And it's very clear when you look at the photographs
that he went beyond the pathway by,
you know, a fair distance.
-: That's why he started.
Cause I don't think the photographs all that great, frankly,
to explain the geography here.
-: They're not great, but I think they're adequate.
And especially you look at the first one
and it's clear that where those three troopers are,
and then when you look at the picture
of the front of the house and where that is
in relation to the garage,
I think it's clear that that's where, you know,
he had to go beyond that pathway on the left.
And again, it is a factor.
I don't know if there's any case law on this,
but it is a factor that the Trooper was
instructed to go there and
look at the tire marks of the vehicle.
And he obviously would've had to
take a flashlight or something.
-: Did he know why he was doing that?
Mr. Curhan: I think he did.
-: Did he know based on his own knowledge?
Or did somebody tell him?
-: I think somebody told him because
he wasn't the one who found the.
-: Do we have anything about that in the record?
About whether the other cop told this cop to what,
what he was looking for?
-: I think he was,
I think he knew because there were two troopers
who testified at the first,
at the suppression hearing.
The first one said, yeah,
that was a very distinctive tire tread.
And the second guy,
the one who actually made the observations,
called him up and said,
yeah, it matches to, you know, and,
and they described it as unique or distinctive or something
language like that.
-: And I assume there's no
determination of how far
he'd have to be from the car
to make an observation like that.
-: Well, he admitted that he would have to illuminate that.
-: That's okay though.
That doesn't add to a search,
a flashlight doesn't add.
It's more whether he is
making a significant detour or not.
The illumination cases are not seizured.
-: No, they're not.
-: They have a right to be.
-: Well, if he's standing at the,
if he's standing two car lengths away
trying to shine a flashlight, I, you know,
I don't think he's gonna see anything.
Justice Lowy: Wow.
-: I think it's pretty clear that,
and it's pretty clear that he actually went up to the car
because he also looked into the back and, you know,
there would've had to be,
had to have been some kind of illumination,
whether it was a flashlight or
some kind of light on the driveway.
But, you know, we don't see any,
there's no testimony about lights in the driveway.
-: Can you address the comos argument
that if you excise the observations,
there's still probable cause?
-: I don't think that's accurate because I think they have,
they have some suspicion,
but some people say in the affidavit,
while they were friends
and you know, is when, yeah,
he had a restraining order in 2003
and he had a road rage incident in 2012.
-: But you also have the motivation in,
the affidavit too though, right?
-: Well, he said he was upset.
-: The reason why he was upset.
-: Right.
But you know, I think that gives him a hunch,
if I'm a magistrate looking at this,
do I think a 70 year old man
is gonna go out and commit a murder
even if he's really upset.
I mean, I think what really established.
-: Wouldn't we think that it's possible?
-: It's possible.
Mr. Curhan: And it happens.
It's happened.
-: And, and the, and you have the trip to New Jersey,
you've got the beer, right?
-: Well, I mean, you know,
the beer is kind of generic and
you know, Beck's is a little,
probably a little less common than Miller, but.
-: That was in high school.
But I think it's,
I think it's not generic now.
-: I mean the thing is,
if the bottle found under the table was,
was Caroline Burbine's Raspberry IPA,
and he said that that's what he drank.
That would be a big factor.
It is a kind of beer,
that you can get at any package store
or supermarket or probably gas station.
-: But all of these things together,
why is that not enough for probable cause.
-: All of these things, you know,
give them a hunch and give them some suspicion.
What the killer is here,
is that they found a tire mark in the snow,
and a very distinctive tire mark in the snow.
I mean, I've had.
-: I have a hard time believing that you really?
Mr. Curhan: Yes.
-: Okay.
Judge: On a Toyota's, on a Toyota Sienna?
-: Tire marks really?
-: Well. And the thing is,
like I've had,
I have a Toyota Sienna,
I've had about five sets of tires.
All the tires are generic looking.
This is a distinctive tire mark.
And the true two troopers testified to that.
And so that.
-: I mean, I was just sort of my, as a practical mechanical.
-: I mean, I just put a different brand on and they,
it looks just the treads look just like the old ones.
-: [Justice Wendlandt] Yeah.
-: And but you have a distinctive tire mark
and that establishes
that Witty was likely there.
The other thing is that the fact that there's an open case
of Beck's beer in the back,
that explains why it is,
it is probably not as strong as a tire mark,
but it explains how a beer
that the victim probably didn't drink,
ended up in the house.
So that really establishes probable cause.
Without that you have a person of interest,
you have a hunch.
And that's about it.
You know, and I know that it's possible for,
a 70 year old to commit a murder.
And this one did,
I mean, we're not contesting that,
but a magistrate looking at it, you know,
you might look at it and say, well,
the victim had an argument with his supervisor at,
the Salvation Army,
but it was only verbal.
But there's no evidence of hostility.
There are people who the Anthony said, yeah,
they were friends.
There was was another person in the affidavit, I,
his name escapes me.
He said, yeah, they were friends.
So what is it that establishes
that he is more than a person of interest?
I mean, after the second interview,
they let him go.
They said he's not a suspect,
at that point.
But, you know, once they get the tire treads, I,
I mean I think that's really it.
And as far as inevitable discovery,
I will concede that at some point,
the Commonwealth probably would've
established probable cause.
But not right away.
There was a,
I think it was a vest or a sweater where there was a stain
that DNA ultimately matched to the victim.
But I don't know when that was.
And if you,
if this search warrant had issued,
say two weeks later or a month later,
would there be,
would there have been any evidence seized?
I mean, would,
they have gotten the GPS,
which was the real,
the real killer in this case?
I mean it, no pun intended,
but I mean that really,
that really established that he was at the scene.
So, and then the, you know, the tire mark,
but it's questionable whether they would've,
the commonwealth would've actually
seized the evidence that it did.
So, I mean, I think that that's our position.
The last thing I want to talk about is 27833E.
-: So you're two minutes over.
Unless there's something specific that's not in the brief,
I'm gonna ask you to say.
-: Oh, I'm sorry.
I didn't realize it was be beyond that.
I think it's in the brief.
-: Okay. Thank you so much.
Mr. Curhan: Okay, thank you.
-: All right. Attorney Burbine.
-: May I please the court, Carolyn Burbine.
for the Commonwealth.
It's our position that
the trial judge properly denied the motion to suppress
and that the trooper's viewing of the tire
and the interior of the van were appropriate
under the Dunn factors.
The driveway is next to the, to the home.
There's no,
but there's no indication that it was used for anything
except for parking cars.
And I think it's significant.
But the defendant had a garage
and he did not use it.
He parked the cars in the driveway.
-: How far was the Sienna from the walkway? Do we know?
-: We don't have measurements,
and the photos aren't great, but we.
-: What's the best photograph in your view?
Mr. Curhan puts us to RA94.
-: I'm sorry, what was the question again?
The distance.
-: Well, what's the best, what's the best evidence of,
of where the Sienna is in relation to the walkway.
-: Of to the what?
Justice Gaziano: To the walkway.
-: Walkway.
I don't know.
I don't think any of them are very good.
I think the big point though is,
you know what, whether the,
the photos obviously weren't taken to prove these points.
So what the judge relied on was the trooper's testimony,
and he can do that.
And what the judge found explicitly
was that visitors would use this driveway
to get to the walkway leaning from the end
of the driveway to the front door.
And he noted that the driveway wasn't surrounded by a fence
gate or other obstruction.
There was no indication that the defendant uses the driveway
except to park vehicles.
And these findings were correct
based on the trooper's testimony.
Trooper Short said there's no gate
at the end of the driveway.
No fence around the property.
No, no trespassing signs.
Trooper Abra Moske said the house was set back
from a decent sized driveway.
When you looked out from
the driveway to the street and vice versa,
you had an unimpeded view.
There was no fence at the driveway bordering the street.
No, no trespassing signs, no shrubs, no trees,
no natural or artificial impediments
to the view from the street into the driveway.
No impediments between the driveway
and the front door and no gate.
And I think it's important to recognize
that the judge said that a visitor
would naturally use the walk leading
from the end of the driveway to the front door,
just as the troopers did.
And he noted that the trooper Short testified
that he followed the driveway to the front steps
in the front door.
And it's the only way
to access the front door.
I'm sorry, I'm not sure if he noted that,
that's what Trooper Short's testimony was.
And Trooper Abra Moske testified that
as you approached the driveway,
there's an unobstructed walkway to the left,
go up the walkway to the front door,
which is the main entrance to the home.
And the judge noted that a police officer,
like any citizen,
can approach a home and knock on a door.
So, but I think the most important point
is the case law talks about
is this driveway an area to which the life,
the house, home life extended.
And clearly it was not,
he only used it to park the cars
and he took no steps to
block anyone from coming down his driveway.
In fact, it was the way to breach the front door.
And also I think it's important to recognize
that he didn't use the garage.
He had a double bay garage and he didn't use it.
So based on the Dunn factors
and the trooper's testimony and
the judge's findings,
I would posit that the,
that the judge's decision was correct.
And then even if this court were to disagree,
I would argue that the
inevitable discovery doctrine applies.
And I disagree strongly with defense counsel's.
-: It's not inevitable discovery. It's.
-: I mean, I'm sorry.
Yes, no, I misspoke.
-: Right? It's excising the.
-: Excising, the, in the information.
It's the, yeah, I just misspoke, I apologize.
It's the inevitable
this would've been found if,
even if that the affidavit would've been
sufficient to establish probable cause
even if these,
this information in it was excised.
So what the affidavit said was
that Trooper Short went to the defendant's house,
the asano was in the driveway.
The driveway led to the stairs,
which lead you to the front door.
And the only information in there about the tires
was that there were four tires,
four range channels and square treads,
similar and pattern to the track of the victim's house.
There's nothing about
this very unique or distinctive tire mark.
And then he also said in the affidavit,
they looked through the window
and saw an open case of Beck's bear sleeping bag
and a sea bag.
So what we also had in that affidavit,
if you excise that information out,
was the prior restraining order for 2003.
And he had a prior conviction from 2013 on an A and B
on a disabled person over 60 years old.
And then we also had,
for the Beck's beer,
the defendant said in into interview,
he drank Beck's beer.
The Judy's son said he drank Beck's Beer.
And Mr. Mullagotti said that the victim drank Miller beer.
And there was Miller beer in the house
and in the refrigerator.
So in the victim's house in refrigerator.
So we didn't need the information
about the Beck's beer in the car
to tie the defendant to Beck's beer.
We also have information that,
the victim had been shot at least six times,
but no gun was, you know, near the body.
The defendant said he had no guns in his house,
that he used to have a license to carry
and they didn't have it anymore.
And when he was asked if he ever had a handgun, he said no.
But then when the trooper asked him again,
he hesitated and he said maybe he had a nine millimeter
that he sold to an unknown party.
Contrary to that,
Anthony said there might be guns in the house
and that there was gun locker in the basement.
And I'd note that there were nine millimeter live rounds
near the victim's body,
nine millimeter cartridges near the body.
And that the victim had guns in a back closet,
but no nine millimeter or ammunition for a nine millimeter.
So I don't think that that is something that,
that wouldn't have been significant to the clerk magistrate.
And then also we have that the victim was alive at 9 or 9:30
on the night of murder because Mrs. Delore,
Ms. Delore spoke to him on the phone.
Mr. Malagutti, the friend had said that
if the defendant went to the victim's house,
the victim were to let him come in.
There was no sign of forced entry at the house.
It wasn't ransacked, nothing was taken.
So inferrably the victim let the killer in.
And then we have the victim's daughter
giving the police the defendant's name.
And she said that Judy wanted to,
that Judy lived with the defendant,
but wanted to be with the victim
and leave the defendant.
And then the defendant's own conduct
and statements in his interview,
he had suspected an affair.
He was devastated when he found the emails
with the details of the relationship a week before.
And then he takes one out of his pocket
and hands it to the trooper.
And then he said that he had left his house and taken this
road trip, joy ride to New Jersey that very night.
And he paid cash for everything, no receipt.
There's so inferrably no receipts.
He slept in a parking lot
and he came back the next morning.
That's an implausible story,
you know, by any means.
And so putting all of that information together,
even excising what defense counsel considers to be such
significant information about the tire treads
and the Beck's beer,
I would say that still would've issued.
The affidavit would've.
(indistinct)
-: May I ask you a question.
And about the grandson,
he was going to interview the grandson.
Did the grandson live there?
-: He lived in the house with Judy.
-: And did the grandson know he was coming?
-: I'm sorry?
-: Did the grandson know the
police officer was on his way?
-: I do not know the answer to that question, your Honor.
-: No, I was just curious if the grandson
had authority to let him into the house.
-: The grandson lived there,
but it was Mr. Witty who let them in anyway.
He was the one who went to the door
and answered the door and let them in.
But he did live there.
Yes, your Honor.
Did the court have any questions on the second issue?
It's the court's,
it's the Commonwealth's position that there's under 3338
there's absolutely no grounds to reduce the verdict.
We had a premeditated murder.
The evidence showed it was planned out,
the victim was shot 10 times and stabbed.
And the court,
the Commonwealth would strenuously argue that there's no
merit to a claim of need for reduction in the verdict.
Did the court have any further questions?
-: [Justice Wendlandt] I think we're all set.
-: The rest on my brief.
Thank you.