Whether a driveway technically belonging to three apartments, but actually only used by one apartment, is on that apartment’s curtilage; whether the judge had sufficient evidence that a field test for cocaine was widely accepted in other jurisdictions.

Police obtained a search warrant for the defendant’s home after a field test indicated that bags found in the defendant’s trash were dusted in cocaine. The defendant’s girlfriend told police, while they executed the warrant, that the defendant kept drugs in a “hide” in his car, parked in the 3-family apartment’s common driveway. Police searched the car without a warrant, finding a baggie of cocaine and a hollowed-out magic marker commonly used as a hiding place.

The judge denied the defendant’s motion to suppress fruits of the warrantless search of the car, and the defendant was convicted of distribution of cocaine. The defendant appeals the denial and the conviction.

1. Warrantless search of the car. 
   
   (A) Curtilege. The judge held that the car was on the curtilege of the defendant’s aparment, and therefore covered by the search warrant for his home. The defendant argues that common spaces, such as group parking lots, are not on the curtilege of any one renter’s apartment. The Commonwealth responds that a fact-specific analysis is appropriate; although the defendant did not have sole legal access to the driveway, residents of his apartment were the only ones who accessed or had any reason to access the driveway.
   
   (B) Automobile Exception. The judge found in the alternative that the automobile exception supported warrantless search of the car based on probable cause. The defendant argues that the automobile exception applies only to automobiles in “public places,” and that the driveway was not public. The Commonwealth responds that “public places” are merely those to which police have lawful access, and include shared parking lots. The defendant is subject to Catch 22 — his car must either have been on his curtilage and within the warrant, or subject to the automobile exception.
   
   
2. Admission of the field test results. The judge permitted a police officer to testify, over objection, that some 47 plastic bags in the defendant’s trash tested positive for cocaine. The officer did not know how the test worked, or what its error rate was.
   
   Scientific tests are admissible without expert testimony if substantial authority from other jurisdictions shows they are reliable. Commonwealth v. Whynaught, 377 Mass. 14 (1979). The judge found that the reliability of the field test was sufficiently satisfied by a New York case, People v. McIntyre, 185 Misc. 2d 58 (N.Y. Crim. Ct. 2000), which in turn accepted the representation of an assistant district attorney that the test was over 99% reliable and was in use by law enforcement in all fifty states. The defendant argues that this is insufficient corroboration to satisfy Whynaught. The Commonwealth argues that a judge’s finding of scientific reliability is reviewed for abuse of discretion, Canavan’s Case, 432 Mass. 304, 311 (2000), and that no such abuse occurred where field tests in general are widely admitted. 

As to the search of the car, the Commonwealth is probably correct as a practical matter that the defendant must pick his poison — the car was searchable either under the warrant, or the automobile exception, depending whether it was on his curtilege.

The interesting theoretical question is whether curtilege should be judged by the factual test the Commonwealth suggests, or the per se rights-based test advocated by the defendant. Given the Fourth Amendment touchstone of reasonable expectations of privacy, the Commonwealth’s position seems more persuasive. Nor will it be universally objectionable to defendants — most will advocate the enlargement rather than curtailment of their curtilage. Indeed, it is easy to imagine a defendant in this defendant’s precise situation, but where the police lacked a search warrant for the house, arguing that his neighbor’s technical access to the driveway should not change his subjective understanding of the driveway as private.

As to the field test, there are two lines to be drawn here — how much deference should an appeals court pay to a trial judge’s decision to admit scientific testimony based on legal cases from other jurisdictions, and how much evidence of that practice is required? The evidence relied on by the judge in this case is scant, and may require the Court to consider both questions.