During the execution of the search warrant to facilitate the arrest warrant, the defendant was indeed discovered and arrested; in that process the police saw "in plain view" a significant amount of drug paraphernalia and drugs. Armed with that information, they obtained a second search warrant for the home in which they obtained significant contraband with which they charged the defendant. He challenged the search based upon the first search warrant in which the police obtained evidence while unlawfully present within the curtilage of the home.
The SJC reviewed Payton v. New York (where the police may not enter an individual's home without a warrant even if they have probable cause to arrest; case also contains dicta that an arrest warrant would serve to allow for a search to execute the arrest warrant inside an individual's home) and Steagald v. United States (arrest warrant for individual not sufficient to satisfy Fourth Amendment for police to enter third party residence). Given these parameters, the SJC ruled that the subject of a valid arrest warrant in a third party home has only the right to require that the police have a reasonable basis to believe he will be present when they enter the home of a third party to execute the arrest warrant...even if the evidence to suggest that the arrestee will be present was obtained unlawfully. That is, the arrestee - who claims no residence in the third party home and has the status of an invitee or guest - cannot challenge the search warrant required to execute the arrest warrant when the search warrant plainly included evidence obtained via an illegal trespass. This is the opposite of the automatic standing principle. Although the Massachusetts Constitution has routinely provided broader protections for individual rights than has the federal Constitution, the SJC appears to be adopting a notion it previously rejected. But because it fails to mention automatic standing at all, the ramifications of Tatum other than to the defendant himself are unclear.
Courts developed the "automatic standing" rule for precisely the conundrum in Tatum: when charged with a possessory crime, one need not assert specific protections of the Fourth Amendment in order to challenge the evidence because to do so would be to all but admit to the crime. In Jones v. United States, the Court realized that a charge of possession of contraband put the defendant in a terrible situation - if he claimed an interest in the contraband then he was admitting the crime of possession. Therefore, the Court ruled, that those charged with possessory offenses had automatic standing to challenge the search and seizure of that evidence. Twenty years later, as the nation battled the "war on drugs" on every front, the Court rethought that grand idea and overturned Jones in United States v. Salvucci ruling that defendants cannot avail themselves of the exclusionary rule unless their own Fourth Amendment rights were violated. And, in so determining, the Court linked the notion of standing and a reasonable expectation of privacy as the "reasonable expectation of privacy" was considered the threshold over which one must step in order to be protected by the Fourth Amendment.
Massachusetts Courts rejected the ruling of United States v. Salvucci, 448 U.S. 83 (1980) (a case reaching the Court from Massachusetts) and created a state law rule of automatic standing for all possessory offenses in Commonwealth v. Amendola. Indeed, this point was mentioned by the dissenting Justices in Tatum even as the majority opinion ignored the concept of automatic standing throughout the opinion. Further, the recent Court cases of United States v. Jones (GPS attached to vehicle without a warrant violated Fourth Amendment) and Florida v. Jardines (police need warrant to search curtilage of house, at least in regard to use of drug sniffing dogs) emphasize that the more traditional idea of trespass is fundamental to Fourth Amendment protections and that the reasonable expectation of privacy argument is in addition to, not in lieu of, trespass.
Because Massachusetts has allowed for automatic standing, the basis for the challenge is the charge of possession of the contraband and therefore any challenge should question whether the search and seizure was reasonable or whether the evidence should be suppressed. But the SJC seemed to turn tables on the idea of automatic standing where the challenge to the evidence had to do with another's home. Certainly the police did not violate the defendant's Fourth Amendment right to be free from government intrusion into his home, papers, possessions or person when the police violated another's right to be free from such intrusion.
But, that is not the proper question to ask. The question is whether the search and seizure was reasonable. In Massachusetts people enjoy protections as per Art. 14 when they are overnight guests (Commonwealth v. Lopez, 458 Mass. 383 (2010)) or temporary tenants (Oystead v. Shed, 13 Mass. 520 (1816)) or residents of shelters (Commonwealth v. Porter P., 456 Mass. 254 (2010)). The Supreme Court has ruled, similarly, that an overnight guest has a reasonable expectation of privacy (Minnesota v. Olson, 495 U.S. 91 (1990); other federal courts have recognized a reasonable expectation of privacy in less protected areas such as benches commonly used by homeless residents (Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012)). Even under the tougher Fourth Amendment principles, whether the right is one of a reasonable expectation of privacy or the idea of trespass, the issue for the exclusionary rule under Salvucci is whether the individual enjoys the protections of the Fourth Amendment, not whose home is involved in the search. It appears that tatum could validly assert both Fourth Amendment and Art. 14 protections under decisional law. Therefore, even if rejecting the long standing rule for automatic standing, the SJC still should have analyzed whether the search and seizure of contraband in Tatum was reasonable.
Unpacking that a bit, the reason Tatum DID enjoy the protections of Art. 14 was because he was charged with possessory offenses and therefore had automatic standing under Massachusetts decisional law. The SJC staying silent on that matter does not change the law in regard to automatic standing, however it has thrown the idea into a bit of a tailspin. Even if decided under solely federal concepts, given the requirement for a search warrant to execute the arrest warrant as per Steagald, mustn't this search warrant be a valid search warrant premised upon legally obtained evidence to establish probable cause? In Tatum, there very well may have been proper probable cause established to believe the defendant would be present even without the violation onto the curtilage of the home, but this was never analyzed. There was a blatant statement that the defendant did not enjoy constitutional protections when he denied that the residence was his home. This was error by the SJC under its past decisions regarding Art. 14 - but because it upholds federal law, it is unreviewable in the federal courts.
At common law, two concepts in particular presented glaring offenses to liberty: the “general warrant” which provided a law-enforcement officer with broad discretion or authority to search and seize unspecified places, people or goods and “writs of assistance” where customs officers had continual authority to search for stolen goods anywhere; indeed the writs only expired upon the death of the sovereign and they were transferable from officer to officer. Among the treasures of artwork gracing the halls of the Massachusetts State House is a mural depicting James Otis arguing against the Writs of Assistance. For review, James Otis was a prosecutor for the Crown. When the authorities began executing general warrants and writs of assistance, he quit his job and argued, gratis, on behalf of the Colonists. He lost, but that case forever changed the trajectory of police intrusion into private spaces. To grasp how central the notion of individual liberties was to the Massachusetts colonists, one need only begin to read the constitution; unlike the amendments added to the United States Constitution, the rights of the people precede the organization of the government under the Massachusetts Constitution. The Declaration of Rights was not an afterthought.
Yet it barely gets a sideways glance from the SJC in Tatum. In practice, what difference is there between a specific arrest warrant with authority to execute it anywhere, including inside a private home, and a general warrant? The odious notion of the general warrant was this idea that the police could enter anywhere - a home, a neighbor's home, a ship, a church - in order to seize an individual. The writs of assistance were repulsive because they allowed the police to search for contraband anywhere they believed contraband could be discovered. At common law, there was no exclusionary rule; the remedy for such an unwarranted search and/or seizure was to sue the officers in court for trespass. Query whether the defendant in Tatum could so proceed; he was subject to a valid, specific arrest warrant (several, indeed). However, he was inside a residence, an area considered protected certainly as to the residents of the home but also as to guests and invitees - this was the whole point of the uproar against the general warrant. Courts developed the exclusionary rule to deter these distasteful practices in the first place and to streamline the process; where the police overstepped, they could not use the evidence at trial.
In Katz v. United States, the Court stated that the Constitution protects people not places. It protects them from unreasonable searches and seizures particularly within places in which they expect to be safe from government intrusion. A residence - whether one's own or another's in which one is an invitee or guest - is one of those places. Under past decisional law, Tatum had a reasonable expectation of privacy and was thus protected by both the Fourth Amendment and Art. 14 under the Katz principle. If he did not have such a right, the search warrant would not be required under Steagald.
What he did not have was the authority to exercise the ownership interest in the home in regard to trespass. At common law, the owner could sue the police for unlawful entry as per the phony Verizon worker scheme because the police were, at that time, not lawful invitees or licensees or guests; they were intruders not lawfully present. Anything the police witnessed in a place they had no right to be should not be used against the residents of the home under the trespass theory - the evidence obtained as per the trespass should be excluded from trial as against the home owner or leaseholder. But the guest or invitee has no authority to exercise this protection of the Fourth Amendment. He has no right to declare a violation of trespass when he could not sue at common law for the same.
But this historical journey does not address the issue in Tatum - charged with a possessory offense, he had automatic standing in Massachusetts- an idea not even mentioned by the majority opinion (it is unclear whether it was raised by the defendant at all). Under automatic standing, everything is on the table to challenge the reasonableness of the search and seizure of evidence because the protection is presumed based upon the charged offense. While the specifics of the case are unlikely to be repeated, it does open the door for arrest warrants to be executed more freely within private homes, it does open the door for lax measures to be taken in obtaining a search warrant for the purpose of executing an arrest warrant because the police know that their behavior will not be challenged.
The SJC would do well to reread the cases that announced and extended the exclusionary rule. In Weeks v.United States, 232 U.S. 383 (1914), federal officials gained access to a house first by information from a neighbor as to the location of a key and later by another boarder in the house, discovered papers in Mr. Week’s room and used these documents against him. And, Mapp v. Ohio, 367 U.S. 643 (1961) where police officers unlawfully entered a private home without a warrant, having been denied access, handcuffed and ordered Ms. Mapp into a room, searched her home which she shared with others and arrested her for possession of obscene materials.
Before Tatum was decided, defendants in Massachusetts had a right to automatic standing in challenging evidence related to possessory charges under accepted principles of due process of law. After Tatum, this is less clear. “Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.” Mapp v. Ohio, 367 U.S. at 659. Words to live by.