COMMONWEALTH v. CHRISTOPHER ALNABULSI (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a District Court jury trial, the defendants were both found guilty of possession of a class B substance in violation of G. L. c. 94C, § 34. The defendants argue on appeal that the motion judge erred in denying their motions to suppress evidence located in an apartment in Salem. Additionally, the defendants contend that they are entitled to a new trial pursuant to Commonwealth v. Gordon, 496 Mass. 554 (2025), because a substitute analyst's trial testimony violated their confrontation rights as provided by the United States Constitution and the Massachusetts Declaration of Rights.³

We discern no error in the denials of the motions to suppress but we vacate the judgments because the substitute analyst's testimony violates the parameters of Gordon.

Background. 1. Motions to suppress. “In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law” (quotation and citation omitted). Commonwealth v. Medina, 485 Mass. 296, 299-300 (2020). We also “defer to the judge's determination of the weight and credibility to be given oral testimony presented at the motion hearing” (quotation and citation omitted). Commonwealth v. Miranda, 484 Mass. 799, 835, cert. denied, 592 U.S. 1080 (2020). Here, the motion judge fully credited the testimony of the officer at the hearing and did not credit statements made by the defendants and recorded on the body camera video footage that was admitted in evidence. The defendants do not challenge the motion judge's factual findings as erroneous, and we summarize them here, supplementing as necessary with uncontroverted testimony from the motion hearing.

Salem police officers were dispatched to an apartment complex in response to the property manager's complaint of five or six “squatters” living in the apartment. Officers spoke to the property manager in her office, and she informed the officers that the person on the lease, Sean Curtin (Curtin), had been evicted and had already vacated the property. After Curtin left, management had learned that up to six unidentified people were staying in the apartment. Management also told the police that these persons had access to the apartment because the girlfriend of Curtin, Danielle Barker (Barker), had given them a key. Barker was not listed on the apartment lease and the lease prohibited assignment and subleasing without execution of a new lease or amendment to the existing lease.

The property manager told the police that the apartment was supposed to be vacant. She also told the officers that she had not yet secured an execution or court order to take possession of the apartment. One of the officers testified that he knew that G. L. c. 239, § 3, required that an execution for possession must be properly served and levied on the occupants before the landlord may have them physically removed and take possession of a residence.

The police accompanied a maintenance man to unlock the apartment door. The police entered the apartment and found three people inside. The apartment was largely unfurnished, with inflatable mattresses on the floor and personal belongings all around. When asked who was leasing the apartment, one occupant (later identified as Thaise Sousa, one of the defendants) responded that it was “Danielle's” and told the officers that Danielle had given her the keys. The police performed a safety sweep of the apartment and seized suspected cocaine from the kitchen and bathroom.

2. Motion in limine and trial testimony. Prior to trial, the Commonwealth filed a motion to allow the admission of a substitute analyst's testimony. The chemist who analyzed the cocaine (the primary chemist) was unavailable to testify because she was on maternity leave. Accordingly, the Commonwealth wanted to call an analyst who had not performed any independent testing on any samples but had reviewed the testing of the primary chemist and all documentation (the substitute analyst). The defendants objected on hearsay and confrontation clause grounds. The trial judge allowed the substitute analyst to testify but she could not state the basis of her opinion.

The substitute analyst ultimately testified over objection that she reviewed the work of the primary chemist who performed the testing at the State police crime laboratory and that in her opinion, two samples contained cocaine and sodium bicarbonate.

Discussion. 1. Search of apartment. “[A] search in the constitutional sense occurs when the government's conduct intrudes on a person's reasonable expectation of privacy” (citation omitted). Commonwealth v. Mora, 485 Mass. 360, 364 (2020). See Commonwealth v. McCarthy, 484 Mass. 493, 497 (2020) (“Under both the Fourth Amendment and art. 14, a search implicates constitutional protections when the government intrudes on a person's reasonable expectation of privacy” [quotation and citation omitted]). “To determine whether an expectation of privacy is reasonable, we consider the totality of the circumstances in the particular situation.” Commonwealth v. Carrasquillo, 489 Mass. 107, 120 (2022).

A reasonable expectation of privacy has both subjective and objective components. See Commonwealth v. Augustine, 467 Mass. 230, 242 (2014). “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.” Commonwealth v. Welch, 487 Mass. 425, 432 (2021), quoting Commonwealth v. Porter P., 456 Mass. 254, 259 (2010).

The expectation of privacy must be objectively reasonable given the totality of the circumstances. See Carrasquillo, 489 Mass. at 118, 120. “To determine the reasonableness of one's expectation of privacy, we consider several factors, including the character of the location involved; whether the defendant owned or had other property rights in the area at issue; whether the defendant controlled access to the area; and whether the area was freely accessible to others.” Commonwealth v. Williams, 453 Mass. 203, 208 (2009), abrogated on other grounds by Commonwealth v. DeJesus, 489 Mass. 292 (2022). Finally, we look to “the nature of the government intrusion, ․ consider[ing] the manner in which the government obtained the information sought to be suppressed,” Carrasquillo, supra at 121, “whether the person conducting the surveillance was entitled to be where he [or she] was,” id., quoting Commonwealth v. Panetti, 406 Mass. 230, 232 (1989), and “whether the government obtained ‘express or implied authorization’ to be there,” Carrasquillo, supra, quoting Commonwealth v. Almonor, 482 Mass. 35, 43 (2019).

“[A] defendant need show only a reasonable expectation of privacy in the place searched to contest a search or seizure.” DeJesus, 489 Mass. at 296. The defendant bears the burden of establishing that the governmental conduct intruded on a reasonable expectation of privacy and therefore constituted a search. Commonwealth v. Miller, 475 Mass. 212, 219-220 (2016). Mere presence on the premises does not create a reasonable expectation of privacy.⁴ Williams, 453 Mass. at 209, and cases cited (squatters in premises they do not own or rent have no legitimate expectation of privacy to challenge search). A property owner's knowledge of a person's presence “does not constitute consent ․ that would create a reasonable expectation of privacy.” Id. at 210. For hosts to confer a reasonable expectation of privacy on to guests, the host must exercise “ultimate control” of the premises meaning that they maintain the authority to “admit or exclude” persons. Commonwealth v. Copney, 468 Mass. 405, 409 (2014), citing Minnesota v. Olson, 495 U.S. 91, 99 (1990).

A defendant may also assert the same reasonable expectation of privacy as a codefendant “where the defendant has been charged with possessing contraband at the time of the search and, also at the time of the search, the property was in the actual possession of a codefendant or in a place where the codefendant had a reasonable expectation of privacy.” DeJesus, 489 Mass. at 296-297.⁵ Only if we conclude that the government intruded on a reasonable expectation of privacy do we need to reach the question whether the police search was reasonable. Williams, 453 Mass. at 209.

Here, we conclude that the defendants did not maintain a reasonable expectation of privacy in the apartment because they were merely present in the apartment when the police arrived. Specifically, the defendants did not own the apartment, nor did they have a lease or any other property interest. Further, based on the findings of fact, the defendants lacked permission to stay in the apartment from the lessee (Curtin). At best, the evidentiary record shows that the defendants, or at least Sousa, received permission to be in the apartment from Barker, who does not appear on the lease, and that Curtin may have been aware of this arrangement. However, Barker maintained at most guest status and “did not stand in the position of a host who has ultimate control” of the apartment (quotation and citation omitted). Copney, 468 Mass. at 409. Accordingly, the defendants’ assertion that society would be willing to recognize their expectation of privacy in the apartment lacks support in both fact and law. The chain of privacy expectations, as it relates to Curtin's reasonable expectation of privacy in the apartment extending to guests of guests, is simply too legally attenuated and lacking in factual support to meet the defendants’ burden. Therefore, because the defendants did not establish a reasonable expectation of privacy in the apartment, we need not reach the issue of whether the police search was reasonable.

2. Substitute analyst testimony. “The right of a defendant in a criminal trial to be confronted with the witnesses against him or her, which is enshrined in the Sixth Amendment to the United States Constitution, limits the prosecution's ability to introduce statements made by persons not in the court room” (footnote omitted). Gordon, 496 Mass. at 560. “The right, however, does not extend to all out-of-court statements; to fall within its ambit, the out-of-court statement (i) must be admitted to prove the truth of the matter asserted (that is, the statement must be hearsay), and (ii) must be testimonial.” Id. at 560-561. Moreover, “the prohibition against testimonial hearsay applies in full to forensic evidence” (quotation and citation omitted). Id. at 561. Therefore, the confrontation clause bars a substitute analyst's testimony that “depends on” the notes of a nontestifying chemist. Id. at 575 n.25. Where a defendant objects to such testimony, a new trial is required unless we are satisfied that the erroneously admitted evidence had “little or no effect on the verdicts” (citation omitted), i.e., was “harmless beyond a reasonable doubt” (citation omitted). Id. at 585.

Here, at trial, the Commonwealth's evidence that the items seized from the apartment were cocaine was based on the findings of a substitute analyst who did not test the substance but instead relied on the results and notes of the primary chemist. In accordance with Gordon, the Commonwealth concedes that this testimony was erroneously admitted and the defendant is entitled to a new trial. We agree that the testimony of the substitute analyst was not harmless beyond a reasonable doubt and thus the defendants’ convictions must be vacated.

Conclusion. We vacate the judgments and set aside the verdicts given the improper testimony of the substitute analyst. Should the commonwealth choose to retry, we note that the motions to suppress were properly denied.

Judgments vacated.

Verdicts set aside.

FOOTNOTES

3.   The Commonwealth assents to the defendants’ request for a new trial pursuant to Gordon; however, confessions of error by the Commonwealth do not “relieve this Court of the performance of the judicial function” (citation omitted). Commonwealth v. Poirier, 458 Mass. 1014, 1015 (2010). Therefore, we independently review the claims and, having done so, agree that the errors entitle the defendants to a new trial.

4.   While squatters generally lack a reasonable expectation of privacy in the areas they occupy, “[c]ircumstances can be such that a squatter may develop rights, for example, by the property owner's acquiescence to his presence.” Williams, 453 Mass. at 210.

5.   Under DeJesus, a “codefendant” may include anyone who has been or may be charged with the same possessory offense as the defendant. Id. at 293 n.2. Neither defendant argues that either Curtin or Barker was a codefendant in this sense, but Alnabulsi argues that Sousa was such a codefendant. Because the defendants failed to show that Sousa had a reasonable expectation of privacy in the apartment, for the reasons set forth infra, the limited codefendant exception in DeJesus is inapplicable here.