97 Mass. App. Ct. 719

April 8, 2020 - June 22, 2020

Court Below: Superior Court, Hampden County

Present: Green, C.J., Henry, & Sacks, JJ.

Consent. Parent and Child. Search and Seizure, Consent, Warrant, Threshold police inquiry, Multiple-occupancy structure, Home of third person. Threshold Police Inquiry.

A Superior Court judge properly allowed the criminal defendant's pretrial motion to suppress a firearm and loaded magazine seized by police during the search of an apartment in which the defendant occasionally stayed, where the authority of the defendant's mother (who did not reside in the apartment but who asserted ownership of the two-family home in which the apartment was located) to consent to the search was ambiguous, in that the facts known to the police officer were not sufficient to allow him reasonably to conclude that the mother had the requisite authority to consent; and where the officer failed to explore the ambiguity with a simple inquiry. [721-725]

INDICTMENTS found and returned in the Superior Court Department on March 21, 2018.

A pretrial motion to suppress evidence was heard by Karen L. Goodwin, J.

The case was submitted on briefs.

Katherine E. McMahon & Travis H. Lynch, Assistant District Attorneys, for the Commonwealth.

John M. Thompson & Joe A. Smith, III, for the defendant.

HENRY, J. This case raises the question of a parent's apparent authority to consent to the search of her adult daughter's separate apartment in a two-family home. [Note 1] When speaking to the police, the defendant's mother asserted ownership of the two-family

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home, and disclosed that she lived in one apartment and the daughter lived in the other apartment. She also represented that she sometimes allowed the defendant (her son) to stay in her daughter's apartment on the couch. The Commonwealth concedes that the mother did not have actual authority to consent to the search. Instead, the Commonwealth argues that the police reasonably believed that the mother had apparent authority to consent to the search, and therefore, the motion judge erred in suppressing the fruits of that search. We conclude that the facts here were ambiguous and that the police officer "owe[d] a duty to explore, rather than ignore, contrary facts tending to suggest that the [mother] . . . lack[ed] actual authority" to consent to the search. Commonwealth v. Porter P., 456 Mass. 254, 272 (2010). There is no parental exception to this rule. We affirm the order allowing the motion to suppress.

Background. We summarize the facts from the judge's findings, supplemented by the evidence in the record that is uncontroverted and that was implicitly credited by the judge. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007).

On July 25, 2016, Holyoke police officers arrived at a residence on Brown Avenue to execute a warrant to commit the defendant for inpatient care due to his substance use disorder. His mother sought the warrant because she was concerned about her son's drug addiction. Officer James McGillicuddy was not involved in the warrant. He came to the home because he had information that the defendant might have knowledge about a recent shooting and could be carrying a handgun for protection. According to McGillicuddy's testimony, which the motion judge credited, he spoke with the defendant's mother, Milagros Santiago, outside the residence, which is a two-family home with an apartment on each of the first and second floors. The defendant's mother told the officer that she owned the house, [Note 2] and McGillicuddy knew the house belonged to the family. She told him that she and her husband lived in the second-floor apartment, while her daughter lived in the first-floor apartment. She also told him that her son

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did not reside at the home, but that, on occasion and with the mother's permission, he sometimes slept on the couch in her daughter's apartment. [Note 3] McGillicuddy also testified that he believed the mother was the landlord.

McGillicuddy asked the defendant's mother if she would consent to a search of the daughter's first-floor apartment. She reviewed a written consent form, said that she understood it, and signed it. The police then followed her into the apartment, the door of which was either open or unlocked, and conducted a search. They found a backpack that the mother said belonged to her son. Inside the backpack, police found a sock filled with sixteen bullets. They also found a Smith and Wesson handgun under a mattress, and a loaded magazine in a dresser drawer. In this case, the defendant sought to suppress the handgun and loaded magazine seized. [Note 4]

Discussion. "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.'" Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).

The proscription of the Fourth Amendment to the United States Constitution against unreasonable searches and seizures and the protection of art. 14 of the Massachusetts Declaration of Rights are not violated when a warrantless entry into a home "occurs after a police officer obtains the voluntary consent of a person he reasonably believes, after diligent inquiry, has common authority over the home, but it turns out that the person lacked common authority." Commonwealth v. Santos, 465 Mass. 689, 695 (2013), quoting Porter P., 456 Mass. at 271. Apparent authority is "judged against an objective standard: would the facts available to the officer at the moment . . . 'warrant a [person] of reasonable caution in the belief' that the consenting party had authority over the premises?" Illinois v. Rodriguez, 497 U.S. 177, 188 (1990), quoting Terry v. Ohio, 392 U.S. 1, 21–22 (1968). Santos, supra at

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696. The officer must make "[d]iligent inquiry[, which] consists of two steps: first, 'the police officer must base his conclusion of actual authority on facts, not assumptions or impressions,' and second, 'even when the consenting individual explicitly asserts that he lives there, if "the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth," the police officer must make further inquiry to resolve the ambiguity.'" Id. at 695, quoting Porter P., supra at 271-272. "The police officer owes a duty to explore, rather than ignore, contrary facts tending to suggest that the person consenting to the search lacks actual authority." Id. at 272. Not only should the police question the person concerning their "actual authority, but also pay close attention to whether the . . . consenting individual is truthful and accurate in asserting common authority over the premises." Id.

Porter P. offers "clear guidance" as to when someone has authority to consent to a search, and that is only if:

"(1) the person is a cohabitant with a shared right of access to the home, that is, the person who lives in the home, either as a member of the family, a roommate, or a houseguest whose stay is of substantial duration and who is given full access to the home; or (2) the person, generally a landlord, shows the police a written contract entitling that person to allow the police to enter the home to search for and seize contraband or evidence. No such entitlement may reasonably be presumed by custom or oral agreement."

Porter P., 456 Mass. at 265.

The Supreme Judicial Court's subsequent decision in Commonwealth v. Lopez, 458 Mass. 383 (2010), illustrates the duty of a police officer to explore the authority of the person consenting to entry into a home. There, in a nonemergency situation, police seeking a hotel manager at his room encountered a woman who opened the door to the room. The court held that the police had not gained legal consent to enter the room where the woman who gave consent was not known to them and her relationship to the premises was uncertain. Id. at 395-396. The court specifically rejected the Commonwealth's argument that the police did not have a reason to think the woman did not have authority. Rather, "the Commonwealth needs to prove that there were facts affirmatively

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known to the officer that would permit him reasonably to believe that the person giving consent had authority over the premises." Id. at 396, quoting Commonwealth v. Lopez, 74 Mass. App. Ct. 815, 834 (2009) (Lenk, J., dissenting). The court also held that the police could not assume without further inquiry that a person who answers the door to a home has the authority to let them enter. Lopez, 458 Mass. at 396.

The police have more leeway in an emergency. For example, in Santos, the officers were responding to an emergency call to an address that gave only a street address but no apartment number, they were greeted on the porch by a woman who identified herself as the 911 caller, she indicated that a child who had been sexually assaulted was inside the apartment, and the woman opened the front door and led the police through two open doors into the apartment where the child was waiting. Santos, 465 Mass. at 696. The apartment belonged to the child's grandmother and the mother lived upstairs in a separate apartment. Id. at 691. It would have been "best practice for police, prior to entry, simply to ask who is the resident of the home." Id. at 696. In the circumstances in Santos, nonetheless, where there was "an ongoing emergency," the police "relied on sufficient, unambiguous facts to conclude that they had consent to enter the premises." Id. at 697.

Here, the facts known to the police about the mother's authority to consent to the search were that (1) the defendant's mother owned the two-family house and lived in the second-floor apartment; (2) her adult daughter lived separately from her mother in the first-floor apartment; and (3) the mother occasionally gave permission for the defendant to spend the night in the daughter's apartment and limited him to sleeping on a particular piece of furniture. In these circumstances, the Commonwealth urges that the police did not need to make further inquiry because it would have been reasonable to infer the mother could consent to search a portion of a house she owned "in which her offspring either lived or periodically visited." In the Commonwealth's view, the police were not confronted with the typical landlord-tenant relationship, which the Commonwealth concedes would have required further inquiry. We disagree.

As explained in the well-reasoned decision of the motion judge, these facts are, at best, ambiguous. The police knew the mother did not live in the apartment to be searched and could not give authority as a resident. The officer did not know what

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the agreement was between the mother and the daughter concerning this separate apartment, including whether this was a typical landlord-tenant relationship or there was some other agreement. These facts were not sufficient to allow the officer to form a reasonable conclusion that the defendant's mother had the requisite authority to consent to the search of her daughter's apartment. The officer had a duty to explore this with a simple inquiry. Porter P., 456 Mass. at 272. While a parent may validly consent to a search of a room occupied by an adult child within the parent's home, see, e.g., Commonwealth v. Ortiz, 422 Mass. 64, 70 (1996), and Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 97 (2010), we are aware of no authority for the proposition that a parent who resides in one apartment in a multi-family dwelling may authorize a search of a child's physically separate apartment in the dwelling. This was a separate apartment in which the mother allowed her adult daughter to reside, with all other attendant circumstances unknown. The police could not ignore this fact.

That the mother sometimes gave permission for her son to stay in the apartment on the couch did not remove the ambiguity. As a general matter, leases may limit guests. See, e.g., United Co. v. Meehan, 47 Mass. App. Ct. 315, 317 (1999). More significantly here, the police knew there were reasons why this mother (and putative property owner) might require that this man, even if he was her child, obtain her permission to stay at or visit her property, even in another apartment: she and the police knew her son was involved in drugs and, because of the officer's knowledge of a recent shooting, the police at least believed that the defendant might be armed with a handgun for self-protection. [Note 5]

We are also unpersuaded by the Commonwealth's effort to transform the mother's comment that she sometimes allowed her son to sleep on the couch in the daughter's apartment into a conclusion that the mother had so much control of the daughter's apartment that she could "limit" where in that apartment the defendant slept "to a specific piece of furniture." This, of course, assumes the first-floor apartment had a plethora of bunking options from which the mother was selecting without actually offering

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evidence of such. See Porter P., 456 Mass. at 271 (requiring facts, not assumptions).

Order allowing motion to suppress affirmed.


[Note 1] A single justice of the Supreme Judicial Court allowed the Commonwealth's application for leave to pursue an interlocutory appeal and reported the case to this court. See G. L. c. 278, § 28E; Commonwealth v. Demirtshyan, 87 Mass. App. Ct. 737, 740 n.7 (2015).

[Note 2] In fact, the title to the house is not in the mother's name; it is in her husband's name. Because "[w]e evaluate the reasonableness of a police officer's conduct based on the information available to [the officer] at the time, not on what we later learn to be true," Porter P., 456 Mass. at 270, we do not consider this fact. For the same reason, we do not consider the testimony of the defendant's sister, as she was not present at the time of the search.

[Note 3] The Commonwealth bore the burden of proof. Porter P., 456 Mass. at 262. It offered no evidence, and the judge made no finding, on whether the mother's permission was sufficient by itself or whether the daughter's permission was also necessary.

[Note 4] The ammunition located in the backpack is the subject of a separate indictment.

[Note 5] The Commonwealth asserts that the mother's knowledge that a backpack found in the apartment was the defendant's was information the police could rely on to conclude that she had authority to consent to the search. What the police found after entry into the apartment cannot support their knowledge before they entered.