*1 Lopez. vs. Jose M. Commonwealth Suffolk. 2010. December 2010. September Spina, Marshall, C.J., Ireland, Cordy, Present: & Gants, JJ. Cowin, Botsford, Law, Drugs. Firearms. Narcotic Constitutional Search and seizure. Search and Seizure, room, Motel Consent. Consent. appeal In an from an by judge order entered a District suppressing Court a firearm and a controlled substance that by were discovered a officer needle, when he entered a hotel room to retrieve a discarded this court concluded that the was a search in the constitutional sense. [388-391] J., concurring. Gants, In appeal an from an by judge order entered a District suppressing Court firearm and a controlled substance that by were discovered officer needle, when he entered a hotel room to retrieve a discarded this court concluded that the by warrantless of the room the officer was without consent, valid as it predicated was not on apparent authority, actual or violation of art. 14 of the Rights, Massachusetts Declaration of where it was objectively reasonable in the circumstances for the officer who knocked on the door to believe that the woman who answered had permit (in him to enter ignored officer question facts that called into held), he information diligent where officer did not conduct thus, concerning (and, relationship woman’s to the premises her author- consent). J., ity give J., dissenting, [391-398] Cowin, with whom Spina, joined. Complaint received and sworn to in the Chelsea Division of the District Court on Department August A motion Diana pretrial evidence was heard suppress by Maldonado, L. J.
An for application leave to prosecute interlocutory appeal J., was allowed by Spina, in the Judicial Court for the Supreme Suffolk, and the county appeal by him to the reported Court. Appeals Court,
After review Judicial Court Appeals Supreme leave granted to obtain further review. appellate Andrea Petersen for the defendant. Celio,
Kathleen Assistant District for the Attorney, Com- monwealth.
Commonwealth Lopez.
in the Chelsea Division of the
J. A
issued
complaint
*2
Ireland,
defendant,
the
Jose M. Lo-
charging
District Court Department
269,
license,
c.
a firearm without a
G. L.
pez,
carrying
card,
(a);
of a firearm without an identification
10
possession
§
266,
L.
(h);
stolen
G.
c.
receiving
property,
G. L. c.
10§
substance,
94C,
60;
D
G. L. c.
34.
and
of a class
§
possession
§
defendant,
here,
(a
evidence
The
as relevant
moved to suppress
that it was
obtained
unlawfully
firearm and marijuana),1 claiming
and in the absence of valid consent
without a warrant
by police
in violation of both the Fourth
to enter his residence
and art. 14 of the Massachusetts
to the United States Constitution
a District
hearing,
of
After an evidentiary
Declaration
Rights.2
motion and entered a memo-
Court
the defendant’s
judge granted
the firearm and mari-
randum of decision and order suppressing
this court
the Commonwealth
granted
A
of
juana.
single justice
order in
from the
interlocutory
judge’s
leave to
appeal
pursue
Court,
(a) (2),
R. Grim. R 15
as appearing
the
see Mass.
Appeals
Court
(1996).
a divided
the Appeals
in
press, accept ultimate review of conduct an independent clear error ‘but [her] ” Scott, 440 v. of law.’ Commonwealth and conclusions findings Jimenez, v. Commonwealth (2004), quoting Mass. of findings (2002). judge’s We summarize Mass. at the fact, adduced testimony with uncontested supplemented was not That issue sought suppression of statements. 1Uhe defendant also us, part appeal. of this and is not suppression in the order before addressed argue that art. 14 of the did not suppress, the defendant 2In his motion to than any greater protection Rights affords him Declaration of Massachusetts Constitution. to the United States the Fourth Amendment Commonwealth Lopez. Garcia, 443 Mass. See Commonwealth
evidentiary hearing.3 30, 2005, Officer Revere evening August On the officer were another assisting Mark Desimone his partner a two- Lodge, matter unrelated to this case at Ocean on a on Revere Beach Boulevard Revere.4 motel story, forty-room use, drug dealing, drug The motel was notorious for excessive assaults, About and robberies that occurred on the premises. had visited the motel three months Desimone regularly prior, in almost to run warrant every night while on patrol, stopping on the motel’s guest log checks names against appearing held management. manager and on identification cards had known to as “Victor.” Desimone motel was *3 months, with Victor for about seven and always been acquainted him On occasions where Desi- found “extremely cooperative.” Victor, mone would review the Victor told Desi- guest log mone that he resided in room which was a detached build- a at the about the size of “shed” located behind restaurant ing front the motel. Room two bedrooms and right of 138 contained bathroom, the and was rented to or motel usually occupied by manager.
As Desimone and his were the Ocean leaving Lodge partner Victor, at about 9 encountered who asked evening they p.m., the them to retrieve a needle that had been discarded on premises service regularly motel. This was one police Desimone to Victor that had another provided. they explained which had but would come back they matter to to respond, when finished. At and returned Desimone his approximately partner p.m., uniform,
to the motel. were dressed in and drove They they office, went to the motel’s unmarked vehicle. Desimone Victor, asked for and was told that Victor “was in his room.” (based Victor while on information Believing past provided by “supplement judge’s findings 3We of facts if the evidence is uncontro judge explicitly implicitly verted and the credited the undisputed where I., testimony.” witness’s Commonwealth v. Isaiah Here, testimony only judge evidence before the was the of Revere Desimone, prosecution. Based on the Officer Mark who was called judge’s findings, implicitly it is clear that credited his uncontradicted she testimony. October, Lodge 4The closed in Ocean
previously reviewing motel’s Victor’s guest log) room to be room Desimone went over to that room while his partner remained in the unmarked vehicle. said, “Hello,
Desimone knocked on the door to room 138 and woman, Desimone, Victor.” A who was unknown to opened stated, “Hello, door “all the Desimone way.” is Victor here?” — The woman looked at him like a deer in the “funny headlights of look” and “I type don’t know.” Desimone showed replied, the woman the needle canister that he held in his hand disposal and told her that Victor had asked him to a needle. The pick up said, “Oh, asked, woman I in?” okay.” “Can come said, “Yeah, to which the woman sure.” this During exchange, Desimone observed that the woman to be nervous.” “appeared stunned, He testified: “She looked kind of and I wasn’t sure if maybe she was under the influence of or what it maybe drugs was, but she looked a little . . . kind of shocked staring just look.”5
Desimone entered the residence and woman closed the door behind him. In the bedroom to Desimone’s door right, to which he observed three men on a bed open, sitting vs^s substance, together with a of a which he believed pile green leafy from his to be Desimone did not training marijuana. recognize of men. The men to be nervous and started to appeared move their hands. Desimone knew of an ongoing “drug sting” in the motel that both the Revere taking involving place night *4 and State and he did not want to “make arrests or any of attention” to the motel. he told bring any type Consequently, the men to “relax” and that he was “not to arrest anyone [there] for but rather had come inside to needle.” marijuana,” “pick up He asked them to their hands. The men looked put up away from their the other end of the right Desimone to toward room that heard some was visible to Desimone. Desimone noise 5Although suggestions during argument there were some oral that the “stoned,” there no woman who answered the door to room 138 was evidentiary hearing any drugs. evidence at the that the woman had used The ingestion drugs only concerning personal evidence this woman’s was Desi testimony “maybe” “under the influence of equivocal mone’s she was drugs” “staring” testify and “shocked.” He did not because she was looked any physical concerning physical possible of the woman’s features or suggestion possibly support exhibited the woman to his that she limitations drugs.” was “under the influence of from that direction. He moved to look coming through man, defendant, and observed a fourth doorway in the far comer the room. As Desimone was to look inside the moving room, small, he heard “a from the metal thump” came room, trash barrel in the which was about six inches from the defendant. Desimone asked the defendant to over with the go other men. who,
Desimone called for his with another partner together officer, men, entered. The officers moved the promptly includ defendant, ing into the other room where the woman was. Desimone recovered a loaded .38 revolver from the trash barrel. He asked the defendant to show him his license to carry firearm; the defendant that he did not have a responded license. men, defendant, including were under arrest.* placed
Later that evening, with Victor. ex- spoke Victor plained men, that he had rented room 138 to four one of whom was the defendant.7 Victor had seen the firearm the previous day and wanted to tell Desimone about it. Because he he thought overheard, be Victor told Desimone that he had a needle instead of him informing about the gun. decision,
In her findings the judge determined that the woman who had allowed Desimone to enter room 138 had given “clear, consent to enter that was unambiguous voluntary.” however, The judge, concluded that the Commonwealth did not establish that the woman the actual possessed author- ity consent to the because the only thing the police knew about her was that she was the who had opened reason, door. For this same stated that judge there was noth- in the ing facts to suggest (but mistaken) reasonable belief that the woman the actual or possessed apparent authority to consent to the Because the entry. woman had no give and the warrant, had entered without a the judge allowed the defendant’s motion to suppress. a divided
By
panel,
Court reversed.
Appeals
Common-
nothing
6There is
in the record identifying the woman who answered the
door to the defendant’s residence.
*5
witness,
7This uncontested evidence
through
came in
the Commonwealth’s
Desimone, at the evidentiary hearing
suppress.
on the motion to
The Com
monwealth
challenge
does not
the fact that room
lawfully
138 had been
rented
(and
to the
others)
defendant
for him
to reside there.
Mass. 383
(2009). The
Ct.
Appeals
Lopez,
App.
wealth
did not need to “second-
that
determined
officer
Court
138 because his
consent
to enter” room
the woman’s
guess
arrest,
to
nor
. . . was neither
search
entering
in
“purpose
to
Victor has asked him pick
retrieve the needle that
to
merely
Thus,
that
Court concluded
the Appeals
Id. at
822.
up.”
in the con-
“was not a search
into room 138
entry
Desimone’s
to
went on
state
Id. at 821. The
Court
Appeals
sense.”
stitutional
that the woman
Desimone “to assume
it was reasonable for
he had no
138 because
him to enter” room
had
to allow
him
and there was
to
nothing
put
a search
conducting
intention of
consent to the
Id.
entry.
lacked
on notice that she
there
no circumstances
were
Court explained
824.
Appeals
the woman’s
concerning
from Desimone
further
warranting
acted as though
the woman never
to consent because
adult;
enter;
the woman was an
him to
could not permit
she
door; the
did not
woman
hesitate in opening
woman did not
before allowing
from
inside
anyone
or guidance
seek permission
neither the
p.m.;
enter;
occurred at about
him
the entry
inside protested
of the other occupants
defendant nor any
at 823-824.
to his
Id.
entry.
to the woman’s
objected
inside,
that Desi-
Court concluded
Appeals
Once lawfully
in
view
that was
plain
seize the
lawfully
marijuana
could
mone
limited protec-
recovered in permissible
the firearm that was
Last, the
Court
at 825.
Appeals
the residence. Id.
search of
tive
the woman’s consent
contention that
the defendant’s
rejected
actions “were
that Desimone’s
involuntary, concluding
enter was
Id. at 822-823 n.9.
but coercive.”
anything
Discussion,
mat-
As an initial
entry.
a. Significance
2.
that Desi-
conclusion
ter,
Court’s
with the Appeals
we disagree
in the con-
not a “search”
138 was
into room
mone’s
enter with the purpose
did not
because Desimone
sense
stitutional
Lopez, supra
See Commonwealth
a search.8
conducting
sure,
and art. 14 expressly
the Fourth
To be
namely,
a search
argument,
this
not advance
does
8The Commonwealth
intent
Desimone’s
account of
did not occur on
sense
in the constitutional
intent,
later
138; rather,
which we
focus on
the Commonwealth’s
entering room
ad
nevertheless
discuss,
consensual. We
only whether
pertains
misplaced.
analysis was
Appeals Court’s
believe the
because we
dress the issue
*6
389
(2010)
proscribe (“The See to “entries.” Fourth specifically speak houses, in right papers of the to be secure their persons, people seizures, effects, and and shall against unreasonable searches added]); 14 subject not be violated . . .” art. (“Every [emphasis searches, a to be all and has secure from unreasonable right seizures, houses, and of his his his all his person, pos- papers, added]). sessions” [emphasis law, however, in
It has been settled that whether “search” the constitutional sense occurs on whether the depends conduct has intruded on a reasonable constitutionally protected States, 27, of Kyllo See v. United 533 U.S. expectation privacy. P., 254, (2001); 33 v. Commonwealth Porter 259 Here, (2010), and cases cited. the Commonwealth does not cannot, as it that the defendant dispute, constitution possessed ally reasonable of protected expectation room privacy (which bedrooms) motel room contained two rented that he and from Victor as his served home. full of protection “houses,” the Fourth Amendment art. 14 and extends to expressly see (“The Fourth Amendment of the to be secure right people houses, effects, in their and unreason persons, papers against seizures, able searches and shall not be violated . . .” [emphasis added]); 14 art. (“Every subject has a to be from right secure searches, seizures, houses, all unreasonable and of his person, his his all and his papers, added]); Payton possessions” [emphasis York, v. New (1980) (Fourth U.S. Amendment ap plies all invasions by government “of the sanctity of a man’s home”), and has been construed to extend also to the legitimate privacy of a motel See expectations Stoner occupant. v. Califor nia, (1964) 376 U.S. in hotel (guest 489-490 room enjoys protections against and unreasonable searches under seizures house, Fourth Amendment less than a of a tenant “[n]o house”); of room in a occupant boarding Commonwealth Paszko, (defendant Mass. 184-185 have reasonable expectation of in motel room rental privacy during room). period abandonment of Lest there be prior doubt concerning the Fourth Amendment application homes, art. 14 to entries into the United Court States Supreme stated that expressly has of the home is the “physical against chief evil which Fourth Amendment wording added). directed” United States v. United States (emphasis Mich., Dist. Court the E. Dist. 407 U.S. for States, home, (“In at 37 our Kyllo See United cases show, details, all details are intimate because the entire area is *7 in government original]); held safe from prying eyes” [emphasis (1990) (“Fourth Illinois v. U.S. 181 Amend- Rodriguez, 497 ment the warrantless of a generally person’s prohibits added]). home” We also have [emphasis specified “War- the the rantless entries into home are Fourth prohibited by . art. 14 Amendment . . and . . . absent either cause probable circumstances, added). or consent” Com- exigent (emphasis v. 444 236 monwealth Mass. Rogers, the into an intent in a entering While officer’s person’s home a warrant bear on whether some of type without may the it is not a factor in justified entry, warrantless exigency a in the constitutional sense took determining whether search LaFave, 6.6, at See 3 and Seizure 451 W.R. Search place. § warrant 2004) ed. enter without “for may (police premises a of . . . variety including persons purposes,” apprehend offenses, criminal to aid who are in serious those committing harm, of those cannot care for assist who danger physical themselves, basis). and to other services on emergency provide does not to vitiate the serve Simply put, purpose Forde, 805 Commonwealth 367 Mass. intrusion. home, a officers to enter into whatever (“The right of police for intrusion into one’s serious represents governmental purpose, Cruz, added]). 442 See Commonwealth privacy” [emphasis without ar- (2004) (entry into defendant’s home Mass. and in absence of circumstances exigent rest or search warrant 14). was under- Amendment and art. The point violated Fourth York, at 589-590: Payton supra scored in v. New in the is that differences critical point “[T]he entries and entries to arrest are intrusiveness of to search than kind. The two intrusions of rather merely degree ones of the breach share fundamental characteristic: this home. Fourth entrance to an individual’s In settings. in of variety the individual’s privacy protects defined than of more privacy clearly none is the zone when bounded dimensions unambiguous physical — of an individual’s home a zone that finds its roots clear and terms: ‘The right constitutional specific . be to be secure in their . . . houses . . shall not people violated.’ That establishes language unequivocally the Fourth Amend- very core proposition ‘[a]t [of stands the of a man to retreat into his own right ment] home and there
be governmental free from unreasonable States, U.S. intrusion.’ Silverman v. United [(1961)]. In terms that apply seizures equally property and to seizures of the Fourth Amendment has persons, drawn a line firm entrance the house. Absent circumstances, that exigent reasonably threshold crossed be without warrant.” States, See v. United at 40 Kyllo (concluding govern- ment’s use of aimed device home thermal-imaging private from street to detect relative heat amounts of from within home *8 constitutes “search” within of Fourth Amendment and meaning is warrant). unreasonable without presumptively
Thus, where the not Commonwealth is that arguing exigent 138, circumstances into justified entry Desimone’s room we do intent consider his in in entering whether determining a constituted search entry in constitutional sense. Because Desimone’s into entry room 138 was an intrusion to the defend- home, ant’s where he is to a place enjoy constitutionally reasonable of and to protected is be shielded expectation privacy from unwarranted intrusions on that conclude we privacy, Desimone’s into room 138 was an intrusion that constituted a “search” in the constitutional sense.
b. Consent exception. In addition to situations establishing circumstances, cause probable exigent or warrantless entries into a home have been to be found under the Fourth permissible Amendment and art. 14 where they are undertaken consent. (warrantless Commonwealth v. Rogers, supra entries into home “are by the Fourth . . art. . . Amendment. and 14 . prohibited circumstances, absent either cause and exigent probable consent”). The Commonwealth “to bears burden establish theory its of and lawful entry based on prove theory.” Id. at 245. See Illinois v. Because the defend- Rodriguez, supra. ant had a reasonable of in his home and expectation privacy 458 383
392 Mass. v. Commonwealth Lopez.
because entered his home without search warrant claim must exigency, without of Commonwealth any because was based was reasonable it prove police entry on consent.
“When the on consent to a warrantless police rely justify under the Fourth and art. entry, both prosecu- was, fact, tion ‘has the burden of that the consent proving ” v. voluntarily given.’ Rogers, supra Commonwealth freely Carolina, at v. North 391 U.S. quoting Bumper addition, (1968). In the consent must have the person giving It Rodriguez, to do so. Illinois v. 181-182. is authority supra case. this latter that is issue in this requirement A has the actual consent in a give variety be “from the individual whose may given of situations. It property Illinois v. at 181. Consent Rodriguez, is searched.” supra author also be from third “common provided party possessing to the or ef over or other sufficient ity relationship premises Matlock, be United States v. sought fects inspected.” P., U.S. See Commonwealth Porter (2010), and cases cited. Common is Mass. joint “mutual by persons generally having use property it is access or control for most so that reasonable to purposes, has the right permit the co-inhabitants recognize in his own and that the others have assumed right inspection the common area might the risk that one of their number permit Matlock, at 171 n.7.9 to be searched.” United States authority. give Another type *9 this and involv- The seminal case of concerning authority type at Rodriguez, is v. supra the Fourth Amendment Illinois ing 185-186, held that which the United States Court Supreme in P., 254, (2010), provid in 9In Commonwealth v. Porter 456 Mass. 264-265 residence, concerning authority over a we ing guidance who has common that, have actual person declared under art. “a (1) a by police only person a the if the is coin a of home warrantless search home, is, right person the the lives in access to habitant with a shared of roommate, home, houseguest a family, a of the a or the either as member home; given full to the stay and who is access whose of substantial duration is landlord, contract generally the a written person, shows for and the home to search entitling to allow the enter person may reasonably presumed be such entitlement contraband or evidence. No seize agreement.” by custom or oral the Fourth Amendment’s of “unreasonable searches proscription and seizures” is not violated when a warrantless into a home is based on the a third consent of who at party police, the time entry, believed had com- reasonably, mistakenly, mon over the The Court noted that the premises. touchstone of reasonableness does not that the always require be government will correct in its assessments.10Id. at factually 184, 185-186. The Court also explained: we hold does not that law enforce- today suggest
“[W]hat ment officers may always invitation to accept person’s enter Even when the invitation is premises. accompanied there, an assertion that the lives explicit sur- person rounding circumstances could be such that a conceivably reasonable would doubt its truth and act it upon without further As with other inquiry. factual determina- seizure, tions bearing search and upon determination of consent to enter must ‘be an judged against objective standard: would the facts available to the officer at the moment. . . “warrant a man of reasonable caution in the ’ belief” had consenting party over the Ohio, premises? Terry not, (1968). 392 U.S. 21-22 If then warrantless entry without further is unlawful so, unless authority exists. But if actually search is valid.”11
Illinois v. Rodriguez, at supra 188-189. critical as inquiry, seen, can be between the third relationship and the party premises. Id. See United States v. F.2d McAlpine, 919 1990). Cir.
We recently doctrine of adopted under apparent authority, P., art. so, in Commonwealth v. Porter at supra We did however, of, into, the context of a search and not an home. at Id. 271 & n.16. We reserved decision in the expressly context of entry, noting we had granted further appellate review in Commonwealthv. Ct. Lopez, App. 10Thedoctrine apparent authority has been limited and does not encompass entry premised P., on a mistake of law. See Commonwealth v. Porter 267-268, and cases cited. 11The inappropriately dissent pertinent inquiry concerning narrows the Rodriguez, (1990), reasonableness under Illinois 497 U.S. 188-189 ignoring entirety passage quoted above. Post 401-402. *10 Because, P., at 271 n.16. as we supra
Commonwealth v. Porter stated, into a home constitutes a earlier a warrantless sense, there is no reason in this case search in constitutional homes, a distinction between searches and entries of to draw that what we said in the Porter P. case applies and we conclude here well. as P., on relying
In v. Porter supra Commonwealth not believe we stated that “we do Rodriguez, supra, Illinois a home occurs that art. 14 is violated if a warrantless search of consent of a voluntary after a officer obtains person police believes, common author- after has reasonably diligent he inquiry, home, com- it turns out that the lacked over the ity person We went on to the “two basic steps” mon authority.” specify to conduct a diligent inquiry: required
“First, conclusion of officer must base his facts, on or impressions. actual authority assumptions until he has reliable informa- He must continue his inquiry actual authority to base a finding tion on which Second, individual consenting consent. . . . even when there, if ‘the surrounding asserts that he lives explicitly circumstances be that a reasonable could such conceivably truth,’ the officer must make would doubt its person Rod- ambiguity. further to resolve v.] [Illinois officer owes a duty at 188. The police riguez, supra facts contrary tending sug- rather than ignore, explore, lacks actual to the search consenting gest not only thoroughly question Police must authority. to his or to the search consenting respect individual attention to whether but also close authority, pay her actual that the consenting circumstances indicate the surrounding common asserting and accurate in individual is truthful over premises.” P., v. Porter at 271-272. supra Commonwealth case, the woman concedes that the Commonwealth In this did not have the defendant’s home the door to who answered therefore, issue, let inside. the actual to Desimone We his entry. permit whether she had apparent Amend some Fourth referencing under art. the issue analyze not inconsistent with instructive and where ment jurisprudence P., at 265 n.9. v. Porter art. 14. See Commonwealth *11 that, case, We conclude on the facts of this it was not objec- tively reasonable for Desimone to have that the woman thought who came to the door had him to authority to enter. permit there was no Consequently, valid consent to the warrant- justify home, less into the defendant’s and the entry violated art. Before Desimone knocking, believed that Victor lived in (and room 138 had no information that Victor lived with anyone woman, or was involved woman). with a When the who was Desimone, door, known to Victor, as opened opposed have, best, reasonable officer should initially at doubted the woman’s to consent authority to his what he believed to be Victor’s residence. The circumstances created a “duty rather than explore, P., ignore,” Commonwealth v. Porter supra at the woman’s to the relationship premises establish whether she common possessed or even authority, actual author Instead, over ity, the premises. Desimone of the woman inquired whether Victor was to which he present, was given “funny look,” . . . and the type ambiguous “I don’t response, know.” circumstances, In these before and at the time of Desimone’s entry, whether the woman had kind of to Desimone’s entry was at best questionable, thereby prompt further ing exploration her concerning to the relationship See premises.12 P., Commonwealth v. Porter at 272. See LaFave, also 4 W.R. Search and Seizure 8.3 (g), § imagines 12The dissent various scenarios to contend that ambiguity no existed in the circumstances. The suggests dissent that reasonably could have believed that the woman opened who the door to room 138 shared the room with Victor or was otherwise authorized to be on the premises because there was no information that the being room was rented to others and because of the lateness of the hour. Post at 402. That there was no information that being the room was rented to others is not the same as hard facts, such woman, as actual information from another or someone else, in, renting living in, was or or even appeared living to be room 138. assumptions Numerous could be drawn from “the lateness of the hour.” Desi friend, mone could have speculated girl Victor had a or that Victor was record, being robbed a woman. Based on the which indicates police responded to regarding being calls the hotel prostitutes robbed and there, providing their services speculated Desimone could have that Victor had engaged the prostitute services of a in the shower when the officer knocked on the door. All possible these scenarios could be or reasonable for a believe, police officer to requires art. 14 an officer’s conclusions to be facts, P., based “on not assumptions Commonwealth v. Porter impressions.”
Commonwealth Lopez. 2004) (“under a sound application
ed. to make reasonable inquiries must be required rule circumstances”). in ambiguous find themselves they when factors to argue to a number of The Commonwealth points believe that the woman for Desimone to that it was reasonable do not find the motel room. We to allow him into had that the ambiguity of the fact them instructive view the Com- For negated. example, existed was never initially *12 to think had no reason that Desimone monwealth’s assertion to enter to him did not have permit that the woman record, Victor he believed namely, the by 138 is belied room concerning anyone information and had no resided in room Further, the well-written we agree there also. else living Court in of the Appeals from the decision and reasoned dissent J., dis- case, (Lenk, at 834 v. Lopez, supra Commonwealth this that there needs to prove that “the Commonwealth senting), that would permit known to the officer affirmatively were facts consent had giving believe that person him to reasonably say enough is not over the premises [and] [i]t had no such she showing not aware of facts any the officer was are that officers also suggests The Commonwealth authority.” who answers that a without inquiry person entitled to assume to let them the authority their knock has door response circumstances, in certain be true this assumption enter. While rule, facts suggest where other not a universal particularly it is doubt.13 into or call that assumption to the contrary conclusion United, Powell, 235 & n.10 F. Supp. States v. 929 See invade or intrude police seek to supra at 271. No less should required be when Thus, only facts (in exigency). the absence of sanctity of the home on the and she the door woman answered that an unknown Desimone were before concerning (“I know”) question to his don’t gave ambiguous response at best concern- ambiguous situation created an These facts Victor’s whereabouts. inquired fact that Desimone premises. relationship to ing the woman’s to the status of uncertain as suggests that he was whereabouts about Victor’s unknown woman. this stating that no assumption this essentially relies on also 13The dissent what Desi who answered unknown woman ambiguity because the existed were the though at all times as [s]he door “acted to be Victor’s mone believed the record to any facts in point does not The dissent of the door.” keeper the unknown woman (other fact than the mere support this statement Rosario, F.2d quoting United States 962 Post at door). answered 1992). (7th Cir. Commonwealth Lopez. 1996) of rule that assume
(S.D. police may W. Va. (application who answered door has permit time). in view of other information provided “inappropriate” access, more, Indeed, does not mean the mere fact without Reid, States v. that the access was authorized. See United addition, (9th 2000). F.3d Cir. In we conclude (namely, Desimone’s intent in into premises requesting search) to the to conduct a was irrelevant issue intending consent was because the whether provided, pertinent inquiry to the See nature of consenter’s relationship premises.14 (critical Illinois v. at 188-189 is relation- Rodriguez, supra LaFave, between 3 W.R. ship consenting party premises); 6.6(c), 2004) (even Search and Seizure ed. 478-479 § where seek to enter for premises purposes discussing matter, official they gain must on consent to admission and rely “the nature of the must be considered in deciding premises enter”). whether the officer other needs consent to [as caller] The fact that it was and that room 138 approximately p.m., therein, contained small rooms does not a conclusion compel *13 that Desimone “could think that the woman reasonably opened the door because she either was an of the room or was occupant the door at the See note opening occupant’s request.” supra. There is no evidence in the record concerning Desimone’s knowl of the edge room sizes before he was into room permitted entry addition, 138. In there is no evidence that Desimone had any (or even that there were oc knowledge suspected) any other Victor) inside room 138 from when the cupants (apart possibly unknown woman answered the door. Even if Desimone suspected 14We are jurisdictions aware of cases from other that have determined consent to have been valid in the the purpose circumstances where warrant- (and existed) police entry exigent less where no circumstances was not to States, See, Davis v. United e.g., conduct a search. 327 F.2d 303-305 1964) (determining entry police Cir. lawful based on manner of and Chapman, State only); intent of officers talk to the “to defendant” 97 Ohio (entry App. permissible 3d because intent of was resident”). view, “only question to In our do the these cases not focus on pertinent namely, inquiry, relationship party providing the of the to premises, ascertaining and allow to circumvent whether a permit entry fundamentally authorized to The more into home. decisions ignore protect of the Fourth and art. purpose persons warrantless, government from their nonconsensual intrusion into homes. inside,
that Victor Victor could have been or in sleeping bathroom, thus the absence of the unknown anyone preventing woman from the door or from answering allowing Commonwealth, inside has no as bearing. reasoning by dissent, well as the is founded on real facts. speculation, The fact that the woman was an adult as to a child is opposed anot circumstance that eviscerates the information then believed Desimone, that Victor lived in and the by room namely, that arose from the actions of the unknown woman ambiguity and the door to allow Desimone inside. The opening agreeing can be of the remaining same said factors factors previ — mentioned that the woman did not seek or ously permission from inside room 138 before Desi guidance anyone allowing mone to enter and that no one room to her inside 138 objected short, In none of the factors ne entry. consent Desimone’s Desimone, situation faced which gated ambiguous trig under art. 14. Because Desi gered duty diligent inquiry information he held mone facts into ignored calling question (that 138) in room did not Victor lived because Desimone conduct a the woman’s diligent inquiry concerning relationship thus, (and consent), we conclude give premises that his warrantless into the defendant’s home was without consent, valid as it was not on actual predicated and therefore violated art. 14.15’16 authority, that these of cases Fully recognizing types Conclusion. facts, that the Com- turn on their individual we conclude establishing did not its burden in this case of satisfy monwealth triggered have 15We believe that the circumstances of this case should Rodriguez, (1990), inquiry,” Illinois under the U.S. “further Amendment, diligent we conclusion on art. 14. Because Fourth base our ambiguous in this plainly required light circumstances inquiry was so *14 case, diligent inquiry regard we decline to address the dissent’s assertion a ing consenting authority require the home is too severe person’s over seeking entry or a search. police on officers consent for impose ment to in Com diligent of Post requirement at 403-404. We note that the P., 271-272, triggered only monwealth v. Porter where the authority to search a home did not have actual over the granted who home, justify its must rest on so the Commonwealth search of the home. conclusion, argument' need address the defendant’s 16In of our we not view freely voluntarily it was not in this case was invalid because that the consent given. to the defendant’s home that the woman who answered door therein. there- had to consent to Desimone’s We entry affirm fore order the defendant’s motion to judge’s allowing suppress.
So ordered. that, J. I with the court because a (concurring). agree Gants, warrantless into a home a entry constitutes search in con- sense, stitutional “there is no reason in this case to draw distinction between searches entries of homes” (emphasis added). Ante at 394. I write clarify there is separately home, distinction between a search aof home and into a entry which, case, it does not affect the although outcome of this may have on the of consent in other bearing validity search cases.
An into a home is more limited in entry than the search scope entered, of a home. An is limited to the area entry of the home which is an area generally to which all the inhabitants of the access, home have a shared right such as foyer, living room, kitchen, and to be observed objects may in plain view from the area entered. The scope entry does include bedrooms or generally concealed from objects view. In contrast, a search of a home includes all areas of the generally home, home and all within the objects whether in view or plain concealed from view.
The cornerstone of the consent analysis is whether an
individual has a shared
right
access
the area being searched.
P.,
See
Commonwealth v. Porter
264-265
An individual
a shared
lacking
of access to an
right
entire home
may nonetheless have sufficient shared access to
permit
room,
LaFave,
into a foyer,
or kitchen.
living
See W.R.
Search
8.5(e),
and Seizure
2004),
at 235 & n.117
ed.
and cases
§
cited
who is more
(guest
than casual visitor and has “run of the
house”
have limited
allow
to enter area
where
received).
visitors are
normally
Commonwealth’s
claim of
fails here
apparent authority
because
officer
did not know whether the unidentified woman who consented
to his
had a shared
of access to the room he entered.
right
*15
Commonwealth v. Lopez. But does not for suggest diligent inquiry required is identical for consent to enter an area with an entire home. shared of access as for consent to search right J., J. with whom In this (dissenting, Spina, joins). Cowin, case, the believed that the consenting officer police had lawful to admit him to the entry his warrantless reasonable, Because this belief was objectively premises. the defendant’s under the Fourth rights did not violate the United States Constitution. Because the analysis Amendment to for the of art. 14 of the Massachusetts Declara- purposes be no different than what takes under tion of should Rights place Amendment, did not violate art. 14. The the Fourth I dissent. Accordingly, court concludes otherwise. respectfully at the motion was the hearing testimony The evidence only of Revere Officer Mark Desimone. The found judge were facts.1 While Officer Desimone his following partner motel, “Victor,” routine at a the motel asked manager, on patrol “a service which the syringe, Officer Desimone to pick up another The officers had to routinely respond provide.” call, to the motel to but said would return they pick up later that returned at night. They syringe approximately p.m. in the hotel office told Officer management clerks night room, under- that Victor was in his which officer This (from Victor) to be room 138. stood conversations past not regularly from the rest of the motel and was room separate door,2 knocked on the rented. The officer went to room the door. a woman whom he did not know opened there, said, she “I the officer if Victor was When inquired that Victor had asked him pick up know.” He explained don’t needle, come in. She the woman if he could and asked 138, he discovered room entering sure.” On “yeah, responded, small, ten” bedrooms. “[ejight by it of two about consisted room, the woman was into one where The front door opened testimony findings with uncontested as judge’s supplemented 1Thave noted. “Hello, Victor,” said, knocking while testified that he 2Officer Desimone on the door. *16 defendant, were including four other
standing; persons, the other did not see persons room. Officer Desimone the next and his partner 138. Officer Desimone until after he entered room mar- whether ‘Victor’ was regarding “lacked information ried, or dating living anyone.” an officer’s warrantless
The Fourth Amendment permits consents to the entry when a party onto private premises actual or about reason of either by ap- where the consent comes entered or rent the Persons who own authority. property parent searched, authority” have “common or or third who parties have actual on access to and control premises, based joint v. Rodriguez, consent to See Illinois any entry.3 authority Matlock, 415 U.S. (1990); U.S. United States v. where the officer has (1974). 171 n.7 exists authority Apparent reasonable, mistaken, has consenting belief party actual Illinois v. at 186. Whether the authority. Rodriguez, supra belief is reasonable without further is determined inquiry by that belief: context for evaluating objectively of consent to enter must ‘be judged “[D]etermination an standard: would the facts available to against objective the officer the moment. . . “warrant a man of reason- ’ able caution in the belief” that the had consenting party not, over the ... If then warrantless authority premises? without further is unlawful unless authority inquiry so, But if exists. the search is valid.” actually 188-189, Ohio, Id. at U.S. 21-22 Terry quoting enter, Even an invitation to asser- accompanied explicit tion of actual is insufficient if circum- authority, “surrounding would doubt stances such that reasonable person [the [are] act it without further truth upon inquiry.” assertion’s] The Fourth Illinois v. Rodriguez, supra not, however, affirmative when the consent- does require to have to consent. See ing reasonably authority party appears (2006) (“[Illinois 547 U.S. Georgia Randolph, v.] present case that there was actual 3The Commonwealth did not assert in here, authority. addressing actual have existed Without whether i.e., litigated, question as a I address the issue in the manner in which it was enter. whether there was for the consent held it Rodríguez would be unjustifiably impractical require to take affirmative to confirm the actual steps author- of a ity consenting individual whose apparent”).
Here, because the woman said Officer Desimone could come in to room she consented to his entry. officer’s prior experience indicated that room 138 was where Victor lived and was not rented to being others. Based on that understanding, fact that the “Hello, woman the door in opened response Victor,” hour, and the lateness of the the officer could reasonably believe that the woman either shared the room with Victor was so, otherwise authorized to be on the If he premises. could permis- *17 conclude that sibly she had lawful to admit him to the authority Matlock, unit. See United States v. at 170. supra The woman not only was inside the room and to be appeared a lawful but she occupant premises, also “acted at all times as though were the of the door.” United keeper [s]he Rosario, States v. F.2d (7th 1992). 962 738 Cir. It can be inferred from the size of the small rooms that other oc- any door, would cupants know that the woman answered the there was no evidence that she sought from guidance anyone behaved as she needed though See id. at 737. did approval. Nor other to any her from either occupants attempt prevent answer- the door or ing who admitting sought entry.4 See id. Kimoana, See also United States v. 383 F.3d 1225 n.7 (10th result, 2004). Cir. As officer had no reason to doubt the woman’s to admit him. authority all the
Considering information available to the officer at the time, belief, he had an objectively reasonable in known grounded facts, that the woman was an with actual occupant consent. The officer was entitled to on that rely author- apparent and his ity, did not violate the Fourth defendant’s Amend- reasons, ment For the same it did rights. not violate the defend- ant’s art. 14 analogous protection.
The court It concludes that Officer faced disagrees. Desimone situation,” n.12, an ante at “ambiguous based on two facts: door, a woman not known to the officers answered the and she (“I know”) don’t gave “ambiguous officer’s response” stated, occupants 4As the officer was not aware of other until after the opened woman the door and admitted him. 458 Mass. indications Id. Absent other Victor’s whereabouts. about at the the woman’s presence lacked authority,
that the woman
officer” to
lead “a reasonable
“doubt[]
door would not
consent,”
Because Officer
ante
woman’s
life or
ar-
living
Victor’s
knew
about
nothing
personal
reinforced nor
neither
the woman’s
rangements,
presence
belief.
the woman’s
Similarly,
response
undermined the officer’s
to render the
was insufficient
to Officer Desimone’s question
not
The woman did
officer’s belief
unreasonable.
objectively
was, or that the room
indicate that
did not know who Victor
she
his;
he
indicated that she did not know whether
only
was not
she
Jenkins,
F.3d
was inside. See United States
cert, denied,
(1997) (“an officer does
1996),
Cir.
Because the Fourth would require case, in this I do not believe art. 14 a “diligent inquiry” requires however, P. either. its Porter inquiry” By plain language, ap- that an is mandatory every pears presuppose “inquiry” that, case. It absent a with the suggests consenting colloquy Mass. 383 an officer cannot have an party, objectively reasonable belief that actual to consent is If Porter P. under- present. stood to such a require it colloquy, into Declaration imports a harmful and Rights restriction unnecessary on proper police performance is nowhere found in the Fourth Amendment. I do not believe art. 14 is violated when officers on rely objectively reasonable beliefs from context and developed past rather than verbal No similar experience, inquiry. inquiry require- law, ment is Federal imposed by unless circumstances make the officer’s belief unreasonable. Cf. Georgia Randolph, supra such (declaring requirement “unjustifiably impractical” Almeida-Perez, when authority is United States v. “apparent”); F.3d 2008) Cir. are entitled to (“police hear, draw the usual inferences from what see and even they further though the inferences inquiry might prove wrong”). standard articulated in Porter P. transforms the Fourth Amend- ment from an into a rule. Article inquiry requirement exception 14 does not that result. require