Lead Opinion
The Commonwealth was granted leave to appeal from an order entered in the Juvenile Court suppressing a gun seized by the police during a search of a room in a transitional family shelter occupied by the juvenile and a statement that he made after his arrest. Having been notified by the shelter’s director that the juvenile allegedly possessed a gun, the police officers determined that the director had the authority to consent to their entry and conducted a warrantless search of the juvenile’s room with her consent. After the police found the gun, the juvenile made an unprompted inculpatory statement that suggested that the gun belonged to him. The juvenile was charged with delinquency by reason of the unlawful possession of a firearm and ammunition, in violation of G. L. c. 269, § 10 (h).
Background. In reviewing the allowance of a motion to suppress, we accept the judge’s findings of fact absent clear error. Commonwealth v. Alvarado,
The juvenile and his mother moved into a room at the Roxbury Multi-Service Center, Inc., Family House Shelter (shelter) in March, 2006. The shelter provides temporary housing for otherwise homeless families and assists them in securing more permanent living situations. Through a contractual arrangement with the Commonwealth, the shelter is obligated to accept families referred by the Department of Transitional Assistance if there are vacant rooms of appropriate size to house them. Families may remain at the shelter until they find a permanent living situation, unless they commit a violation of the shelter’s mies and regulаtions. The typical stay is between four and eight months. Apart from a key deposit fee of thirty dollars, the families do not pay to five at the shelter.
Each new resident of the shelter, including the juvenile and his mother, as part of the intake procedure, is given a manual setting forth the shelter’s mies and regulations. According to the manual, residents are allowed to have visitors only during posted visiting hours, and may meet with them only in the visitors’ lounge.
On October 25,2006, the shelter’s director, Cynthia M. Brown, after having heard rumors that the juvenile had a gun, learned from a sеcurity officer that the juvenile had admitted to having a gun. Brown contacted the Boston police department and arranged a meeting for the following morning “to figure out how [to] proceed.”
On October 26, 2006, at approximately 10:30 a.m., Detective Frank McLaughlin and four other police officers met with Brown at the shelter. The officers indicated their desire to “take care of [the situation] quietly” out of “concern for all these families who were . . . in a time of turmoil in their own lives.” Brown told the officers that the resident’s manual authorized her to
Brown and the officers agreed that they would conduct a search of the juvenile’s room “under her policies.” They planned to ask the juvenile to relinquish possession of the gun and then, if he cooperated, summons him to court at a later date. They then proceeded upstairs to the room, where Brown knocked on the door and announced bat she was conducting a room check. When no one answered, she used her master key to open the door. The juvenile was in be room, and it appeared bat he had been lying in bed moments before. Brown explained that she was there to conduct a room check and had be police with her because of allegations that the juvenile had a gun in his possession. Detective McLaughlin asked the juvenile to step out of the room into the hallway, and be juvenile complied. Two or three officers began to search the room while be detective and Brown attempted to speak wib be juvenile, who denied having a gun. When Brown asked why he was not in school, he stated bat he was home sick that day. During their search of the room, the officers found a Clock .40 caliber firearm containing hollow point bullets in be clip undemeab a duffel bag in be closet.
The juvenile was then handcuffed and placed under arrest. Spontaneously, and not in response to any direct questioning by the police, be juvenile said, “The gun has no bodies on it; it’s clean.” After the juvenile made this statement, an officer read the juvenile the Miranda warnings, but the officers did not initiate questioning.
Discussion. The juvenile argues that be warrantless search of his room at the shelter and be seizure of his firearm violated the Fourth Amendment to the United States Constitution; art. 14
1. To determine whether the search of the room violated the Fourth Amendment; art. 14; or G. L. c. 276, § 1, we must first determine whether a search in the constitutional sensе took place. See Commonwealth v. Frazier,
If no one has a reasonable expectation of privacy in the place searched, the police are free to search that place without a warrant and without probable cause, as often as they wish. See, e.g., California v. Greenwood,
Generally, in determining whether a defendant has a reasonable expectation of privacy in the place searched, we look to various factors, none of which needs be determinative, including the nature of the place searched, whether the defendant owned the place, whether he controlled access to it, whether it was freely accessible to others, and whether the defendant took “normal precautions to protect his privacy” in that place. Commonwealth v. Pina,
However, where, as here, the place searched is the interior of the juvenile’s home, we need not consult any such factors in deciding that the juvenile has a reasonable expectation of privacy, because the Fourth Amendment and art. 14 expressly provide that every person has the right to be secure against unreasonable searches and seizures in his home. See Fourth Amendment to the United States Constitution (“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . .”); art. 14 of the Massachusetts Declaration of Rights (“Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions”). “[I]n the case of the search of the interior of homes •— the prototypical and hence most commonly litigated area of protected privacy — there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable” (emphasis in original). Kyllo v. United States,
The room that the juvenile and his mother shared at the shelter was a transitional living space, but it was nonetheless their home. The juvenile slept and kept his belongings in the room. He and his mother possessed a key to the room, allowing them the degree of privacy inherent in a locked door. The facts that he did not
A third party has actual authority to consent to a warrantless search of a home by the police when the third party shares common authority over the home.
The reasonableness of a consent search “is in significant part
“It is . . . easy to imagine different facts on which, if known, no common authority could sensibly be suspected. A person on the scene who identifies himself, say, as a landlord or a hotel manager calls up no customary understanding of authority to admit guests without the consent of the current occupant. ... A tenant in the ordinary course does not take rented premises subject to any formal or informal agreement that the landlord may let visitors into the dwelling, . . . and a hotel guest customarily has no reason to expect the manager to allow anyone but his own employees into his room.”
Id. at 112, citing Chapman v. United States,
Consequently, common authority does not mean simply the right to enter the premises that the police wish to search. Landlords often contractually retain that right, and hotels routinely do, but that does not allow the landlord or hotel manager to consent to a police search of a defendant’s apartment or hotel room. See Chapman v. United States, supra at 616-617 (express covenant may give landlord right of entry to “view waste” but not to permit police to search for contraband); United States v. Jeffers,
Therefore, the entitlement of a shеlter staff member under the terms of a contract or resident manual to enter a resident’s room to search for health or safety risks or violations of house rules, to remove any contraband found during that private search, including firearms and narcotics, and to invite the police to seize that contraband does not entitle that shelter staff member to grant consent to the police to enter the room with her to conduct the search. See id. Cf. Commonwealth v. Leone,
We understand that the police need clear guidance as to who has common authority over a residence and therefore who is entitled to give actual consent, because, as here, they rely on such consent in deciding to conduct a warrantless search, as opposed to securing the residence and applying for a search warrant.
Under this standard, Brown did not have actual authority to consent to the police entry into the room to search for a firearm. She was not a coinhabitant of the room, and the shelter manual did not permit her to allow the police to enter the room to search for contraband or evidence. Rather, the manual reserved the right of shelter staff to enter any residential room “for professional business purposes (maintenance, roоm inspections, etc.),” and to accompany “business professionals” allowed to enter for those purposes. Law enforcement investigation is not reasonably understood to be a “professional business purpose[].” The manual also prohibited weapons of any kind and reserved shelter staffs “right to contact the Police should the situation warrant,” but this reservation does not reserve the right to allow the police
3. Having concluded that Brown did not have actual authority to consent to the search of the room by the police, we turn to whether she had the apparent authority to consent.
In Illinois v. Rodriguez,
Federal courts have universally limited apparent authority to reasonable mistakes of fact, not mistakes of law. See, e.g., United States v. Ruiz,
The police officers’ mistake in this case was one of law, not of fact. Detective McLaughlin and the other officers took considerable care to ascertain whether Brown had the authority to consent to a search of the room. Prior to entering the room, Detective McLaughlin conferred with Brown and reviewed the portions of the manual pertaining to staff searches of the rooms. They accurately understood the relevant facts regarding Brown’s authority to consent to the search. They erred not in their understanding of the facts or in the diligence of their inquiry into Brown’s authority to consent to the search, but in their understanding of the law; they believed that these facts gave them valid consent to search the room when, as a matter of law, they did not.
4. Having concluded that the officers’ search of the room was unconstitutional under the Fourth Amendment and art. 14, we need not decide under art. 14 whether a warrantless search of a home may be justified by apparent authority. We choose to decide this issue because (1) the issue, at our request, has been fully briefed, (2) our earlier decisions have suggested, but not decided, that art. 14 adopts the doctrine of apparent authority, see infra, and (3) our trial courts are already obliged to apply this doctrine, because the Appeals Court has recently approved of a consent search based solely on apparent authority. See Commonwealth v. Dejarnette,
Even before the United States Supreme Court decided Rodriguez, supra, we suggested that apparent authority may justify a warrantless search where the person giving consent lacks actual authority, but we have never approved a warrantless search exclusively on apparent authority. See Commonwealth v. Maloney,
“The right of police officers to enter into a home, for whatever purpose, represents a serious governmental intrusion into one’s privacy.” Commonwealth v. Peters,
In each of the first three circumstances, art. 14 is not violated by reasonable mistakes of fact. We evaluate the reasonableness of a police officer’s conduct based on the information available to him at the time, not on what we later learn to be true. Commonwealth v. Young,
While we conclude that a search of a home does not violate art. 14 if the police officer has the voluntary consent of an individual with the apparent authority to give such consent, we do so only if the reasonable mistake of fact occurs despite diligent inquiry by the police as to the consenting individual’s common authority over the home.
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. Rodriguez, supra at 188. 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. Police must not only thoroughly question the individual consenting to the search with respect to his or her actual authority, but also pay close attention to whether the surrounding circumstances indicate that the consenting individual is truthful and accurate in asserting common authority over the premises.
The juvenile argues that apparent authority is akin to the “good faith” exception to the exclusionаry rule adopted by the United States Supreme Court in United States v. Leon,
Conclusion. The judge’s decision allowing the motion to suppress is affirmed. The case is remanded to the Juvenile Court for further proceedings consistent with this opinion.
So ordered.
Notes
The juvenile was initially charged with carrying a firearm without a license, in violation of G. L. c. 269, § 10 (a), but the Commonwealth amended the complaint.
We acknowledge the amicus briefs filed by the Committee for Public Counsel Services, American Civil Liberties Union of Massachusetts, Youth Advocacy Project, Children’s Law Center, and Criminal Justice Institute, Harvard Law School; the Massachusetts Coalition for the Homeless and the Massachusetts Law Reform Institute; and Suffolk Lawyers for Justice, Inc.
Residents may meet with “professional guests,” which include social workers, school officials, and counsellors, during regular business hours, but only in the children’s activity play area.
The residents are not allowed to rearrange the furniture.
Having concluded that the juvenile had a reasonable expectation of privacy in his room, we also conclude that the juvеnile has standing under the Fourth Amendment to the United States Constitution to challenge the constitutionality of the search of the room. See Rakas v. Illinois,
The dissent contends that, “in light of all the circumstances surrounding [the juvenile’s] residency at the shelter,” “there is no objectively reasonable expectation of privacy in the room.” Post at 278. If this were so, a search of the room would not be a search in the constitutional sense, which would mean that the police lawfully could enter and search the room without any predication, as often as they wished, whenever they wished. The juvenile’s room, according to the dissent, post at 276, 278, should be treated no differently from a common room in a fire station, shared by the officers on duty, see Commonwealth v. Welch,
The third party’s consent is nullified if another physically present resident expressly refuses consent. Georgia v. Randolph,
While the holding in this case rests heavily on the precedent in Commonwealth v. Neilson,
We declare this standard only under art. 14, rather than under the Fourth Amendment, even though it is consistent with Federal constitutional case law. If it differs at all from Federal constitutional case law, it narrows the scope of actual authority, and therefore does not run afoul of the Fourth Amendment.
This standard applies only when consent is sought to conduct a search of the private area of an occupied residence; we do not address here whether the same standard should apply where consent is sought to search the common area or basement of an apartment house or an unoccupied room or apartment. See Commonwealth v. Connolly,
Even if a coinhabitant of the home had actual authority to consent to a
Our conclusion that Brown did not have actual authority to consent to the search of the juvenile’s room by the police rests on both the Fourth Amendment and art. 14. See note 9, supra.
Their understanding of the law, while mistaken, was not unreasonable. See note 8, supra. A police officer’s error of law, however, no matter how reasonable, cannot establish apparent authority. United States v. Davis,
Because the mistake of fact must be reasonable, we do not uphold consent searches where the police either know their information supporting a finding of apparent authority to be false or act in reckless disregard of its falsity. See United States v. James,
The doctrine of apparent authority applies only to a reasonable mistake of fact as to actual authority to consent; we do not decide whether (and do not suggest that) it would justify a warrantless sеarch where a police officer mistakenly believes that the consent was free and voluntary. See generally 4 W.R. LaFave, Search and Seizure § 8.1(b), at 15-19 (4th ed. 2004), and cases cited.
We do not consider the circumstances in which a police officer reasonably may rely on the authority of an occupant of a home to gain entry into a home, where the officer has no intention of conducting a search. See Commonwealth v. Lopez,
We do not suggest that the police officer must verify a consenting individual’s tenancy with the landlord or ownership with the title registry before reasonably accepting a consenting individual’s claim of common authority. See Georgia v. Randolph,
It is unclear whether the diligent inquiry we require under art. 14 is required under the Fourth Amendment. The United States Supreme Court in Illinois v. Rodriguez,
Many States have eithеr adopted the doctrine of apparent authority under their own Constitutions or presumed its compatibility with their Constitutions. See People v. Hopkins,
The Supreme Courts of three States — Hawaii, Montana, and Washington — have refused to recognize the apparent authority doctrine under their State Constitutions. See State v. Lopez,
The Supreme Court of Oregon, the Court of Appeals of New Mexico, and a Superior Court in Delaware have also refused to recognize the apparent authority doctrine under their State Constitutions. See State v.v. Devonshire, Del. Super. Ct., No. 0307010804 (Jan. 20, 2004) (unpublished opinion); State
Dissenting Opinion
(dissenting, with whom Spina, J., joins). I respect
The problem with the court’s view is that it ignores the situation “on the ground” or — put differently — fails to аcknowledge what the shelter is and the circumstances of its operation. The shelter services a transient population. It makes available a temporary space to live off the streets. In return, and for obvious reasons, the shelter requires that its residents surrender a considerable degree of personal freedom. Contrary to the fiction in which the court indulges, this is neither a hotel nor a dormitory. An examination of the characteristics of life at the shelter, in my view, puts to rest any premise that a resident could conceivably harbor a reasonable expectation that his or her privacy would limit the action of the shelter authorities in this case.
Before obtaining a room at the shelter, all residents receive a copy of the shelter’s “Resident’s Manual” (manual). This manual sets forth the rules that residents are expected to follow while living in the facility. A major purpose of these rules is the maintenance of order and safety in the shelter. Like members of all famihes that move into the building, the juvenile and his mother received and reviewed the manual at the beginning of their stay at the shelter. The mоtion judge found that “[t]he family was required to review and sign-off on the manual before taking residence at the shelter.” An intake worker explained the roles to them and noted the delivery of the manual on an intake form. By moving into the shelter, the residents (including the mother and the juvenile here) signify their assent to the rules. By agreeing to these rules, residents forgo a substantial amount of personal privacy in exchange for temporary housing and the other services the shelter provides.
Additionally, the shelter regulates residents’ use of their rooms. Residents “are not allowed access or permitted to enter another resident’s room at any time,” аnd they may meet with outside visitors only during stated times at designated locations in the building. The shelter’s rules even forbid residents from rearranging the furniture in their rooms, limit the number of suitcases present in the room to “two . . . per family member,” and prohibit residents from placing items “on the windowsills.” Alcohol and firearms are strictly forbidden in the facility, as are sexual activities (except between residents “coupled” together).
In addition to regulating the use of residents’ rooms, the shelter restricts many aspects of their personal conduct. Residents must spend “a minimum of twenty hours per week actively engaged in employment, job search, skills/educational training and housing search.” They must save thirty per cent of their monthly income and provide shelter staff with their banking records as proof of same. Furthermore, residents must attend weekly meetings with social service providers. In order to maintain the premises, the shelter requires residents to perform weekly chores and clean their rooms according to enumerated housekeeping standards.
The manual reveals a special concern for eliminating the presence of weapоns in the shelter. The shelter forbids possession of “weapons of any kind.” The manual defines a weapon as “any
Shelter staff may enforce these rules by “perform[ing] random room checks and routine room inspections ... at any time.” Such searches are authorized for investigating violations of any rule, from the rules prohibiting possession of drugs and weapons to the housekeeping rules requiring that “[c]lathing is put away neatly,” “[b]eds are made daily,” and “[djiaper pails are . . . emptied every morning.” The rules are enforced through an internal discipline system consisting of warnings for initial violations and termination of the residency for repeated violations. Residents who commit a violation that threatens the safety of other residents or staff, including the possession of a weapon, face immediate termination.
The reasonableness of the juvenile’s expectation of privacy must be evaluated in light of all the circumstances surrounding his residency at the shelter. Where the shelter director can enter any resident’s room essentiаlly at will, there is no objectively reasonable expectation of privacy in the room. See Commonwealth v. Welch,
The court does not dispute that the conditions of the manual grant shelter staff the authority to enter residents’ rooms to search for contraband, but it holds that this power does not extend to granting consent to the police to do thе same. See ante at 264. This is an entirely unwarranted and impractical distinction, requiring that the shelter staff resort to self-help in
I do not suggest that the shelter could form a contract with a minor abrogating
The stated purpose of this requirement is to encourage residents to spend this time working, attending job training, or searching for employment or housing.