The defendant, Buffie Mary Sawyer, appeals the Superior Court’s (Fitzgerald, J.) denial of her motion to suppress the fruits of a warrantless entry into her dwelling. For the reasons that follow, we reverse.
On September 9, 1998, Officer Jeffrey T. Williams of the Haverhill Police Department was called to the scene of a motor vehicle stop. The driver of the vehicle could not produce identification, and he asked the defendant, a passenger, to go to the apartment they shared to obtain some form of identification. Because the defendant did not have a driver’s license and the weather was inclement, Williams offered to escort her to the apartment in his police cruiser.
Upon reaching the defendant’s apartment building, Williams followed the defendant inside. Once inside, he followed her up a set of stairs, unaware that the stairs were part of her apartment. At the top of the stairs, when he realized that he had entered the defendant’s apartment, he stopped and waited for the defendant. Williams had not asked to enter the apartment, nor had the defendant invited him to enter. While waiting, he observed a handgun in plain view. Williams confiscated the handgun, which formed the basis of several subsequent searches and ultimately led to charges against the defendant.
The defendant moved to suppress all evidence obtained following Williams’ entry into her apartment, arguing that Williams’ failure to
The trial court ruled that “[t]he constitutional protections relied upon by the defendant[] only apply to police investigative activities that are properly classified as ‘searches.’” The court concluded that because Williams was not engaged in a search when he was in the defendant’s apartment, the evidence obtained as a result of his presence should not be suppressed.
On appeal, we look first to our State Constitution, using decisions of the United States Supreme Court and other jurisdictions only as aids in our analysis. See State v. Ball,
Contrary to the trial court’s ruling, Part I, Article 19 of our State Constitution protects individuals from warrantless police entries as well as warrantless searches. See State v. Ricci,
The trial court did not address whether the defendant’s conduct constituted consent for Williams to enter the apartment. “We ordinarily would remand this unresolved issue; however, when a lower tribunal has not addressed a factual issue, but the record reveals that a reasonable fact finder necessarily would reach a certain conclusion, we may decide that issue as a matter of law.” Appeal of Cote,
Warrantless police entries are per se unreasonable and thus illegal unless made pursuant to a judicially created exception. See Ricci,
The State agrees that the defendant did not explicitly consent to the officer’s entry into her apartment. Rather, the State argues that the totality of the circumstances supports a conclusion that the defendant consented to the officer’s entry.
Although we consider the totality of the circumstances when determining whether consent to enter is given freely, knowingly, and voluntarily, where consent is not explicitly given, the surrounding circumstances must demonstrate by a preponderance of the evidence that the defendant’s implied consent to permit entry was unambiguous. Absent an explicit invitation to enter or a grant of permission in response to a request to enter, a warrantless entry based on consent implied from the defendant’s conduct will be subject to stringent review.
Such a rule is consistent with our prior decision in State v. Diaz,
Illustrating the stringency with which we evaluate consent to enter a dwelling, we ultimately concluded in Diaz that the defendant’s consent to “go back to” the motel room did not unambiguously authorize the officer to enter the room, noting that “[accepting an invitation to return to one’s residence in order to produce identification sufficient to answer an officer’s questions is significantly different from inviting the police to enter a private area and observe all subsequent activities.” Id. at 665,
The State argues that, judging the existence of consent by an objective standard, it was reasonable for Williams to infer consent from the defendant’s conduct. The State relies on a prior case in which we held that the scope of a defendant’s consent to search should be judged by an objective standard. See State v. Baroudi,
The State emphasizes that Williams and the defendant were engaged in conversation as they walked up to and entered the apartment. That conversation included a discussion about what kind of identification the defendant needed to produce. It is undisputed that the defendant neither explicitly invited Williams to enter her apartment, nor explicitly granted him permission in response to a request to enter. She simply entered the apartment and Williams followed her.
Admittedly, we can conceive of circumstances in which a homeowner’s conduct at the threshold of a dwelling might constitute unambiguous manifestation of consent to enter despite the absence of an explicit invitation. For example, a homeowner who holds the door ajar and physically indicates to an officer that he or she may enter to conduct a home safety survey may be found to have unambiguously consented to the officer’s entry. The defendant’s conduct in this case, however — entering her apartment while engaged in conversation with the officer and failing to instruct him not to enter — can hardly be described as manifesting unambiguous consent for Williams to enter the apartment.
We hold that no reasonable fact finder could conclude that the State met its burden to establish the defendant’s consent by a preponderance of the evidence. Therefore, Williams’ presence in the defendant’s apartment violated Part I, Article 19 of our State Constitution, and the trial court erred by refusing to suppress the handgun and all fruits that flowed therefrom.
Reversed.