Boston Housing Authority v. Guirola

• Decision Date: 08 August 1991
• Citation: 410 Mass. 820,575 N.E.2d 1100
• Parties: BOSTON HOUSING AUTHORITY et al. 1 v. Blanca GUIROLA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1100

575 N.E.2d 1100

410 Mass. 820

BOSTON HOUSING AUTHORITY et al. ¹ v. Blanca GUIROLA.

Supreme Judicial Court of Massachusetts Suffolk.

Argued April 1, 1991.

Decided Aug. 8, 1991.

Howard P. Speicher, Boston, for defendant.

MaryLou Muirhead, Charlestown, for plaintiffs.

Rod Solomon, submitted a memorandum, for Boston Housing Authority.

Valda Alden Winsloe & Richard M. Whitehill, submitted a brief, Lynn, for amici curiae Somerville Housing Authority and others.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and GREANEY, JJ.

ABRAMS, Justice.

Blanca Guirola, the defendant, appeals from a judgment of the Housing Court terminating her tenancy in a Boston Housing Authority apartment after illegal drugs were discovered therein. See G.L. c. 139, § 19 (1990 ed.). She claims that (1) G.L. c. 139, § 19, does not authorize the termination of her tenancy where there is no evidence that she or members of her family possessed the illegal drugs; (2) the termination violates the double jeopardy clause of the Fifth Amendment to the United States Constitution; and (3) the evidence of drugs must be suppressed because it was obtained in an illegal search and seizure. We transferred the case to this court on our own motion. We affirm the Housing Court's judgment.

The evidence as summarized by the judge was as follows. Guirola is a resident of 816 Jette Court, which is part of Commonwealth Development in the Brighton section of Boston. The property is owned by the Boston Housing Authority (BHA) and managed by Corcoran Management Co., Inc. (Corcoran), both plaintiffs herein. Guirola, her two children, and her nephew are the only authorized tenants of the unit.

There was a dispute as to whether one William Taylor was an unofficial occupant of the apartment. Guirola testified that Taylor came to visit her every two or three weeks and stayed with her for two or three days at a time. In 1988, she went on a two-week trip to Europe with him. At the time of the incident in question, he and some acquaintances had been staying in the apartment for four days. A former neighbor testified that she had seen Taylor come and go from Guirola's apartment for the past two years and believed him to be Guirola's husband. ²

Corcoran had scheduled extermination work in the units in Guirola's building for January 11, 1989. It sent notices to tenants to that effect in late December, 1988, and again on January 9, 1989. The notices to Guirola were slipped between her door and door jamb.

When the exterminators entered Guirola's apartment on January 11, 1989, they noticed a box of ammunition on the kitchen table, a barrel of a sawed-off shotgun poking over the broom closet, and a paper fold containing white powder in one of the bedrooms. They informed the site manager, who was outside. The site manager entered the apartment and saw the sawed-off shotgun and ammunition in the kitchen, as well as the notice of extermination on top of the refrigerator. He returned to his office and telephoned the housing authority police to inform them of the situation. He also attempted unsuccessfully to locate Guirola's work telephone number.

Officer William Smith of the housing authority police responded to the telephone call. He went to the apartment and spoke with the site manager and one of the exterminators. He then entered the apartment and observed the ammunition, the sawed-off shotgun, and the powder. Based on his experience and training, he believed the powder to be cocaine. He then secured the unit, and removed the sawed-off shotgun to ensure that no one would return and use it. He then went to obtain a search warrant at Brighton Division of the District Court Department. The warrant was issued and Smith conducted a search. The search revealed a sawed-off shotgun, a .22 caliber pistol, a triple beam balance scale, a smaller scale, drug paraphernalia, two telephone "beepers," a bag of 6.18 grams of cocaine, and three bags of marihuana. The bag of cocaine was found in the pocket of a child's jacket.

The BHA and Corcoran filed a complaint in the City of Boston Division of the Housing Court Department seeking a temporary restraining order and permanent injunction terminating Guirola's right to occupy the apartment. After trial, the judge granted the relief requested. Guirola moved for a stay of judgment, which was denied. On October 27, 1989, a single justice of the Appeals Court allowed the motion for a stay pending appeal conditioned on the requirements that there be no illegal drugs, contraband, or otherwise illegal activity on the premises, and that no persons known or reasonably suspected to be involved in illegal activity, particularly William Taylor be allowed therein. ³

1. The applicability of the statute. General Laws c. 139, § 19 (1990 ed.), authorizes a landlord to void a lease if a "tenant or occupant ... uses such premises ... for ... the illegal keeping, sale or manufacture of controlled substances" (emphasis added). ⁴ Guirola argues that the statute applies only to conduct by the tenant herself. She argues that the evidence suggested at most that Taylor possessed the drugs, and that there was no evidence that she or her family knew of or were in any way involved with their presence. She therefore claims that her lease cannot be voided by operation of the statute.

Guirola's argument is defeated by the words of the statute themselves. By its terms, G.L. c. 139, § 19, applies to conduct by a "tenant or occupant." Guirola does not contend, nor could she, that there was insufficient evidence that Taylor was an occupant. In the proceedings on the stay, the judge credited the neighbors' testimony that Taylor was so frequently at the apartment as to be perceived as living there as Guirola's husband. See note 2, supra. The judge properly could determine that an occupant of the unit used the apartment for unlawful purposes. There was no error.

2. Double jeopardy. Relying on United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), and Kvitka v. Board of Registration in Medicine, 407 Mass. 140, 551 N.E.2d 915, cert. denied, 498 U.S. 823, 111 S.Ct. 74, 112 L.Ed.2d 47 (1990), Guirola argues that the double jeopardy clause of the Fifth Amendment to the United States Constitution ⁵ precludes the BHA from terminating her tenancy after the criminal complaint against her had been dismissed. ⁶ See note 3, supra. Her argument misconstrues the import of these cases.

Both Halper and Kvitka involved proceedings to impose civil penalties after criminal convictions had been obtained and punishment imposed. In Halper, the Supreme Court reiterated the basic premise that "the Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." Halper, supra, 490 U.S. at 440, 109 S.Ct. at 1897. Guirola was neither convicted nor acquitted of any criminal offense related to the drugs found in the apartment. Certainly she never has been penalized for the incident. The dismissal of the complaint after the judge granted the motion to suppress presumably was based on a resultant lack of evidence with which to prosecute. It did not purport to resolve the question of her guilt or innocence. The double jeopardy clause simply does not apply in these circumstances.

3. Suppression of the evidence. Guirola's final argument is more substantial. She contends that, as the Superior Court judge held in the criminal case, the evidence of drugs in the apartment was obtained illegally. Therefore, she argues that that evidence cannot be used against her in this c. 139, § 19, proceeding. The plaintiffs, on the other hand, strongly object to the application of the exclusionary rule in a civil proceeding. In this proceeding, Guirola relies solely on the Fourth Amendment to the United States Constitution as applied to the States through the Fourteenth Amendment. ⁷

The United States Supreme Court has not decided whether the exclusionary rule applies to civil proceedings of the precise nature as those authorized by G.L. c. 139, § 19. One analogous situation on which it has spoken is civil forfeiture proceedings. In One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965), the Court held that, because a proceeding for the forfeiture of an automobile used in the commission of an illegal act was a "quasi-criminal" proceeding, resulting in the imposition of a penalty, the exclusionary rule bars the admission of evidence seized in violation of the Fourth Amendment. Although the text of G.L. c. 139, § 19, suggests that its purpose is not punitive but curative--the removal of a nuisance--the statute's impact on the ousted tenant is similar to that of the forfeiture proceeding in One 1958 Plymouth Sedan, supra. See 1 W. LaFave, Search and Seizure § 1.7(a), at 148 (2d ed. 1987) ("there does not appear to be any doubt but that the Plymouth Sedan approach is called for when the government instead brings an action to abate a nuisance and would prove the illegal activity constituting the nuisance by the means of evidence come by through an unconstitutional search"). We note that other Federal courts have applied the exclusionary rule in civil proceedings in a wide range of business-related and property contexts. See, e.g., Savina Home Indus. v. Secretary of Labor, 594 F.2d 1358 (10th Cir.1979) (Occupational Safety and Health Review Commission proceedings); Knoll Assocs., Inc. v. FTC, 397 F.2d 530 (7th Cir.1968) (Federal Trade Commission proceedings on discriminatory pricing practices); OKC Corp. v. Williams, 461 F.Supp. 540 (N.D.Tex.1978) (Securities and Exchange Commission proceedings).

More recently, the Supreme Court seems to be moving away from relying on the nature of the proceeding to determine whether the exclusionary rule applies and instead balances the deterrent...