Com. v. Carr

Citation76 Mass. App. Ct. 41,918 N.E.2d 847
Decision Date23 December 2009
Docket NumberNo. 08-P-1985.,08-P-1985.
PartiesCOMMONWEALTH v. Daniel CARR (and a companion case<SMALL><SUP>1</SUP></SMALL>).
CourtAppeals Court of Massachusetts

Casey E. Silvia, Assistant District Attorney, for the Commonwealth.

Charles W. Rankin, Boston (Randy Gioia with him) for the defendants.

Present: GRASSO, BERRY, & MEADE, JJ.

GRASSO, J.

We consider whether a warrantless entry of a dormitory room and seizure of weapons by Boston College campus police pursuant to the college's "Conditions of Residency" requires suppression of drugs discovered during a subsequent search conducted with the consent of the room's occupants, Daniel Carr and John Sherman. A grand jury returned indictments against them for trafficking in cocaine, possession of psilocybin with intent to distribute, and possession of marijuana with intent to distribute.

After an evidentiary hearing, a judge of the Superior Court allowed the defendants' motions to suppress the drugs and other evidence seized. The judge concluded that the initial entry into the defendants' room was unlawful and that the subsequent search was not undertaken with the defendants' free and voluntary consent. A single justice of the Supreme Judicial Court allowed the Commonwealth's application for an interlocutory appeal. For the reasons that follow, we reverse the orders of suppression.

1. The motion to suppress. We summarize the facts found by the motion judge. Where relevant, we supplement the judge's factual findings "with uncontested testimony from the suppression hearing, mindful that assessment of witness credibility is the province of the motion judge." Commonwealth v. Murphy, 63 Mass.App.Ct. 11, 12, 822 N.E.2d 320 (2005) (citation omitted).

On February 14, 2007, at around midnight, April Wynn, a resident director at Boston College with oversight responsibility for Gonzaga Hall, contacted the campus police.2 Wynn spoke with Sergeant John Derick, a twenty-year member of the campus police department. Wynn told Derick that two students who lived in Gonzaga Hall wanted to report a weapon inside a dormitory room.

Because the students feared that their identity would become known, Wynn accompanied them from Gonzaga Hall to the campus police office. The students told Derick that Daniel Carr had been bullying students and bragging about beating people up and having a knife. Both students had seen Carr waving a knife around. They also told Derick that a third student, whom they did not want to identify, had seen the butt of a gun, possibly fake, inside Carr's dormitory room. Derick confirmed that Carr lived in room 114 Gonzaga Hall.

Pursuant to Boston College's "Conditions for Residency" all weapons of any kind, whether licensed or unlicensed and whether real, counterfeit, or toy, are prohibited and subject to confiscation.3 All students who reside in a dormitory must read these rules and signify their assent to abide by them in order to reside in a dormitory.4

After speaking with the students, Derick met in Wynn's office with Boston College police Sergeant Anthony Cadogan, Officer Sean Daley, and Austin Ash, another resident director. The three police officers proceeded to 114 Gonzaga Hall together with the two resident directors. There, Derick knocked and identified himself as a campus police officer.

A male voice on the other side of the door replied, "Hold on. I've got to get my pants on." After thirty seconds elapsed with no response, Derick knocked again. The door opened a few seconds later, and Derick entered the room. Cadogan and Daley remained outside with Wynn and Ash. The officers were dressed in full uniform with holstered firearms.

Inside, Derick encountered three individuals. At Derick's request, Carr and Sherman identified themselves and indicated that they lived there. The third male, Zachary Taylor, said that he did not live there, and Derick asked him to leave. The room contained a set of bunk beds, two desks, two closets, a small futon type chair, and a large footlocker in the middle of the room.

Derick explained to Carr and Sherman that he was responding to a report of a gun in the room. Carr told Derick that he previously had a toy gun but had thrown it out. Derick did not believe this and read Carr his Miranda rights. Carr acknowledged that he understood them. Derick asked him where the gun was, and Carr replied by pointing to the bed and saying, "I think it's under the bed."

Derick reached under the bed and retrieved a light, hard plastic replica gun that closely resembled a .45 caliber handgun with a clip. The gun was missing a red tip that is characteristic of replicas, and Derick believed that it was capable of shooting some type of projectile.

After Derick discovered the gun, Cadogan and Daley entered the room. Derick asked Carr if there were any more weapons, and Sherman produced a folding buck knife from his waistband. In short order, the police also confiscated a smaller folding knife and a kubotan, a spiked martial arts weapon. Although the items violated the college's "Conditions of Residency," none appeared to be unlawful.

Derrick told the defendants that he would like to do a search of the room because, based upon his experience, he believed he would find more. Cadogan handed each a form, the top part of which is captioned "Miranda Waiver" and the bottom, "Consent to Search." Before signing, Carr asked if he could make a telephone call. Upon being told that he could, he made a call to his father from a nearby desk telephone. Carr was overheard telling his father, "It's no big deal. It's a fake gun. I don't know why they're here." Carr then handed the telephone to Derick. Carr's father asked Derick what was going on and why they were searching the room. Derick explained that they had found a weapon and that was prohibited on campus. Carr's father kept repeating to Derick, "It's just a fake gun . . . a toy gun. What's the big deal?"

Both defendants consented to a search of their room and inserted their names on the appropriate lines in the top and bottom portions of "Waiver" and "Consent" forms.5 In the "Miranda Waiver" part of the form, the defendants inserted their names and responded to questions signifying that they had the ability to speak and understand English, that they had not consumed drugs or alcohol, and that no threats or promises had been made to them. Each signed the "Miranda Waiver." In the "Consent to Search" portion, each defendant entered his name in two places, the latter of which stated that he was "signing the form voluntarily, without threats or promises of any kind."6 In the course of the search that followed, Daley inadvertently discovered a bag of psilocybin mushrooms underneath a backpack on the floor and a baggie filled with marijuana underneath the futon cushion. Twelve small bags of a white powdery substance believed to be cocaine fell out of a winter jacket, and two more baggies of cocaine were located under the bunkbeds. A pipe with marijuana residue was found in a coat hanging on the back of the door. After discovering these items, the police arrested the defendants and handcuffed them.

Inside the footlocker in the middle of the floor, the officers found a locked box that emanated a pungent odor of marijuana. Carr stated that he did not know where the key was, but Derick observed a set of keys nearby, and one opened the box.7 Inside, Derrick found individually packaged baggies of marijuana, ten marijuana cigarettes, rolling papers, seeds, and the defendants' passports. In Sherman's desk, the police located a piece of paper containing names, amounts of money, and marijuana residue.

2. Discussion. "[W]e accept the judge's subsidiary findings of fact absent clear error `but conduct an independent review of [her] ultimate findings and conclusions of law.'"8 Commonwealth v. Costa, 65 Mass.App.Ct. 227, 229-230, 838 N.E.2d 592 (2005), quoting from Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004). "[O]ur duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Scott, supra, quoting from Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996).

The judge concluded that because Derick entered the room immediately, without awaiting invitation, the initial entry was an unlawful intrusion under the Federal and State Constitutions, and that any consent, whether to enter or search, was not voluntarily given.9 We disagree. We conclude that the initial entry into the defendants' room to investigate a credible report of a weapon in the room was authorized under the college's "Conditions of Residency" and did not require a search warrant or consent. We also conclude that the subsequent permission to search was not the fruit of a prior unlawful entry and was freely and voluntarily given.

(a) The warrantless entry. It cannot be gainsaid that Boston College is a private actor not subject to the constraints of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. See Commonwealth v. Considine, 448 Mass. 295, 299-300, 860 N.E.2d 673 (2007) (search of students' rooms by private school officials is not State action for Fourth Amendment or art. 14 purposes). See also Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); Commonwealth v. Richmond, 379 Mass. 557, 561-562, 399 N.E.2d 1069 (1980) (Fourth Amendment and exclusionary rule apply only to State action). Nor is there any question that under the college's "Conditions of Residency," Wynn and Ash possessed the right to enter the defendants' room and make a "plain view search"10 for prohibited items without implicating the Fourth Amendment or art. 14.11

Not so easily resolved is whether enlisting the assistance of the campus police to accomplish what Wynn or Ash clearly could have accomplished on their own...

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