Com. v. Lopez

• Decision Date: 13 August 2009
• Docket Number: No. 07-P-1911.,07-P-1911.
• Citation: 74 Mass. App. Ct. 815,911 N.E.2d 214
• Parties: COMMONWEALTH v. Jose M. LOPEZ.
• Court: Appeals Court of Massachusetts

911 N.E.2d 214

74 Mass. App. Ct. 815

COMMONWEALTH v. Jose M. LOPEZ.

No. 07-P-1911.

Appeals Court of Massachusetts, Suffolk.

Argued November 17, 2008.

Decided August 13, 2009.

Kathleen Celio, Assistant District Attorney, for the Commonwealth.

Andrea Petersen for the defendant.

Present: LENK, MEADE, & FECTEAU, JJ.

FECTEAU, J.

In this interlocutory appeal,¹ the Commonwealth challenges the allowance of the defendant's motion to suppress evidence in the District Court, where the defendant was charged with unlawful possession of a firearm, G.L. c. 269, § 10(a); possession of a firearm without an identification card, G.L. c. 269, § 10(h), and possession of marijuana, G.L. c. 94C, § 34. The Commonwealth contends that the judge erroneously allowed the defendant's motion on the basis that it was unreasonable for the officer to believe that the woman who opened the door to a motel room had actual or apparent authority to consent to his entry into the room.² For the reasons that follow, we conclude that the judge erred.

Background. The following are the relevant facts found by the judge, "supplemented by uncontroverted facts adduced at the hearing." Commonwealth v. Torres, 433 Mass. 669, 670, 745 N.E.2d 945 (2001). On August 30, 2005, at approximately 9:00 P.M., as part of their routine patrol, Officers Desimone and Chan stopped at the Ocean Lodge in Revere. During the visit, the motel manager, known to them as "Victor,"³ asked the officers to retrieve a discarded hypodermic needle, a service the police regularly provided. As the officers were about to do so, they received a radio dispatch that requested they respond to an emergency call. The officers told Victor that they would return after they responded to the emergency call.

Later that night, around 10:00 P.M., the officers returned to the Ocean Lodge and went to the motel management office to locate Victor. When they did not find him there, the clerk at the desk told the officers that she thought Victor was in his room. The officers thought, based upon past experience, that Victor's room was room 138; the room was detached from the main building with its own entrance and was a room Victor usually occupied.⁴

Officer Desimone went to room 138, with a container for hazardous objects, while Officer Chan remained in the unmarked cruiser. The officers did not call for assistance because of the routine nature of the transaction. Officer Desimone knocked on the door, announced himself as police, and stated, "Hello, Victor." An unknown woman opened the door and Officer Desimone asked, "Hello, is Victor here?" The woman looked at the officer kind of "funny—like a deer in the headlights type of look"—and stated, "I don't know." Desimone showed her the needle holder in his right hand and told her, "He asked me to pick up a needle." He then asked her, "Can I come in?" to which the woman answered, "Yeah, sure." Although she appeared to understand the officer's questions, Desimone testified that she "appeared to be nervous" and "kind of stunned," as if she were "maybe under the influence of drugs."

The motion judge found also that "[t]he Commonwealth offered no evidence that the officers believed `Victor' to be married, dating, or living with any women. They did not know who this woman was or what her relationship to Victor or to the room was. She was simply the person who opened the door."

The woman shut the door after the officer entered. Once inside the room, Officer Desimone realized that the layout for room 138 was different from that of the other rooms in the motel, which usually consisted of only a single room; here, there were two small, adjoining rooms. Upon his entry, immediately after the door closed, and as he stood in the first room with the woman, Officer Desimone noticed to his right, through an open doorway leading to the second room, three men sitting on a bed next to a pile of a green, leafy substance, which appeared to him to be marijuana. The men appeared nervous and started to move their hands around when they saw the officer.

Officer Desimone testified⁵ that "the last thing [he] wanted to do was make any arrests or bring any type of attention to [the motel]" because he did not want to "jeopardize" a major ongoing, unrelated drug investigation at that motel. Officer Desimone told the men, "Guys relax. It's just marijuana. I'm not here to arrest anyone for marijuana." He then shook the needle canister he was still holding and told them he was here to pick up a needle. Knowing that he was the only officer in a room with four other people, he said, "Guys, just all I'm asking you is to just let me see your hands. I don't want you guys to shoot me." The men then looked away from the officer to their right, towards the other end of the room. Officer Desimone could not see what they were looking at because of where he was standing, but he soon heard "some shuffling or scuffling" coming from the room. Still holding the needle holder in his right hand, Officer Desimone stuck his head through the door and heard a "thump" coming from a small metal trash barrel at the far corner of the room. The defendant was standing nervously next to the metal can. Officer Desimone then radioed Officer Chan for assistance.

After Officer Chan and another officer arrived, all the men were relocated to the front room where the woman was still standing. Officer Desimone found a loaded .38 revolver in the trash basket, and the defendant, responding to Officer Desimone's question, admitted that he did not have a firearm identification card for the gun. After retrieving the gun, Officer Desimone had a conversation with his superior, Lieutenant Ruggiero, who had just arrived on the scene. Desimone told Ruggiero that he did not want to make an arrest because of the ongoing drug investigation. He recommended putting the gun into safekeeping or doing something that would not involve making an arrest because he "[did not] want to create any type of havoc." Lieutenant Ruggiero responded "absolutely not," and insisted on having the defendant arrested. Officer Desimone complied and arrested him.

At 11:00 or 11:30 P.M. that night, Officer Desimone spoke with Victor at the police station. Desimone had wanted to talk to Victor to clarify the occupancy of room 138, since he had thought Victor occupied that room. Victor explained that he had not resided in the room for about a week, as he had rented the room to the defendant and the defendant's father and cousins. The defendant had shown Victor the weapon. Victor told the officer that although he had asked the officer to come to pick up a needle, he really meant to inform the officers of that gun.

The judge allowed the motion to suppress because she found that Officer Desimone unreasonably relied on the woman's "clear, unambiguous and voluntary" consent. In her findings she stated, "[T]he Commonwealth [did not] establish[ ] that this woman possessed the actual or apparent authority to consent to the entry." She found that the officer did not have information suggesting that anyone else was staying in the room with Victor, nor did he have any information about whether Victor was married or dating. She also found that the officers knew nothing about the woman or what, if any, relationship she had with Victor. The motion judge concluded that "there was nothing ... to suggest a reasonable belief that this woman (who as far as the police knew was simply the person who opened the door) possessed the authority or apparent authority to consent to their entry."

Discussion. An appellate court accepts the findings of the motion judge in the absence of clear error and defers to his or her assessment of the credibility and weight of testimony. See, e.g., Commonwealth v. Gentile, 437 Mass. 569, 573, 773 N.E.2d 428 (2002); Commonwealth v. Clark, 65 Mass.App.Ct. 39, 43, 836 N.E.2d 512 (2005), and cases cited. However, we must conduct an independent review of the motion judge's ultimate findings and conclusions of law to assure the correctness of the application of constitutional standards to the facts found. Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004). Commonwealth v. Wilson, 441 Mass. 390, 393, 805 N.E.2d 968 (2004).

The judge allowed the defendant's motion to suppress evidence of the gun and drugs because she concluded that the officer unreasonably relied on the consent from the woman who answered the door. This case turns on the issue of apparent authority to consent to an entry by police into a motel room. Fundamental to that question is whether a police encounter of constitutional dimension occurred and, if so, at what moment constitutional import first attached.

"Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person's right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man's `castle' with the honest intent of asking questions of the occupant thereof— whether the questioner be a pollster, a salesman, or an officer of the law." Davis v. United States, 327 F.2d 301, 303-304 (9th Cir.1964) (defendant's eight year old daughter could consent to police entry, though not search).⁶ See Manni v. United States, 391 F.2d 922, 923 (1st Cir.), cert. denied, 393 U.S. 873, 89 S.Ct. 166, 21 L.Ed.2d 143 (1968) (affirming lawfulness of officers' entry into front room of defendant's home where "the purpose of the entry was to engage in the conversation the agents had been seeking" and defendant knew of such purpose and consented to entry); Akron v. Harris, 93 Ohio App.3d 378, 382, 638 N.E.2d 633 (1994) (third party may consent to entry but not to search); State v. Chapman, 97 Ohio App.3d 687, 690, 647 N.E.2d 504 (1994) ("that where the intent of the officers was not to conduct a search, but only to question a resident, the consent...