Commonwealth v. Bair, 11–P–1381.

• Decision Date: 17 July 2012
• Docket Number: No. 11–P–1381.,11–P–1381.
• Citation: 82 Mass.App.Ct. 1107,970 N.E.2d 814
• Parties: COMMONWEALTH v. Tucker BAIR. (and a companion case ).
• Court: Appeals Court of Massachusetts

82 Mass.App.Ct. 1107

970 N.E.2d 814

COMMONWEALTH

v. Tucker BAIR.(and a companion case ¹).

No. 11–P–1381.

Appeals Court of Massachusetts.

July 17, 2012.

OPINION TEXT STARTS HEREBy the Court (MILLS, FECTEAU & HANLON, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The Commonwealth appeals from the allowance by a judge of the Superior Court of motions to suppress evidence brought by each defendant. On April 21, 2010, after an investigation of several residential dormitories at Williams College, Tucker Bair was charged with possession of a class D substance, marijuana, G.L. c. 94C, § 34, and possession of a class D substance with intent to distribute, G.L. c. 94C, § 34, as well as possession of other illegal drugs.² On the same day, Jimi N. Morales was charged with possession of a class D substance, marijuana, with the intent to distribute, G.L. c. 94C, § 32C( a ), and a myriad of other drug charges.³ The charges arose after Williamstown police officers conducted two searches—one of each of the defendants' dormitory rooms—pursuant to reports from Williams College campus safety and security (CSS) officers that they believed they had discovered drug paraphernalia in the students' respective rooms. On appeal, the Commonwealth avers that the motion judge erred by supressing evidence found in both rooms, as the CSS officers had already discovered the contraband prior to the involvement of the local police, and specifically, where (1) police had valid consent from Bair to search his room, and (2) police had sufficient probable cause to support a valid search warrant to properly search Morales's room. We reverse in part and affirm in part. Factual background. The defendants were residents of dormitory buildings owned and operated by, and located at, Williams College, a private educational institution. As such, the defendants agreed to abide by the rules and regulations set forth by the college in its 2009–2010 student handbook (handbook). On April 20, 2010, CSS exercised the discretion afforded to them in the handbook and initiated a fire alarm in order to perform a health, safety, and compliance inspection of dormitory rooms. CSS Officer Kristensen encountered a strong odor of marijuana outside Bair's room. Kristensen entered the room and made plain view observations of its contents, concluding that the contents of Bair's room contained drug paraphernalia. He called the local Williamstown police for assistance, with Officers William and McConnell arriving shortly thereafter. Kristensen continued his safety inspection of students' rooms and upon entering Morales's room, Kristensen saw a couple of marijuana cigarettes, a baggie of marijuana, and a pipe in plain view.

Discussion. This court “accept[s] the judge's subsidiary findings of fact absent clear error ‘but conduct[s] an independent review of his ultimate findings and conclusions of law.’ “ Commonwealth v. Quinn, 68 Mass.App.Ct. 476, 479 (2007), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004). “We make an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011).

1. Lawfulness of Bair's consent.⁴ The Commonwealth contends that the motion judge erred in suppressing the evidence seized in Bair's dorm room, as CSS officers lawfully entered into the room before consent was given, and the subsequent search of the room by the Williamstown police was executed pursuant to Bair's free and voluntary consent. Bair avers, to the contrary, that at no time during the course of the search did the Williamstown police have consent to search his room; in particular, that the authority of CSS to enter the room does not extend to the local police. As such, the entrance of the local police violated Bair's constitutional rights and the after-acquired consent to search was therefore tainted by this prior illegality. We address each of these contentions in turn below.

In assessing whether consent was tainted by the conduct of the Williamstown police, we must first determine the lawfulness of that conduct. It is undisputed that Bair consented to allow CSS officers to enter his room by virtue of his status as a student at Williams College and, as such, was bound by the policies set forth in the handbook.⁵ Given proper authority, Kristensen and the other CSS officers were lawfully in position to observe marijuana paraphernalia in plain sight; namely, a smoking pipe, a “bong,” a scale, a Ziploc bag containing marijuana, additional Ziploc “baggies,” and a large jar of marijuana in a refrigerator.⁶ We agree with Bair that the CSS officers were not entitled to extend this consent to search to the Williamstown police. See Commonwealth v. Neilson, 423 Mass. 75, 78 (1996). We therefore must determine whether the warrantless entrance of the local police, standing alone, constituted improper conduct that somehow dissipates the lawfulness of the prior CSS observations.⁷

There is no “search and seizure” in the constitutional sense where “evidence is seized by private parties who are not acting as agents of the police and subsequently turned over to the police,” Commonwealth v. McCambridge, 44 Mass.App.Ct. 285, 289 (1998); “[n]o real purpose is served by precluding police examination of what has already been discovered.” Commonwealth v. Cote, 15 Mass.App.Ct. 229, 232 n. 1 (1983), quoting from Commonwealth v. Weiss, 370 Mass. 416, 420 (1976). As such, there is no valid distinction “between material seized by the private searcher, and material restored to concealment in a place over which [the private actor] has dominion and control....” Commonwealth v. Weiss, supra, quoting from People v. Baker, 12 Cal.App.3d 826, 838 (1970).

Here, the record is clear that Kristensen, a privately-employed security officer, encountered a variety of drug paraphernalia and contraband consistent with drug distribution. After observing the room, he intercepted Bair to keep the premises unoccupied while waiting for the arrival of the local police. Officer McConnell testified that Kristensen showed him the drug paraphernalia that he (Kristensen) initially observed in the room, the majority of which was in plain view,⁸ and the scope of Officer William's observations was limited to the same items. The testimony is unambiguous that Officers McConnell and William observed only those objects already discovered by Kristensen. The fact that Kristensen did not first remove the items or communicate its discovery immediately to the local police for purposes of securing a search warrant, does not in turn render his observations underlying the probable cause insufficient, as the contraband items had already been discovered by private actors. As we agree with the Commonwealth that no illegal entry occurred by CSS officers, nor did the Williamstown police discover anything additional to that already observed by the CSS officers, there was no prior illegality to taint the consent given by Bair; consequently, we reverse.

The Commonwealth relatedly argues that the judge did not err in concluding, apart from the issue of taint, that “the consent was, in fact, freely and voluntarily given.” Commonwealth v. Lopez, 458 Mass. 383, 392 (2010), quoting from Commonwealth v. Rogers, 444 Mass. 234, 237 (2005). The voluntariness of an individual's consent to a warrantless entry is a question of fact, and must be examined in light of the totality of the circumstances of the case. Schneckloth v. Bustamonte, 412 U.S. 218, 248–249 (1973). See Commonwealth v. Sanna, 424 Mass. 92, 97 (1997). This is a subjective determination, focusing “on the particular individual, rather than on a hypothetical reasonable person.” U.S. v. Lewis, 921 F.2d 1294, 1301 (DC Cir.1990). See, e.g., Egan, 12 Mass.App.Ct. 658, 663 (1981). Consent must be otherwise “unfettered by coercion, express or implied, and also something more than mere acquiescence to a claim of lawful authority.” Commonwealth v. Carr, 458 Mass. 295, 302 (2010), quoting from Commonwealth v. Walker, 370 Mass. 548, 555 (1976). We conclude that the consent obtained by the Williamstown police officers met this standard.

The court has developed a number of common factors that must be considered in making a determination whether the consent is freely and voluntarily given; including, but not limited to, knowledge of a right to refuse consent, knowledge that a search will inevitably produce incriminating evidence, relative emotional state and relative intelligence, and the presence of uniformed police officers. See Commonwealth v. Harmond, 376 Mass. 557, 561–562 (1978).

Many facts in the record support the motion judge's determination that Bair gave consent of his own volition, “and signed the consent form voluntarily, knowing or believing that he had been caught.” As a preliminary matter, the undisputed testimony of Officer William supports the conclusion that both the request and corresponding consent were unambiguous. Contrast Carr, supra at 299–300 (if either request or response is ambiguous, warrantless entry pursuant to consent is unlawful). The fact that Officer William informed Bair of his right to refuse consent, when considered in conjunction with both the verbal and written affirmation and otherwise unambiguous nature of Bair's consent, is unequivocal evidence that consent was given freely and voluntarily. See Commonwealth v. Ocasio, 71 Mass.App.Ct. 304, 310 (2008), citing Commonwealth v. Bradshaw, 385 Mass. 244, 258–259 (1982). See also Grasso & McEvoy, Suppression Matters under Massachusetts Law § 11–3[a] (2011–2012).

Turning to the remaining Harmond factors, the factual findings support a conclusion that Bair freely consented to this search. During his dealings with Bair, Officer William observed no sign that Bair was under the influence of alcohol or drugs, and, in response to Officer William's inquiry as to this issue, Bair confirmed he had not used alcohol that day. All...