Commonwealth v. Porter

• Decision Date: 31 October 2008
• Docket Number: No. 07-P-654.,07-P-654.
• Citation: 73 Mass. App. Ct. 85,895 N.E.2d 775
• Parties: COMMONWEALTH v. PORTER P., a juvenile.
• Court: Appeals Court of Massachusetts

895 N.E.2d 775

73 Mass. App. Ct. 85

COMMONWEALTH v. PORTER P., a juvenile.

No. 07-P-654.

Appeals Court of Massachusetts, Suffolk.

Argued May 8, 2008.

Decided October 31, 2008.

Kathleen Celio, Assistant District Attorney, for the Commonwealth.

James D. Corbo for the juvenile.

Present: KATZMANN, MEADE, & SIKORA, JJ.

KATZMANN, J.

The defendant (a juvenile) and his mother lived in a bedroom, to which they had keys, in the Roxbury Multi-Service Center Family House Shelter (shelter). Their occupancy of that room was conditioned upon their acceptance of various shelter policies, rules, and regulations, set forth in the resident's manual (manual), which is designed to promote safety in the shelter and includes a prohibition on the possession of weapons. Toward that end, as residents, they were subject to limitations on their privacy, including access by the director to their rooms, and random and routine searches of their rooms. On October 26, 2006, the director of the shelter, who possessed a master key, accompanied by officers of the Boston police department, entered the locked bedroom assigned to the defendant and his mother, to secure a firearm alleged to be in the room. Upon entry, the officers removed the defendant from the room and proceeded to conduct a warrantless search, ultimately discovering a firearm and ammunition in the room's closet amongst the defendant's belongings. While being arrested, the defendant made certain statements relating to the firearm. The defendant moved to suppress the evidence and the statements.

A Juvenile Court judge allowed the motion to suppress the firearm and ammunition, determining that the defendant and his mother had a reasonable expectation of privacy in the room, that the warrantless search was unreasonable, and that the shelter director did not have authority (or apparent authority) to enter the room to search for a firearm. The judge also allowed the motion to suppress the statements on an independent ground, reasoning that they were the product of custodial interrogation. A single justice of the Supreme Judicial Court allowed interlocutory review. We reverse the allowance of the motion to suppress.

Background. After a hearing at which Cynthia Brown, the director of the shelter, and Detective Frank McLaughlin of the Boston police department testified, the judge made the following unchallenged written findings of fact, that we supplement with uncontroverted facts adduced at the hearing to fill out the narrative and that were explicitly or implicitly credited by the judge. See Commonwealth v. Butler, 423 Mass. 517, 518 n. 1, 526 n. 10, 668 N.E.2d 832 (1996); Commonwealth v. Isaiah, 448 Mass. 334, 337-338, 861 N.E.2d 404 (2007); Commonwealth v. Cataldo, 69 Mass.App.Ct. 465, 472, 868 N.E.2d 936 (2007). We also include relevant sections of the manual.

The Roxbury Multi-Service Center, Inc. (center), is a nonprofit organization located in the Dorchester section of Boston. One of the center's programs is the shelter, a transitional family emergency entity that provides temporary housing for homeless families until the family, with the organization's assistance, is able to secure permanent housing. All resident families are referred to the shelter by the Department of Transitional Assistance (department). So long as there is a vacant room, the shelter is contractually obligated to accept families sent by the department. Families may remain at the shelter until their emergency assistance eligibility benefits, that the department pays directly to the shelter, "run out." According to its mission statement, the goal of the shelter, "in addition to providing temporary housing, is to promote dignity, self-reliance and a sense of community [among] residents at the shelter while increasing their capacity to become active and empowering agents in their own growth and future."

The shelter accommodates up to twenty-four families at any given time and anticipates stays of approximately four to eight months. It is comprised of two brownstones, renovated into a single three-floor facility. It is a "congregate shelter," meaning that "residents share all common areas except for their bedrooms." "[R]esidents are not allowed access or permitted to enter another resident's room at any time." Bedrooms are located on the first, second, and third floors. Common areas include the visitor's lounge, the dining room, two residents' lounges, and the children's play area and are located on various floors. Common bathrooms are located on each floor. The shelter staff offices are located on the first floor and in the basement.

Upon arriving at the shelter, the mother and the defendant, assisted by a shelter case manager, completed the "intake" process, which included reviewing the manual and acknowledging the obligation to comply with its requirements. The manual states:

"[T]he shelter strives to provide a safe and comfortable living environment. As such, ... [four] shelter policies [including a `Violence Policy,' that prohibits weapons of any kind and that provides for immediate termination of any resident in possession of a weapon¹] have been established to protect the welfare of all the shelter residents and staff with zero tolerance for individuals who violate these policies. Depending on the severity of the violation, the shelter reserves the right to contact the police without hesitation should the situation warrant...."²

Besides inclusion in the manual, these policies and regulations were posted throughout the shelter, including the common areas and on the wall adjacent to Brown's office. To promote safety and other designated policies, the manual also provides for entry by shelter staff to the rooms,³ as well as "random room checks and routine room inspections of residents' rooms at any time ... without warning...."⁴

Upon completion of the intake process, the defendant and his mother were assigned to room 24. They were given a key to room 24 and informed that they could keep their personal belongings in that room.⁵ Personal items are limited to those permitted in the manual and must be inventoried. At some point, the mother had paid the thirty-dollar deposit required for the room key.

On October 24, 2006, the shelter security officer informed Brown "that there was a possibility that a gun was being kept on the premises of the shelter." The security officer had learned of the weapon from a shelter resident. As this was the first time in Brown's tenure that a resident had a gun in the shelter, she sought further advice. At the suggestion of the shelter's executive director and officials at a nearby nonprofit organization involved in juvenile violence issues, Brown contacted Sergeant Detective Bailey of the Boston police department "so that he would be able to give me direction as to how we needed to proceed with this process."

On October 25, 2006, the shelter was abuzz with rumors that a resident had a gun. One shelter resident informed Brown that "he had heard ... that the [defendant] had a gun." Later, the defendant informed Gina Jordan, a shelter security officer, that he had a gun. Jordan relayed this information to Brown that night. Brown once again contacted Sergeant Detective Bailey to update him on the matter. The police were expected the following morning.

At approximately 10:30 A.M. on October 26, 2006, Detective McLaughlin, accompanied by Sergeant Detective Sullivan and Officers Ross, Flaherty, and Keaveney, met with Brown at the shelter. In the ensuing conversation, Brown explained to the officers that, in her opinion, she could conduct room searches and that the manual provided the authority for these searches. Brown showed relevant portions of the manual, those relating to room checks, weapons, and violence, to the officers. The judge found that Detective McLaughlin believed Brown had the authority to consent to a search of room 24.⁶ As an initial course of action, Brown and the officers agreed that they would confront the defendant and ask for the weapon.

Brown and the officers then proceeded upstairs to room 24. Brown knocked on the door and announced "room check." There was no answer. Almost contemporaneously, Brown proceeded to use her master key to open the locked door.

Upon opening the door, Brown and the officers observed the defendant standing by the bed, wearing nothing but his underwear. Brown informed the defendant that she "was there to do a room check" due to allegations that he had a gun in the room. Brown elaborated that the officers were with her to perform the search for the gun. The defendant's mother was not present in the apartment.⁷

At this time, Detective McLaughlin asked the defendant to step out of the room and into the common hallway. The defendant complied with the detective's request, but when questioned about the gun, denied having one.

During this time, three of the officers, with Brown's implicit permission, entered the room and began to search for the weapon. The search produced a firearm "that was found under a duffle bag inside the closet." The firearm contained hollow point bullets.

After the gun was located, the defendant was placed under arrest. Following the arrest, the defendant "spontaneously" stated that the gun had "no bodies on it" and that it was "clean."

Discussion. 1. In a constitutional sense, a search has taken place when "police conduct has intruded on a constitutionally protected reasonable expectation of privacy." Commonwealth v. Montanez, 410 Mass. 290, 301, 571 N.E.2d 1372 (1991). Commonwealth v. Colon, 449 Mass. 207, 213, 866 N.E.2d 412 (2007).⁸ A defendant's expectation of privacy is a measure of "(1) whether the defendant has manifested a subjective expectation of privacy in the object of the search, and (2) whether society is willing to recognize that expectation as reasonable." Montanez, supra. See generally Smith, Criminal Practice and Procedure § 4.8 (3d ed. 2007). The defendant bears the burden of...