Commonwealth v. Porter P

• Decision Date: 11 March 2010
• Citation: 923 N.E.2d 36,456 Mass. 254
• Parties: COMMONWEALTH v. PORTER P., a juvenile.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

923 N.E.2d 36

456 Mass. 254

COMMONWEALTH

v.PORTER P., a juvenile.

Supreme Judicial Court of Massachusettsn

Suffolk

Argued Sept. 10, 2009.

Decided March 11, 2010.

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James D. Corbo (Rachel A. Scotch with him) for the juvenile.

Kathleen Celio, Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae:

Beth L. Eisenberg, Committee for Public Counsel Services, & John Reinstein, Boston, Joshua Dohan, Roxbury, Barbara

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T. Kaban, & Gloria Y. Tan, Boston, for Committee for Public Counsel Services & others.

Ruth A. Bourquin for Massachusetts Coalition for the Homeless & another.

David M. Siegel, Boston, & Lawrence Friedman for Suffolk Lawyers for Justice, Inc.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

GANTS, J.

The Commonwealth was granted leave to appeal from an order entered in the Juvenile Court suppressing a gun seized by the police during a search of a room in a transitional family shelter occupied by the juvenile and a statement that he made after his arrest. Having been notified by the shelter's director that the juvenile allegedly possessed a gun, the police officers determined that the director had the authority to consent to their entry and conducted a warrantless search of the juvenile's room with her consent. After the police found the gun, the juvenile made an unprompted inculpatory statement that suggested that the gun belonged to him. The juvenile was charged with delinquency by reason of the unlawful possession of a firearm and ammunition, in violation of G.L. c. 269, § 10 (h).¹ After an evidentiary hearing, the judge ordered suppression of the gun and the statement to the police. A single justice of this court granted the Commonwealth leave to pursue an interlocutory appeal from the judge's order in the Appeals Court. See Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). The Appeals Court reversed the allowance of the juvenile's motion to suppress. Commonwealth v. Porter P., 73 Mass.App.Ct. 85, 895 N.E.2d 775 (2008). We granted his application for further appellate review. We affirm the allowance of the motion to suppress.²

Background. In reviewing the allowance of a motion to suppress, we accept the judge's findings of fact absent clear error. Commonwealth v. Alvarado, 420 Mass. 542, 544, 651 N.E.2d 824 (1995), and cases cited. We summarize the facts as found by the judge, supplemented by uncontroverted facts in the record. See Commonwealth v. Watson, 430 Mass. 725, 726 n. 5, 723 N.E.2d 501 (2000). We then determine "the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting Commonwealth v. Merca-do, 422 Mass. 367, 369, 663 N.E.2d 243 (1996).

The juvenile and his mother moved into a room at the Roxbury Multi-Service Center, Inc., Family House Shelter (shelter) in March, 2006. The shelter provides temporary housing for otherwise homeless families and assists them in securing more permanent living situations. Through a contractual arrangement with the Commonwealth, the shelter is obligated to accept families referred by the Department of Transitional Assistance if there are vacant rooms of appropriate size to house them. Families may remain at the shelter

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until they find a permanent living situation, unless they commit a violation of the shelter's rules and regulations. The typical stay is between four and eight months. Apart from a key deposit fee of thirty dollars, the families do not pay to live at the shelter.

Each new resident of the shelter, including the juvenile and his mother, as part of the intake procedure, is given a manual setting forth the shelter's rules and regulations. According to the manual, residents are allowed to have visitors only during posted visiting hours, and may meet with them only in the visitors' lounge.³ Residents are not permitted to enter another resident's room at any time for any purpose. Because residents must commit to being actively engaged at least twenty hours per week in employment, education, or job training, or looking for employment or housing, the residents are required to be out of the shelter from 9 a.m. to 3 p.m. every weekday. The residents are also required to abide by a curfew, which varies by the day of the week. Each resident and his or her family is provided a furnished room and given a key to his or her room.⁴ The director, however, has a master key that opens every door in the shelter, and the staff members have a master key that opens every resident's room. Members of the shelter's staff have the right to enter any room "for professional business purposes (maintenance, room inspections, etc.)," but only with the knowledge of the director. If a "business professional," such as a repair person or exterminator, requires entry to a resident's room, he or she must be escorted by a staff member, with the director's approval. The shelter staff may conduct "room checks" at any time without warning to monitor compliance with the shelter's "Good Housekeeping Standard" and other rules and regulations, including those affecting health and safety. The manual has a "zero tolerance policy in regards to violent acts committed by residents" and the possession of any weapon; "[a]ny resident in possession of a weapon will be terminated immediately." The shelter "reserves the right to contact the Police should the situation warrant," but the manual does not state that the shelter director or a staff member may consent to a police search of a resident's room.

On October 25, 2006, the shelter's director, Cynthia M. Brown, after having heard rumors that the juvenile had a gun, learned from a security officer that the juvenile had admitted to having a gun. Brown contacted the Boston police department and arranged a meeting for the following morning "to figure out how [to] proceed."

On October 26, 2006, at approximately 10:30 a.m., Detective Frank McLaughlin and four other police officers met with Brown at the shelter. The officers indicated their desire to "take care of [the situation] quietly" out of "concern for all these families who were... in a time of turmoil in their own lives." Brown told the officers that the resident's manual authorized her to enter residents' rooms to conduct room checks and that she had inspected residents' rooms several days earlier after reports of suspected drug use. The officers reviewed the portions of the manual authorizing staff to make controlled room entries. Detective McLaughlin confirmed

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with Brown that her authority to search residents' rooms included the ability to search closets, drawers, bureaus, and other places not in plain view. The detective testified at the evidentiary hearing that he "[a]bsolutely" believed that Brown had the authority to consent to a police search of the juvenile's room. He based this belief on the shelter's rules and regulations in the resident's manual, as well as Brown's possession of a master key to the residents' rooms.

Brown and the officers agreed that they would conduct a search of the juvenile's room "under her policies." They planned to ask the juvenile to relinquish possession of the gun and then, if he cooperated, summons him to court at a later date. They then proceeded upstairs to the room, where Brown knocked on the door and announced that she was conducting a room check. When no one answered, she used her master key to open the door. The juvenile was in the room, and it appeared that he had been lying in bed moments before. Brown explained that she was there to conduct a room check and had the police with her because of allegations that the juvenile had a gun in his possession. Detective McLaughlin asked the juvenile to step out of the room into the hallway, and the juvenile complied. Two or three officers began to search the room while the detective and Brown attempted to speak with the juvenile, who denied having a gun. When Brown asked why he was not in school, he stated that he was home sick that day. During their search of the room, the officers found a Glock.40 caliber firearm containing hollow point bullets in the clip underneath a duffel bag in the closet.

The juvenile was then handcuffed and placed under arrest. Spontaneously, and not in response to any direct questioning by the police, the juvenile said, "The gun has no bodies on it; it's clean." After the juvenile made this statement, an officer read the juvenile the Miranda warnings, but the officers did not initiate questioning.

Discussion. The juvenile argues that the warrantless search of his room at the shelter and the seizure of his firearm violated the Fourth Amendment to the United States Constitution; art. 14 of the Massachusetts Declaration of Rights; and G.L. c. 276, § 1. He also argues that his statement to the police regarding the firearm should be suppressed as "fruit of the poisonous tree" of the illegal search and seizure under Wong Sun v. United States, 371 U.S. 471, 487-188, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

1. To determine whether the search of the room violated the Fourth Amendment; art. 14; or G.L. c. 276, § 1, we must first determine whether a search in the constitutional sense took place. See Commonwealth v. Frazier, 410 Mass. 235, 244 n. 3, 571 N.E.2d 1356 (1991). "This determination turns on whether the 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), citing California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986). "The measure of the defendant's expectation of privacy is (1) whether the defendant has manifested a subjective expectation of privacy in the object of the search, and (2)...