Commonwealth v. Rogers, SJC-09353 (MA 5/16/2005)

• Decision Date: 16 May 2005
• Docket Number: SJC-09353
• Parties: COMMONWEALTH <U>vs</U>. DANIEL ROGERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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COMMONWEALTH vs. DANIEL ROGERS.

SJC-09353

Supreme Court of Massachusetts.

Hampden.

January 4, 2005.

May 16, 2005.

Constitutional Law, Search and seizure. Search and Seizure, Consent.

Indictments found and returned in the Superior Court Department on October 15, 2002.

A pretrial motion to suppress evidence was heard by Judd J. Carhart, J.

An application for leave to prosecute an interlocutory appeal was allowed by Spina, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the matter from the Appeals Court.

Jane Davidson Montori, Assistant District Attorney, for the Commonwealth.

Brownlow M. Speer, Committee for Public Counsel Services, for the defendant.

PRESENT: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

COWIN, J.

The Commonwealth appeals from an order entered in the Superior Court suppressing cocaine, heroin, and marijuana seized by the police from the defendant's apartment. After the door to the apartment was opened by a woman, the police entered the apartment and the drugs were observed in plain view. The judge held an evidentiary hearing and entered a memorandum of decision and order in which he ordered suppression of the drugs. 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), and we transferred the case to this court on our own motion.

In his decision, the motion judge implicitly assumed that the woman who answered the door consented to the police entry, but ruled that she lacked actual authority to consent and that there was insufficient evidence for the police reasonably to believe that she had apparent authority. As explained below, we affirm the order suppressing the Commonwealth's evidence, but we do so for reasons other than those relied on by the judge. We do not reach the questions of actual or apparent authority which he decided, for we conclude that the evidence did not establish even that the woman at the door consented to the entry.¹

1. Facts. We summarize the judge's findings of fact.² On August 21, 2002, at approximately 4:40 A.M., Officer Joshua Ellsworth of the Springfield police department encountered a woman who was crying. When the officer asked her if she needed assistance, the woman identified herself and said that she had gone to "Danny's apartment" to buy crack cocaine. She told the officer that, after she had paid for the drugs, Danny and a woman named "Rose" had assaulted her and taken back the drugs. The victim described the apartment to the officer. Ellsworth concluded that "Danny" was the defendant, Daniel Rogers, and that "Rose" was a woman he had seen in Rogers's company. Ellsworth had been to Rogers's apartment (which was approximately two and one-half blocks from where he met the woman) at least ten times during the past year in response to complaints of drug use, fights, and prostitution. Because of his frequent visits, the officer recognized the layout of the defendant's apartment as described by the woman.

Ellsworth and two other officers, all in uniform, proceeded to Danny's apartment. Ellsworth knocked on the door and a woman he recognized as Rose Hopkins opened the door. Several other people were also inside the apartment. The officer asked where he could find Rogers. Rose and two other unidentified individuals pointed in the direction of the kitchen. Due to his familiarity with the apartment, the officer knew that the kitchen was in the rear of the apartment. He walked through the living room area to the back of the apartment where he found Rogers seated at a table. A large pile of what Ellsworth recognized as crack cocaine was on the table in front of Rogers.³ The police seized the cocaine and also some marijuana that was on a nearby shelf. It was later determined that the seized contraband also included heroin.

The defendant was indicted for possession with intent to distribute cocaine as a subsequent offense, G. L. c. 94C, § 32A (c) & (d); violation of the controlled substance laws in, on, or near a school or park zone, G. L. c. 94C, § 32J; possession of a class A substance (heroin), G. L. c. 94C, § 34; and possession of a class D substance (marijuana), G. L. c. 94C, § 34.

2. Discussion. Warrantless entries into the home are prohibited by the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights absent either probable cause and exigent circumstances, or consent. See Commonwealth v. Voisine, 414 Mass. 772, 783 (1993), quoting Commonwealth v. Derosia, 402 Mass. 284, 286, cert. denied, 488 U.S. 980 (1988); Commonwealth v. Pietrass, 392 Mass. 892, 897 (1984). The reason for the rule against warrantless entry "is to protect the physical integrity of the home from warrantless police intrusion." Commonwealth v. Sanna, 424 Mass. 92, 96 n.9 (1997). In the present case, the Commonwealth does not justify its entry of the defendant's home based on probable cause and exigent circumstances; thus the only issue for consideration is whether the police had consent to enter the defendant's home. When the police rely on consent to justify a warrantless entry, under both the Fourth Amendment and art. 14, the prosecution "has the burden of proving that the consent was, in fact, freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548 (1968). See Commonwealth v. Walker, 370 Mass. 548, 554-555, cert. denied, 429 U.S. 943 (1976), citing Bumper v. North Carolina, supra; Commonwealth v. Sanna, supra at 97; Commonwealth v. Aguiar, 370 Mass. 490, 496 (1976). Because entry based on consent is an exception to the constitutional warrant requirement, "the Commonwealth must show `consent unfettered by coercion, express or implied, and also something more than mere "acquiescence to a claim of lawful authority."'" Commonwealth v. Voisine, supra at 783, quoting Commonwealth v. Walker, supra at 555. See Bumper v. North Carolina, supra at 549-550; Commonwealth v. Robinson, 399 Mass. 209, 217 (1987). See also Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973) ("the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means . . . . For, no matter how subtly the coercion was applied, the resulting `consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed")⁴; Commonwealth v. Sanna, supra at 96-97. Although consent may be implicit, see Commonwealth v. Voisine, supra, and the police need not utter any "magic words" of request before entering, the Commonwealth must establish that the occupant's words or conduct amounted to something other than mere acquiescence to a claim of authority or simple resignation to the perceived power of uniformed officials.

The voluntariness of an individual's consent to a warrantless entry is an issue of fact, and must be examined in light of the totality of the circumstances of the case. See Schneckloth v. Bustamonte, supra at 248-249; Commonwealth v. Sanna, supra at 97. Ordinarily, in cases involving consent to enter a defendant's home, entry is preceded by an exchange in which a police officer makes some type of inquiry of an occupant and, in response, the occupant verbally or physically reacts in a manner that is interpreted as "consent." See, e.g., Commonwealth v. Voisine, supra at 776. Whether consent is voluntary depends on the nature of this interaction between the police and the occupant. Commonwealth v. Walker, supra ("In considering all the circumstances, we must take into account not only the conduct of the police but also the conduct and statements of persons inside the apartment prior to the police entry"). In meeting its burden of establishing voluntary consent to enter, the Commonwealth must provide us with more than an ambiguous set of facts that leaves us guessing about the meaning of this interaction and, ultimately, the occupant's words or actions. See Schneckloth v. Bustamonte, supra at 228-229, quoting Boyd v. United States, 116 U.S. 616, 635 (1886) (consent by coercion "can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right"). See also United States v. Patacchia, 602 F.2d 218, 219 (9th Cir. 1979) ("existence of consent to a search [or entry] is not lightly to be inferred"); Commonwealth v. Marquez, 434 Mass. 370, 374 (2001), quoting Commonwealth v. Forde, 367 Mass. 798, 805 (1975) ("The right of police officers to enter into a home, for whatever purpose, represents a serious governmental intrusion into one's privacy"). If either the officer's request or the occupant's response is so ambiguous that we are unable to discern whether the occupant voluntarily consented to entry, our inquiry will be over and the entry must be deemed unlawful. Thus, "[w]e must first determine whether [Rose's] actions could reasonably be interpreted to manifest consent to the officers' entry into the apartment. Once the existence of a consent by conduct is determined, its voluntariness must be examined." United States v. Griffin, 530 F.2d 739, 743 (7th Cir. 1976). See Robbins v. MacKenzie, 364 F.2d 45, 48 (1st Cir.), cert. denied, 385 U.S. 913 (1966) (first examining whether evidence warranted finding that occupant expressed consent to entry, then whether consent was coerced).

a. Ambiguity. With the requirements discussed above as our guide, we must first determine whether, based on the circumstances of the interaction between Rose and the police, Rose consented to the entry. We consider the exchange at issue in the present case in chronological order,...