Commonwealth v. Santos
| Decision Date | 22 June 2020 |
| Docket Number | No. 19-P-1198,19-P-1198 |
| Parties | COMMONWEALTH v. Richard SANTOS. |
| Court | Appeals Court of Massachusetts |
The case was submitted on briefs.
Katherine E. McMahon & Travis H. Lynch, Assistant District Attorneys, for the Commonwealth.
John M. Thompson & Joe A. Smith, III, for the defendant.
Present: Green, C.J., Henry, & Sacks, JJ.
This case raises the question of a parent's apparent authority to consent to the search of her adult daughter's separate apartment in a two-family home.1 When speaking to the police, the defendant's mother asserted ownership of the two-family home, and disclosed that she lived in one apartment and the daughter lived in the other apartment. She also represented that she sometimes allowed the defendant (her son) to stay in her daughter's apartment on the couch. The Commonwealth concedes that the mother did not have actual authority to consent to the search. Instead, the Commonwealth argues that the police reasonably believed that the mother had apparent authority to consent to the search, and therefore, the motion judge erred in suppressing the fruits of that search. We conclude that the facts here were ambiguous and that the police officer "owe[d] a duty to explore, rather than ignore, contrary facts tending to suggest that the [mother] ... lack[ed] actual authority" to consent to the search. Commonwealth v. Porter P., 456 Mass. 254, 272, 923 N.E.2d 36 (2010). There is no parental exception to this rule. We affirm the order allowing the motion to suppress.
Background. We summarize the facts from the judge's findings, supplemented by the evidence in the record that is uncontroverted and that was implicitly credited by the judge. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007).
On July 25, 2016, Holyoke police officers arrived at a residence on Brown Avenue to execute a warrant to commit the defendant for inpatient care due to his substance use disorder. His mother sought the warrant because she was concerned about her son's drug addiction. Officer James McGillicuddy was not involved in the warrant. He came to the home because he had information that the defendant might have knowledge about a recent shooting and could be carrying a handgun for protection. According to McGillicuddy's testimony, which the motion judge credited, he spoke with the defendant's mother, Milagros Santiago, outside the residence, which is a two-family home with an apartment on each of the first and second floors. The defendant's mother told the officer that she owned the house,2 and McGillicuddy knew the house belonged to the family. She told him that she and her husband lived in the second-floor apartment, while her daughter lived in the first-floor apartment. She also told him that her son did not reside at the home, but that, on occasion and with the mother's permission, he sometimes slept on the couch in her daughter's apartment.3 McGillicuddy also testified that he believed the mother was the landlord.
McGillicuddy asked the defendant's mother if she would consent to a search of the daughter's first-floor apartment. She reviewed a written consent form, said that she understood it, and signed it. The police then followed her into the apartment, the door of which was either open or unlocked, and conducted a search. They found a backpack that the mother said belonged to her son. Inside the backpack, police found a sock filled with sixteen bullets. They also found a Smith and Wesson handgun under a mattress, and a loaded magazine in a dresser drawer. In this case, the defendant sought to suppress the handgun and loaded magazine seized.4
Discussion. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ " Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002).
The proscription of the Fourth Amendment to the United States Constitution against unreasonable searches and seizures and the protection of art. 14 of the Massachusetts Declaration of Rights are not violated when a warrantless entry into a home "occurs after a police officer obtains the voluntary consent of a person he reasonably believes, after diligent inquiry, has common authority over the home, but it turns out that the person lacked common authority." Commonwealth v. Santos, 465 Mass. 689, 695, 991 N.E.2d 1049 (2013), quoting Porter P., 456 Mass. at 271, 923 N.E.2d 36. Apparent authority is "judged against an objective standard: would the facts available to the officer at the moment ... ‘warrant a [person] of reasonable caution in the belief’ that the consenting party had authority over the premises?" Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), quoting Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Santos, supra at 696, 991 N.E.2d 1049. The officer must make "[d]iligent inquiry[, which] consists of two steps: first, ‘the police officer must base his conclusion of actual authority on facts, not assumptions or impressions,’ and second, ‘even when the consenting individual explicitly asserts that he lives there, if "the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth," the police officer must make further inquiry to resolve the ambiguity.’ " Id. at 695, 991 N.E.2d 1049, quoting Porter P., supra at 271-272, 923 N.E.2d 36. "The police officer owes a duty to explore, rather than ignore, contrary facts tending to suggest that the person consenting to the search lacks actual authority." Id. at 272, 923 N.E.2d 36. Not only should the police question the person concerning their "actual authority, but also pay close attention to whether the ... consenting individual is truthful and accurate in asserting common authority over the premises." Id.
Porter P. offers "clear guidance" as to when someone has authority to consent to a search, and that is only if:
Porter P., 456 Mass. at 265, 923 N.E.2d 36.
The Supreme Judicial Court's subsequent decision in Commonwealth v. Lopez, 458 Mass. 383, 937 N.E.2d 949 (2010), illustrates the duty of a police officer to explore the authority of the person consenting to entry into a home. There, in a nonemergency situation, police seeking a hotel manager at his room encountered a woman who opened the door to the room. The court held that the police had not gained legal consent to enter the room where the woman who gave consent was not known to them and her relationship to the premises was uncertain. Id. at 395-396, 937 N.E.2d 949. The court specifically rejected the Commonwealth's argument that the police did not have a reason to think the woman did not have authority. Rather, "the Commonwealth needs to prove that there were facts affirmatively known to the officer that would permit him reasonably to believe that the person giving consent had authority over the premises." Id. at 396, 937 N.E.2d 949, quoting Commonwealth v. Lopez, 74 Mass. App. Ct. 815, 834, 911 N.E.2d 214 (2009) (Lenk, J., dissenting). The court also held that the police could not assume without further inquiry that a person who answers the door to a home has the authority to let them enter. Lopez, 458 Mass. at 396, 937 N.E.2d 949.
The police have more leeway in an emergency. For example, in Santos, the officers were responding to an emergency call to an address that gave only a street address but no apartment number, they were greeted on the porch by a woman who identified herself as the 911 caller, she indicated that a child who had been sexually assaulted was inside the apartment, and the woman opened the front door and led the police through two open doors into the apartment where the child was waiting. Santos, 465 Mass. at 696, 991 N.E.2d 1049. The apartment belonged to the child's grandmother and the mother lived upstairs in a separate apartment. Id. at 691, 991 N.E.2d 1049. It would have been "best practice for police, prior to entry, simply to ask who is the resident of the home." Id. at 696, 991 N.E.2d 1049. In the circumstances in Santos, nonetheless, where there was "an ongoing emergency," the police "relied on sufficient, unambiguous facts to conclude that they had consent to enter the premises." Id. at 697, 991 N.E.2d 1049.
Here, the facts known to the police about the mother's authority to consent to the search were that (1) ...
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Commonwealth v. Santos
...appeal and Santos's counsel referred him to experienced appellate lawyers. Santos also prevailed on appeal. Commonwealth v. Santos, 97 Mass. App. Ct. 719, 149 N.E.3d 379 (2020). The Commonwealth then sought FAR, which the Supreme Judicial Court denied. See Commonwealth v. Santos, 486 Mass. ......