Commonwealth v. Santos

• Decision Date: 10 July 2013
• Docket Number: SJC–11235.
• Citation: 991 N.E.2d 1049,465 Mass. 689
• Parties: COMMONWEALTH v. Fernando SANTOS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

465 Mass. 689

991 N.E.2d 1049

COMMONWEALTH

v.Fernando SANTOS.

SJC–11235.

Supreme Judicial Court of Massachusetts,

Hampden.

Submitted March 4, 2013.

Decided July 10, 2013.

Emily A. Cardy, Committee for Public Counsel Services (Nikolas Andreopoulos, Committee for Public Counsel Services, with her) for the defendant.

Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.

Allison Callahan, Assistant District Attorney, for District Attorney for the Suffolk District, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

IRELAND, C.J.

A Hampden County jury found the defendant guilty of rape of a child with force, in violation of G.L. c. 265, § 22 ( a ), and indecent assault and battery of a child under fourteen (three indictments), in violation of G.L. c. 265, § 13 ( b ).¹ The defendant timely appealed, and we transferred the case here on our own motion. He argues that a Superior Court judge erred when she denied his motion to suppress evidence obtained from a warrantless search of his apartment, and when she determined that he understood English and was not too incapacitated by alcohol to voluntarily provide a sample of his deoxyribonucleic acid (DNA). He also argues that first complaint testimony admitted at trial impermissibly influenced the jury. Because we conclude that, in the circumstances here, the police possessed sufficient factual information when they determined that a person who appeared to have authority had given consent to enter the defendant's apartment, and because there is no merit to his other claims of error, we affirm the defendant's convictions.

1. Motion to suppress. We recite the facts found by the judge at the hearing on the motion to suppress, supplemented by undisputed facts in the record consistent with the judge's findings.²See Commonwealth v. Butler, 423 Mass. 517, 526 n. 10, 668 N.E.2d 832 (1996) (we use uncontroverted facts that do not contradict judge's findings).

The victim lived in a second-floor apartment with his mother. His grandmother lived in the first-floor apartment of the same building with her boy friend, the defendant. The residents of the upstairs apartment visited the grandmother “on almost a daily basis,” sometimes using a staircase that was inside the first-floor apartment and led to the second floor.

On July 11, 2009, the victim spent the night on a couch in his grandmother's living room. At approximately 2:30 A. M., the defendant returned to this apartment. The grandmother opened the back door of the apartment and noticed the defendant smelled like alcohol and was “walking wobbly a bit.” After a brief conversation in Spanish, the defendant's primary language, the grandmother went to bed.

Some time between approximately 2:30 a.m. and 4 a.m., the defendant sexually assaulted the victim on the couch.³ When the defendant “fell asleep or passed out,” the victim went to his grandmother's room, woke her up, and told her what had happened. After talking with the victim for about twenty minutes, the grandmother telephoned the victim's mother, who was in her apartment on the second floor, and asked her to unlock the upstairs door so that the victim could return home. The victim went upstairs and told his mother what had occurred.

The mother telephoned the police from her upstairs apartment, giving them the street address of the home, but not an apartment number. The grandmother knew that the police had been contacted and told the defendant to leave the apartment. Several police officers, who knew they were responding to a 911 telephone call alleging a rape, were dispatched to the address.

On their way to the home, two officers saw the defendant walking down the sidewalk, engaged in a short conversation with him,⁴ asked him to sit in their police cruiser,⁵ and then drove the short distance to the victim's home. When the mother saw the police, she went downstairs to the porch. The victim also went downstairs and entered the grandmother's apartment. The mother opened the main door to the building, which led to an entryway with doors for the downstairs and upstairs apartments. The mother led two other officers, who had arrived while the first two officers placed the defendant in the police cruiser, through the open first-floor apartment and into the living room where the victim was apparently waiting. The first officers who arrived at the home noticed that the doors to both apartments were open.

Within minutes after the first two officers were led into the first-floor apartment, other officers arrived and entered the home. In the meantime, the grandmother had moved to the back of her apartment to see her son, who did not live with her, enter the apartment with another police officer.⁶ When the grandmother returned to the front of the apartment, she found “the house was full of officers.” After speaking with police, the victim was transported by ambulance to a local hospital.

While speaking to the mother and grandmother, the officers learned where the alleged sexual assault had occurred and saw a stain on the couch. Believing the stain to be semen, they wanted to take the cushion cover as evidence. One officer, who came to understand that the grandmother lived in the first-floor apartment, explained “the process [they] were going to go through in collecting evidence” to her, stating, “that if she would allow it [the police] could take the evidence and process it.” The grandmother told them they could take the cover “if [they] need[ed] it.” ⁷

The defendant was arrested and taken to the police station. No Miranda warnings were given during the booking process. One of the officers who had been at the scene, and who spoke to the defendant in English, requested a buccal swab and provided the defendant with a saliva sample consent form. ⁸ The officer read the consent form to the defendant in English and told the defendant that “he ha[d] a right to voluntary submission of his DNA swab. We could go forward and attempt to get a warrant for it, and he could deny it, and that it [was] up to him. It [was] voluntary at this time.” During this exchange, the officer stated that the defendant spoke to him in English and appeared to understand everything said to him. The defendant signed the consent form, and the officer witnessed it.⁹

At the hearing, the defendant argued, as he does on appeal, that where the officers did not conduct a diligent inquiry whether the mother had authority to grant consent to enter the home, the entry was illegal. Therefore, he asserts, the subsequent seizure of a cushion cover from the apartment was also illegal. He also argues that his consent to obtain his DNA was not voluntary because he was intoxicated at the time he signed a consent waiver and because he did not understand English. The motion judge, who was also the trial judge, denied the motion.

When reviewing the denial of a motion to suppress, we accept the motion judge's determinations of the weight and credibility of the testimony, Commonwealth v. Robinson, 399 Mass. 209, 215, 503 N.E.2d 654 (1987), quoting Commonwealth v. Moon, 380 Mass. 751, 756, 405 N.E.2d 947 (1980), and accept the judge's findings of fact absent clear error. Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004). “The ultimate legal conclusions to be drawn from the subsidiary findings of fact, however, are matters for review by this court.” Commonwealth v. Robinson, supra. See Commonwealth v. Silva, 440 Mass. 772, 775–776, 802 N.E.2d 535 (2004).

a. Warrantless entry. The defendant asserts that the warrantless entry by police into his home was not justified because police did not obtain consent from a person with actual or apparent authority. He argues that the judge erred when she found that the police made an understandable and reasonable mistake of fact that the mother could grant entry, and that in accordance with Commonwealth v. Porter P., 456 Mass. 254, 923 N.E.2d 36 (2010), the police were required to ask the person leading them into the home if she lived there.

The Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights “expressly provide that every person has the right to be secure against unreasonable searches and seizures in his home.” Commonwealth v. Porter P., supra at 260, 923 N.E.2d 36. See Commonwealth v. Rogers, 444 Mass. 234, 236, 827 N.E.2d 669 (2005). “[A] warrantless entry into a home constitutes a search in the constitutional sense.” Commonwealth v. Lopez, 458 Mass. 383, 391, 394, 937 N.E.2d 949 (2010). “Given the high value that our Federal and Massachusetts Constitutions assign to the warrant requirement, particularly in relation to a dwelling, we impose a heavy burden on the Commonwealth to justify every warrantless search....” Commonwealth v. Tyree, 455 Mass. 676, 684, 919 N.E.2d 660 (2010).

However, “[t]he Fourth Amendment's proscription of ‘unreasonable searches and seizures' is not violated when a warrantless entry into a home is based on the consent of a third party who the police, at the time of entry, reasonably, but mistakenly, believed had common authority over the premises.” Commonwealth v. Lopez, supra at 393, 937 N.E.2d 949, discussing Illinois v. Rodriguez, 497 U.S. 177, 185–186, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). Likewise, a defendant's right under art. 14 is not violated “if a warrantless search of 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. Porter P., supra at 271, 923 N.E.2d 36. Diligent inquiry 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...