Commonwealth v. Hernandez , 93 Mass. App. Ct. 172 ( 2018 )

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17-P-377 Appeals Court
COMMONWEALTH vs. JOSE HERNANDEZ.
No. 17-P-377.
Essex. January 3, 2018. - April 27, 2018.
Present: Wolohojian, Milkey, & Englander, JJ.
Firearms. Constitutional Law, Search and seizure. Search and
Seizure, Consent, Container, Expectation of privacy.
Complaint received and sworn to in the Lynn Division of the
District Court Department on February 4, 2015.
A pretrial motion to suppress evidence was heard by
Cathleen E. Campbell, J., and the case was heard by her.
Carmine P. Lepore for the defendant.
Ronald DeRosa, Assistant District Attorney, for the
Commonwealth.
ENGLANDER, J. This case presents the question whether the
defendant's coinhabitant could validly consent to a warrantless
search of a closed, unlocked suitcase located in a common closet
of a bedroom she shared with the defendant. A warrantless
search of the suitcase yielded a gun, which was the basis of the
2
defendant's convictions. A District Court judge ruled that the
coinhabitant's consent was valid as to the suitcase, and that
the seizure of the firearm was therefore lawful. We affirm.
1. Background. a. Incident.1 On February 3, 2015, at
11:00 A.M., Lynn police Officer William Stilwell responded to a
call of a domestic threat at the defendant's apartment, and was
met by Flor Prudencio, the victim. Prudencio shared the one-
bedroom apartment with the defendant and their three children.
The couple had lived there for three years. The three children
were present when Officer Stilwell spoke with Prudencio, but the
defendant was at work. Prudencio advised that the defendant
would return in the late afternoon.
Prudencio reported that approximately three weeks earlier,
she and the defendant had had an argument about the custody of
the children. During the argument, the defendant told Prudencio
that "if he wasn't able to see the children . . . he would shoot
her and kill her." Prudencio went on to tell the officer that
she was concerned because the defendant had access to a firearm.
Prudencio then brought the officer into the apartment's only
1 As the sole issue on appeal is the denial of the
defendant's motion to suppress, we take the facts from the
motion judge's findings, together with uncontested testimony
adduced at the evidentiary hearing where the judge explicitly or
implicitly credited the witness's testimony. See Commonwealth
v. Isaiah I., 448 Mass. 334, 337 (2007).
3
bedroom, which she shared with the defendant and the children.
The bedroom had two beds and a single closet. Prudencio opened
the closet door. Inside were men's and women's clothes, bags on
the floor, and children's items; some of the items were
Prudencio's.
After opening the closet door, Prudencio pointed to a
suitcase on the top shelf of the closet, about five feet up; she
stated that the defendant's firearm was located in the suitcase.
Officer Stilwell pulled the suitcase down and brought it into
the kitchen.
The suitcase was not locked, and did not have a locking
mechanism. Prudencio testified that the suitcase was "easy to
open," not with a zipper but "something you press down on," like
a clasp. It did not have a name or tag on it.
Officer Stilwell opened the suitcase in Prudencio's
presence. Prudencio stated that the firearm was inside a red
"Huggies" container within the suitcase. Inside the Huggies
container Officer Stilwell found a loaded revolver and a
"baggie" of ammunition.2 He confiscated the weapon "[b]ased on
the domestic threat, the threat that was made that [the
defendant] said that he was going to shoot her."
2 There were also some papers in the suitcase, which
Prudencio testified were the defendant's.
4
Prior to opening the suitcase, Officer Stilwell did not ask
Prudencio to whom the suitcase belonged, nor did Prudencio state
whose suitcase it was. At the suppression hearing Prudencio
testified that the suitcase and the gun were the defendant's,
and that she knew the defendant kept the firearm in the suitcase
because on at least three prior occasions he had removed it from
the suitcase, in front of her, and cleaned it.3
The defendant was charged with improper storage of a
firearm, in violation of G. L. c. 140, § 131L(a) and (b);
illegal possession of a firearm, in violation of G. L. c. 269,
§ 10(h); illegal possession of ammunition, in violation of G. L.
c. 269, § 10(h); and threatening to commit a crime, in violation
of G. L. c. 275, § 2.4
b. Pretrial and trial. Hernandez filed a motion to
suppress all items seized from the apartment. After an
evidentiary hearing where Officer Stilwell and Prudencio
testified, the motion judge denied the defendant's motion,
issuing written findings.
3 The defendant never prohibited Prudencio from going into
the suitcase, nor did the defendant instruct Prudencio she could
not go inside the suitcase.
4 The Commonwealth also charged the defendant with reckless
endangerment of a child, in violation of G. L. c. 265, § 13L.
This charge was dismissed before trial upon the defendant's
motion.
5
The motion judge first found "it is clear that [Officer]
Stilwell entered the home . . . with Prudencio's consent," and
that "Prudencio had both actual and apparent authority over the
apartment that she and Hernandez shared together and with their
children." Regarding the search of the suitcase, the motion
judge concluded that Prudencio and the defendant shared access
to their home, bedroom, and closet, "as well as the contents of
that closet which would include the suitcase." She specifically
found that "[t]here was no evidence of any restriction upon
Prudencio's access to that suitcase or what was inside."
After a jury-waived trial, the same judge found the
defendant guilty on all four charges. This appeal followed.
2. Discussion. In reviewing an order on a motion to
suppress, we accept the motion judge's subsidiary findings of
fact, absent clear error, and then independently review the
ultimate findings and conclusions of law. Commonwealth v.
Scott, 440 Mass. 642, 646 (2004).
In general, a search of a home without a warrant is
invalid, but one exception is when the search is conducted with
valid "consent." Commonwealth v. Rogers, 444 Mass. 234, 236-237
(2005). When the government claims that the search was
justified by consent of a third party, rather than the
defendant, the government has the burden to show that the third
party actually consented through word or action, and that the
6
third party had actual or apparent authority to consent to the
search. See id. at 237-238; Commonwealth v. Santos, 465 Mass.
689, 694-696 (2013).
Here, the defendant acknowledges that Prudencio actually
consented orally and, moreover, that she had authority, as the
defendant's coinhabitant, to consent to a search of the
apartment and of the closet. But he contends, relying on
Commonwealth v. Porter P., 456 Mass. 254 (2010), and
Commonwealth v. Magri, 462 Mass. 360 (2012), that Prudencio's
authority did not extend to the closed, unlocked suitcase. In
essence, he argues that the police were required to establish
that Prudencio had separate authority over each closed container
in the apartment despite having common authority over the whole
of the premises. Before addressing whether Porter P. and Magri
provide support for the defendant's position, we briefly
summarize the case law that existed before those cases were
published.
The defendant's argument is at odds with the "common
authority" doctrine adopted in a long line of cases beginning
with United States v. Matlock, 415 U.S. 164 (1974), and running
through decisions of this court and Porter P. itself. In
Matlock, the United States Supreme Court addressed whether a
defendant's adult coinhabitant could validly consent to a search
of the bedroom she shared with the defendant, and to the search
7
of a diaper bag found in the bedroom's closet. Id. at 166-167.
The Court held that she could; consent could be obtained "from a
third party who possessed common authority over or other
sufficient relationship to the premises or effects sought to be
inspected." Id. at 171. The Court went on to explain that
consent based on common authority did not arise from "property
interest[s]," but from
"mutual use of the property by persons generally having
joint access or control for most purposes, so that it is
reasonable to recognize that any of the co-inhabitants has
the right to permit the inspection in his own right and
that the others have assumed the risk that one of their
number might permit the common area to be searched."
Id. at 171 n.7.
As indicated, the facts in Matlock involved a container
located in the coinhabitant's bedroom, and in holding the
consent valid the Supreme Court did not suggest that additional
or separate authority might be required to validate the search
of the container. Indeed, the Court's reasoning was that
coinhabitants have "assumed the risk," vis-à-vis each other,
such that any of them can permit a search of a common area,
including items kept in such an area.
Matlock's reasoning was cited approvingly by this court in
Commonwealth v. Noonan, 48 Mass. App. Ct. 356, 362 (1999), in
the context of a police search of an apartment based upon the
8
consent of the defendant's coinhabitant (one Barbara), where we
stated:
"They used the apartment just as an ordinary married couple
would. Thus Barbara had the run of the place with
presumptively lawful access to all parts of the apartment
and its contents. So also she could give consent to a
search to the same extent by other persons whether or not
officers: where premises are jointly occupied, any
occupant may consent 'in his own right' to a search, the
other occupant having 'assumed the risk' of such action."
Ibid., quoting from Matlock, 415 U.S. at 171 n.7.
Other cases are in accord, finding searches reasonable on
very similar facts to those at issue here. In United States v.
Bass, 661 F.3d 1299, 1302-1307 (10th Cir. 2011), the defendant's
coinhabitant authorized the search of the defendant's closed but
unlocked "zipper bag," found in a "common area" of their home.
The bag contained, among other things, the defendant's revolver.
Id. at 1302. The Tenth Circuit Court of Appeals rejected the
argument that the coinhabitant's consent to search the home
could not extend to the closed but unlocked bag, reasoning that
Matlock's "assumption of the risk" formulation extends at least
to "that portion of the premises which by practice or agreement
the other occupant generally uses." Id. at 1306 (quotation
omitted). The court concluded that "when general authority is
present, we should not look for 'metaphysical subtleties' to
define the boundaries of that authority." 661 F.3d at 1306
(quotation omitted). See United States v. Fay, 410 F.3d 589,
9
589-590 (9th Cir. 2005) (no Fourth Amendment violation where
coinhabitant consented to search of duffle bag on a shelf in an
open laundry room). See also Commonwealth v. Farnsworth, 76
Mass. App. Ct. 87, 94-97 (2010) (defendant's mother had
authority to consent to search of defendant's bedroom).
The reasoning of the Matlock line of cases was adopted in
Porter P., where the court stated that "[a] third party has
actual authority to consent to a warrantless search of a home by
the police when the third party shares common authority over the
home." Porter P., 456 Mass. at 262. The court went on to quote
with approval Matlock's "assumption of the risk" rationale,
before distinguishing Matlock on the ground that in Porter P.,
the person who provided the consent to search -- the director of
the transitional shelter in which the defendant was staying --
was not a coinhabitant, and thus not able to validly consent to
a search of the defendant's room. Id. at 262, 266.
The reasoning of these cases reflects the common
understanding that coinhabitants of a home have a greatly
diminished expectation of privacy vis-à-vis each other, at least
as to "common areas." Coinhabitants accordingly can consent to
searches in areas where they have "joint access or control for
most purposes." Porter P., 456 Mass. at 262, quoting from
Matlock, 415 U.S. at 171 n.7.
10
Such joint access or control existed here. There is no
question of Prudencio's authority to consent to the search of
her home, her bedroom, and her closet. These were "common
areas," which was readily apparent upon viewing the small
apartment, and observing that Prudencio and her three children,
in Noonan's words, "had the run of the place." 48 Mass. App.
Ct. at 362. Nor did Prudencio's authority to consent to a
search of the family closet stop at the boundary of the
suitcase. In coinhabiting as he did, and leaving his gun
unlocked in a closet used by all, the defendant made a
"significant sacrifice of individual privacy" vis-à-vis
Prudencio, and "assumed the risk" that she would access his
belongings (the suitcase) or consent to a search of them. See
Bass, 661 F.3d at 1305-1306.
Neither Porter P. nor Magri leads to a different result.
It is true that Porter P., while it adopts Matlock's reasoning,
does state, in footnote 11, that a coinhabitant's consent to
search a home would not extend to a suitcase "that did not
belong to the coinhabitant." Porter P., 456 Mass. at 265 n.11.
That statement, however, must be read in the context of the case
as a whole. Porter P. on its facts did not involve consent
given by a coinhabitant. Moreover, the cases cited in footnote
11 did not involve coinhabitants with "joint access or control"
over the space searched, such as in Matlock, Noonan, and Bass,
11
but rather involved the different relationship of a homeowner
and an occasional guest.5 We accordingly do not read footnote 11
as broadly rejecting the line of cases, cited above, that rely
on Matlock's rationale to validate searches on facts very
similar to those before us.
The defendant also relies upon Commonwealth v. Magri, but
in Magri the defendant also was not a coinhabitant but an
overnight guest, and the court ruled that his host could not
consent to a search of belongings he had left at the host's
home. See 462 Mass. at 366-367. While Magri cites footnote 11
of Porter P., Magri's holding depends on the reasoning that an
overnight guest (unlike the coinhabitants in the cases cited
above) retains an expectation of privacy in his belongings vis-
à-vis his host. Id. at 366-368.6
5 The two cases cited as support in footnote 11 of Porter P.
are clearly distinguishable from the facts here. In United
States v. Davis, 332 F.3d 1163, 1170 (9th Cir. 2003), for
example, not only was the defendant not a coinhabitant, but the
contraband was not found in a common area and the consent to
search was not given by anyone who shared the defendant's space.
Davis actually distinguishes its facts from Matlock. 332 F.3d
at 1169 n.4. The second case cited in the Porter P. footnote is
United States v. Salinas-Cano, 959 F.2d 861, 863-865 (10th Cir.
1992), which also involved an "occasional" guest, and which also
distinguished its facts from Matlock.
6 The rule sought by the defendant would mean that a police
officer voluntarily admitted to search a home by a coinhabitant
must nevertheless separately ask the basis of the coinhabitant's
authority before opening any additional compartments or
containers in the home. The Supreme Judicial Court criticized
12
In short, when the statements from Porter P. and Magri are
considered in context, we do not believe they support the
defendant's position. Accordingly, the judge did not err in
concluding that the defendant's coinhabitant could and did
validly consent to the search of the defendant's closed but
unlocked suitcase located in the common closet of their shared
bedroom in their home.
Judgments affirmed.
such a rule as impractical, in the analogous context of a
warrantless search of an automobile based upon probable cause:
"The defendant's interpretation of art. 14 would force the
police in every motor vehicle search that turned up a
closed container to impound and secure the vehicle while a
warrant was obtained, United States v. Ross, [456 U.S.
798,] 821 n.28 [1982], not an unobtrusive procedure from
the point of view of the defendant's privacy. Such a rule
would unnecessarily burden the police and criminal justice
system, while providing defendants with insignificant
protections against privacy intrusions."
Commonwealth v. Cast, 407 Mass. 891, 908 (1990). See United
States v. Melgar, 227 F.3d 1038, 1039-1040, 1042 (7th Cir. 2000)
(consent to search hotel room extended to closed purse found
under a mattress; "[a] contrary rule would . . . mean [the
police] could never search closed containers within a dwelling
[including hotel rooms] without asking the person whose consent
is being given ex ante about every item they might encounter").