Com. v. Lopez

937 N.E.2d 949

458 Mass. 383

COMMONWEALTH

v.Jose M. LOPEZ.

SJC-10599.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 8, 2010.

Decided Dec. 6, 2010.

Andrea Petersen, for the defendant.

Kathleen Celio, Assistant District Attorney, for the Commonwealth.

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

IRELAND, J.

A complaint issued in the Chelsea Division of the District Court Department charging the defendant, Jose M. Lopez, with carrying a firearm without a license, G.L. c. 269, § 10( a ); possession of a firearm without an identification card, G.L. c. 269, § 10( h ); receiving stolen property, G.L. c. 266, § 60; and possession of a class D substance, G.L. c. 94C, § 34. The defendant, as relevant here, moved to suppress evidence (a firearm and marijuana),¹ claiming that it was unlawfully obtained by police without a warrant and in the absence of valid consent to enter his residence in violation of both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.² After an evidentiary hearing, a District Court judge granted the defendant's motion and entered a memorandum of decision and order suppressing the firearm and marijuana. 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). By a divided panel, the Appeals Court reversed the allowance of the defendant's motion to suppress. Commonwealth v. Lopez, 74 Mass.App.Ct. 815, 826, 911 N.E.2d 214 (2009). We granted his application for further appellate review. Because, in the circumstances, it was not objectively reasonable for a police officer to believe that the woman who permitted him to enter the defendant's residence was authorized to consent to the warrantless entry, we conclude that the entry into his residence and subsequent seizure of evidence therein was unlawful under art. 14. We therefore affirm the order allowing the defendant's motion to suppress.

1. Background. In reviewing a decision on a motion to suppress, "we accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of [her] 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). We summarize the judge's findings of fact, supplemented with uncontested testimony adduced at theevidentiary hearing.³ See Commonwealth v. Garcia, 443 Mass. 824, 828, 824 N.E.2d 864 (2005).

On the evening of August 30, 2005, Revere police Officer Mark Desimone and his partner were assisting another officer on a matter unrelated to this case at the Ocean Lodge, a two-story, forty-room motel on Revere Beach Boulevard in Revere.⁴ Themotel was notorious for excessive drug dealing, drug use, assaults, and robberies that occurred on the premises. About three months prior, Desimone regularly had visited the motel while on patrol, stopping in almost every night to run warrant checks against the names appearing on the motel's guest log and on identification cards held by the management. The manager of the motel was known to police as "Victor." Desimone had been acquainted with Victor for about seven months, and always found him "extremely cooperative." On occasions where Desimone would review the guest log with Victor, Victor told Desimone that he resided in room 138, which was a detached building about the size of a "shed" located behind a restaurant at the front right of the motel. Room 138 contained two bedrooms and a bathroom, and usually was rented to or occupied by the motel manager.

As Desimone and his partner were leaving the Ocean Lodge that evening at about 9 p.m., they encountered Victor, who asked them to retrieve a needle that had been discarded on the premises of the motel. This service was one that the police regularly provided. Desimone explained to Victor that they had another matter to which they had to respond, but would come back when finished.

At approximately 10 p.m., Desimone and his partner returned to the motel. They were dressed in uniform, and drove an unmarked police vehicle. Desimone went to the motel's office, asked for Victor, and was told that Victor "was in his room." Believing (based on past information provided by Victor whilepreviously reviewing the motel's guest log) Victor's room to be room 138, Desimone went over to that room while his partner remained in the unmarked vehicle.

Desimone knocked on the door to room 138 and said, "Hello, Victor." A woman, who was unknown to Desimone, opened the door "all the way." Desimone stated, "Hello, is Victor here?" The woman looked at him "funny—like a deer in the headlights type of look" and replied, "I don't know." Desimone showed the woman the needle disposal canister that he held in his hand and told her that Victor had asked him to pick up a needle. The woman said, "Oh, okay." Desimone asked, "Can I come in?" to which the woman said, "Yeah, sure." During this exchange, Desimone observed that the woman "appeared to be nervous." He testified: "She looked kind of stunned, and I wasn't sure if maybe she was maybe under the influence of drugs or what it was, but she looked a little ... staring and just kind of shocked look." ⁵

Desimone entered the residence and the woman closed the door behind him. In the bedroom to Desimone's right, the door to which was open, he observed three men sitting on a bed together with a pile of a green leafy substance, which he believed from his training to be marijuana. Desimone did not recognize any of the men. The men appeared to be nervous and started to move their hands. Desimone knew of an ongoing "drug sting" taking place in the motel that night involving boththe Revere and State police and he did not want to "make any arrests or bring any type of attention" to the motel. Consequently, he told the men to "relax" and that he was "not [there] to arrest anyone for marijuana," but rather had come inside to "pick up a needle." He asked them to put up their hands. The men looked away from Desimone to their right toward the other end of the room that was not visible to Desimone. Desimone heard some noisecoming from that direction. He moved to look through the doorway and observed a fourth man, the defendant, in the far corner of the room. As Desimone was moving to look inside the room, he heard "a thump" that came from the small, metal trash barrel in the room, which was about six inches from the defendant. Desimone asked the defendant to go over with the other men.

Desimone called for his partner who, together with another officer, promptly entered. The officers moved the men, including the defendant, into the other room where the woman was. Desimone recovered a loaded .38 revolver from the trash barrel. He asked the defendant to show him his license to carry a firearm; the defendant responded that he did not have a license. The men, including the defendant, were placed under arrest.⁶

Later that evening, Desimone spoke with Victor. Victor explained that he had rented room 138 to four men, one of whom was the defendant.⁷ Victor had seen the firearm the previous day and wanted to tell Desimone about it. Because he thought he may be overheard, Victor told Desimone that he had a needle instead of informing him about the gun.

In her findings and decision, the judge determined that the woman who had allowed Desimone to enter room 138 had given consent to enter that was "clear, unambiguous and voluntary." The judge, however, concluded that the Commonwealth did not establish that the woman possessed the actual or apparent authority to consent to the entry because the only thing that the police knew about her was that she was the person who had opened the door. For this same reason, the judge stated that there was nothing in the facts to suggest a reasonable (but mistaken) belief that the woman possessed the actual or apparent authority to consent to the entry. Because the woman had no authority to give consent and the police had entered without a warrant, the judge allowed the defendant's motion to suppress.

By a divided panel, the Appeals Court reversed.Commonwealth v. Lopez, 74 Mass.App.Ct. 815, 826, 911 N.E.2d 214 (2009). The Appeals Court determined that officer Desimone did not need to "second-guess the woman's consent to enter" room 138 because his "purpose in entering ... was neither to search nor arrest, but merely to retrieve the needle that Victor has asked him to pick up." Id. at 821, 822, 911 N.E.2d 214. Thus, the Appeals Court concluded that Desimone's entry into room 138 "was not a search in the constitutional sense." Id. at 821, 911 N.E.2d 214. The Appeals Court went on to state that it was reasonable for Desimone "to assume that the woman had authority to allow him to enter" room 138 because he had no intention of conducting a search and there was nothing to put him on notice that shelacked authority to consent to the entry. Id. at 824, 911 N.E.2d 214. The Appeals Court explained that there were no circumstances warranting further inquiry from Desimone concerning the woman's authority to consent because the woman never acted as though she could not permit him to enter; the woman was an adult; the woman did not hesitate in opening the door; the woman did not seek permission or guidance from anyone inside before allowing him to enter; the entry occurred at about 10 p.m.; and neither the defendant nor any of the other occupants inside protested or objected to the woman's consent to his entry. Id. at 823-824, 911 N.E.2d 214. Once lawfully inside, the Appeals Court concluded that Desimone could lawfully seize the marijuana that was in plain view and the firearm that was recovered in a permissible limited protective search of the residence. Id. at 825, 911 N.E.2d 214. Last, the Appeals Court rejected the...