In an unpublished opinion the Massachusetts appeals court on January 25, 2010 ruled in COMMONWEALTH vs. HECTOR MARTINEZ, JR. 09-P-544 MEMORANDUM AND ORDER PURSUANT TO RULE 1:28, that a mothers apparent authority to search her sons room and closet was appropriate and evidence found therein was admissible.
The court stated, ”Discussion. The Commonwealth contends that the judge’s findings do not support his conclusion that the defendant’s mother lacked authority to consent to the search, and that the judge applied improper legal standards. ‘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 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).
Under the doctrine of apparent authority, we apply an objective standard when assessing consent. See Commonwealth v. Dejarnette, 75 Mass. App. Ct. 88, 95 (2009). We ask whether ‘the facts available to the officer at the moment . . . [would] ‘warrant a man of reasonable caution in the belief’ that the consenting party had authority’ to permit the search of the property. Commonwealth v. Dejarnette, supra at 96, quoting fromIllinois v. Rodriguez, 497 U.S. 177, 188 (1990).
The judge’s findings support our conclusion that Officer Goudreau was reasonable in his belief that the defendant’s mother had apparent authority to consent to the search of the bedroom. The defendant’s mother owned the house, and although the defendant lived there, he did not pay rent. The defendant’s mother invited the officers into the house and told them to ‘check’ while pointing to the other rooms. The door to the defendant’s room was open and the mother led the officers into the room. She never acted as though she lacked permission to enter and did not hesitate in inviting the officers into the room. See Sterling-Ward v. Tujaka, 414 F.Supp.2d 727, 735 (E.D. Mich. 2006). Furthermore, she did not seek permission or guidance from anyone before permitting the officers to enter. Once inside the room, she opened the dresser drawers for the officers to observe before they opened anything. The defendant knew the officers were in the house and never once objected. See Commonwealth v. Ocasio, 71 Mass. App. Ct. 304, 308 (2008).
Conclusion. The defendant’s mother had apparent authority to consent to the search of the bedroom and closet and thus we need not consider whether she had actual authority to do so. The suppression of the items found in the defendant’s bedroom and closet is reversed. [FN2]
Although an unpublished opinion, A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations, not as binding precedent. The case does provide a good example of apparent authority and the commonwealths burden on the subject
Attorney Ronald. A. Sellon