On March 11, 2010, the Supreme Judicial court ruled that a gun found in a homeless shelter by police had to be suppressed in COMMONWEALTH vs. PORTER P., a juvenile. 456 Mass. 254. After being summoned by the operator of the shelter the police entered at the request of those same personnel and found a Glock 40 caliber firearm with the Juveniles belongings.
In deciding the case the court stated “In an appeal from an order entered in the Juvenile Court suppressing a gun seized by the police during a search of a room in a transitional family shelter occupied by the juvenile, this court concluded that the director of the shelter lacked actual authority to consent to the search of the room by police, where the director was not a coinhabitant with a shared right of access to the room, and where the written terms of the shelter manual that she provided to the police did not permit her to allow the police to enter the room to search for contraband or evidence [262-267]; further, where the director also lacked apparent authority to consent to the search, the police officers’ belief that they had valid consent to search the room was based on a mistake of law, and therefore, the search of the room was unconstitutional [267-269] and required suppression of both the gun found by the police, who entered the room without a search warrant and without any claim of exigency, as well as an unprompted inculpatory statement made by the juvenile outside the room immediately after his arrest following the seizure of the gun
The juvenile argues that the warrantless search of his room at the shelter and the seizure of his firearm violated the Fourth Amendment to the United States Constitution; art. 14 of the Massachusetts Declaration of Rights; and G. L. c. 276, § 1. He also argues that his statement to the police regarding the firearm should be suppressed as “fruit of the poisonous tree” of the illegal search and seizure under Wong Sun v. United States, 371 U.S. 471, 487-488 (1963).
To determine whether the search of the room violated the Fourth Amendment; art. 14; or G. L. c. 276, § 1, we must first determine whether a search in the constitutional sense took place. See Commonwealth v. Frazier, 410 Mass. 235 , 244 n.3 (1991). “This determination turns on whether the police conduct has intruded on a constitutionally protected reasonable expectation of privacy.” Commonwealth v. Montanez, 410 Mass. 290 , 301 (1991), citing California v. Ciraolo, 476 U.S. 207, 211 (1986). “The measure of the defendant’s expectation of privacy is (1) whether the defendant has manifested a subjective expectation of privacy in the object of the search, and (2) whether society is willing to recognize that expectation as reasonable.” Commonwealth v. Montanez, supra. “The defendant bears the burden of establishing both elements.” Id. “In examining the expectation of privacy question under art. 14, we do not necessarily reach the same result as under Fourth Amendment analysis.” Id.
If no one has a reasonable expectation of privacy in the place searched, the police are free to search that place without a warrant and without probable cause, as often as they wish. See, e.g., California v. Greenwood , 486 U.S. 35, 39-41 (1988) (no reasonable expectation of privacy in garbage left outside curtilage of home); Commonwealth v. Pratt, 407 Mass. 647 , 660-661 (1990) (same). If a defendant has a reasonable expectation of privacy, the police may search the place, in the absence of exigency, only with a warrant supported by probable cause or with consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); Commonwealth v. Voisine, 414 Mass. 772 , 783 (1993).
Generally, in determining whether a defendant has a reasonable expectation of privacy in the place searched, we look to various factors, none of which needs be determinative, including the nature of the place searched, whether the defendant owned the place, whether he controlled access to it, whether it was freely accessible to others, and whether the defendant took “normal precautions to protect his privacy” in that place. Commonwealth v. Pina, 406 Mass. 540 , 545, cert. denied, 498 U.S. 832 (1990), and cases cited. These factors may provide guidance when the place searched is not the defendant’s home. See Commonwealth v. Bryant, 447 Mass. 494 , 497 (2006) (search of files at law firm); Commonwealth v. Welch, 420 Mass. 646 , 653-654 (1995) (search of lieutenants’ room at fire station); Commonwealth v. Montanez, supra at 301-302 (search of hallway’s dropped ceiling); Commonwealth v. Pina, supra at 544-546 (search of wallet left in halfway house where defendant no longer resided).
Here, the shelter’s manual allowed shelter staff to enter the room for “professional business purposes,” such as to make repairs, exterminate insects and rodents, and monitor compliance with the shelter’s “Good Housekeeping Standard,” and to escort “business professionals” into the room to accomplish these purposes, but it did not permit shelter staff to allow the police to enter to search for and seize contraband or evidence.
Therefore, the entitlement of a shelter staff member under the terms of a contract or resident manual to enter a resident’s room to search for health or safety risks or violations of house rules, to remove any contraband found during that private search, including firearms and narcotics, and to invite the police to seize that contraband does not entitle that shelter staff member to grant consent to the police to enter the room with her to conduct the search. See id. Cf. Commonwealth v. Leone, 386 Mass. 329 , 333 (1982) (“Evidence discovered and seized by private parties is admissible without regard to the methods used, unless State officials have instigated or participated in the search”). The shelter staff member may grant the police such consent only if the resident of the room has agreed in writing that the third party may allow the police to enter to search for contraband or evidence of a crime.
Justice Cowins dissent is very illustrative of my issue with the case “The problem with the court’s view is that it ignores the situation “on the ground” or — put differently — fails to acknowledge what the shelter is and the circumstances of its operation. The shelter services a transient population. It makes available a temporary space to live off the streets. In return, and for obvious reasons, the shelter requires that its residents surrender a considerable degree of personal freedom. Contrary to the fiction in which the court indulges, this is neither a hotel nor a dormitory. An examination of the characteristics of life at the shelter, in my view, puts to rest any premise that a resident could conceivably harbor a reasonable expectation that his or her privacy would limit the action of the shelter authorities in this case.”
Attorney Ronald A. Sellon