In a recent Middlesex County Superior Court decision, Judge Thomas P. Billings ruled that even though a 26-year-old defendant lived alone in the basement of his parent’s house that he had grown up in, his parents still had the apparent authority to allow the police to search.
The complete decision can be found at Commonwealth v. Dooley.
“On June 14, 2009 Detective James Peloquin and Sgt. Luppold, both of the Westford Police, responded to 8 Pollyanna Lane, Westford, on a report of a domestic assault and battery and of illegal firearms possession. The suspect was the defendant; the complainant, his girlfriend. The defendant was not present when Peloquin and Luppold arrived, having been arrested by other officers for the assault and battery and transported to the station.
“The defendant’s parents were present at the home, however, and the officers spoke with them in the living room. They told the parents that they had been informed that the defendant kept three firearms in his room in the basement of the home, and that they had ascertained that he was not licensed.
“The parents told the police that the defendant, age 26, lived in the home and had done so all his life. He did not, the parents said, pay them rent. The basement area in which he lived was unlocked. The defendant’s living quarters could be found on the left as one descended the cellar stairs, while the area on the right was used for storage. The defendant’s area consisted of a bedroom with a bed, couch and TV, with a connected office and walk-in closet, both accessible only through the bedroom. The parents were able to describe the office. They did not describe the circumstances of their having been there, except that Mr. Dooley mentioned that he’d been to the defendant’s area at some point to replace a ceiling damaged by a leaking toilet upstairs.
“The parents said they were willing to allow the police to search the basement living quarters, and that they did not want firearms in the home. One asked whether their son would be in trouble; Peloquin replied, “It depends on what we find.” Undeterred, Mr. Dooley signed, and Mrs. Dooley witnessed, a consent to search form tendered by the officers. This authorized Peloquin and Luppold to search, without a warrant, “RESIDENCE 8 POLLYANNA.”
“Peloquin and Luppold descended the cellar stairs and searched the defendant’s living area. Mr. Dooley came down when the officers had discovered a safe and wanted to know the combination, and one other time while they were still searching. Neither he nor Mrs. Dooley requested at any time that the search terminate.
“Behind a desk in the office, the police found an opaque black garbage bag. Inside it was a Norinco MAK-90 Sporter semi-automatic rifle, which is the subject of Indictment No. 1.
In an article that appeared in Massachusetts Lawyers Weekly, “[t]he defendant’s lawyer, Robert W. Normandin, said his client had lived in the home his entire life and was the only member of his family who controlled the area where the search occurred.
“Unlike some of the cases cited by the judge, the Lowell attorney said that in this instance there was no reason for either parent to have access to their son’s living area.
“This was a warrantless search of a room he had lived in for 25 years, and the police made no inquiry at all as to whether [the parents] had permission to come in to the room or whether they ever had any reason to go down there,” he said. “If you don’t have an expectation of privacy in your personal bedroom that you’ve resided in your entire life, then I don’t know where you would ever have an expectation of privacy.”
Also quoted in Mass Lawyers Weekly was Jennifer H. O’Brien of Billerica, who recently argued a consent case before the Appeals Court involving a 19-year-old defendant. Ms O’Brien said judicial decisions often turn on how much access others in the home have to the area being searched.
“Unfortunately, a lot of the case law says that if there is no lock on the door, then there is not an expectation of privacy,” she said. “There is nothing in the law that I am aware of which treats consent cases involving adult children any differently than cases with minors.”
In this case, the judge decided for the Commonwealth, writing: “the defendant’s parents were “mature family members” living in the house, which they evidently owned. They had presumptive authority to consent to a search of any part of it, including that occupied by the defendant. The presumption was not overcome by evidence of a contrary agreement, an objection by the defendant, a lock on the door, or any other indication that the parties understood that the parents’ authority over the home stopped at the curtain separating the defendants’ quarters from the rest.8 The search was therefore valid, both under the Fourth Amendment to the United States Constitution and under Article Fourteen.”