SJC tosses gun in Revere case, rules search unlawful

Commonwealth v. Jose Lopez

Ruling that a Revere police officer had no legal right to enter a hotel room, the Supreme Judicial Court reversed an Appeals Court ruling and threw out a .38 caliber revolver as well as a quantity of marijuana, evidence against defendant Lopez.


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. The motel 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 while previously 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.”

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 both the 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 noise coming 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.

Later that evening, Desimone spoke with Victor. Victor explained that he had rented room 138 to four men, one of whom was the defendant. 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.

Apparent Authority Argument

In this case, the Commonwealth concedes that the woman who answered the door to the defendant’s home did not have the actual authority to let Desimone inside. The issue, therefore, is whether she had apparent authority to permit his entry. We analyze the issue under art. 14, referencing some Fourth Amendment jurisprudence where instructive and not inconsistent with art. 14. See Commonwealth v. Porter P., supra at 265 n. 9.

We conclude that, on the facts of this case, it was not objectively reasonable for Desimone to have thought that the woman who came to the door had the authority to permit him to enter. Consequently, there was no valid consent to justify the warrantless entry into the defendant’s home, and the entry violated art. 14.

Before knocking, Desimone believed that Victor lived in room 138 (and had no information that Victor lived with anyone or was involved with a woman). When the woman, who was not known to Desimone, opened the door, as opposed to Victor, a reasonable officer initially should have, at best, doubted the woman’s authority to consent to his entry of what he believed to be Victor’s residence. The circumstances created a “duty to explore, rather than ignore,” Commonwealth v. Porter P., supra at 272, the woman’s relationship to the premises to establish whether she possessed common authority, or even actual authority, over the premises. Instead, Desimone inquired of the woman whether Victor was present, to which he was given a “funny … type of look,” and the ambiguous response, “I don’t know.” In these circumstances, before and at the time of Desimone’s entry, whether the woman had any kind of authority to consent to Desimone’s entry was at best questionable, thereby prompting further exploration concerning her relationship to the premises. SeeCommonwealth v. Porter P., supra at 272. See also 4 W.R. LaFave, Search and Seizure § 8.3(g), at 177 (4th ed.2004) (“under a sound application of the apparent authority rule the police must be required to make reasonable inquiries when they find themselves in ambiguous circumstances”).

The Commonwealth points to a number of factors to argue that it was reasonable for Desimone to believe that the woman had authority to allow him into the motel room. We do not find them instructive in view of the fact that the ambiguity that initially existed was never negated. For example, the Commonwealth’s assertion that Desimone had no reason to think that the woman did not have authority to permit him to enter room 138 is belied by the record, namely, he believed Victor resided in room 138, and had no information concerning anyone else living there also. Further, we agree with the well-written and reasoned dissent from the decision of the Appeals Court in this case, Commonwealth v. Lopez, supra at 834 (Lenk, J., dissenting), that “the Commonwealth needs to prove that there were facts affirmatively known to the officer that would permit him reasonably to believe that the person giving consent had authority over the premises [and][i]t is not enough to say that the officer was not aware of any facts showing she had no such authority.” The Commonwealth also suggests that officers are entitled to assume without inquiry that a person who answers a door in response to their knock has the authority to let them enter. While this assumption may be true in certain circumstances, it is not a universal rule, particularly where other facts suggest a conclusion to the contrary or call that assumption into doubt.  See United States v. Powell, 929 F.Supp. 231, 235 & n. 10 (S.D.W.Va.1996) (application of rule that police may assume person who answered door has authority to permit entry was “inappropriate” in view of other information provided at time). Indeed, the mere fact of access, without more, does not mean that the access was authorized. See United States v. Reid, 226 F.3d 1020, 1025 (9th Cir.2000). In addition, we conclude that Desimone’s intent in requesting entry (namely, not intending to conduct a search) into the premises was irrelevant to the issue whether consent was provided, because the pertinent inquiry is the nature of the consenter’s relationship to the premises.

The fact that it was approximately 10 P. M., and that room 138 contained small rooms therein, does not compel a conclusion that Desimone “could reasonably think that the woman opened the door because she either was an occupant of the room or was opening the door at the occupant’s request.” See note 13, supra. There is no evidence in the record concerning Desimone’s knowledge of the room sizes before he was permitted entry into room 138. In addition, there is no evidence that Desimone had any knowledge (or even suspected) that there were any other occupants inside room 138 (apart possibly from Victor) when the unknown woman answered the door. Even if Desimone suspected that Victor was inside, Victor could have been sleeping or in the bathroom, thus the absence of anyone preventing the unknown woman from answering the door or from allowing Desimone inside has no bearing. The reasoning by the Commonwealth, as well as the dissent, is founded on speculation, not real facts. The fact that the woman was an adult as opposed to a child is not a circumstance that eviscerates the information then believed by Desimone, namely, that Victor lived in room 138, and the ambiguity that arose from the actions of the unknown woman opening the door and agreeing to allow Desimone inside. The same can be said of the remaining factors and factors previously mentioned–the woman did not seek permission or guidance from anyone inside room 138 before allowing Desimone to enter and no one inside room 138 objected to her consent to Desimone’s entry. In short, none of the factors negated the ambiguous situation faced by Desimone, which triggered a duty of diligent inquiry under art. 14. Because Desimone ignored facts calling into question the information he held (that Victor lived in room 138) and because Desimone did not conduct a diligent inquiry concerning the woman’s relationship to the premises (and thus, authority to give consent), we conclude that his warrantless entry into the defendant’s home was without valid consent, as it was not predicated on actual or apparent authority, and therefore violated art. 14.


About Attorney John J. MacLaughlan

John MacLaughlan is Massachusetts licensed attorney as well as a Boston police officer. John is currently assigned to the Youth Violence Strike Force (Gang Unit). He is a graduate of the Massachusetts School of Law with a concentration in Labor Law. He holds a Master’s Degree in Criminal Justice from the University of Massachusetts at Lowell as well as a Bachelors Degree in Political Science from the University of Massachusetts at Amherst. John has taught Defensive Tactics, Firearms, Use of Force, Applied Patrol Procedures, and Police Response to Active Shooters to sworn police officers and police academy recruits. Prior to becoming a Boston Police Officer, John served for 9 years as a police officer in Lowell, where he was a member of the Police Dive Team and Patrol Rifle Team.
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