Recently, the Supreme Judicial Court rejected the commonwealths argument for the existence of Apparent authority in COMMONWEALTH vs. JOSE M. LOPEZ 458 Mass. 383 (2010). The court goes into the issue of whether an actual search occurred which I have left out, instead focusing on their argument that the Doctrine of Apparent authority did not exist at the time they made entry. Clearly, if exigent circumstances exist to enter the hotel room then none of this matters.
The courts decision states “In an appeal from an order entered by a District Court judge suppressing a firearm and a controlled substance that were discovered by a police officer when he entered a hotel room to retrieve a discarded needle, this court concluded that the entry was a search in the constitutional sense. [388-391] GANTS, J., concurring.
In an appeal from an order entered by a District Court judge suppressing a firearm and a controlled substance that were discovered by a police officer when he entered a hotel room to retrieve a discarded needle, this court concluded that the warrantless entry of the room by the officer was without valid consent, as it was not predicated on actual or apparent authority, in violation of art. 14, where it was not objectively reasonable in the circumstances for the officer who knocked on the door to believe that the woman who answered had authority to permit him to enter (in that the officer ignored facts that called into question the information he held), and where the officer did not conduct a diligent inquiry concerning the woman’s relationship to the premises (and, thus, her authority to give consent). [391-398] COWIN, J., dissenting, with whom SPINA, J., joined.
b. Consent exception. In addition to situations establishing probable cause or exigent circumstances, warrantless entries into a home have been found to be permissible under the Fourth Amendment and art. 14 where they are undertaken with consent. Commonwealth v. Rogers, supra (warrantless entries into home “are prohibited by the Fourth Amendment . . . and art. 14 . . . absent either probable cause and exigent circumstances, or consent”). The Commonwealth bears the burden “to establish its theory of entry and prove lawful entry based on that theory.” Id. at 245. See Illinois v. Rodriguez, supra. Because the defendant had a reasonable expectation of privacy in his home and because Desimone entered his home without a search warrant and without any claim of exigency, the Commonwealth must prove that the police entry was reasonable because it was based on consent.
“When the police rely on consent to justify a warrantless entry, under both the Fourth Amendment and art. 14, the prosecution ‘has the burden of proving that the consent was, in fact, freely and voluntarily given.’ ” Commonwealth v. Rogers, supra at 237, quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968). In addition, the person giving the consent must have the authority to do so. Illinois v. Rodriguez, supra at 181-182. It is this latter requirement that is at issue in this case.
A person has the actual authority to give consent in a variety of situations. It may be given “from the individual whose property is searched.” Illinois v. Rodriguez, supra at 181. Consent may also be provided from a third party possessing “common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171 (1974). See Commonwealth v. Porter P., 456 Mass. 254 , 262 (2010), and cases cited. Common authority is “mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” United States v. Matlock, supra at 171 n.7.
Another type of authority to give consent is apparent authority. The seminal case concerning this type of authority and involving the Fourth Amendment is Illinois v. Rodriguez, supra at 185-186, in which the United States Supreme Court held that the Fourth Amendment’s proscription of “unreasonable searches and seizures” is not violated when a warrantless entry into a home is based on the consent of a third party who the police, at the time of entry, reasonably, but mistakenly, believed had common authority over the premises. The Court noted that the touchstone of reasonableness does not always require that the government will be factually correct in its assessments. Id. at 184, 185-186. The Court also explained:
“[W]hat we hold today does not suggest that law enforcement officers may always accept a person’s invitation to enter premises. Even when the invitation is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry. As with other factual determinations bearing upon search and seizure, determination of consent to enter must ‘be judged against an objective standard: would the facts available to the officer at the moment . . . “warrant a man of reasonable caution in the belief” ‘ that the consenting party had authority over the premises? Terry v. Ohio, 392 U.S. 1, 21-22 (1968). If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.”
Illinois v. Rodriguez, supra at 188-189. The critical inquiry, as can be seen, is the relationship between the third party and the premises. Id. See United States v. McAlpine, 919 F.2d 1461, 1464 (10th Cir. 1990).
We recently adopted the doctrine of apparent authority, under art. 14, in Commonwealth v. Porter P., supra at 269. We did so, however, in the context of a search of, and not an entry into, a home. Id. at 271 & n.16. We expressly reserved decision in the context of entry, noting that we had granted further appellate review in Commonwealth v. Lopez, 74 Mass. App. Ct. 815 (2009). Commonwealth v. Porter P., supra at 271 n.16. Because, as we earlier stated, a warrantless entry into a home constitutes a search in the constitutional sense, there is no reason in this case to draw a distinction between searches and entries of homes, and we conclude that what we said in the Porter P. case applies here as well.
In Commonwealth v. Porter P., supra at 271, relying on Illinois v. Rodriguez, supra, we stated that “we do not believe that art. 14 is violated if a warrantless search of a home occurs after a police officer obtains the voluntary consent of a person he reasonably believes, after diligent inquiry, has common authority over the home, but it turns out that the person lacked common authority.” We went on to specify the “two basic steps” required to conduct a diligent inquiry:
“First, the police officer must base his conclusion of actual authority on facts, not assumptions or impressions. He must continue his inquiry until he has reliable information on which to base a finding of actual authority to consent. . . . Second, even when the consenting individual explicitly asserts that he lives there, if ‘the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth,’ the police officer must make further inquiry to resolve the ambiguity. [Illinois v.] Rodriguez, supra at 188. The police officer owes a duty to explore, rather than ignore, contrary facts tending to suggest that the person consenting to the search lacks actual authority. Police must not only thoroughly question the individual consenting to the search with respect to his or her actual authority, but also pay close attention to whether the surrounding circumstances indicate that the consenting individual is truthful and accurate in asserting common authority over the premises.”
Commonwealth v. Porter P., supra at 271-272.
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. See Commonwealth 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 into the premises (namely, not intending to conduct a search) was irrelevant to the issue whether consent was provided, because the pertinent inquiry is the nature of the consenter’s relationship to the premises. See Illinois v. Rodriguez, supra at 188-189 (critical inquiry is relationship between consenting party and premises); 3 W.R. LaFave, Search and Seizure § 6.6(c), at 478-479 (4th ed. 2004) (even where police seek to enter premises for purposes of discussing official matter, they must rely on consent to gain admission and “the nature of the premises must be considered in deciding whether the officer [as any other caller] needs consent to enter”).
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.
3. Conclusion. Fully recognizing that these types of cases turn on their individual facts, we conclude that the Commonwealth did not satisfy its burden in this case of establishing that the woman who answered the door to the defendant’s home had authority to consent to Desimone’s entry therein. We therefore affirm the judge’s order allowing the defendant’s motion to suppress.
Attorney Ronald A. Sellon