Opinion
No. 11–P–1381.
2012-07-17
COMMONWEALTH v. Tucker BAIR. (and a companion case ).
By the Court (MILLS, FECTEAU & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from the allowance by a judge of the Superior Court of motions to suppress evidence brought by each defendant. On April 21, 2010, after an investigation of several residential dormitories at Williams College, Tucker Bair was charged with possession of a class D substance, marijuana, G.L. c. 94C, § 34, and possession of a class D substance with intent to distribute, G.L. c. 94C, § 34, as well as possession of other illegal drugs.
On the same day, Jimi N. Morales was charged with possession of a class D substance, marijuana, with the intent to distribute, G.L. c. 94C, § 32C( a ), and a myriad of other drug charges.
Bair was additionally charged with possession of a class A substance, LSD, G.L. c. 94C, § 34, and being a minor in possession of alcohol, G.L. c. 138, § 34C.
The charges arose after Williamstown police officers conducted two searches—one of each of the defendants' dormitory rooms—pursuant to reports from Williams College campus safety and security (CSS) officers that they believed they had discovered drug paraphernalia in the students' respective rooms. On appeal, the Commonwealth avers that the motion judge erred by supressing evidence found in both rooms, as the CSS officers had already discovered the contraband prior to the involvement of the local police, and specifically, where (1) police had valid consent from Bair to search his room, and (2) police had sufficient probable cause to support a valid search warrant to properly search Morales's room. We reverse in part and affirm in part. Factual background. The defendants were residents of dormitory buildings owned and operated by, and located at, Williams College, a private educational institution. As such, the defendants agreed to abide by the rules and regulations set forth by the college in its 2009–2010 student handbook (handbook). On April 20, 2010, CSS exercised the discretion afforded to them in the handbook and initiated a fire alarm in order to perform a health, safety, and compliance inspection of dormitory rooms. CSS Officer Kristensen encountered a strong odor of marijuana outside Bair's room. Kristensen entered the room and made plain view observations of its contents, concluding that the contents of Bair's room contained drug paraphernalia. He called the local Williamstown police for assistance, with Officers William and McConnell arriving shortly thereafter. Kristensen continued his safety inspection of students' rooms and upon entering Morales's room, Kristensen saw a couple of marijuana cigarettes, a baggie of marijuana, and a pipe in plain view.
Morales was additionally charged with possession of a class B substance, ecstasy, with intent to distribute, in violation of G.L. c. 94C, § 32A( a ); possession of class B substance, methylin detrox/amphetamine, G.L. c. 94C, § 34; and possession of a class B substance, percocet, c. 94C, § 34.
Discussion. This court “accept[s] the judge's subsidiary findings of fact absent clear error ‘but conduct[s] an independent review of his ultimate findings and conclusions of law.’ “ Commonwealth v. Quinn, 68 Mass.App.Ct. 476, 479 (2007), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004). “We make an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011).
1. Lawfulness of Bair's consent.
The Commonwealth contends that the motion judge erred in suppressing the evidence seized in Bair's dorm room, as CSS officers lawfully entered into the room before consent was given, and the subsequent search of the room by the Williamstown police was executed pursuant to Bair's free and voluntary consent. Bair avers, to the contrary, that at no time during the course of the search did the Williamstown police have consent to search his room; in particular, that the authority of CSS to enter the room does not extend to the local police. As such, the entrance of the local police violated Bair's constitutional rights and the after-acquired consent to search was therefore tainted by this prior illegality. We address each of these contentions in turn below.
The Commonwealth contends that the motion judge erroneously concluded that the local police violated Bair's expectation of privacy by executing a warrantless entry into his dormitory residence. To support this contention, the Commonwealth relies on Commonwealth v. Leone, 386 Mass. 329, 333 (1982), asserting that the initial search conducted by CSS was lawful, and therefore, the subsequent search by the Williamstown police was also lawful, as it did not extend beyond the scope of the CSS search. As this argument is inherent in our discussion of the validity of Bair's consent, we address it infra.
In assessing whether consent was tainted by the conduct of the Williamstown police, we must first determine the lawfulness of that conduct. It is undisputed that Bair consented to allow CSS officers to enter his room by virtue of his status as a student at Williams College and, as such, was bound by the policies set forth in the handbook.
Given proper authority, Kristensen and the other CSS officers were lawfully in position to observe marijuana paraphernalia in plain sight; namely, a smoking pipe, a “bong,” a scale, a Ziploc bag containing marijuana, additional Ziploc “baggies,” and a large jar of marijuana in a refrigerator.
See Commonwealth v. Carr, 76 Mass.App.Ct. 41, 48 (2009), S. C., Commonwealth v. Carr, 458 Mass. 295 (2010) (reversing on other grounds)(“[E]ntry was not in furtherance of a criminal investigative function, but to address a violation of Boston College's policy that prohibited weapons in the dormitory ... and authorized confiscation of such items found in plain view”). We note that the authority granted to the CSS officers in this case does not, however, extend to the local police department.
We agree with Bair that the CSS officers were not entitled to extend this consent to search to the Williamstown police. See Commonwealth v. Neilson, 423 Mass. 75, 78 (1996). We therefore must determine whether the warrantless entrance of the local police, standing alone, constituted improper conduct that somehow dissipates the lawfulness of the prior CSS observations.
With regard to the large jar of marijuana which was not observed in plain sight, but rather the result of a more extensive search of Bair's belongings, the motion judge opined that the actions of the CSS officers did not violate the Fourth Amendment to the United States Constitution or art. 14 of the Massachusetts Declaration of Rights, as the CSS officers were private actors for all relevant purposes.
Here, in contrast to Commonwealth v. Neilson, supra at 76, the CSS officers were solely private actors.
There is no “search and seizure” in the constitutional sense where “evidence is seized by private parties who are not acting as agents of the police and subsequently turned over to the police,” Commonwealth v. McCambridge, 44 Mass.App.Ct. 285, 289 (1998); “[n]o real purpose is served by precluding police examination of what has already been discovered.” Commonwealth v. Cote, 15 Mass.App.Ct. 229, 232 n. 1 (1983), quoting from Commonwealth v. Weiss, 370 Mass. 416, 420 (1976). As such, there is no valid distinction “between material seized by the private searcher, and material restored to concealment in a place over which [the private actor] has dominion and control....” Commonwealth v. Weiss, supra, quoting from People v. Baker, 12 Cal.App.3d 826, 838 (1970).
Here, the record is clear that Kristensen, a privately-employed security officer, encountered a variety of drug paraphernalia and contraband consistent with drug distribution. After observing the room, he intercepted Bair to keep the premises unoccupied while waiting for the arrival of the local police. Officer McConnell testified that Kristensen showed him the drug paraphernalia that he (Kristensen) initially observed in the room, the majority of which was in plain view,
and the scope of Officer William's observations was limited to the same items. The testimony is unambiguous that Officers McConnell and William observed only those objects already discovered by Kristensen. The fact that Kristensen did not first remove the items or communicate its discovery immediately to the local police for purposes of securing a search warrant, does not in turn render his observations underlying the probable cause insufficient, as the contraband items had already been discovered by private actors. As we agree with the Commonwealth that no illegal entry occurred by CSS officers, nor did the Williamstown police discover anything additional to that already observed by the CSS officers, there was no prior illegality to taint the consent given by Bair; consequently, we reverse.
See note 5, supra.
The Commonwealth relatedly argues that the judge did not err in concluding, apart from the issue of taint, that “the consent was, in fact, freely and voluntarily given.” Commonwealth v. Lopez, 458 Mass. 383, 392 (2010), quoting from Commonwealth v. Rogers, 444 Mass. 234, 237 (2005). The voluntariness of an individual's consent to a warrantless entry is a question of fact, and must be examined in light of the totality of the circumstances of the case. Schneckloth v. Bustamonte, 412 U.S. 218, 248–249 (1973). See Commonwealth v. Sanna, 424 Mass. 92, 97 (1997). This is a subjective determination, focusing “on the particular individual, rather than on a hypothetical reasonable person.” U.S. v. Lewis, 921 F.2d 1294, 1301 (DC Cir.1990). See, e.g., Egan, 12 Mass.App.Ct. 658, 663 (1981). Consent must be otherwise “unfettered by coercion, express or implied, and also something more than mere acquiescence to a claim of lawful authority.” Commonwealth v. Carr, 458 Mass. 295, 302 (2010), quoting from Commonwealth v. Walker, 370 Mass. 548, 555 (1976). We conclude that the consent obtained by the Williamstown police officers met this standard.
The court has developed a number of common factors that must be considered in making a determination whether the consent is freely and voluntarily given; including, but not limited to, knowledge of a right to refuse consent, knowledge that a search will inevitably produce incriminating evidence, relative emotional state and relative intelligence, and the presence of uniformed police officers. See Commonwealth v. Harmond, 376 Mass. 557, 561–562 (1978).
Many facts in the record support the motion judge's determination that Bair gave consent of his own volition, “and signed the consent form voluntarily, knowing or believing that he had been caught.” As a preliminary matter, the undisputed testimony of Officer William supports the conclusion that both the request and corresponding consent were unambiguous. Contrast Carr, supra at 299–300 (if either request or response is ambiguous, warrantless entry pursuant to consent is unlawful). The fact that Officer William informed Bair of his right to refuse consent, when considered in conjunction with both the verbal and written affirmation and otherwise unambiguous nature of Bair's consent, is unequivocal evidence that consent was given freely and voluntarily. See Commonwealth v. Ocasio, 71 Mass.App.Ct. 304, 310 (2008), citing Commonwealth v. Bradshaw, 385 Mass. 244, 258–259 (1982). See also Grasso & McEvoy, Suppression Matters under Massachusetts Law § 11–3[a] (2011–2012).
Turning to the remaining Harmond factors, the factual findings support a conclusion that Bair freely consented to this search. During his dealings with Bair, Officer William observed no sign that Bair was under the influence of alcohol or drugs, and, in response to Officer William's inquiry as to this issue, Bair confirmed he had not used alcohol that day. All officers observed Bair to be calm and cooperative during the giving of consent and the subsequent search. While we note Bair provided consent in the presence of four officers, albeit two of whom were armed and unformed police officers, that was not, alone, enough to compel the defendant to consent. See Harmond, supra. Looking to the totality of the circumstances surrounding the consent, only two officers were armed members of law enforcement, and the four officers did not present as an organized squadron, but rather, were dispersed in varying proximities to Bair.
The motion judge relied on the analysis set forth in Commonwealth v. Tyree, 455 Mass. 676, 696 (2010), to find that Bair did not validly consent to search of his room because consent was gained as a result of the tainted entry by police. In contrast to Carr, 458 Mass. at 303, where the Supreme Judicial Court found voluntariness to be a question of fact, one that “should not be reversed absent clear error by the judge,” the motion judge in the instant case did not make an explicit finding on voluntariness. Thus, we maintain discretion to exercise “independent review” of the ultimate conclusions of law below.
The conversations between Kristensen and Bair, and subsequently William and Bair, do not rise to the level of threats, and therefore are not improper. Statements made by law enforcement that the police could also seek a warrant to search a home, as part of an effort to obtain valid consent, is an “accurate prediction of what would occur absent consent,” and therefore not intimidating or threatening. Commonwealth v. Kipp, 57 Mass.App.Ct. 629, 635–636 (2003). As there is nothing in the record to suggest that Bair otherwise lacked education or intelligence, we find the search of the room to be proper, and we reverse the suppression of the fruits of that search.
2. Validity of warrant to search Morales's room. The Commonwealth contends that the search of Morales's room was properly conducted based on a valid search warrant, which in turn relied on lawfully obtained information. As the motion judge found the information set forth in the search warrant affidavit was primarily based on information collected from the illegal entry by Williamstown police into Morales's room, Morales additionally adds that the campus police lacked any authority to permit the local police to search Morales's residence, and as such, all fruits of the search should be suppressed.
In determining the validity of the warrant, specifically whether the police demonstrated probable cause to search the defendant's room, we are limited to the “four corners of the [supporting] affidavit.” Commonwealth v. Stegemann, 68 Mass.App.Ct. 292, 295 (2007), quoting from Commonwealth v. O'Day, 440 Mass. 296, 297 (2003). The relevant language is contained in paragraph 8 of the affidavit:
“On April 19, 2010, at approximately 20:48 hrs, members of the Williams College Campus Safety and Security (CCS) were doing room safety/fire inspections of the Lambert House Dormitory. Williams College conducts annual safety inspection of all of their dorms, during the winter break. It was during these safety inspections that CCS Officers Erik Kristiansen [sic] and Mark Dingman called for the Williamstown Police Department (WPD) because they believed they had discovered drug paraphernalia. Officer John McConnell Jr. and Officer Shuan William of the WPD responded.” (Emphasis supplied.)
This language, by itself, was not sufficient to establish probable cause to issue a search warrant. Possession of drug paraphernalia, without more, is not a crime, nor does mere possession give rise to an inference of possession of illegal drugs. See G.L. c. 94C, § 32L. The following paragraph of the affidavit continues, relating that the observations of the Williamstown police officers who were “escorted by WCS. Inside of the room, WPD officers were able to observe numerous items associated with [d]rug [p]araphernalia, [including] ... [n]umerous regular zip-lock sandwich bags with [m]arijuana [r]esidue in it ... [and][o]ne large, gallon size Zip-lock bag containing [m]arijuana residue.” In addition, the affidavit stated that, “Officers also smelt the odor of freshly burnt marijuana as they entered the room ” (emphasis supplied). These observations, which were necessary to demonstrate probable cause that a crime was being committed, were all described as observations made by Williamstown police officers, whose entry into the room, without a warrant, was illegal. See Weiss, 370 Mass. at 420. As a result, and for purposes of determining the sufficiency of the probable cause at the moment of the search, these observations must be excised from the affidavit.
We understand that it appears likely, from all of the evidence, that the CSS officers lawfully made the same observations as did the Williamstown police officers, and that, had the same observations been described in the affidavit as those of the campus security officers, they would have been sufficient to establish probable cause. Nevertheless, as we are limited to examining the language of the affidavit itself, and constrained to follow the Supreme Judicial Court's analysis in Neilson, 423 Mass. at 79, we conclude that the affidavit was not sufficient and the results of the search must be suppressed. Therefore, the order allowing Morales's motion to suppress is affirmed. The order allowing Bair's motion to suppress is reversed.
So ordered.