Opinion
19-P-501
07-06-2020
COMMONWEALTH v. JASMINE CARRASQUILLO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following the denial of her motion to suppress a firearm and ammunition, the defendant entered into "conditional guilty pleas," to charges of unlawful possession of a firearm and ammunition and improper storage of the same, reserving her right to appeal the denial of her motion to suppress. See Commonwealth v. Gomez, 480 Mass. 240, 252 (2018). See also Mass. R. Crim. P. 12 (b) (6), as amended by 482 Mass. 1501 (2019). We affirm.
The facts pertinent to this appeal are as follows. As part of an investigation into the defendant's ostensible criminal activity, detectives went to an apartment address listed on the defendant's identification card.
The facts are taken from the motion judge's findings, supplemented by the testimony of the detectives who testified at the motion hearing, whose testimony the judge explicitly credited. See Commonwealth v. Alexis, 481 Mass. 91, 93 (2018) (appellate court may look to uncontroverted evidence at suppression hearing that is consistent with judge's findings).
The defendant's mother was present at the apartment at that time; the defendant was not. The defendant's mother told the detectives that she -- the mother -- lived there, and that the defendant "sometimes" lived there with her. The mother further stated that the defendant had property in the apartment, all of which was in a single room -- the defendant's bedroom. Only the defendant's property was in the bedroom. No one other than the defendant went into the bedroom.
At the hearing on the motion to suppress, the defendant's mother testified that she lived at the premises searched. When asked who she lived with, the defendant's mother answered, "I live by myself. [The defendant] lives with me."
The detectives presented the defendant's mother with a "[p]ermission to [s]earch [f]orm." The defendant's mother signed the form, giving the detectives permission to search the defendant's bedroom. The defendant's mother gave the detectives permission freely, willingly, and voluntarily. She was not coerced, and the circumstances in no way suggested she was factually incapable of consenting to a search.
The detectives then searched the defendant's bedroom. The bedroom door was closed, and although the door had a lock, it was unlocked at the time. The defendant's mother opened the door for the detectives.
Inside the bedroom was a closet. Inside the closet, the detectives found a bag containing a firearm and ammunition. As a result of the search of the defendant's bedroom, along with the discovery of apparent contraband elsewhere earlier in the investigation, the defendant was arrested and charged with various drug and firearm offenses.
Based on the above, the motion judge concluded that the detectives conducted a valid warrantless search of the defendant's bedroom because "the [d]efendant's mother had authority to consent to the search of the entire residence and gave such consent freely, willingly and voluntarily upon signing the [p]ermission to [s]earch [f]orm."
"[W]e adopt the motion judge's subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Buckley, 478 Mass. 861, 864 (2018), quoting Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004).
"In general, a search of a home without a warrant is invalid, but one exception is when the search is conducted with valid 'consent.'" Commonwealth v. Hernandez, 93 Mass. App. Ct. 172, 174 (2018), citing Commonwealth v. Rogers, 444 Mass. 234, 236-237 (2005). If the government contends "that the search was justified by consent of a third party, rather than the defendant, the government has the burden to show [1] that the third party actually consented through word or action, and [2] that the third party had actual or apparent authority to consent to the search." Hernandez, supra, citing Rogers, supra at 237-238. See Commonwealth v. Santos, 465 Mass. 689, 694-696 (2013) (discussing third party consent to search).
Here, the defendant's mother actually consented to the search of the defendant's bedroom. "The Commonwealth bears the burden of proving that consent was freely and voluntarily given." Commonwealth v. Colon, 482 Mass. 162, 185 (2019), citing Commonwealth v. Krisco Corp., 421 Mass. 37, 46 (1995). A consent to search form is one way for law enforcement to obtain free and voluntary consent. See, e.g., Colon, supra at 184-185 (defendant validly consented to search of his residence via consent to search form); Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 89 n.3, 92-94 (2010) (in son's absence, mother consented to search of adult son's bedroom at her home via consent to search form). The judge found that the defendant's mother willingly signed the detectives' permission to search form, and that the circumstances in no way suggested she was incapable of consent.
The defendant does not challenge the finding that her mother consented to the search, but argues that the mother lacked actual authority. We agree with the motion judge that the mother had the authority to consent to the search. "[C]onsent c[an] be obtained 'from a third party who possesse[s] common authority over or other sufficient relationship to the premises or effects sought to be inspected.'" Hernandez, 93 Mass. App. Ct. at 175, quoting United States v. Matlock, 415 U.S. 164, 171 (1974). Of particular relevance here, even if a "defendant [adult child] ha[s] a possessory interest in [a] bedroom [in her parent's home], the [parent]'s consent [i]s sufficient to make [a] warrantless search [of the bedroom] valid." Commonwealth v. Ortiz, 422 Mass. 64, 70 (1996), citing Commonwealth v. Wahlstrom, 375 Mass. 115, 117 (1978).
Moreover, there is a "common understanding that coinhabitants of a home have a greatly diminished expectation of privacy vis-à-vis each other, at least as to 'common areas.' Coinhabitants accordingly can consent to searches in areas where they have 'joint access or control for most purposes.'" Hernandez, 93 Mass. App. Ct. at 177, quoting Commonwealth v. Porter P., 456 Mass. 254, 262 (2010).
Here, the defendant's mother was present at the apartment when the detectives arrived. The defendant's mother told them that she lived there, and that the defendant "sometimes" lived with her. The defendant's mother opened the unlocked bedroom door for the detectives.
The defendant's mother could consent to a search of her own home, which included her adult child's bedroom. See Ortiz, 422 Mass. at 70. See also Farnsworth, 76 Mass. App. Ct. at 89 n.3, 92-94. The mother's authority as sole primary resident and parent -- relative to the defendant daughter who merely lived there "sometimes" -- was even greater than a coinhabitant's authority to consent to the search of a common area, which itself would have been sufficient. See Ortiz, supra; Hernandez, 93 Mass. App. Ct. at 175-177. That the bedroom door was unlocked and that the defendant's mother opened the door for the detectives further proved that the mother could access and control the bedroom. See Hernandez, supra at 177. The fact that the firearm and ammunition were in a bag in the bedroom closet as opposed to simply laying on the closet floor is of no consequence. See id. ("authority to consent to a search of the family closet [does not] stop at the boundary of [a] suitcase [located in that closet]").
The defendant maintains that she paid rent to her mother for the bedroom, suggesting that the bedroom was the defendant's private living space, meaning her mother could not have consented to its search. Even assuming rent payments would make a difference here -- which we do not decide -- this argument fails. First, nothing about rent appears in the motion judge's findings. Second, the testimony on which the defendant relies for her factual assertion comes from the defendant's mother, whom the judge did not expressly credit and in fact intimated he did not find credible. Finally, the defendant's mother did not even testify that the defendant paid rent, but rather testified that the defendant "pa[id] her $490 a month to help [her] out towards [her] electric and gas."
Thus, the defendant's mother possessed the authority to consent to the search of the defendant's bedroom, and did give actual consent. The judge properly denied the motion to suppress.
Judgments affirmed.
By the Court (Massing, Neyman & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 6, 2020.