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17-P-377                                                Appeals Court

                COMMONWEALTH    vs.   JOSE HERNANDEZ.


                            No. 17-P-377.

           Essex.      January 3, 2018. - April 27, 2018.

           Present:   Wolohojian, Milkey, & Englander, JJ.


Firearms. Constitutional Law, Search and seizure. Search and
     Seizure, Consent, Container, Expectation of privacy.



     Complaint received and sworn to in the Lynn Division of the
District Court Department on February 4, 2015.

     A pretrial motion to suppress evidence was heard by
Cathleen E. Campbell, J., and the case was heard by her.


     Carmine P. Lepore for the defendant.
     Ronald DeRosa, Assistant District Attorney, for the
Commonwealth.


    ENGLANDER, J.     This case presents the question whether the

defendant's coinhabitant could validly consent to a warrantless

search of a closed, unlocked suitcase located in a common closet

of a bedroom she shared with the defendant.     A warrantless

search of the suitcase yielded a gun, which was the basis of the
                                                                        2


defendant's convictions.      A District Court judge ruled that the

coinhabitant's consent was valid as to the suitcase, and that

the seizure of the firearm was therefore lawful.        We affirm.

    1.   Background.     a.   Incident.1    On February 3, 2015, at

11:00 A.M., Lynn police Officer William Stilwell responded to a

call of a domestic threat at the defendant's apartment, and was

met by Flor Prudencio, the victim.         Prudencio shared the one-

bedroom apartment with the defendant and their three children.

The couple had lived there for three years.        The three children

were present when Officer Stilwell spoke with Prudencio, but the

defendant was at work.     Prudencio advised that the defendant

would return in the late afternoon.

    Prudencio reported that approximately three weeks earlier,

she and the defendant had had an argument about the custody of

the children.   During the argument, the defendant told Prudencio

that "if he wasn't able to see the children . . . he would shoot

her and kill her."   Prudencio went on to tell the officer that

she was concerned because the defendant had access to a firearm.

Prudencio then brought the officer into the apartment's only




    1  As the sole issue on appeal is the denial of the
defendant's motion to suppress, we take the facts from the
motion judge's findings, together with uncontested testimony
adduced at the evidentiary hearing where the judge explicitly or
implicitly credited the witness's testimony. See Commonwealth
v. Isaiah I., 448 Mass. 334, 337 (2007).
                                                                      3


bedroom, which she shared with the defendant and the children.

The bedroom had two beds and a single closet.      Prudencio opened

the closet door.     Inside were men's and women's clothes, bags on

the floor, and children's items; some of the items were

Prudencio's.

     After opening the closet door, Prudencio pointed to a

suitcase on the top shelf of the closet, about five feet up; she

stated that the defendant's firearm was located in the suitcase.

Officer Stilwell pulled the suitcase down and brought it into

the kitchen.

     The suitcase was not locked, and did not have a locking

mechanism.     Prudencio testified that the suitcase was "easy to

open," not with a zipper but "something you press down on," like

a clasp.    It did not have a name or tag on it.

     Officer Stilwell opened the suitcase in Prudencio's

presence.    Prudencio stated that the firearm was inside a red

"Huggies" container within the suitcase.     Inside the Huggies

container Officer Stilwell found a loaded revolver and a

"baggie" of ammunition.2    He confiscated the weapon "[b]ased on

the domestic threat, the threat that was made that [the

defendant] said that he was going to shoot her."




     2 There were also some papers in the suitcase, which
Prudencio testified were the defendant's.
                                                                   4


     Prior to opening the suitcase, Officer Stilwell did not ask

Prudencio to whom the suitcase belonged, nor did Prudencio state

whose suitcase it was.   At the suppression hearing Prudencio

testified that the suitcase and the gun were the defendant's,

and that she knew the defendant kept the firearm in the suitcase

because on at least three prior occasions he had removed it from

the suitcase, in front of her, and cleaned it.3

     The defendant was charged with improper storage of a

firearm, in violation of G. L. c. 140, § 131L(a) and (b);

illegal possession of a firearm, in violation of G. L. c. 269,

§ 10(h); illegal possession of ammunition, in violation of G. L.

c. 269, § 10(h); and threatening to commit a crime, in violation

of G. L. c. 275, § 2.4

     b.   Pretrial and trial.   Hernandez filed a motion to

suppress all items seized from the apartment.     After an

evidentiary hearing where Officer Stilwell and Prudencio

testified, the motion judge denied the defendant's motion,

issuing written findings.




     3 The defendant never prohibited Prudencio from going into
the suitcase, nor did the defendant instruct Prudencio she could
not go inside the suitcase.

     4 The Commonwealth also charged the defendant with reckless
endangerment of a child, in violation of G. L. c. 265, § 13L.
This charge was dismissed before trial upon the defendant's
motion.
                                                                     5


    The motion judge first found "it is clear that [Officer]

Stilwell entered the home . . . with Prudencio's consent," and

that "Prudencio had both actual and apparent authority over the

apartment that she and Hernandez shared together and with their

children."   Regarding the search of the suitcase, the motion

judge concluded that Prudencio and the defendant shared access

to their home, bedroom, and closet, "as well as the contents of

that closet which would include the suitcase."    She specifically

found that "[t]here was no evidence of any restriction upon

Prudencio's access to that suitcase or what was inside."

    After a jury-waived trial, the same judge found the

defendant guilty on all four charges.    This appeal followed.

    2.    Discussion.   In reviewing an order on a motion to

suppress, we accept the motion judge's subsidiary findings of

fact, absent clear error, and then independently review the

ultimate findings and conclusions of law.    Commonwealth v.

Scott, 440 Mass. 642, 646 (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. Rogers, 444 Mass. 234, 236-237

(2005).   When the government claims that the search was

justified by consent of a third party, rather than the

defendant, the government has the burden to show that the third

party actually consented through word or action, and that the
                                                                    6


third party had actual or apparent authority to consent to the

search.   See id. at 237-238; Commonwealth v. Santos, 465 Mass.

689, 694-696 (2013).

    Here, the defendant acknowledges that Prudencio actually

consented orally and, moreover, that she had authority, as the

defendant's coinhabitant, to consent to a search of the

apartment and of the closet.   But he contends, relying on

Commonwealth v. Porter P., 456 Mass. 254 (2010), and

Commonwealth v. Magri, 462 Mass. 360 (2012), that Prudencio's

authority did not extend to the closed, unlocked suitcase.     In

essence, he argues that the police were required to establish

that Prudencio had separate authority over each closed container

in the apartment despite having common authority over the whole

of the premises.   Before addressing whether Porter P. and Magri

provide support for the defendant's position, we briefly

summarize the case law that existed before those cases were

published.

    The defendant's argument is at odds with the "common

authority" doctrine adopted in a long line of cases beginning

with United States v. Matlock, 415 U.S. 164 (1974), and running

through decisions of this court and Porter P. itself.     In

Matlock, the United States Supreme Court addressed whether a

defendant's adult coinhabitant could validly consent to a search

of the bedroom she shared with the defendant, and to the search
                                                                    7


of a diaper bag found in the bedroom's closet.    Id. at 166-167.

The Court held that she could; consent could be obtained "from a

third party who possessed common authority over or other

sufficient relationship to the premises or effects sought to be

inspected."   Id. at 171.   The Court went on to explain that

consent based on common authority did not arise from "property

interest[s]," but from

    "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."

Id. at 171 n.7.

    As indicated, the facts in Matlock involved a container

located in the coinhabitant's bedroom, and in holding the

consent valid the Supreme Court did not suggest that additional

or separate authority might be required to validate the search

of the container.   Indeed, the Court's reasoning was that

coinhabitants have "assumed the risk," vis-à-vis each other,

such that any of them can permit a search of a common area,

including items kept in such an area.

    Matlock's reasoning was cited approvingly by this court in

Commonwealth v. Noonan, 48 Mass. App. Ct. 356, 362 (1999), in

the context of a police search of an apartment based upon the
                                                                   8


consent of the defendant's coinhabitant (one Barbara), where we

stated:

    "They used the apartment just as an ordinary married couple
    would. Thus Barbara had the run of the place with
    presumptively lawful access to all parts of the apartment
    and its contents. So also she could give consent to a
    search to the same extent by other persons whether or not
    officers: where premises are jointly occupied, any
    occupant may consent 'in his own right' to a search, the
    other occupant having 'assumed the risk' of such action."

Ibid., quoting from Matlock, 415 U.S. at 171 n.7.

    Other cases are in accord, finding searches reasonable on

very similar facts to those at issue here.   In United States v.

Bass, 661 F.3d 1299, 1302-1307 (10th Cir. 2011), the defendant's

coinhabitant authorized the search of the defendant's closed but

unlocked "zipper bag," found in a "common area" of their home.

The bag contained, among other things, the defendant's revolver.

Id. at 1302.   The Tenth Circuit Court of Appeals rejected the

argument that the coinhabitant's consent to search the home

could not extend to the closed but unlocked bag, reasoning that

Matlock's "assumption of the risk" formulation extends at least

to "that portion of the premises which by practice or agreement

the other occupant generally uses."   Id. at 1306 (quotation

omitted).   The court concluded that "when general authority is

present, we should not look for 'metaphysical subtleties' to

define the boundaries of that authority."    661 F.3d at 1306

(quotation omitted).   See United States v. Fay, 410 F.3d 589,
                                                                     9


589-590 (9th Cir. 2005) (no Fourth Amendment violation where

coinhabitant consented to search of duffle bag on a shelf in an

open laundry room).     See also Commonwealth v. Farnsworth, 76

Mass. App. Ct. 87, 94-97 (2010) (defendant's mother had

authority to consent to search of defendant's bedroom).

    The reasoning of the Matlock line of cases was adopted in

Porter P., where the court stated that "[a] third party has

actual authority to consent to a warrantless search of a home by

the police when the third party shares common authority over the

home."   Porter P., 456 Mass. at 262.   The court went on to quote

with approval Matlock's "assumption of the risk" rationale,

before distinguishing Matlock on the ground that in Porter P.,

the person who provided the consent to search -- the director of

the transitional shelter in which the defendant was staying --

was not a coinhabitant, and thus not able to validly consent to

a search of the defendant's room.    Id. at 262, 266.

    The reasoning of these cases reflects the 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."   Porter P., 456 Mass. at 262, quoting from

Matlock, 415 U.S. at 171 n.7.
                                                                     10


    Such joint access or control existed here.    There is no

question of Prudencio's authority to consent to the search of

her home, her bedroom, and her closet.   These were "common

areas," which was readily apparent upon viewing the small

apartment, and observing that Prudencio and her three children,

in Noonan's words, "had the run of the place."   48 Mass. App.

Ct. at 362.   Nor did Prudencio's authority to consent to a

search of the family closet stop at the boundary of the

suitcase.   In coinhabiting as he did, and leaving his gun

unlocked in a closet used by all, the defendant made a

"significant sacrifice of individual privacy" vis-à-vis

Prudencio, and "assumed the risk" that she would access his

belongings (the suitcase) or consent to a search of them.      See

Bass, 661 F.3d at 1305-1306.

    Neither Porter P. nor Magri leads to a different result.

It is true that Porter P., while it adopts Matlock's reasoning,

does state, in footnote 11, that a coinhabitant's consent to

search a home would not extend to a suitcase "that did not

belong to the coinhabitant."   Porter P., 456 Mass. at 265 n.11.

That statement, however, must be read in the context of the case

as a whole.   Porter P. on its facts did not involve consent

given by a coinhabitant.   Moreover, the cases cited in footnote

11 did not involve coinhabitants with "joint access or control"

over the space searched, such as in Matlock, Noonan, and Bass,
                                                                     11


but rather involved the different relationship of a homeowner

and an occasional guest.5   We accordingly do not read footnote 11

as broadly rejecting the line of cases, cited above, that rely

on Matlock's rationale to validate searches on facts very

similar to those before us.

     The defendant also relies upon Commonwealth v. Magri, but

in Magri the defendant also was not a coinhabitant but an

overnight guest, and the court ruled that his host could not

consent to a search of belongings he had left at the host's

home.    See 462 Mass. at 366-367.   While Magri cites footnote 11

of Porter P., Magri's holding depends on the reasoning that an

overnight guest (unlike the coinhabitants in the cases cited

above) retains an expectation of privacy in his belongings vis-

à-vis his host.   Id. at 366-368.6




     5 The two cases cited as support in footnote 11 of Porter P.
are clearly distinguishable from the facts here. In United
States v. Davis, 332 F.3d 1163, 1170 (9th Cir. 2003), for
example, not only was the defendant not a coinhabitant, but the
contraband was not found in a common area and the consent to
search was not given by anyone who shared the defendant's space.
Davis actually distinguishes its facts from Matlock. 332 F.3d
at 1169 n.4. The second case cited in the Porter P. footnote is
United States v. Salinas-Cano, 959 F.2d 861, 863-865 (10th Cir.
1992), which also involved an "occasional" guest, and which also
distinguished its facts from Matlock.

     6 The rule sought by the defendant would mean that a police
officer voluntarily admitted to search a home by a coinhabitant
must nevertheless separately ask the basis of the coinhabitant's
authority before opening any additional compartments or
containers in the home. The Supreme Judicial Court criticized
                                                                 12


    In short, when the statements from Porter P. and Magri are

considered in context, we do not believe they support the

defendant's position.    Accordingly, the judge did not err in

concluding that the defendant's coinhabitant could and did

validly consent to the search of the defendant's closed but

unlocked suitcase located in the common closet of their shared

bedroom in their home.

                                          Judgments affirmed.




such a rule as impractical, in the analogous context of a
warrantless search of an automobile based upon probable cause:

    "The defendant's interpretation of art. 14 would force the
    police in every motor vehicle search that turned up a
    closed container to impound and secure the vehicle while a
    warrant was obtained, United States v. Ross, [456 U.S.
    798,] 821 n.28 [1982], not an unobtrusive procedure from
    the point of view of the defendant's privacy. Such a rule
    would unnecessarily burden the police and criminal justice
    system, while providing defendants with insignificant
    protections against privacy intrusions."

Commonwealth v. Cast, 407 Mass. 891, 908 (1990). See United
States v. Melgar, 227 F.3d 1038, 1039-1040, 1042 (7th Cir. 2000)
(consent to search hotel room extended to closed purse found
under a mattress; "[a] contrary rule would . . . mean [the
police] could never search closed containers within a dwelling
[including hotel rooms] without asking the person whose consent
is being given ex ante about every item they might encounter").
