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Appeals Court of Massachusetts.



Decided: November 18, 2021

By the Court (Sullivan, Sacks & Shin, JJ.1)


This is the defendant's interlocutory appeal from the denial of his motion to suppress evidence recovered during a search of a garage he shared with his mother.2 The police recovered the items after the defendant's mother consented to the search. The defendant's sole argument on appeal is that his earlier objection to the police presence on the property vitiated his mother's consent, under the rule established by the United States Supreme Court in Georgia v. Randolph, 547 U.S. 103 (2006). We affirm.

Background. We summarize the judge's factual findings, supplemented by uncontroverted testimony that he implicitly credited. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).

On November 21, 2018, Somerville Police Officer Christopher Fosco responded to a residence for a “check condition” call. Once there, Officer Fosco saw the defendant pacing back and forth on the street, shirtless and wearing shorts. When Officer Fosco asked why he was dressed that way while outside in the cold, the defendant replied that it was a warm day. Officer Fusco perceived the defendant to be acting unusually and was concerned for his well-being.

The defendant disengaged from the conversation and walked into an open garage a few feet from the road. Officer Fusco and a second officer who had arrived on scene followed the defendant into the garage, where they observed him sitting on a couch, “constantly moving his hands in and out of the cracks between the cushions.” The officers also observed a number of tools in the garage and a knife on a coffee table in front of the defendant.

Officer Fusco called for an ambulance and, when it arrived, asked the defendant to step out of the garage and speak with the emergency medical technicians (EMTs). The defendant was not immediately responsive and at some point told the officers that they were trespassing and he wanted them to leave. The defendant then proceeded to go back and forth between speaking with the EMTs and sitting on the couch in the garage. On one trip back to the garage, Officer Fosco saw gun “jigs,” which he recognized as templates used to build guns, and an ammunition bucket with a single round of ammunition next to it.

Given the defendant's condition and behavior, the decision was made to transport him to the hospital. When the defendant would not agree to go voluntarily and resisted efforts to place him in the ambulance, the officers handcuffed him to a stretcher. At this point the defendant's mother came out of the house to ask what was happening and was told that the defendant was being taken to the hospital for evaluation.

Later, around the time that the ambulance left with the defendant in it, Officer Fusco had a conversation with the defendant's mother in the garage. When she confirmed that she owned the property and had access to the garage, Officer Fusco asked whether she would consent to a search of the garage, explaining that the police believed that weapons might be stored there. The defendant was not present for this conversation.

The defendant's mother agreed to the search and signed a consent form. The police then searched the garage and recovered a handgun between the cushions of the couch and ammunition for a rifle, among other items.

Discussion. The only question before us is whether the search of the garage was lawful under the Fourth Amendment to the United States Constitution 3 based on the consent given by the defendant's mother, and notwithstanding the defendant's earlier statement that the officers were trespassing and he wanted them to leave. It has long been settled that “police officers may search jointly occupied premises if one of the occupants consents” (footnote omitted). Fernandez v. California, 571 U.S. 292, 294 (2014). In Randolph, 547 U.S. at 122-123, the Supreme Court established an exception to this rule, under which “a physically present inhabitant's express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.” The underpinning of Randolph’s holding was “customary social usage.” Id. at 121. That is, the Court reasoned that, because a person attuned to social customs would not enter a shared premises when one occupant is at the door “saying, ‘stay out,’ ” id. at 113, a “disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all.” Id. at 114.

The defendant advances several arguments why the Randolph exception applies on the facts of this case. For our purposes we will assume, without deciding, that the defendant's statement to the officers that they were trespassing constituted an “express refusal of consent” to search the garage. Randolph, 547 U.S. at 122. Even accepting that premise, however, the defendant's reliance on Randolph is unavailing.

In Fernandez the Supreme Court stressed that the Randolph exception is a “narrow” one, 571 U.S. at 300, that is “limited to situations in which the objecting occupant is present.” Id. at 301. See Randolph, 547 U.S. at 119 (issue was “whether a search with the consent of one co-tenant is good against another, standing at the door and expressly refusing consent”). Randolph therefore has no application here because the judge found that the defendant was not present when his mother consented to the search. The defendant challenges the judge's finding, but has not shown it to be clearly erroneous. See Commonwealth v. Amaral, 482 Mass. 496, 499 (2019) (in reviewing ruling on motion to suppress, appellate court accepts judge's factual findings absent clear error). Officer Fusco testified that the defendant “wasn't there” when Officer Fusco spoke to the defendant's mother in the garage and obtained her consent to search; rather, the defendant had “already been transported” to the hospital or “was on the stretcher, getting into the ambulance at the very least.” Although the defendant claims that the sequence of events -- as testified to by another officer, Priscilla Ribeiro -- refutes Officer Fusco's testimony, the judge did not credit that aspect of Officer Ribeiro's testimony, finding that she “was unclear on the timeline.” It was for the judge to assess the weight and credibility of the testimony, and we defer to his determination. See Commonwealth v. Weidman, 485 Mass. 679, 683 (2020).4

The defendant next suggests that the Randolph exception applies so long as he was still somewhere on the property when his mother consented, even if he was not present for the conversation during which she consented. Any such argument cannot be squared with the “fine line” drawn in Randolph between someone who “is in fact at the door and objects” and a “potential objector, nearby but not invited to take part in the threshold colloquy.” 547 U.S. at 121. In drawing this line, the Court recognized the “practical value in the simple clarity of complementary rules, one recognizing the co-tenant's permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant's contrary indication when he expresses it.” Id. at 121-122.

We read Randolph to require not just that the objector be present on the property when a cotenant consents to a search, but also that his objection be contemporaneous. This reading comports with the “customary social usage” rationale on which Randolph is based. See United States v. Henderson, 536 F.3d 776, 783 (7th Cir. 2008) (“we see the contemporaneous presence of the objecting and consenting cotenants as indispensable to the decision in Randolph”); United States v. Hudspeth, 518 F.3d 954, 960 (8th Cir. 2008) (“unlike Randolph, the officers in the present case were not confronted with a ‘social custom’ dilemma, where two physically present co-tenants have contemporaneous competing interests and one consents to a search, while the other objects”). As the Court observed in Fernandez, 571 U.S. at 303-304, “the calculus of [a] hypothetical caller would likely be quite different if the objecting tenant was not standing at the door.” Thus, in Fernandez, the Court declined to extend Randolph to a situation where the petitioner had objected to the search when the police first arrived, but was then arrested and therefore not present when his cotenant later consented. See id. at 296, 303-306. Similarly here, the defendant's earlier objection did not invalidate the search because he was not present and objecting when his mother consented, irrespective of whether the ambulance carrying the defendant was still within the property line. See United States v. Watkins, 760 F.3d 1271, 1282 (11th Cir. 2014) (Fernandez “confirmed the ․ understanding of the circuits that Randolph set forth a specific, narrow exception” that applies where occupant is “present and contemporaneously objecting”); Williams v. People, 455 P.3d 347, 354 (Colo. 2019) (en banc) (Randolph exception, as clarified by Fernandez, applies only when “objecting occupant ․ speak[s] up and object[s] as a co-occupant grants officers consent to search”); State v. Lamb, 218 N.J. 300, 320 (2014) (“by virtue of his removal from the immediate scene, [occupant's] earlier objection to police was no longer effective” under Fernandez).5

Finally, the defendant contends that the search was unjustified because his mental and physical condition rendered him unable to object to his mother's consent. But in Randolph itself, the Court declined to adopt a rule that would “require[ ] the police to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received.” 547 U.S. at 122. In so holding, the Court reaffirmed its decisions in Illinois v. Rodriguez, 497 U.S. 177, 180 (1990), where the defendant was unable to object because he was asleep, and United States v. Matlock, 415 U.S. 164, 166 (1974), where the defendant was not given the opportunity to object even though he was in a squad car parked nearby. See Randolph, supra at 121-122. We see no basis on which to depart from or to distinguish these decisions.

Order denying in part and allowing in part motion to suppress affirmed.


2.   The defendant does not appeal from the denial of his motion to suppress the statements he made at the police station. The judge allowed the motion to suppress as to certain statements made by the defendant at the garage and subsequently at the hospital.

3.   The defendant raises no argument under the Massachusetts Declaration of Rights.

4.   The record does not support the defendant's assertion that his mother “testified that [he] was still on the stretcher just outside the garage door when the police acquired her consent to search.” Her testimony was that the defendant was on the stretcher “[w]hen [she] went outside.” She was not asked where the defendant was later when she gave her consent.

5.   Randolph suggests in dictum that a different calculus may apply if there is “evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.” 547 U.S. at 121. In Fernandez, 571 U.S. at 302, the Court held that this dictum “refer[s] to situations in which the removal of the potential objector is not objectively reasonable.” No contention is made here that the decision to take the defendant to the hospital was not objectively reasonable.

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