Supreme Judicial Court, March 11, 2010
No violation of the Fourth Amendment or Article Fourteen occurs when a law enforcement officer conducts a warrantless search of a home based on consent and makes a reasonable mistake of fact as to the consenting parties' actual authority to consent.
The Commonwealth filed an interlocutory appeal from a Juvenile Court Judge's order suppressing a firearm seized and statements made during a warrantless search of a room in a transitional family shelter occupied by the juvenile and his mother. The Supreme Judicial Court affirmed the lower court's order suppressing the firearm and the statements because the Director of the shelter did not have authority (either actual or apparent) over the "home" to consent to the police search.
Under Article 14, a person may have actual authority to consent to a warrantless search of a home by the police only if:
1. The person is a co-inhabitant with shared right of access to the home; or
2. The person, generally a landlord, shows the police a written contract entitling that person to allow the police to enter the home to search for and seize contraband or evidence.
Whether or not an individual has apparent authority is based on 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 (1968), Illinois v. Rodriquez, 397 U.S. 177 (1990). Apparent authority is limited to reasonable mistakes of fact, not law.
The Court, for the first time, has decided that apparent authority may justify a warrantless search where the person giving consent lacks actual authority. A search of a home does not violate Article 14 if the police officer has the voluntary consent of an individual with the apparent authority to give such consent, only if the reasonable mistake of fact occurs despite diligent inquiry by the police as to the consenting individual's common authority over the home. The Court laid out a two-step process the officer must take to ensure a diligent inquiry:
1. The officer must base his conclusion that the individual has actual authority on facts, not assumptions or impression; and
2. When the consenting individual asserts that they live there, the officer owes a duty to explore, rather than ignore, contrary facts to suggest otherwise.