The Fourth Amendment precludes police officers from entering a home without a warrant; one of the exceptions to this requirement is when consent to search is given.  The Massachusetts Appeals Court addressed the issue of who can consent to a search in the case of Commonwealth v. Richard Santos decided in June of 2020.

WHAT HAPPENED IN THE SANTOS CASE

In Santos, the defendant lived in one apartment with her daughter living in the apartment next door.  The mother told the police that she owned both apartments.  The mom told the police that she sometimes lets her son stay in her daughter’s apartment.  the police asked the mother to consent to a search of her daughter’s apartment.  The mother granted permission.  The Appeals Court addressed the issue of whether the mother had apparent authority to consent to the search of her daughter’s apartment.

Who can give Consent to Search and What is Apparent Authority

The Massachusetts Appeals Court stated that apparent authority is judged against an objective standard.  The question is would the facts available to an officer at the moment warrant a person of reasonable caution in the belief that the consenting party had authority over the premises.  The Appeals Court went on to state that the officer must make a diligent inquiry, consisting of two steps:

1.  The Police officer must base his conclusion of actual authority on facts, not assumptions or impressions, and
2. would a reasonable person doubt the authority of the person giving the consent.
3. If there is a reasonable to doubt the authority, the officer must resolve the ambiguity by making further inquiry.

The Appeals Court stated that the officer owes a duty to explore rather than ignore, contrary facts tending to indicate a lack of authority to consent to a search.

The Appeals Court held that the facts were ambiguous and the police owed a duty to explore rather than to ignore facts suggesting the mother lacked apparent authority to consent to the search of the house.

The Appeals Court sited the holding of Commonwealth v. Porter P, 456 Mass. 254 (2010) defining who has authority to consent to a search:

1.  A Cohanbbitant, with a shared right of access to the entire home.
2. the landlord pursuant to a contract that allows entry to seize contraband.

The Appeals Court added that the police have more leeway in emergency situations.  In the Santos case, the police found that the officer could not assume that the mother had authority to consent to the search; the officer had a duty to resolve the ambiguity and the Court affirmed the decision of the Superior Court judge allowing the motion to suppress.

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To read the Santos Case you can find it on the Justia website.