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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 onebedroom 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 visà-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").