MA: Apparent authority to consent is based on objective facts

The grandmother of a child sex victim called 911 and led police into the house to talk to the child. She had apparent authority to consent to a search and seizure of a couch cushion with semen on it. The facts presented to them were enough to conclude she could consent. Commonwealth v. Santos, 465 Mass. 689, 991 N.E.2d 1049 (2013):

We take this opportunity to clarify the two-step inquiry required when police enter a home, without a warrant and absent exigent circumstances, after they gain consent from someone they believe to have actual authority over the premises. See Commonwealth v. Porter P., supra at 271-272. We conclude that, in situations such as the one here, police need not conduct a “further inquiry,” the second part of the due diligence analysis, where they possess sufficient facts to form the basis for a reasonable conclusion that a third party has authority to give consent to enter a defendant’s home. See id. (first part of diligent inquiry is that officers’ conclusion must be based on facts, not assumptions). In other words, “police have a duty of further inquiry” when faced with “contrary facts tending to suggest that the person consenting to the search lacks actual authority.” Id. at 272, 273 n.18. Absent those contrary facts or “surrounding circumstances [that] could conceivably be such that a reasonable person would doubt its truth,” id. at 272, quoting Illinois v. Rodriguez, supra at 188, an officer’s conclusion that he has consent to enter a premises, if based on “facts, not assumptions or impressions,” may satisfy the first of the two-part inquiry of due diligence. See id. at 271; Illinois v. Rodriguez, supra at 188.

“We evaluate the reasonableness of a police officer’s conduct based on the information available to him at the time, not on what we later learn to be true.” Commonwealth v. Porter P., supra at 270. “As with other factual determinations bearing upon search and seizure, determination of consent to enter must ‘be judged against 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?” Illinois v. Rodriguez, supra, quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Here, the parties do not contest that the mother lacked actual authority to allow entry into the first-floor apartment. Our inquiry therefore hinges on the sufficiency of the facts on which officers relied when they concluded that they had consent to enter the defendant’s home. See Commonwealth v. Porter P., supra at 271.