No apparent authority over daughter’s separate downstairs apartment

Defendant’s mother did not have common authority over the entire premises to consent to a search. She owned the place and lived upstairs. Her daughter had separate quarters downstairs, and her son was sometimes allowed to stay with her. Commonwealth v. Santos, 2020 Mass. App. LEXIS 81 (June 22, 2020):

As explained in the well-reasoned decision of the motion judge, these facts are, at best, ambiguous. The police knew the mother did not live in the apartment to be searched and could not give authority as a resident. The officer did not know what the agreement was between the mother and the daughter concerning this separate apartment, including whether this was a typical landlord-tenant relationship or there was some other agreement. These facts were not sufficient to allow the officer to form a reasonable conclusion that the defendant’s mother had the requisite authority to consent to the search of her daughter’s apartment. The officer had a duty to explore this with a simple inquiry. Porter P., 456 Mass. at 272. While a parent may validly consent to a search of a room occupied by an adult child within the parent’s home, see, e.g., Commonwealth v. Ortiz, 422 Mass. 64, 70, 661 N.E.2d 925 (1996), and Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 97, 920 N.E.2d 45 (2010), we are aware of no authority for the proposition that a parent who resides in one apartment in a multi-family dwelling may authorize a search of a child’s physically separate apartment in the dwelling. This was a separate apartment in which the mother allowed her adult daughter to reside, with all other attendant circumstances unknown. The police could not ignore this fact.

That the mother sometimes gave permission for her son to stay in the apartment on the couch did not remove the ambiguity. As a general matter, leases may limit guests. See, e.g., United Co. v. Meehan, 47 Mass. App. Ct. 315, 317, 712 N.E.2d 636 (1999). More significantly here, the police knew there were reasons why this mother (and putative property owner) might require that this man, even if he was her child, obtain her permission to stay at or visit her property, even in another apartment: she and the police knew her son was involved in drugs and, because of the officer’s knowledge of a recent shooting, the police at least believed that the defendant might be armed with a handgun for self-protection.

We are also unpersuaded by the Commonwealth’s effort to transform the mother’s comment that she sometimes allowed her son to sleep on the couch in the daughter’s apartment into a conclusion that the mother had so much control of the daughter’s apartment that she could “limit” where in that apartment the defendant slept “to a specific piece of furniture.” This, of course, assumes the first-floor apartment had a plethora of bunking options from which the mother was selecting without actually offering evidence of such. See Porter P., 456 Mass. at 271 (requiring facts, not assumptions).