In this blog, part two in a series about consent given to the police to search another person’s belongings, we look at an April 2018 Supreme Judicial Court of Massachusetts case in which a defendant’s live-in girlfriend gave the police permission to search the couple’s shared apartment. The case was resolved in favor of the police, and is another example of how the “reasonable expectation of privacy” that is protected by the 4th Amendment to the U.S. Constitution is limited.

The case, Commonwealth v. Hernandez, involved a coinhabitant female giving the police permission to search an apartment shared by herself and the defendant. The police, having obtained such permission from a person residing in the apartment, proceeded to search the apartment, including a closed but unlocked suitcase located inside a closet therein. The police found a firearm in the suitcase, and the defendant was charged in connection therewith. Defense counsel filed a motion to suppress the firearm.

Citing the “common authority” doctrine that has been established in a line of U.S. and Massachusetts cases starting in 1974, the SJC held that the defendant’s coinhabitant validly gave consent to the search. The underlying premise is “the common understanding that coinhabitants of a home have a greatly diminished expectation of privacy” with respect to areas held in common with each other. Therefore, coinhabitants can give consent to search areas and articles to which they have joint access.

As the Court said, “[i]n coinhabiting as [the defendant] did, and leaving his gun unlocked in a closet used by all, the defendant made a ‘significant sacrifice of individual privacy’ . . . and ‘assumed the risk’” that his girlfriend would access the suitcase or consent to a search of it.

It is relevant that the container in which the firearm was discovered was an unlocked suitcase, and the result of the case may have been different if the circumstances were otherwise. Moreover, an interesting question is whether the Court would have ruled differently had the suitcase, even though unlocked, been labelled something like, “private,” or “do not open.”

If you have been charged with possession of contraband, or if the police have seized supposed evidence of a crime you are accused of committing, you should hire competent legal counsel to examine the circumstances and see if your rights have been violated.  I would also recommend hiring an attorney with a wealth of trial experience, who will not feel pressured to recommend a plea deal out of fear of going to trial.

Attorney Kevin D. Quinlan
2 South Main Street, Suite 201
P.O. Box 248
Uxbridge, MA 01569
(508) 723-6384

Criminal Defense and Family Law – Trials