In general, it is unreasonable for the police to conduct a search of a residence absent a search warrant. One exception to that rule is where the police obtain valid consent to search the home. The consent must be given by an individual with either actual or apparent authority to consent to the search. But what is the scope of such consent? If consent is given by someone other than the criminal defendant, just what can that third party consent to?

In the 2018 case of Commonwealth v. Hernandez, the Massachusetts Appeals Court reviewed the line of cases from United States v. Matlock (1974) through Commonwealth v. Magri (2012), and held that where a coinhabitant gives consent to search a home, that consent covers the search of containers located in common areas within the home, without requiring the police to ascertain authority to consent to a search of each item in the home individually. That is, if a coinhabitant can consent to a search of the common areas of a home, he or she can validly consent to a search of all containers, e.g., suitcases, duffel bags, located therein.

The reasoning, as is typical of 4th Amendment cases, hinges on the reasonable expectation of privacy, or what the United States Supreme Court described in Matlock as “assumption of the risk” that a coinhabitant will consent to a search. The Appeals Court in Hernandez held that coinhabitants “have a greatly diminished expectation of privacy vis-à-vis each other.”

Hernandez involved a closed but not locked suitcase, which was found to contain a firearm. A separate question arises where the container is locked, but that issue was not addressed as it was not presented.

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