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Commonwealth v. Hernandez

Appeals Court of Massachusetts, Essex

April 27, 2018

COMMONWEALTH
v.
JOSE HERNANDEZ

          Heard: January 3, 2018.

         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.

          Present: Wolohojian, Milkey, & Englander, JJ.

          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 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 one-bedroom 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 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 ...


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