Heard: January 3, 2018.
received and sworn to in the Lynn Division of the District
Court Department on February 4, 2015.
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.
DeRosa, Assistant District Attorney, for the Commonwealth.
Present: Wolohojian, Milkey, & Englander, JJ.
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.
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.
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.
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
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.
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. He confiscated
the weapon "[b]ased on the domestic threat, the threat