Wednesday, March 31, 2010

Massachusetts has a state constitution

In State v. Porter P, No. SJC-10383 (Mass. March 11, 2010), the Massachusetts Supreme Judicial Court considered the question of whether a landlord or other nonresident third-party can consent to a search and applied its state constitution to hold that such consent is only valid if officers see written documentation of such authority:
We understand that the police need clear guidance as to who has common authority over a residence and therefore who is entitled to give actual consent, because, as here, they rely on such consent in deciding to conduct a warrantless search, as opposed to securing the residence and applying for a search warrant. Therefore, we declare under art. 14 that a person may have actual authority to consent to a warrantless search of a home by the police only if (1) the person is a coinhabitant with a shared right of access to the home, that is, the person lives in the home, either as a member of the family, a roommate, or a houseguest whose stay is of substantial duration and who is given full access to the home; or (2) the person, generally a landlord, shows the police a written contract entitling that person to allow the police to enter the home to search for and seize contraband or evidence. No such entitlement may reasonably be presumed by custom or oral agreement.

I think this is a nice retort to claims by prosecution that officers are better informed by just relying on changing SCOTUS case law than by clear state statutory or constitutional rules.

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