Commonwealth v. Lopez

Lenk, J.

(dissenting). In the course of performing a public service — collecting a dirty needle at the request of a motel manager — Officer Desimone entered the defendant’s motel *827room and happened upon drugs and a gun that he had no prior interest in finding. It is not difficult to understand why, in trying to retrieve the dirty needle as requested, Officer Desimone went to what he thought was the motel manager’s room, nor is it difficult to appreciate how one thing may have led to another thereafter. We nonetheless must not lose sight of the fact that he was acting in his capacity as a police officer when, without a search warrant, he entered what our case law has long recognized as a home. A police officer can reasonably be expected to know that warrantless entries into a home are the exception, not the rule, and that he or she must accordingly tread carefully before crossing the threshold. Unlike the majority, I see the warrantless entry here as being in violation of constitutional protections.

Under State and Federal constitutional law, warrantless police entries into homes are impermissible save where the Commonwealth can demonstrate that a challenged entry is justified under one of the narrowly circumscribed exceptions to the search warrant requirement. Because there was no urgency of any kind here, the Commonwealth correctly does not attempt to justify this entry on the basis of the emergency aid or community caretaking exceptions to the warrant requirement. Nor can the Commonwealth quite rely upon the consent exception, conceding that the unknown woman who opened the door did not have the actual authority to consent to Officer Desimone’s entry. The Commonwealth accordingly relies instead on the doctrine of apparent authority, itself in essence an exception to the consent exception.

In assessing whether the Commonwealth has met its burden under this exception, we are to consider whether it was objectively reasonable for Officer Desimone to have thought that the woman who came to the door actually had the authority to consent to his entry. In concluding that the Commonwealth met its burden, the majority places dispositive weight on the officer’s “limited purpose” in being there, and almost no weight on what the officer knew about the woman and her relationship to the room. In doing so, the majority overlooks the fact that the latter and not the former is where the emphasis belongs under our case law, which the majority largely ignores in its reliance on non-Massachusetts authority. It also overlooks that, to satisfy the “reasonableness” requirement of the Fourth Amendment to the United States Constitution, the information on which an officer *828relies in evaluating whether an individual has authority to consent must be “seemingly reliable.” Illinois v. Rodriguez, 497 U.S. 177, 184 (1990). Because the officer knew almost nothing about the woman and her relationship to the room, and what he did know undercut any reasonable belief that she possessed the authority to consent, I conclude that the Commonwealth did not meet its burden under the apparent authority to consent exception to the search warrant requirement. The officer’s warrantless entry into the motel room was thus constitutionally impermissible. For these reasons, I respectfully dissent.

1. Constitutional significance of police entry. In a recent decision under art. 14 of the Massachusetts Declaration of Rights, the Supreme Judicial Court reiterated the well-settled principle that “[t]he right of police officers to enter into a home, for whatever purpose, represents a serious governmental intrusion into one’s privacy. It was just this sort of intrusion that the Fourth Amendment [to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights] [were] designed to circumscribe by the general requirement of a judicial determination of probable cause.” Commonwealth v. Peters, 453 Mass. 818, 819 (2009), quoting from Commonwealth v. Forde, 367 Mass. 798, 805 (1975), and Commonwealth v. DeJesus, 439 Mass. 616, 619 (2003).

The full protection of the Fourth Amendment and art. 14 extends to the legitimate privacy expectations of motel room occupants. Stoner v. California, 316 U.S. 483, 489-490 (1964) (guests in hotel rooms enjoy protections against unconstitutional searches and seizures “[n]o less than a tenant of a house, or the occupant of a room in a boarding house”). Commonwealth v. Martinez, 47 Mass. App. Ct. 839, 842 (1999) (“[t]hat the inhabitants of the motel room had a reasonable expectation of privacy in it is not in dispute”), citing Commonwealth v. Hamilton, 24 Mass. App. Ct. 290, 292 n.5 (1987) (“[o]f course, a motel room is an area protected by the Fourth Amendment”). As a residence, albeit a temporary one, the defendant’s motel room must be viewed as a home for purposes of this analysis.

The sanctity of the home is of central concern in Fourth Amendment and art. 14 jurisprudence, and warrantless police entry into a home is in and of itself a matter of constitutional moment. *829Commonwealth v. Peters, supra. Such warrantless entries into the home are presumptively illegal. Commonwealth v. Sondrini, 48 Mass. App. Ct. 704, 707 (2000). Our case law does not recognize a lesser degree of justification for warrantless entry of a home when the purpose of the entry is not to conduct a search. “The reason for the rule against warrantless entry ‘is to protect the physical integrity of the home from warrantless police intrusion.’ ” Commonwealth v. Rogers, 444 Mass. 234, 237 (2005), quoting from Commonwealth v. Sanna, 424 Mass. 92, 96 n.9 (1997).

There are circumstances that may justify warrantless entry into a home, but these exceptions have been described as “few,” “exceptional,” and “jealously and carefully drawn.” Commonwealth v. DiGeronimo, 38 Mass. App. Ct. 714, 721 (1995), citing Katz v. United States, 389 U.S. 347, 357 (1967), and G.M. Leasing Corp. v. United States, 429 U.S. 338, 352-353, 358 (1977), and quoting from Jones v. United States, 357 U.S. 493, 499 (1958). See Commonwealth v. Knowles, 451 Mass. 91, 94 (2008) (exceptions “for police officers performing their community caretaking function and for emergencies” have been “carefully carved out”1). “Warrantless entries into the home are prohibited by the Fourth Amendment . . . and art. 14 . . . absent either probable cause and exigent circumstances or consent.” Commonwealth v. Rogers, 444 Mass. at 236. It is the government’s burden to establish that the warrantless entry at issue is justified under one of the recognized exceptions. “[I]t is the Commonwealth’s obligation to establish its theory of entry and prove lawful entry based on that theory.” Id. at 245.

2. Consent exception to search warrant requirement. Here, the Commonwealth proceeded on the theory that the officer’s *830warrantless entry into the defendant’s motel room was based on consent given by the third party who opened the defendant’s motel room door. The Commonwealth concedes that the unidentified woman2 did not have actual authority to consent to the entry. The Commonwealth instead maintains that the entry was justified by the doctrine of apparent authority. To withstand the prohibition of the Fourth Amendment against unreasonable searches and seizures, when police officers act on the basis of the apparent authority of an individual to consent to an entry, the “determination of consent to enter must ‘be judged against an objective standard: would the facts available to the officer at the moment . . . “warrant a man of reasonable caution in the belief” ’ that the consenting party had authority over the premises?” Illinois v. Rodriguez, 497 U.S. 177, 188 (1990), quoting from Terry v. Ohio, 392 U.S. 1, 21-22 (1968). Commonwealth v. Rogers, 444 Mass. at 249 (Greaney, J., dissenting).

When determining whether a third party has actual authority to consent to entry of the defendant’s home, the focus is “on the relationship between the consenter and the property searched, not the relationship between the consenter and the defendant.” Commonwealth v. Noonan, 48 Mass. App. Ct. 356, 362 (1999), quoting from United States v. McAlpine, 919 F.2d 1461, 1464 (10th Cir. 1990).3 A third party with actual authority to consent must possess “common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171 (1974). The doctrine of apparent authority comes to the fore when the third-party consenter *831does not in fact have actual authority, but where it was objectively reasonable at the time for the police to have believed she did. The focus of the inquiry remains unchanged, and what matters is what the officer knew about the relationship between the third-party consenter and the premises or effects sought to be inspected. The police officer need not have been right about the facts concerning the third party’s authority over the premises — he or she may, after all, have been provided facially reasonable but nonetheless incorrect information. Illinois v. Rodriguez, 497 U.S. at 186. Both United States and Massachusetts law, however, require that the officer be reasonable in thinking that the facts known to him or her at the time of entry, if correct, would add up to the con-senter having such authority.

In determining what might be sufficient to establish the existence of apparent authority to consent, we look to Massachusetts precedent.4 Most recently, in Commonwealth v. Porter P., 73 Mass. App. Ct. 85 (2008), further appellate review granted, 453 Mass. 1101 (2009), we upheld the warrantless entry of a resident’s room in a homeless shelter by the police, who accompanied the shelter’s director at her request. Id. at 86. Although we concluded that the shelter director in fact had actual authority to consent to police entry, see id. at 87-89, 92-93, we also determined that “the police — based upon their independent review of the manual [which informed residents that room searches were shelter policy], [the director’s] status as the director of the shelter, and their discussions with her about prior searches — could reasonably have concluded . . . that [the shelter director] had the common authority to authorize entry into [the] room . ...” Id. at 95.

In Commonwealth v. Rogers, 444 Mass. at 247, the majority did not reach the questions of actual or apparent authority to consent because they determined that the third party’s consent had not been shown to have been freely and voluntarily given. Justice Greaney, writing in dissent, did reach these issues and reasoned that the facts sufficiently established both actual and apparent *832authority. He noted that Rose, the woman who answered the door to the defendant’s apartment between 4:40 and 5:00 a.m., was known to the officer who sought entry; she was someone he had seen previously in the defendant’s company and at the apartment. Id. at 247-248. “[H]er response to his question as to the defendant’s whereabouts was spontaneous and immediate, and she gave no outward indication that she was uncertain as to whether she should, or should not, admit the officers.” Id. at 249. The officer knew that Rose “was not just a casual guest of the defendant,” and the officer “had every reason to believe that Rose was aiding the defendant in selling cocaine from that apartment.” Id. at 248. Given this, Justice Greaney wrote, it was reasonable for the officer “to assume that Rose was part of the defendant’s operation and could authorize him to enter the apartment to speak with the defendant.” Id. at 249.

In Commonwealth v. Maloney, 399 Mass. 785, 787-788 (1987), the live-in boyfriend of the homeowner had both actual and apparent authority to consent to a police officer’s entry into their home in order to remove a trespasser and arson suspect. The boyfriend was a lawful occupant and answered the door in the presence of his girlfriend, a woman the police knew to be the homeowner and who lodged no objection to their entry. See Commonwealth v. Allen, 54 Mass. App. Ct. 719, 721 (2002) (police officers may conduct warrantless search of home “when authorized to do so by any competent person who reasonably appears to exercise common authority over the place to be searched” and whose consent is freely given).

The dearth of information known to Officer Desimone about the woman from whom he sought entry to the motel room and her relationship to that room stands in stark contrast to the foregoing cases. Officer Desimone testified that he had been to the motel earlier that day to deal with a prostitution problem in one of the rooms. He knew that the motel was also rife with drug problems, that a major drug investigation by the State police was in the works, and that he was frequently called to the motel on official police business. He went in uniform around 10:00 p.m. to room 138 looking for Victor, the motel manager, in order to retrieve a dirty needle as Victor had earlier requested. It is unclear whether Officer Desimone expected to find the dirty needle in room 138 or to be directed by Victor to a different *833room. The officer had not been able to take the needle earlier because he was called away from the motel to deal with an emergency elsewhere. The officer had never been to room 138 before but knew from looking daily at the motel guest register (a practice, however, that had ended three months prior to the incident) that Victor had been known to stay in room 138. He knocked on the door, saying, “Hello, Victor.” A woman whom he had never seen before opened the door, and he said, “Hello, is Victor here?” “And she kind of looked at me funny — like a deer in the headlights type of look, and she said, 1 don’t know.’ And that struck me as kind of weird, you know? She said, T don’t know.’ I said, ‘Oh . . . .’ I showed her ... the needle holder .... I said, ‘He asked me to pick up a needle,’ and she said, ‘Oh, okay.’ I said, ‘Can I come in?’ And she said . . . like ‘Yeah sure.’ ” “She appeared to be nervous. She looked kind of stunned, and I wasn’t sure if maybe she was maybe under the influence of drugs or what it was, but she looked a little . . . staring and just kind of shocked look.”

It is plain from the foregoing that the officer had no information about the woman or her relationship to the premises. Until he stepped inside, the officer did not know that room 138, unlike the other motel rooms he had been in, had two rooms; before entering, then, he understandably thought it “weird” that the woman did not know whether Victor was in the same motel room that she was in. The unidentified woman could have been anyone — a prostitute paying a visit, a motel employee, a wife or girlfriend living with Victor, a visiting sister or friend, someone buying drugs — the officer did not have a clue. And he did not ask. The majority sees no reason for him to have done so, discerning no overt indications that the woman lacked authority to consent — she was an adult who opened the door without hesitation at 10:00 p.m., and she did not say that she needed to consult with anyone nor did she go back into the room to do so.5 However, as was said in Commonwealth v. Rogers, 444 Mass. at 240, albeit in *834a slightly different context: “We simply cannot . . . infer so much from so little.” Not only did the situation seem “weird” to the officer, but also from the woman’s responses it did not appear that she either knew where Victor was or would have any requisite information as to where the needle was, yet the officer made no further inquiries. Our case law requires more than this to establish the exception.

The majority’s analysis misconceives the relevant inquiry to be made in ascertaining whether the third party had apparent authority to consent and, in the process, relieves the Commonwealth of its burden to establish that the warrantless entry was based on valid consent. As in Commonwealth v. Porter P., supra; Commonwealth v. Rogers, supra; and Commonwealth v. Maloney, supra, the Commonwealth needs to prove that there were facts affirmatively known to the officer that would permit him reasonably to believe that the person giving consent had authority over the premises.6 It is not enough to say that the officer was not aware of any facts showing she had no such authority. Justice Scalia, writing for the United States Supreme Court in Illinois v. Rodriguez, 497 U.S. at 188, explained: “[Wjhat we hold today does not suggest that law enforcement officers may always accept a person’s invitation to enter premises. Even when the invitation is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry.”

The surrounding circumstances here, including the absence of any information whatsoever about the woman or her relationship to the premises, her confused and stunned demeanor, as well as her lack of knowledge regarding Victor’s whereabouts, would cause a reasonable person of caution to question whether she was *835a lawful occupant of the motel room with common authority over the premises. A reasonable person would not act upon the information without further inquiry such as: Who are you? Are you staying here? Whose room is this? “[U]nder a sound application of the apparent authority rule the police must be required to make reasonable inquiries when they find themselves in ambiguous circumstances. . . . [S]ometimes the facts known by the police cry out for further inquiry, and when this is the case it is not reasonable for the police to proceed on the theory that ‘ignorance is bliss.’ ” 4 LaFave, Searches and Seizures § 8.3(g), at 177-180 (4th ed. 2004).

3. The officer’s “limited purpose” entry. In concluding that the Commonwealth has satisfied the apparent authority exception to the warrant requirement, the majority places inordinate weight on the officer’s purpose in seeking to enter the motel room and disregards the officer’s lack of information about the woman who opened the door. The majority posits that because the purpose of the entry was not to conduct a search for evidence of criminal activity but to perform a public service, the police intrusion into the home was of minimal, if any, constitutional significance. It relies on a handful of out-of-State cases and Federal cases primarily from the Courts of Appeals for the Third, Sixth, Seventh, and Ninth Circuits7 for this proposition, as well for the distinction it draws between the consent to enter a home and the consent necessary to search for evidence of criminal activity, with the former requiring less stringent scrutiny of the consenter than the latter. Viewing Officer Desimone’s own noninvestigative intentions as part of the totality of the circumstances known to him at the time, the majority is satisfied that the officer had no need to second guess the consent that the woman gave him to enter the room for that limited purpose.8

There are, of course, any number of good faith noninvestiga-tive reasons that might cause a police officer to seek entry to a *836home at a reasonable hour for a “limited purpose,” such as in response to complaints about a barking dog or loud music or even to ask for a charitable contribution. On the majority’s expansive view of apparent authority, the police would presumably have no need to second-guess the consent given them to enter in those circumstances either, so long as whoever comes to the door, whether or not known to them, does nothing to suggest they are without authority to consent. That it might well be a nonresident such as a partygoer or a visiting neighbor who opens the door would not matter on this analysis. In my view, this is a worrisome prospect, the proverbial camel’s nose under the tent that will erode the search warrant requirement.

I see no basis, moreover, for relying on non-Massachusetts authority, particularly when such decisions fly in the face of our established case law.9 Warrantless police entry into a home that *837cannot be justified by a recognized and well-circumscribed exception to the warrant requirement is an unreasonable intrusion in violation of the Fourth Amendment and art. 14. Officer Desimone may have been providing a salutary public service to the motel in safely disposing of dirty needles, but there was absolutely nothing pressing or urgent about it that necessitated entry into the defendant’s motel room.10 That his intentions were good and his actions understandable are not pertinent considerations in determining whether his warrantless entry was justified by the woman’s apparent authority to consent, yet that is all we have here. The officer got consent from someone whom he had no reason to think could consent, other than the fact that she opened the door. Other facts known to him undercut the objective reasonableness of believing the unidentified woman could consent: she is not Victor, she does not know what the officer is talking about, she *838does not know where Victor is, and she seems high. That leaves just the officer’s own intent to enter for a noninvestigative purpose which, in my view, is simply not enough to satisfy the apparent authority exception to the warrant requirement.

Moreover, this is not one of those situations where one asks, “What else was the officer to do?” Commonwealth v. Davis, 63 Mass. App. Ct. 88, 91 (2005). The officer had clear alternatives: he could have asked the woman more questions to see if she had common authority over the room and then have acted accordingly, or he could simply have left, knowing that he was likely to be back at the motel in the near future and could get the needle from Victor then. What the officer could not do under our law is what he did. The motion judge correctly granted the defendant’s motion to suppress.11

It is unclear whether the community caretaking exception applies to warrantless entries of homes. See Commonwealth v. Sondrini, 48 Mass. App. Ct. at 706-708 & n.3 (Justice Kaplan, writing for the court, noted, “For purposes of the present case we assume for the benefit of the Commonwealth that the caretaking, so-called, can extend to entrance into a residence, although there is some opinion that its field of operation is the situations of diminished expectations of privacy, such as intrusion into automobiles”). In any event, with both the emergency aid and the community caretaking exceptions, when the officer decides to carry out such functions, there must be an “objective basis ... for believing that the defendant’s safety and well-being or that of the public was in immediate jeopardy.” Commonwealth v. Knowles, 451 Mass. at 95.

The only witness for the Commonwealth at the motion hearing was Officer Desimone. While the defendant, his cousins, and his father, to whom Victor had rented the room, had all been arrested, the unidentified woman was not. There is no identifying information of record concerning her.

The majority, ante at 825, quotes the observation in Commonwealth v. Noonan, supra, that the consenting party “can surely be taken to have given as much consent as she had power to give,” implying that the Noonan court thereby drew a difference between authority to consent to mere entry as opposed to authority to consent to a search. In fact, no such distinction is drawn in Noonan. There, the consenter had authority to “give consent to a search,” and in fact she did so. Hence, the phrase “as much consent as she had power to give,” ibid., meant the ultimate power a cotenant can have: power to consent to search. There is not even a suggestion in Noonan that a lower standard might be considered for evaluating a limited type of consent power dependent on the purpose of entry.

To date, no warrantless police entry has been upheld in Massachusetts solely on the basis of apparent authority to consent; rather, the entries upheld to date have involved apparent authority as an alternative basis to actual authority, which also existed.

To the extent that the majority relies on Commonwealth v. Ocasio, 71 Mass. App. Ct. 304, cert. denied, 129 S. Ct. 314 (2008), for the proposition that, because the defendant was present in the other room of room 138 but did not object to the police entry, “the officer had no reason to doubt that the woman had authority to give consent,” ante at 824, the majority overlooks key factual differences in Ocasio. As a cotenant, of course, the mother in Ocasio had *834actual and apparent authority to consent to the police entry, and the defendant did not object or protest even though the two searches of his apartment occurred while he was standing at the door to the apartment. Id. at 305-306. Here, unlike both Ocasio, supra, and Rogers, supra at 249, the officer had already made the crucial “apparent authority” decision, entered the motel room, and seen the contraband by the time the defendant could protest the officer’s entry.

On the facts present here, the officer’s decision to request entry can hardly be said to be based on “seemingly reliable . . . information,” Illinois v. Rodriguez, 397 U.S. at 184, and, as such, fails to meet the “reasonableness” requirement of the Fourth Amendment. Id. at 184-189.

It is to be noted that the two cases from the United States Court of Appeals for the First Circuit cited by the majority as support for the relevance of the officer’s purpose in seeking entry do not deal with apparent authority, but rather with the issue of consent.

If the officer’s limited purpose in seeking entry is pertinent, it is because he communicated that intention to the woman answering the door. The information may have reassured her and thereby prompted her to allow him entry but it otherwise has no bearing on her apparent authority to consent.

Even if the out-of-State and Federal decisional law upon which the majority relies would support its analysis as a matter of Federal constitutional law, such case law does not in any event construe art. 14 of the Massachusetts Declaration of Rights, which has long been recognized as offering greater protections than the Fourth Amendment to the United States Constitution in the search and seizure context. See, e.g., Selectmen of Framingham v. Municipal Court of the City of Boston, 373 Mass. 783, 786-788 (1977) (“as matter of Massachusetts law, even though it may not be required by the Federal Constitution,” evidence seized in an illegal warrantless search of police officer’s home was inadmissible in administrative hearing); Commonwealth v. Ortiz, 376 Mass. 349, 358 (1978) (when analyzing “constitutional prohibitions against unreasonable search and seizures,” court acknowledged that “our State Constitution may afford greater protections to a person in certain circumstances than those required by Federal decisions interpreting the Fourth Amendment”); Commonwealth v. Sheppard, 387 Mass. 488, 508 n.22 (1982) (Wilkins, J.), rev’d on other grounds, 468 U.S. 981 (1984) (noting “the possibility of affording more substantive protection to criminal defendants under art. 14 of the Declaration of Rights than under the Fourth Amendment as applied through the Fourteenth Amendment”); Commonwealth v. Shields, 402 Mass. 162, 176 (1988) (Liacos, J., dissenting) (“We have not hesitated to grant to our citizens greater protection under art. 14, and we should do so here,” in context of roadblock seizures); Commonwealth v. Nattoo, 452 Mass. 826, 830 n.3 (2009) (“in some instances, [art. 14] provides greater protection in the area of searches and seizures than does the Fourth Amendment”); Commonwealth v. Peters, 453 Mass. at 826 n.6 (because warrantless search of home impermissible under art. 14, court did not need to determine “whether the same conclusion would be required by the Fourth Amendment"); Commonwealth v. DiGeronimo, 38 Mass. App. Ct. at 721 n.8 (“a warrantless intrusion that falls afoul of the Fourth Amendment will certainly violate the presumptively more stringent requirements of art. [14]”).

Our courts have frequently recognized the broader protections afforded by *837art. 14 while in the course of construing the Fourth Amendment. Under our courts’ analyses of the Fourth Amendment as it bears on warrantless police intrusions of the home, however, the protections deemed afforded by the Fourth Amendment and by art. 14 are sufficiently congruent so as generally not to have occasioned separate analysis under art. 14. Compare Commonwealth v. Peters, supra. Although acknowledging that the defendant preserved an art. 14 challenge, the majority suggests that the issue need not be considered because the defendant did not separately argue the point. I disagree with the conclusion that the defendant’s brief did not adequately argue the issue. The brief referred to art. 14 several times throughout and rested its arguments on both the Fourth Amendment and art. 14. Two recent decisions, moreover, counter the view taken by the majority that the absence of separate briefing on the State constitutional issue by the defendant presents such an impediment to our consideration of the issue. See Commonwealth v. Peters, 453 Mass. at 819, 823-826 & n.6, and Commonwealth v. Means, 454 Mass. 81, 82 n.1, & 88 n.12 (2009).

I also note that ours would not be the first State to limit the reach of the apparent authority exception to the warrant requirement based on State constitutional grounds. See State v. Lopez, 78 Haw. 433, 446 (1995) (“an invasion of privacy is no less of an ‘invasion’ if the governmental officials are ‘reasonable’ in their mistaken belief that the third party possesses the authority to consent”); State v. McLees, 994 P.2d 683 (Mont. 2000) (Supreme Court of Montana holding same).

Our case law already takes into account situations where the police purpose is not to search for evidence of criminal activity, such as emergency situations requiring nonconsensual warrantless police entry into homes. See Commonwealth v. Snell, 428 Mass. 766, 774-775, cert. denied, 527 U.S. 1010 (1999); Commonwealth v. Bates, 28 Mass. App. Ct. 217, 219-220 (1990); Commonwealth v. DiGeronimo, 38 Mass. App. Ct. at 722-725; Commonwealth v. Allen, 54 Mass. App. Ct. at 721.

The defendant argues in the alternative that the motion judge made no findings of fact in support of her ruling that the unidentified woman’s consent to enter was voluntarily given, and that given the woman’s nervous, stunned, and possibly drug-induced demeanor, the officer’s comments to her about Victor and the dirty needle could arguably have been understood by her to mean that the police already had permission to enter and she acquiesced to the uniformed officer’s claim of authority. See Commonwealth v. Rogers, 444 Mass. at 238 (“In meeting its burden of establishing voluntary consent to enter, the Commonwealth must provide us with more than an ambiguous set of facts that leaves us guessing about the meaning of this interaction and, ultimately, the occupant’s words or actions”). Because I would affirm the allowance of the motion to suppress on the basis that the Commonwealth failed to establish the woman’s apparent authority to consent, I do not address this contention further.