Commonwealth v. PORTER P.

Cowin, J.

(dissenting, with whom Spina, J., joins). I respect*276fully dissent based on my conclusion that the juvenile has no “constitutionally protected reasonable expectation of privacy.” Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). I agree with the well-reasoned analysis of the Appeals Court in this regard. See Commonwealth v. Porter P., 73 Mass. App. Ct. 85, 91-94 (2008). It follows that the director of the Roxbury Multi-Service Center, Inc., Family House Shelter (shelter) acted well within her rights in admitting police to the juvenile’s room, and suppression of the firearm and the juvenile’s statements was not justified.

The problem with the court’s view is that it ignores the situation “on the ground” or — put differently — fails to acknowledge what the shelter is and the circumstances of its operation. The shelter services a transient population. It makes available a temporary space to live off the streets. In return, and for obvious reasons, the shelter requires that its residents surrender a considerable degree of personal freedom. Contrary to the fiction in which the court indulges, this is neither a hotel nor a dormitory. An examination of the characteristics of life at the shelter, in my view, puts to rest any premise that a resident could conceivably harbor a reasonable expectation that his or her privacy would limit the action of the shelter authorities in this case.

Before obtaining a room at the shelter, all residents receive a copy of the shelter’s “Resident’s Manual” (manual). This manual sets forth the rules that residents are expected to follow while living in the facility. A major purpose of these rules is the maintenance of order and safety in the shelter. Like members of all famihes that move into the building, the juvenile and his mother received and reviewed the manual at the beginning of their stay at the shelter. The motion judge found that “[t]he family was required to review and sign-off on the manual before taking residence at the shelter.” An intake worker explained the roles to them and noted the delivery of the manual on an intake form. By moving into the shelter, the residents (including the mother and the juvenile here) signify their assent to the rules. By agreeing to these rules, residents forgo a substantial amount of personal privacy in exchange for temporary housing and the other services the shelter provides.1

*277Shelter rules dictate when residents can be present in the building. Residents must be out of the building from 9 a.m. until 3 p.m. on weekdays,2 and they must be in the shelter by a specified curfew time each evening. Each time residents enter or leave the facility, they must sign in or out at the front desk. Residents are also required to observe “Family Time Quiet Hour” from 8:30 to 9:30 p.m. each evening. During this time, “there is minimal noise,” and parents are expected to “go[] over homework, read[] a book, or play[] family games” with their children.

Additionally, the shelter regulates residents’ use of their rooms. Residents “are not allowed access or permitted to enter another resident’s room at any time,” and they may meet with outside visitors only during stated times at designated locations in the building. The shelter’s rules even forbid residents from rearranging the furniture in their rooms, limit the number of suitcases present in the room to “two . . . per family member,” and prohibit residents from placing items “on the windowsills.” Alcohol and firearms are strictly forbidden in the facility, as are sexual activities (except between residents “coupled” together).

In addition to regulating the use of residents’ rooms, the shelter restricts many aspects of their personal conduct. Residents must spend “a minimum of twenty hours per week actively engaged in employment, job search, skills/educational training and housing search.” They must save thirty per cent of their monthly income and provide shelter staff with their banking records as proof of same. Furthermore, residents must attend weekly meetings with social service providers. In order to maintain the premises, the shelter requires residents to perform weekly chores and clean their rooms according to enumerated housekeeping standards.

The manual reveals a special concern for eliminating the presence of weapons in the shelter. The shelter forbids possession of “weapons of any kind.” The manual defines a weapon as “any *278item that can be used to threaten or cause physical damage or harm.”

Shelter staff may enforce these rules by “perform[ing] random room checks and routine room inspections ... at any time.” Such searches are authorized for investigating violations of any rule, from the rules prohibiting possession of drugs and weapons to the housekeeping rules requiring that “[c]lathing is put away neatly,” “[b]eds are made daily,” and “[djiaper pails are . . . emptied every morning.” The rules are enforced through an internal discipline system consisting of warnings for initial violations and termination of the residency for repeated violations. Residents who commit a violation that threatens the safety of other residents or staff, including the possession of a weapon, face immediate termination.

The reasonableness of the juvenile’s expectation of privacy must be evaluated in light of all the circumstances surrounding his residency at the shelter. Where the shelter director can enter any resident’s room essentially at will, there is no objectively reasonable expectation of privacy in the room. See Commonwealth v. Welch, 420 Mass. 646, 653-654 (1995) (whether area searched is freely accessible to others is relevant to reasonableness of expectation of privacy); Commonwealth v. Pina, 406 Mass. 540, 545, cert, denied, 498 U.S. 832 (1990) (defendant’s control over area searched is relevant to reasonableness of expectation of privacy). Looked at from a different perspective, the shelter director possessed sufficient common authority over the premises to consent to a police search. See Commonwealth v. Considine, 448 Mass. 295, 301 (2007) (by prohibiting students on field trip from occupying hotel rooms during day, chaperones retained sufficient control to authorize search). The staff’s plenary authority in the circumstances, including the right to conduct unannounced inspections, meaningfully differentiates the shelter from hotels, apartments, and university dormitories.

The court does not dispute that the conditions of the manual grant shelter staff the authority to enter residents’ rooms to search for contraband, but it holds that this power does not extend to granting consent to the police to do the same. See ante at 264. This is an entirely unwarranted and impractical distinction, requiring that the shelter staff resort to self-help in *279order to obtain prompt enforcement of the prohibition on firearms. Shelter staff are not trained in dealing with guns or people armed with guns, and they cannot arrest those in possession of weapons. A commonsense reading of the provisions of the manual regarding weapons plainly communicates that shelter staff, at its choosing, may seek police assistance in undertaking their reserved right to control the premises. In sum, there was no objective basis in these circumstances for any expectation that the juvenile may have had that his room would be immune from the kind of entry that occurred.

I do not suggest that the shelter could form a contract with a minor abrogating *277the minor’s right to privacy. See Sharon v. Newton, 437 Mass. 99, 107 (2002) (contract by minor voidable before minor reaches age of majority or within reasonable time thereafter). Instead, I rely on the fact that the juvenile’s mother can consent on his behalf. See Commonwealth v. Ortiz, 422 Mass. 64, 70 (1996) (parent may consent to search of child’s room).

The stated purpose of this requirement is to encourage residents to spend this time working, attending job training, or searching for employment or housing.