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Law School Case Brief

Commonwealth v. Carr - 458 Mass. 295, 936 N.E.2d 883 (2010)


The question whether consent was voluntary is a question of fact to be determined in the circumstances of each case, with the burden of proof on the government. While no factor by itself is conclusive, factors to consider include, but are not limited to: the presence of armed, uniformed officers; whether the defendant was informed of his right to refuse consent; the age, intelligence, and other personal characteristics of the defendant; and whether the defendant was in custody when consent was given.


On June 28, 2007, a grand jury indicted the defendants, two Boston College students, Daniel Carr and John Sherman, on charges that they trafficked in cocaine over fourteen grams, possessed psilocybin with intent to distribute, and possessed marijuana with intent to distribute, following discovery of the illegal drugs in their campus dormitory room. On December 17, 2007, Carr filed a motion to suppress the drugs and other evidence seized as a result of a warrantless search. Sherman filed a similar motion and a motion to suppress his statements to the college police. After an evidentiary hearing, the judge granted the defendants' motions to suppress. On interlocutory appeal, the Appeals Court reversed.


Did the defendant voluntarily consented to the subsequent search of their room?




The supreme judicial court concluded that the trial judge did not err in finding that the Commonwealth failed to satisfy its burden of proving the voluntary consent of defendants to search the room. One officer testified that he stared he would like to search the room, asked defendants to fill out a consent to search, and handed defendants the forms. The officer testified that first defendant stated "yes" when asked if the officer could search the room. A second officer testified that he did not hear a verbal response from either defendant. The trial judge was not persuaded that there was consent to search based on the forms that were partially filled out by defendants. Both defendants signed the Miranda waiver, but neither placed a signature on the half of the form that gave consent to search. The supreme judicial court further concluded that the trial judge's finding that the Commonwealth did not prove voluntary consent was supported by the evidence.

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