PHA Can Void Resident’s Tenancy for Criminal Activity

Facts: One night, a site manager observed a resident’s guests arriving at the site in an impaired state, and unwilling (or unable) to cooperate with security. An on-site police officer who served as the community liaison to the local PHA, conducted an investigation into complaints about guests. As he approached the resident’s apartment, he heard loud voices coming from inside and smelled the odor of “some sort of substance.”

After entering the apartment, the officer saw three people, including the resident, sitting in a room. There was smoke that smelled like marijuana and “crack” cocaine. He observed drug paraphernalia in plain view, including a flat mirror “lined horizontally,” lying on a room partition, a debit card, and the remains of what could be a filter for a crack cocaine pipe. He also saw two daggers, one of which was next to the mirror within reach of the resident, who was in “an intoxicated state.” The officer concluded that those present in the apartment had been smoking crack cocaine and marijuana and that the complaints he had been receiving were valid.

Later that month, the officer returned to the apartment to find paramedics, police, and two unconscious people. He concluded that the two had used heroin based on their responses to the administration of Narcan to reverse an opioid overdose, their physical appearance, and the syringes in their backpacks. The resident was present in the apartment, which was in the same general condition; the horizontal mirror was still there. In the officer’s opinion, the apartment was fashioned in such a way as to be used to consume narcotics.

The officer subsequently filed criminal complaints against the resident, charging him with disturbing the peace, maintaining a disorderly house, and knowingly being present where heroin was kept. The PHA sued under state law to void the resident’s tenancy. Following a trial, a housing court judge ruled that the resident “engaged in conduct, and allowed his guests to engage in conduct, which constitutes the keeping of controlled substances in the premises.” The judge entered a judgment voiding the lease and permanently barring the resident from entering any portion of the site. The resident appealed.

Ruling: A Massachusetts appeals court agreed with the lower court’s decision.

Reasoning: The resident argued that evidence of use over a period of time was lacking. But the court found no clear error in the judge’s finding that the resident “engaged in conduct … which constitutes the keeping of controlled substances in the premises.”

As the judge found, the resident wasn’t an unwitting bystander to covert drug use by occasional visitors. The judge inferred that the resident, the sole tenant in control of the premises, had himself used the premises to consume or to possess controlled substances, and invited others to do likewise, on two occasions over the course of a month. The evidence regarding the setup of the apartment, the mirror, the debit card, and the daggers also supported the inference that the resident used the apartment for the purpose of consuming marijuana or cocaine over a period of time. Therefore, the court concluded the judge didn’t err in entering judgment for the PHA, voiding the resident’s lease, and permanently restraining him from entering or trespassing on any portion of the premises.

• Brockton Housing Authority v. Mello, January 2018