Seales v. Boston Housing Authority , 88 Mass. App. Ct. 643 ( 2015 )

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14-P-1551 Appeals Court
TINA SEALES vs. BOSTON HOUSING AUTHORITY.
No. 14-P-1551.
Suffolk. October 6, 2015. - November 16, 2015.
Present: Cohen, Meade, & Agnes, JJ.
Boston Housing Authority. Housing Authority. Municipal
Corporations, Housing authority. Practice, Civil, Action
in nature of certiorari. Administrative Law, Hearing,
Substantial evidence, Judicial review. Evidence, Hearsay.
Controlled Substances.
Civil action commenced in the Boston Division of the
Housing Court Department on January 23, 2014.
The case was heard by Jeffrey M. Winik, J., on a motion for
judgment on the pleadings.
Angela Marcolina for the defendant.
Alex Mitchell-Munevar for the plaintiff.
MEADE, J. Tina Seales is a participant in the United
States Department of Housing and Urban Development (HUD) Housing
Choice Voucher Program, commonly referred to as "Section 8."
The program is administered by the Boston Housing Authority
(BHA) pursuant to 42 U.S.C. § 1437f (2012), and related HUD
2
regulations. In August of 2013, Seales received notice that the
BHA proposed to terminate her participation in the program due
to serious or repeated violation of her lease. Seales appealed
the proposed termination. Following an informal hearing, a
hearing officer, by a decision dated January 2, 2014, upheld the
termination of Seales's Section 8 housing subsidy. Thereafter,
Seales successfully sought relief in the nature of certiorari
under G. L. c. 249, § 4, in the Housing Court. On appeal from
that judgment, the BHA claims that the judge erred in
determining that the hearing officer improperly found that
criminal or illegal activity occurred on the rental premises
that constituted a serious violation of Seales's Section 8
lease. We reverse.
Background. Seales resided at 25 Drayton Avenue in the
Dorchester section of Boston. She was a participant in the
BHA's Section 8 program and had been receiving Section 8 housing
benefits for approximately fifteen years. Seales lived with her
three children, then ages sixteen, seventeen, and nineteen. In
August of 2013, Seales received notice that the BHA proposed to
terminate her participation in the program due to a family
member having engaged in drug-related activity and serious or
3
repeated violation of her lease.1 The BHA based its allegations
on a Boston police incident report, a leased housing
recertification questionnaire, family obligations, and the lease
itself.
1. The incident report. According to the Boston police
incident report, on July 9, 2013, police Officers Femino,
McGrath, and Bernier saw an individual leave 25 Drayton Avenue
wearing a black hooded sweatshirt and dark colored jeans and
carrying a white T-shirt. The individual was later identified
as Gavin Compass. As soon as Compass noticed the officers in
their unmarked cruiser, he "clutched at his waist," turned, and
sprinted back into the front door and into the common hallway of
25 Drayton Avenue. Based on "key indicators" of Compass's
behavior, and their training and experience,2 the officers
believed that Compass was in possession of a firearm.
After Compass turned and sprinted up the stairs of the
building, Officers Femino and Bernier got out of the unmarked
cruiser and pursued Compass into the building. Once inside, the
officers saw a discarded white T-shirt and a black firearm on
the stairs of the common hallway. The firearm was a Ruger LCP
1
Section 10(a) of the lease required that Seales and her
household members "refrain from engaging in any criminal or
illegal activity in the rental Premises."
2
The officers were trained in the Bureau of Alcohol,
Tobacco, and Firearms characteristics of an armed gunman.
4
loaded with three rounds of ammunition. The officers spoke with
the residents of the other two apartments in the building,
received their permission to search their apartments, and
determined that Compass was not in those apartments. The
officers went to Seales's apartment, where a nearby witness told
them that Compass had indeed run inside Seales's apartment. The
officers announced themselves to those inside, received no
response, and made a forced entry. Inside they discovered a
shirtless Compass; Seales's nineteen year old daughter,
Shurlynn; and another person, Keonte Campbell. One of Seales's
minor sons was also in the apartment. The black hooded
sweatshirt was located in a rear bedroom. Compass was arrested.
During a protective sweep of the residence, Sergeant Teahan
located "5 individual [plastic bags] of off white rock like
substance believed to be crack cocaine and 2 [plastic bags] of
green leafy substance believed to be marijuana." As a result,
police arrested Shurlynn and charged her with possession with
intent to distribute class B and class D controlled substances
in violation of G. L. c. 94C, §§ 32A and 32C. The drugs were
brought to the Boston police area B2 drug safe, where they were
logged and recorded.
The BHA's proposed termination of Seales's Section 8
housing assistance was due to the events described above. The
BHA cited two violations of her lease and Section 8 housing
5
agreement, notifying Seales that her assistance would be
terminated because (1) "[a] family member [Shurlynn] [had]
engaged in drug related activity," and (2) Seales had committed
"[s]erious or repeated violations of the lease." The police
incident report, detailed above, served as evidence for both
violations.
2. Administrative hearing. Seales administratively
appealed the BHA's termination in September of 2013. At the
informal hearing before a BHA hearing officer, she was afforded
the opportunity to comment on the police report, and she
explained that she was not home during the incident and that
neither she nor her children knew Compass.
Seales claimed that her daughter did not open the door for
the police because she was "afraid of retaliation" from "the
local kids," and stated that her daughter "just opened the door"
for Compass because there were "police everywhere" and he "just
came in the house." Seales further recounted that her daughter
informed her that Compass entered their home, took his shirt
off, and "was just walking back and forth" when the police
knocked and kicked in the door.
With regard to the narcotics recovered from her apartment,
Seales explained that "the stuff was in [her] unit, but it was
on [Compass]." Furthermore, as police observed the drugs in
plain view in a closet, she asserted that it was Compass who had
6
left them behind: "[H]e must have taken the drugs or the guns
or whatever . . . and put the drugs where the police found them
in [the] closet."
After reviewing the police report and testimony from both
Seales and the BHA leased housing division, the hearing officer
determined that (1) "Shurlynn . . . did not engage in drug
related activity" but that (2) "the Tenant [Seales] committed
serious and repeated violations of provision 10(a) of her
7/25/2012 lease because the police found in her unit: 5
individuals [sic] plastic bags of off white rock like substance
believed to be crack cocaine; 2 plastic bags of green leafy
substance believed to be marijuana and [a] replica M14 shotgun
BB Gun."
The hearing officer relied on the police report in
evaluating the circumstances and determined that the report met
the "substantial indicia of reliability" requirement for the
admission of hearsay evidence in an administrative proceeding
under Costa v. Fall River Hous. Authy., 453 Mass. 614, 627
(2009). In finding the police report sufficiently reliable, the
hearing officer explained that (1) the officer who made the
report was not anonymous and made statements based on his first-
hand observations, (2) Seales confirmed the presence of illegal
drugs in her apartment through her failure to deny that the
substances were drugs, and (3) she did not contradict the police
7
report with any statement or other evidence that the hearing
officer found credible. Specifically finding her statements
inconsistent and unreliable, the hearing officer did not credit
Seales's testimony.3 As a result, and in consideration of the
police report and Seales's implicit admission to the drugs in
her apartment, the hearing officer determined that illegal drugs
were present in the subsidized unit.
The hearing officer then considered a number of mitigating
circumstances supporting continuation of Seales's Section 8
benefits,4 but nevertheless concluded that the seriousness of the
criminal activity at issue warranted her termination from the
program. Although the hearing officer found the facts
sufficient for the purpose of finding a serious or repeated
3
The hearing officer explained that "the Tenant did not
submit evidence to corroborate her testimony and there [are] no
facts in the police report that sustain her argument [that
Compass left the drugs in her apartment]." She did not credit
Seales's testimony, citing its inconsistencies, including the
children's knowledge of Compass's movements and whereabouts once
he entered the building (which they would not have known had
they not spoken with him or fabricated the information),
conflicting accounts of whether the daughter observed Compass in
the apartment or had been napping until the police knocked on
the door, or why the children would have let Compass, an
apparent stranger, in the apartment if the neighborhood was as
unsafe as Seales suggested.
4
Mitigating circumstances included (1) terminating housing
assistance would be "a nightmare" for Seales because she has two
disabled children collecting Social Security benefits, (2) she
was living with her three children, (3) Seales was seeking
"mother's work hours" so she could supervise her children, and
(4) this is the first incident Seales has encountered in the
fifteen years she had participated into the Section 8 program.
8
violation of the lease, the hearing officer also determined that
the police report was not sufficient to show that Shurlynn was
engaged in drug-related activity.
3. Housing Court. In Housing Court, Seales sought relief
in the nature of certiorari pursuant to G. L. c. 249, § 4, to
challenge the hearing officer's decision to terminate her
Section 8 benefits. In her complaint, Seales explained the
circumstances surrounding her termination, but did not make a
legal argument in support her petition for relief.5
In his decision vacating the hearing officer's termination
of benefits, the judge held that the hearing officer "committed
three distinct but related legal errors" that "adversely
affected Seales'[s] material rights as a participant in the
Section 8 program." First, the judge concluded that the hearing
officer erred in finding that the substances found in a bedroom
closet were "crack" cocaine and marijuana based on the hearsay
statements contained in the police report that reflected what
the sergeant "believed" the substances to be. The judge
5
Seales stated as follows in her complaint: "Section 8 has
made a decision to terminate my voucher due to the facts, an
individual ran into my apartment . . . whom I did not know and
was arrested in my apartment. My son who is disabled heard the
commotion outside [and] heard someone knock on the door. He
thought it was the police knocking on the door, but it was the
suspect. They arrested the suspect inside my home and charged
my daughter with the crime. After going to court the magistrate
[sic] my daughter not guilty and in fact dismissed the case. I
would like the judge to order them not to take my section 8 away
from me."
9
concluded that while the factual observations in the report were
reliable, accurate, and admissible under Costa v. Fall River
Hous. Authy., 453 Mass. at 627, there was not sufficient
reliable evidence to support a finding that the substances were
in fact illegal drugs. Without a "detailed factual account" in
the police report, or corroborating evidence such as a certified
chemical analysis or a police witness or affidavit, the judge
determined: "It was legal error for the hearing officer to rely
on what Sergeant Teahan thought the substances might be --
standing alone and without any competent additional evidence --
to support a finding that the substances found in Seales'[s]
apartment were in fact crack cocaine and marijuana."
Second, the judge also determined that it was error for the
hearing officer to find that Seales's failure to deny that the
substances were drugs functioned as a tacit admission that they
were in fact narcotics. The judge concluded that this finding
was not supported by the record. He reasoned that Seales's
testimony was "direct and consistent" and that a "plain reading
of the transcript" did not provide for any admission by silence.
According to the judge, the hearing officer then improperly used
this "tacit admission" to bolster the reliability of the
statements identifying the substances as drugs in the police
report.
10
Third, the judge determined that the hearing officer erred
in relying on these erroneous factual findings to determine that
Seales "had engaged in criminal or illegal activity that
constituted a serious violation of her Section 8 lease"
warranting termination from the program. The judge found that
there was no evidence in the record to support the hearing
officer's finding that the police found crack cocaine and
marijuana in the apartment. Thus, there was insufficient
evidence to warrant termination from Section 8 housing, and the
judge reversed the hearing officer's decision to terminate
Seales from the Section 8 program. The BHA then filed this
timely appeal.
4. Standard of review. Decisions of the BHA are properly
subject to review under G. L. c. 249, § 4. See Figgs v. Boston
Hous. Authy., 469 Mass. 354, 361 & n.13 (2014). A civil action
in the nature of certiorari under G. L. c. 249, § 4, is "to
relieve aggrieved parties from the injustice arising from errors
of law committed in proceedings affecting their justiciable
rights when no other means of relief are open."6 Id. at 361,
6
General Laws c. 249, § 4, as amended through St. 2002,
c. 393, § 20, provides that "[a] civil action in the nature of
certiorari . . . may be brought in the supreme judicial or
superior court or, if the matter involves any right, title or
interest in land, . . . in the land court." Under G. L.
c. 185C, § 3, the Boston Division of the Housing Court
Department has concurrent jurisdiction with the Superior Court
Department regarding housing matters arising in the city of
11
quoting from Swan v. Justices of the Superior Court, 222 Mass.
542, 544 (1916). Certiorari review of an administrative
decision requires "(1) a judicial or quasi judicial proceeding,
(2) from which there is no other reasonably adequate remedy, and
(3) a substantial injury or injustice arising from the
proceeding under review." Ibid., quoting from Indeck v.
Clients' Sec. Bd., 450 Mass. 379, 385 & n.12 (2008).
"The scope of judicial review for an action in the nature
of certiorari under G. L. c. 249, § 4, is limited." Retirement
Bd. of Somerville v. Buonomo, 467 Mass. 662, 668 (2014). The
judge's role on certiorari review is to "correct substantial
errors of law apparent on the record adversely affecting
material rights." Doucette v. Massachusetts Parole Bd., 86
Mass. App. Ct. 531, 540-541 (2014), quoting from Firearms
Records Bureau v. Simkin, 466 Mass. 168, 180 (2013). "In the
absence of substantial legal error, we review the record to
determine whether that decision was supported by substantial
evidence." Durbin v. Selectmen of Kingston, 62 Mass. App. Ct.
1, 5 (2004).7 In reviewing an appeal of a decision in a
Boston. Therefore, the Housing Court has concurrent
jurisdiction under G. L. c. 249, § 4, with the Superior Court to
review public housing authority decisions regarding housing
matters in the city.
7
Substantial evidence is defined as "such evidence as a
reasonable mind might accept as adequate to support a
conclusion." Durbin v. Selectmen of Kingston, supra at 6,
12
certiorari proceeding, the reviewing court may not make de novo
determinations or draw different inferences from the facts, make
different judgments as to witness credibility, or disturb a
choice made between conflicting inferences or views of the
facts, "even if it might justifiably make a different choice
were the case before it de novo." Id. at 6.
We therefore review the administrative record provided by
the parties to determine whether the "judge correctly ruled that
the hearing officer committed legal errors . . . adversely
affect[ing] [Seales's] material rights." Figgs v. Boston Hous.
Authy., 469 Mass. at 362. To do so, we examine the record to
determine whether substantial evidence supported the hearing
officer's findings.8 Ibid.
5. Discussion. Through the Section 8 program, Congress
authorized the Secretary of HUD to develop a program for
assistance payments to aid "low-income families in obtaining a
decent place to live and [to promote] economically mixed
housing." 42 U.S.C. § 1437f(a) (2012). HUD provides funds to
public housing agencies, including the BHA, who then administer
quoting from New Boston Garden Corp. v. Assessors of Boston, 383
Mass. 456, 466 (1981).
8
The hearing officer's factual findings "shall be based on
a preponderance of the evidence presented at the hearing." 24
C.F.R. § 982.555(e)(6) (2015). A preponderance standard
requires that the trier of fact find that "what is sought to be
proved is more probably true than not true." Figgs v. Boston
Hous. Authy., supra at 362 n.15.
13
Section 8 benefits. See 24 C.F.R. § 982.1(a)(1) (2015); Figgs
v. Boston Hous. Authy., supra at 363. Under the BHA
administrative plan for Section 8 programs, the BHA has
discretion to terminate a housing subsidy where a participant
violates "any Family obligation under the program by action or
failure to act as listed in section 13.5.2 or as set forth in 24
C.F.R. § 982.5851." BHA administrative plan § 13.3.9. Section
13.5.2 of the BHA administrative plan contains the Section 8
"Family obligations" and provides that "[v]iolation of the
Family obligations by an act or a failure to act may result in
termination of assistance." More specifically, "[t]he Family
may not commit any serious or repeated violation of the Lease."
BHA administrative plan § 13.5.2(d). Paragraph 10(a) of
Seales's lease, signed on July 25, 2012, demonstrates her
understanding of this requirement and her agreement "to refrain
from engaging in and to cause Household member(s), guest(s), or
any person under any Household member's control to refrain from
engaging in any criminal or illegal activity in the rental
Premises."
On appeal, the BHA claims that the judge erred when he
failed to credit the police report relied upon by the hearing
officer. More specifically, the BHA claims the hearing officer
properly credited the report that contained detailed firsthand
observations as sufficient to support a finding of illegal
14
activity constituting a serious lease violation in order to
uphold termination of Seales's Section 8 benefits. We agree.
In Costa v. Fall River Hous. Authy., 453 Mass. at 627, the
Supreme Judicial Court held that hearsay evidence, such as a
police report, "may form the basis of a [housing authority's]
decision to terminate Section 8 assistance so long as that
evidence contains substantial indicia of reliability."9 Not all
hearsay is admissible, however. In fact, the court cautioned
against relying on "anonymous, uncorroborated, or contradicted"
hearsay. Id. at 626.
Here, the hearing officer found the police incident report
to be admissible hearsay not subject to any of the concerns
raised in Costa. In her findings, the hearing officer indicated
that the statements in the police report contained "substantial
indicia of reliability" because the report was "not anonymous."
The report consisted of "first hand observations of the
Reporting Officer," and the statements made in the report were
based on those observations. See id. at 627. The report
contained both a comprehensive and detailed factual account of
the encounter between the police, Compass, and Seales's
children, as well as detailed statements identifying the
9
In Costa, supra, the Supreme Judicial Court held that the
police report in that case was admissible because it "offered a
detailed factual account based on the personal observations of
the detective, and it is a crime for a police officer to file a
false report."
15
substances found in Seales's apartment as five plastic bags of
an "off white rock like substance believed to be cocaine" as
well as two bags of a "green leafy substance believed to be
marijuana." The hearing officer relied on this thorough account
to support a finding that police had, in fact, observed illegal
drugs in Seales's apartment.
Despite meeting the "substantial indicia of reliability"
standard of Costa, the judge nevertheless ruled that the hearing
officer's reliance on the report amounted to legal error. While
the judge conceded that the facts contained in the police report
were sufficiently reliable, he ruled that the police officer's
"belief" that the substances were crack cocaine and marijuana
was not sufficiently reliable to support a finding that the
substances actually were illegal drugs absent corroborating
testimony, affidavits, or laboratory reports.10 In focusing on
10
In reaching this conclusion, the judge relied on
Commonwealth v. Dawson, 399 Mass. 465, 467 (1987), for the
proposition that proof that a substance is a particular drug may
be proven by circumstantial evidence, but not by testimony or a
police report alone. The judge's reliance was misplaced.
Dawson was a criminal prosecution with the identity of cocaine
missing from an evidence control room at issue. The court held
that a substance can be identified as cocaine through the
testimony of experienced police officers rather than through
laboratory analysis or testimony by a qualified chemist. Id. at
466-467. Despite that, the court also remarked (a remark the
judge here relied on), "We suspect it would be a rare case in
which a witness's statement that a particular substance looked
like a controlled substance would alone be sufficient to support
a conviction." Id. at 467. The problem with the judge's
reliance on this dicta is that Dawson involved a criminal case
16
what the police officer believed but did not conclusively state,
the judge improperly discounted both the reliability inherent in
a detailed police incident report, as well as the hearing
officer's permissible inferences regarding the details in the
report. The police report here, combined with a commonsense
understanding that this police sergeant would have the training
and experience to identify illegal drugs, was sufficient to
support an inference and finding that the substances in Seales's
apartment were correctly identified as crack cocaine and
marijuana.11 See Figgs v. Boston Hous. Authy., 469 Mass. at 355,
where any conviction must be based on proof beyond a reasonable
doubt. Here, in this civil administrative proceeding, the
burden was a preponderance of the evidence. While the court in
Dawson expressed doubt that a statement alone could support a
conviction beyond a reasonable doubt, nothing in Dawson
precluded a finding by a preponderance of the evidence that a
reliable, detailed police statement is sufficient to identify a
substance as an illegal drug.
11
The hearing officer also found the police report
sufficiently reliable because Seales did not contradict any of
the statements contained in the report or deny that there were
drugs in her apartment. She considered Seales's failure to deny
that the police had found drugs to be a tacit admission of their
presence. Although she considered the police report and tacit
admission together in finding that the police report was
reliable, we need not consider this aspect of the hearing
officer's reasoning because the police report itself was
sufficiently reliable to support her finding that the substances
in Seales's apartment were illegal drugs. See Costa v. Fall
River Hous. Authy., 453 Mass. at 627 (holding police report with
"detailed factual account based on the personal observations of
the detective" sufficiently reliable); Figgs v. Boston Hous.
Authy., 469 Mass. at 357, 364-365 (hearing officer could
properly find unlawful possession by preponderance of evidence
17
364-365 (holding police report identifying "two bags of a leafy
green substance believed to be marijuana," plastic bags, $653 in
cash, and a firearm allowed inference of possession and intent
to distribute or sell [emphasis added]). We add that here, as
in Costa, the reliability of the report is further bolstered by
the fact that it is a crime to file a false police report. See
Costa v. Fall River Hous. Authy., 453 Mass. at 627; G. L.
c. 268, § 6A.
Therefore, there was substantial evidence to permit the
hearing officer to find that illegal drugs were found in
Seales's apartment. The judge improperly disturbed this finding
and exceeded his authority on certiorari review by drawing his
own inference on the reliability of the sergeant's belief. See
Durbin v. Selectmen of Kingston, supra at 6 (reviewing court
cannot "draw different inferences from the facts; it cannot
disturb a choice made below between two fairly conflicting
inferences or views of the facts").
Because the hearing officer could properly find that there
were illegal drugs in Seales's apartment, it was also properly
within her discretion to conclude that Seales violated her lease
because a person under her control engaged in criminal or
illegal activity in the rental premises. Whether the activity
based on police incident report and confidential informant
hearsay statements).
18
constituted a serious or repeated violation of section 10(a) of
the lease, and whether Seales's Section 8 benefits should be
terminated based on this violation, fell squarely within the
hearing officer's discretion. See Costa v. Fall River Hous.
Authy., supra at 630-631. The BHA claims that the hearing
officer's decision to terminate Seales's Section 8 benefits was
not an abuse of discretion. We agree.
To determine if the hearing officer abused her discretion
in reaching these conclusions requires that that we "look for
decisions based on 'whimsy, caprice, or arbitrary or
idiosyncratic notions.'" Figgs v. Boston Hous. Authy., supra at
368, quoting from Cruz v. Commonwealth, 461 Mass, 644, 670
(2012). We do not substitute our judgment or disturb a decision
because we may have decided differently. Ibid.
We are satisfied that the hearing officer considered and
weighed the evidence before her, including the police report,
hearing testimony, and any potentially mitigating factors in
Seales's favor before determining that termination was indeed
appropriate.12 Contrast Carter v. Lynn Hous. Authy., 450 Mass.
626, 636-637 (2008). We conclude that there was substantial
12
Although not challenged on appeal, the hearing officer's
decision at times reported testimony without indicating whether
the testimony was credible. At other times, explicit
credibility determinations were made. A clear statement of what
testimony was found credible assists in meaningful appellate
review. See, e.g., Friedman v. Board of Registration in Med.,
408 Mass. 474, 476 (1990), cert. denied, 498 U.S. 1107 (1991).
19
evidence to support the hearing officer's finding that illegal
drugs were in Seales's apartment, which constituted a serious
violation of her lease. Therefore, the hearing officer did not
abuse her discretion in finding that Seales's conduct warranted
terminating her participation in the Section 8 program.
Judgment reversed.