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14-P-1868 Appeals Court
COMMONWEALTH vs. TERRY LYNN OWENS.
No. 14-P-1868.
Suffolk. October 4, 2016. - September 11, 2017.
Present: Kafker, C.J., Trainor, & Henry, JJ.1
Controlled Substances. Constitutional Law, Search and seizure, Probable cause. Search and Seizure, Exigent circumstances, Securing of premises, Expectation of privacy, Probable cause, Protective sweep, Warrant. Probable Cause. Practice, Criminal, Motion to suppress, Warrant.
Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on July 17, 2013.
A pretrial motion to suppress evidence was heard by Kenneth J. Fiandaca, J.
An application for leave to prosecute an interlocutory appeal was allowed by Francis X. Spina, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court.
Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. Trevor Davis for the defendant.
1 Chief Justice Kafker participated in the deliberation on this case and authored this opinion while Chief Justice of this court, prior to his appointment as an Associate Justice of the Supreme Judicial Court. 2
KAFKER, C.J. The defendant, Terry Lynn Owens, was charged
with possession of a class B substance pursuant to G. L. c. 94C,
§ 34. The defendant moved to suppress evidence discovered when
police officers secured a house used for prostitution while they
obtained a warrant. After an evidentiary hearing, the motion
judge allowed the defendant's motion. The Commonwealth appeals,
claiming that the search was justified as a protective sweep or
"freeze" to prevent the destruction of evidence. We conclude
that the limited search was permissible in these circumstances,
where the officers were already in the home pursuant to an
undercover "sting" operation and knew there were other people in
the home who might be alerted to the officers' presence and
destroy evidence before they could obtain a search warrant, was
permissible. We therefore reverse the order allowing the motion
to suppress.
Background. We recite the facts as found by the motion
judge, supplemented by uncontroverted evidence drawn from the
record of the suppression hearing and evidence that was
implicitly credited by the judge. See Commonwealth v. Melo, 472
Mass. 278, 286 (2015). The judge's findings were as follows:
"Boston Police Officers Kevin McClay and Luis Anjos . . . were, on April 8, 2013, members of the Orchard Park [s]afe [s]treet [t]eam, . . . tasked with quality of life community policing in the Orchard Park/Dudley Triangle area of the Roxbury district. The team was in the area of 131 3
Eustis Street. . . . The house itself was known to officers as a place of prostitution. They knew that the owner, Farhad Ahmed, had recently been ejected by court order from a nearby home where he had been renting rooms by the hour for purposes of prostitution. They believed that Ahmed had commenced the same activity at 131 Eustis Street. Neighbors had complained to police about the prostitution being conducted at that address. Finally, police had interacted with known prostitutes and had learned from them that rooms in the house were available for use by the hour.
"On April 18, 2013, . . . officers were watching the home when they saw a man exit who they did not believe lived there. They detained him and he subsequently told the officers that he had been there to visit a prostitute. The man gave [the officers his information as well as] the name of the prostitute, 'Cinnamon,' and her contact number. Officer McClay, posing as a prospective customer, called her and made contact the next day. McClay was familiar with the interaction: the female insisted on calling him back, declined to give information, and asked for him to call back a few hours later.
"McClay called back a few hours later, as directed, and the female informed him of the services she offered. They arra[ng]ed to meet the following day, but she would not give the address. Instead, she told McClay that she would text him the address just before the appointed time. She asked McClay if he was familiar with Roxbury and told him she would be near Massachusetts Avenue.
"A few minutes later she sent a text message with the address of 131 Eustis Street. Officer McClay arrived at that address. He had arra[ng]ed with members of his team that he would alert them when . . . she accepted money from him.
"The officer sent the female a text message saying he had arrived. She told him that she would let him in, and he saw the front door of the house open. He entered, and the female then closed the door and barred it with a [two- by-four] piece of lumber. He was in the front common hall. The man known to McClay as the owner, Farhad Ahmed, was standing in the hall nearby. McClay knew that Ahmed's apartment was on the first floor rear, and that there were four or five rooms on the second floor. One or more of those rooms, McClay knew, was rented by Ahmed for [twenty 4
dollars] for two hours. There was testimony that Ahmed had supplies of alcohol, condoms and drugs for sale. There was no testimony as to the basis of knowledge of the officers as to the drugs and alcohol, and I do not find that the Commonwealth has established, by a preponderance of the evidence, that either were sold by Ahmed; Ahmed's history was of renting rooms in his houses for prostitution by the hour, and all of the police investigation here, both with the initial 'John' and with the female prostitute, involved the use of the premises for prostitution. Accordingly, while I find that the police officers' belief that the premises were used for prostitution was supported by specific facts known to them, I do not so find on the evidence here with respect to drugs.
"The female asked Officer McClay for [twenty dollars] to pay Ahmed. Officer McClay replied that, in fear of being robbed, he had left his wallet in his car. As the door was opened to allow McClay to go to his car, he signaled the other officers. They entered the building and arrested the owner, Ahmed, as well as 'Cinnamon.'
"Because officers had seen other people enter the house before the arrest, and because they believed that their sergeant would be seeking a search warrant, they decided to 'freeze' the entire house.[2] Police decided to get everyone out of the house. Toward that end, Officer
2 Officer Kevin McClay explained at the evidentiary hearing, "My supervisor had decided . . . that the house would be frozen for a search warrant." The freezing process was described by Officer Anjos in the "particular circumstance[s]" as follows: "The freezing process is, you freeze the house, take everybody out of the house; and officers conduct a protective sweep of the entire house to make sure that nobody else is in there and nothing is moved, no evidence, nothing is taken out until we come back with a search warrant." Officer McClay also testified concerning the freezing process as follows: "We did a protective sweep to get everybody out in order to secure the house with two officers so that the warrant could be applied for. Once the house is frozen two officers are placed at that residence in any case to prevent anybody from going in and destroying evidence or whatever. And we've had problems where people do try to get back in. We've had people climb through windows, climb through the ceiling. So two officers were there. But before those officers are put in a vulnerable position, we make sure everybody's out." 5
Anjos decided to conduct a 'protective sweep' of the premises. He heard noise from the second floor. He ascended the stairs and entered the second room he came to. He knocked, then immediately opened the door. A female was on the bed, and a male, the defendant here, was next to a table. The defendant had an open can of beer and was sitting in front of a black pla[t]e on which was a white powder. He also had a pipe in his hand which the officer knew was of the type used to smoke crack cocaine."
The officers seized the substance and the related items during a
search conducted pursuant to the warrant they had obtained. The
warrant return was not introduced in evidence.3
In his rulings of law, the motion judge first noted that
the defendant had standing to challenge the police entry into
the room, as he was charged with a possessory offense. The
judge then concluded that the protective sweep was not justified
because there were no specific facts suggesting that the police
were in danger. The judge further concluded that the search was
not justified under the exigent circumstances doctrine, as there
was no "specific information supporting an objectively
reasonable belief that evidence [would] indeed be removed or
destroyed unless preventative measures [were] taken." The judge
noted, "[i]t is of no import that the police were already in the
3 There was, however, testimony that a search warrant was sought, as the motion judge found. We have confirmed the issuance of the search warrant by obtaining a copy from the trial court. See generally Commonwealth v. Gonzalez, 462 Mass. 459, 468 n.17 (2012) (court may take judicial notice of records of other courts). 6
first floor common hallway." For the following reasons, we
reverse.
Discussion. "In reviewing an order allowing a motion to
suppress, we consider 'the facts found or implicitly credited by
the motion judge, supplemented by additional undisputed facts
where they do not detract from the judge's ultimate findings.'
. . . We accept the judge's subsidiary findings of fact absent
clear error, 'but conduct an independent review of [the judge's]
ultimate findings and conclusions of law.' . . . '[O]ur duty is
to make an independent determination of the correctness of the
judge's application of constitutional principles to the facts as
found.'" Commonwealth v. Campbell, 475 Mass. 611, 615 (2015)
(citation omitted).
1. Reasonable expectation of privacy. On appeal, the
Commonwealth properly agrees that the defendant has automatic
standing to challenge the search because he is charged with a
possessory drug offense. See Commonwealth v. Mubdi, 456 Mass.
385, 392 (2010). The Commonwealth argues, however, that a
search did not occur in the constitutional sense because the
defendant did not demonstrate a reasonable expectation of
privacy in the place searched. See id. at 391 (question of
standing "remains separate" from question of reasonable
expectation of privacy). In the present case, the relevant
place searched is the second-floor bedroom in which the 7
defendant was found. The Commonwealth argues that there was
insufficient evidence to establish that the defendant or the
woman with whom he was found had rented the room, and that even
if one of them had, the defendant's "privacy rights and
reasonable expectations are limited by the unique and transient
nature of his room occupancy." Commonwealth v. Molina, 459
Mass. 819, 825 (2011).
Although we recognize this is a somewhat novel question,
given the rental-by-the-hour arrangement, we conclude that the
defendant had a reasonable expectation of privacy in the room.
In determining whether a defendant has a reasonable expectation
of privacy, "we look to various factors . . . including the
nature of the place searched, whether the defendant owned the
place, whether he controlled access to it, whether it was freely
accessible to others, and whether the defendant took 'normal
precautions to protect his privacy' in that place."
Commonwealth v. Porter P., 456 Mass. 254, 259 (2010), quoting
from Commonwealth v. Pina, 406 Mass. 540, 545, cert. denied, 498
U.S. 832 (1990). Here, it was reasonable to find, or at least
to infer, that the room was paid for and that the door was
closed to protect the privacy of the renters. Both officers
testified to their belief that the rooms in the house were
rented by the hour. There was no evidence to suggest that the
rental period had expired or that the defendant had abandoned 8
the room. See Commonwealth v. Paszko, 391 Mass. 164, 184-185
(1984) (defendant had reasonable expectation of privacy in motel
room for duration of rental period and prior to abandonment of
room). See also Stoner v. California, 376 U.S. 483, 490 (1964)
("No less than a tenant of a house, or the occupant of a room in
a boarding house, . . . a guest in a hotel room is entitled to
constitutional protection against unreasonable searches and
seizures").
This is also not a case where the defendant was "unlawfully
on the property searched," and therefore would have neither
standing nor a reasonable expectation of privacy. Mubdi, 456
Mass. at 393 n.8. When the evidence suggests the defendant is
akin to a trespasser, he lacks both. See ibid. Engaging in
unlawful activity on the property, however, is a different
question from whether the defendant is unlawfully on the
property. See Commonwealth v. Morrison, 429 Mass. 511, 514
(1999) ("What deprives this defendant of a reasonable
expectation of privacy is not his status as a law violator in
general"); Mubdi, supra ("We need not address [the] exception
[to automatic standing] here, because there is no evidence that
the defendant was unlawfully in the [place] that was searched").
Here, the defendant was lawfully on the property due to the
rental of the room by the hour, and therefore had both standing
and a reasonable expectation of privacy. 9
2. Protective sweep. The Commonwealth first attempts to
justify the search as a protective sweep for officer safety. We
disagree. For a search to be justified as a protective sweep,
the officer must have "a reasonable belief based on 'specific
and articulable facts which, taken together with the rational
inferences from those facts, reasonably warrant[ed]' the officer
in believing . . . that the area swept harbored an individual
posing a danger to the officer or others." Maryland v. Buie,
494 U.S. 325, 327 (1990), quoting from Michigan v. Long, 463
U.S. 1032, 1049-1050 (1983). See Commonwealth v. Colon, 449
Mass. 207, 216-217 (2007). In the present case, the hearing
transcript supports the motion judge's finding that there was no
reasonable basis for suspecting that persons present in the
house posed a danger to the police or to others. There was no
evidence that the prostitution business reportedly conducted at
the house or by Ahmed in the past included incidents of
violence. See Commonwealth v. Nova, 50 Mass. App. Ct. 633, 635
(2000); Commonwealth v. DeJesus, 70 Mass. App. Ct. 114, 119-120
(2007). Nor was there any other testimony reflecting specific
concerns about violence here. Absent such proof, the sweep, as
the motion judge found, could not be justified as one to prevent
harm to the police.4
4 The parties did not have the benefit of Commonwealth v. Saywahn, 91 Mass. App. Ct. 706, 709 (2017) (that defendant was 10
3. Limited search after lawful entry to prevent
destruction of evidence while warrant was sought. We agree with
the Commonwealth, however, that the search was justified to
prevent the removal or destruction of evidence. There was
significant, uncontroverted testimony that the officers were
securing the building from within to preserve evidence while
they sought a search warrant. See Commonwealth v. Blake, 413
Mass. 823, 829 (1992) ("Securing a dwelling, on the basis of
probable cause, to prevent the destruction or removal of
evidence while a search warrant is being sought is not itself an
unreasonable seizure"); Commonwealth v. Ware, 75 Mass. App. Ct.
220, 233 n.13 (2009) ("Securing or 'freezing' a dwelling while
waiting for a search warrant is not unreasonable"). There was
ample testimony about a number of people being present in the
building, justifying the officers' concerns about the
destruction of evidence. See Commonwealth v. Streeter, 71 Mass.
App. Ct. 430, 439-440 (2008) ("officers were allowed to perform
a limited search of the apartment to determine that no one else
was present who could have . . .destroyed the evidence remaining
in the apartment"). There was also specific testimony regarding
what that evidence might be. The motion judge himself
recognized that there was testimony regarding Ahmed's provision
already secured at front door of home and could easily have been removed safely when officers went upstairs to conduct sweep "cuts against" permissibility of protective sweep). 11
of condoms, and the judge apparently credited this testimony in
contrast to the testimony about alcohol and drugs.5 In sum, the
judge improperly concluded that the officers lacked the legal
authority to secure the house from within to preserve evidence
of the crime of operating a place of prostitution.
Our holding is not inconsistent with Commonwealth v.
DeJesus, 439 Mass. 616 (2003), which must be read in its proper
factual and legal context. In that case, the Supreme Judicial
Court held that "police officers who secure a dwelling while a
warrant is being sought in order to prevent the destruction or
removal of evidence may not enter that dwelling, in the absence
of specific information supporting an objectively reasonable
belief that evidence will indeed be removed or destroyed unless
preventative measures are taken." Id. at 621.
5 Although the search warrant apparently was not introduced in evidence, the application for the warrant referenced condoms as well as lubricants and photographic evidence. See Commonwealth v. Lopera, 42 Mass. App. Ct. 133, 139 n.6 (1997) ("the presence of used and unused condoms" and "lubricating jellies," inter alia, in room provided sufficient evidence of operating house of prostitution to withstand defendant's motion for required finding of not guilty). See also State v. McGraw, 19 Kan. App. 2d 1001, 1010 (1994) ("condoms scattered around the floor" of club supported conviction of maintaining house of prostitution). Other evidence that the house was being used as a place of prostitution could include the conditions of the rooms, sex toys, or even the identity of known sex workers found on the premises. See Wells v. State, 27 Okla. Crim. 370, 371- 372 (1924) (sufficient evidence supported conviction of maintaining house of prostitution where known prostitutes were found in house, premises had "general reputation" of being place of prostitution, and, during police raid, man was found in room with woman who was "almost entirely undressed"). 12
DeJesus, however, involved an arrest that took place away
from the defendant's apartment, and a situation in which the
officers had no reason to believe that anyone was in the
apartment when they entered it. See id. at 617-618. The
officers had received a key to the apartment from the defendant
upon his arrest and the officers then traveled to the apartment,
knocked loudly, and announced their presence. See id. at 618.
When they heard no response, they proceeded to use keys taken
from the defendant at the time of his arrest to open the door to
the apparently unoccupied apartment. Ibid. They then entered
the apartment and checked the rooms inside to see if anyone was
present. See ibid. See also Commonwealth v. McAfee, 63 Mass.
App. Ct. 467, 474 & n.5 (2005) (no need to go to defendant's
apartment and secure it from within when there was no evidence
that his confederate, who had been stopped outside apartment,
"had an opportunity to contact the defendant"; court emphasized
"the complete absence of evidence of a risk that the defendant
had discovered or been informed of the police investigation or
the detention of his recent customer").
By contrast, the police in this case were already inside
the house legally when they sought to secure it. They also knew
there were other people present in a position to remove or to
destroy evidence. See Streeter, 71 Mass. App. Ct. at 437
(officers heard what they believed to be multiple people 13
"running around" in apartment and occupant admitted that his
"friend" was in apartment). Officer McClay testified that he
saw two people going into the house and Officer Anjos testified
that he could "hear people upstairs talking and walking about."
These facts readily distinguish this case from DeJesus and its
requirement that police may not enter the house and secure it
from within. See Streeter, supra at 436-437 (distinguishing
DeJesus on basis that officers "were legally in the hallway of
the apartment" when they smelled marijuana and "heard running
sounds within the apartment"). The court in DeJesus, supra at
623-624, in fact, emphasized that "[t]here was no indication
whatsoever that the dwelling was occupied at the time -- the
officers had no knowledge that anyone was inside, there was no
response to their knocking at the door, and they apparently
heard no sounds coming from within. . . . [A]ny evidence
located within an unoccupied dwelling can be fully protected by
controlling access to that dwelling from the outside."
We also disagree that the police were precluded from
securing the house from within because they could have proceeded
with a warrant in the first place and avoided any exigency.
Although the police had probable cause to believe that the house
was being used as a place of prostitution based on the testimony
of the neighbors, their interviews with known sex workers, and 14
their interview with the man leaving the location on April 18,6
they also had legitimate reasons to proceed with the sting
operation with Cinnamon and therefore develop firsthand
conclusive evidence of prostitution at the location before
proceeding any further. See Commonwealth v. Mullane, 445 Mass.
702, 704 (2006) (police went undercover to investigate massage
"school" alleged to be front for illicit sexual activity);
Commonwealth v. Purdy, 459 Mass. 442, 444-445 (2011) (police
conducted undercover operation in suspected house of
prostitution); Commonwealth v. Matos, 78 Mass. App. Ct. 578, 580
(2011) (police went undercover in "sting" operation to
investigate suspected prostitution activities in hotel).
Compare Commonwealth v. Forde, 367 Mass. 798, 803 (1975) (where
police "offer[ed] no justifiable excuse for their prior delay in
obtaining a warrant" even though they had probable cause and
6 We note that the court in DeJesus recognized that "regardless of the illegality of the initial entry and search [in that case], the evidence is admissible as long as the affidavit in support of the application for a search warrant contains information sufficient to establish probable cause . . . apart from the observation[s arising out of the illegal search]." Id. at 625. In the present case, the motion judge could not uphold the search on this ground because he was not presented with the search warrant or the affidavit. We do note, however, that the four corners of the affidavit, which we have received from the trial court, appear to establish probable cause absent the evidence observed in the search of the second- floor bedroom. See Commonwealth v. Mullane, 445 Mass. 702, 705- 707 (2006) (probable cause existed to support warrant obtained to search alleged house of prostitution based on statement of informant and affidavit of police officer who posed as customer). 15
planned to obtain warrant for more than one week; exigency that
was created was foreseeable and did not justify warrantless
search).
By far, the strongest evidence of prostitution that the
officers uncovered at the location was their own encounter with
Cinnamon inside the house. See Commonwealth v. Bell, 67 Mass.
App. Ct. 266, 267 (2006) (describing "the undercover 'sting'" as
"a technique that has become integral to law enforcement"). At
that point, they did not need to rely on the testimony of sex
workers or "Johns," or the observations of neighbors outside the
house to prove their case. After the successful undercover
operation, the officers also had good reason to secure the
upstairs as well as the downstairs to prevent the destruction of
evidence of prostitution elsewhere in the house. Compare
Commonwealth v. Lopera, 42 Mass. App. Ct. 133, 139 n.6 (1997).
The police conduct here was reasonable from start to finish,
including the entry to negotiate sex for a fee to conclusively
prove the case, the arrest of the sex worker and the operator of
the brothel, and the securing of the occupied house from within
to preserve evidence by officers already lawfully inside the
building. The purpose of the Fourth Amendment to the United
States Constitution and art. 14 of the Massachusetts Declaration
of Rights is to preclude unreasonable, not reasonable, police
conduct. This was not the case of an unjustified failure to 16
proceed by warrant or a manufactured exigency. Cf. Forde, 367
Mass. at 801-803; McAfee, 63 Mass. App. Ct. at 474-475.
Order allowing motion to suppress reversed. HENRY, J. (dissenting). I agree with the reasoning of the
majority except for its holding that exigent circumstances
justified the warrantless entry by police into the dwelling's
upstairs on grounds that evidence would be removed or destroyed
unless protective measures were taken.1
Where, as here, the police gained lawful entry to some
portion of a dwelling, that entry does not abrogate the
traditional principles of search and seizure that apply to the
remaining portions of the residence. See generally Commonwealth
v. Gray, 465 Mass. 330, 344-345 (2013), citing Commonwealth v.
DeJesus, 439 Mass. 616, 621, 624 (2003). Those principles, with
which the majority does not disagree, state 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
1 The majority also responds to the defendant's argument, made for the first time on appeal, that the exigency was created by the police, and concludes that the police did not act improperly. Ante at . I believe this conclusion is subject to challenge given the extensive information that the police had at least one day before entering the dwelling. See Commonwealth v. Mullane, 445 Mass. 704-708 (2006) (search warrant for business that was used as place for unlawful sexual intercourse was properly obtained before undercover officer made arrangements for services and entered building for such services, with that event triggering execution of warrant). Because, however, the issue was not presented during the hearing on the motion to suppress, its merits "were never meaningfully addressed" and the motion judge made no findings or rulings on the merits. Commonwealth v. Mauricio, 477 Mass. 588, 594 (2017). The issue is therefore waived, and I would have declined to address its merits. See ibid. 2
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.' . . . Federal and State case law delineates clear
boundaries for permissible entry by police officers into a home
in order to search or arrest. In the absence of a warrant, two
conditions must be met in order for a nonconsensual entry to be
valid: there must be probable cause . . . and there must be
exigent circumstances" that made obtaining a warrant
impracticable. DeJesus, supra at 619. Exigencies that permit a
search or seizure "without [a] warrant are a narrow category and
must be established by the Commonwealth" which bears a heavy
burden of proof. Commonwealth v. Ramos, 470 Mass. 740, 745
(2015) (citation omitted). See Commonwealth v. Tyree, 455 Mass.
676, 684 (2010); Commonwealth v. White, 475 Mass. 583, 588
(2016).
Here, where the claimed exigency is the loss of evidence,
the Commonwealth must show that the police officers had
"specific information supporting an objectively reasonable
belief that evidence will indeed be removed or destroyed unless
preventative measures are taken." DeJesus, 439 Mass. at 621.
The question before us, then, is whether the Commonwealth
established such specific information. As the majority notes,
and I agree, there was "ample" evidence that there were a number 3
of people in the upstairs rooms. Ante at . Specifically,
the motion judge credited the testimony that the police had seen
other people enter the house shortly before the police did, that
the police heard people walking around and talking on the second
floor once the officers were inside, and that the police
reasonably believed the premises were being used for
prostitution. And, as the majority also indicates, there was
testimony that Ahmed provided condoms to those who used the
house. Ante at . In sum, the evidence adduced at the
hearing that related to the crime under investigation included
condoms and the identity of the sex workers and their customers.2
To justify the entry to search for this evidence, the
Commonwealth must show "an objectively reasonable belief that
evidence will indeed be removed or destroyed" absent preventive
2 I note that there has been significant movement toward prohibiting condoms from being used as evidence to prove charges related to prostitution. Where the possession of condoms is considered incriminatory evidence, it discourages sex workers from carrying condoms out of fear that doing so will increase the likelihood of arrest and conviction, with the result that sex workers engage in unprotected sex and risk endangering public health by contracting and transmitting sexually communicable diseases. See Human Rights Watch, Sex Workers at Risk: Condoms as Evidence of Prostitution in Four US Cities, (July 19, 2012), http://www.hrw.org/report/2012/07/19/sex- workers-risk/cndoms-evidence-prostitution-four-us-cities [https://perma.cc/XR3R-XX26]. In 2015, the State of New York statutorily prohibited evidence that any person was in possession of one or more condoms in any prosecution of that individual for prostitution. See N.Y. Crim. Proc. Law § 60.47 (McKinney's 2016). In view of these concerns, I am reticent to view condoms as proof of the crimes at issue, but I recognize the law in Massachusetts is otherwise. 4
measures. DeJesus, 439 Mass. at 621. Here, no testimony
suggested that anyone in the dwelling knew the police were
inside; nor was there any testimony that any occupant was
engaged in suspicious activity that suggested evidence would be
secreted or destroyed. The mere presence of individuals in a
dwelling, standing alone, does not establish an objectively
reasonable belief that evidence will be removed or destroyed.3
This standard does not encompass a belief that in the future, if
certain events transpire, evidence will be lost or destroyed.
See, e.g., Ramos, 470 Mass. at 746 (warrantless entry of garage
upheld to prevent destruction of evidence where police heard
sounds inside garage that by objective standard indicated that
people were there and that evidence related to stolen vehicle
therein was being destroyed). See also Tyree, 455 Mass. at 685
(evidence did not support belief that evidence would be lost or
3 Moreover, there was little, if any, risk that the identity of the individuals in the dwelling would be lost if the rooms were not immediately searched. The police were entitled to secure the building from the outside, Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), and anyone leaving the premises could be stopped and questioned in accordance with Terry principles. See Terry v. Ohio, 392 U.S. 1, 13 (1968). See generally Commonwealth v. Catanzaro, 441 Mass. 46, 53 (2004) (while executing a warrant, police properly stopped an occupant of apartment who was walking away from dwelling to question her about suspected criminal activity that was subject of warrant); Commonwealth v. Bostock, 450 Mass. 616, 619 (2008) (within minutes of two break-ins and in general area of alleged crimes, that defendant was found and matched description given independently by two witnesses constituted reasonable suspicion to stop). 5
destroyed absent immediate action); Commonwealth v. Streeter, 71
Mass. App. Ct. 430, 437 (2008) (sound of running and suspicious
conduct justified entry where officer smelled marijuana that
could be removed or destroyed); Commonwealth v. Sueiras, 72
Mass. App. Ct. 439, 442 (2008) (entry into home justified by
exigent circumstances where there was probable cause that adult
had supplied minors with alcohol, and if officer had secured
scene from outside, it was reasonable to believe that empty
containers as well as alcoholic beverages that he had observed
from looking through windows of home "could have been taken out
the back door or hidden from him").
Nor do the cases cited by the majority support the position
that the mere presence of individuals in a residence constitutes
exigent circumstances. Specifically, in Ware, the police
conducted a protective sweep to locate a specific firearm that
was unaccounted for when the defendant was arrested.
Commonwealth v. Ware, 75 Mass App Ct. 220, 233 (2009).
Moreover, the seizure of the firearm was justified because the
police later obtained a warrant. See ibid. In Blake, the court
ruled that the warrant obtained by the police was based entirely
on facts independent of the observations made during a
protective sweep. See Commonwealth v. Blake, 413 Mass. 823, 830
(1992). Finally, in Streeter, 71 Mass. App. Ct. at 437-438, the
result turns on a traditional exigent circumstances analysis. 6
While outside the defendant's apartment investigating an
unrelated crime, the police smelled a strong odor of marijuana
coming from inside the defendant's apartment. Id. at 431. When
the police knocked on the door, they heard a commotion inside
and the defendant came out a rear door and locked the door
behind him. Id. at 431-432. The defendant admitted he had
smoked marijuana and appeared shaky. Id. at 432. The defendant
admitted his daughter and a friend were inside the apartment.
Ibid. In these circumstances, there was an objectively
reasonable belief that contraband would be destroyed if the
apartment door was not opened. Id. at 436-438. When the
defendant opened the door, the police observed marijuana in
plain view on a kitchen table. Id. at 432.
The police in this case were at a loss during the
suppression hearing to articulate specific evidence or
information that led them to act. Instead, the generic
explanations offered in relation to why they were clearing the
rooms, were "to make sure that . . . nothing is moved, no
evidence, nothing is taken out"; and "to prevent anybody from
going [back] in and destroying evidence or whatever."4
In view of these circumstances, I agree with the motion
judge that the Commonwealth had not met its burden to show "an
4 The police testimony is more fully outlined in the majority's opinion. See ante at note 2. 7
objectively reasonable belief that evidence will indeed be
removed or destroyed unless preventative measures are taken."
DeJesus, 439 Mass. at 621.