Commonwealth v. Owens

92 Mass.App.Ct. 193

82 N.E.3d 1093

COMMONWEALTH

v.Terry Lynn OWENS.

No. 14-P-1868

Appeals Court of Massachusetts, Suffolk..

Argued October 4, 2016.

Decided September 11, 2017.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

Trevor Davis for the defendant.

Present: Kafker, C.J., Trainor, & Henry, JJ.¹

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. 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, 34 N.E.3d 289 (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 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 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 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 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, 59 N.E.3d 394 (2016) (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, 923 N.E.2d 1004 (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, 923 N.E.2d 1004 (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 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, 948 N.E.2d 402 (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, 923 N.E.2d 36 (2010), quoting from Commonwealth v. Pina, 406 Mass. 540, 545, 549 N.E.2d 106, cert. denied, 498 U.S. 832, 111 S.Ct. 96, 112 L.Ed.2d 67 (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 the room. See Commonwealth v. Paszko, 391 Mass. 164, 184-185, 461 N.E.2d 222 (1984) (defendant had reasonable expectation of privacy in motel room for duration of rental period and prior to abandonment of room). See also Stoner...