Commonwealth v. Owens

480 Mass. 1034

109 N.E.3d 1066

COMMONWEALTH

v.Terry Lynn OWENS.

SJC-12494

Supreme Judicial Court of Massachusetts.

November 7, 2018

Edward C. Gauthier, IV, Greenfield, for the defendant.

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

RESCRIPT

The Commonwealth appeals from an order allowing Terry Lynn Owens's motion to suppress evidence discovered when police officers "froze" a house while they obtained a warrant. In a divided opinion, the Appeals Court reversed, concluding that the police officers' actions were justified to prevent the removal or destruction of evidence. Commonwealth v. Owens, 92 Mass. App. Ct. 193, 199, 82 N.E.3d 1093 (2017). A dissenting Justice opined that the evidence presented at the suppression hearing did not establish that the officers had "specific information supporting an objectively reasonable belief that evidence will indeed be removed or destroyed unless preventative measures are taken." Id. at 203-204, 82 N.E.3d 1093 (Henry, J., dissenting), quoting Commonwealth v. DeJesus, 439 Mass. 616, 621, 790 N.E.2d 231 (2003). We allowed the defendant's application for further appellate review and now affirm the suppression order for essentially the reasons given by the dissenting Justice.

Facts. We summarize the motion judge's findings, which are more fully set forth in the Appeals Court's opinion. Owens, 92 Mass. App. Ct. at 194-196, 82 N.E.3d 1093. A team of Boston police officers believed, based on specific facts known to them, that a particular house in the Roxbury section of Boston was being used for prostitution. The building was at least a two-family dwelling, and the owner, Farhad Ahmed, lived in an apartment on the first floor. The police officers were informed that a woman known as "Cinnamon" worked there as a prostitute. One of the officers, posing as a prospective customer, made contact with Cinnamon, who, in a series of communications, described the services she offered, arranged to meet him, and gave him the address of the house. The officer arrived at the house and entered. Ahmed was present in the first-floor common hallway. The police officer was aware that Ahmed rented out one or more of the rooms on the second floor for twenty dollars per two hours. The motion judge expressly rejected any finding that alcohol or drugs were being sold on the premises or that the police officers had probable cause to believe that they were.

Cinnamon asked the officer for twenty dollars. On the pretext of getting his wallet from his motor vehicle, the officer opened the door and signaled other police officers to enter. They arrested Cinnamon and Ahmed. Because the officers had seen other people enter the house and because they believed that a search warrant would be sought, they decided to "freeze" the house, meaning to remove all occupants from it. One officer, hearing a noise from the second floor, ascended the stairs. In a second-floor room, he found the defendant, who was sitting in front of a black plate on which there was a white powder and holding a pipe of a type used to smoke "crack" cocaine. The substance and related items were seized later, when a search warrant was obtained and executed.¹

Discussion. The Commonwealth argues that the suppression order was improper because, among other reasons, the police officers were justified in conducting a warrantless search of the house, including the second floor, to prevent the loss or destruction of evidence.² The motion judge properly found otherwise.

"[T]here is a fundamental difference between securing or controlling the perimeter of a dwelling from the outside and the entry and physical surveillance of a dwelling from the inside.... [P]olice officers who secure a dwelling while a warrant is being sought in order to prevent 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." DeJesus, 439 Mass. at 621, 790 N.E.2d 231. The record here does not satisfy this standard. At the time the police officers decided to freeze the house, they knew only that the house was being used for prostitution and that there were other people in the house, including on the second floor. However, there was a dearth of testimony supporting a reasonable belief that the house contained physical evidence that was at risk of loss or destruction. The judge specifically found that the police lacked a reasonable basis to believe that Ahmed, the owner of the house, supplied drugs or alcohol, and there was no testimony that any drugs or alcohol was seen in the house before the police decided to freeze it. There was some testimony, implicitly credited by the judge, that Ahmed was believed to...