Commonwealth v. Owens

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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.