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SJC-11857

               COMMONWEALTH   vs.   LAWRENCE MOORE.



       Bristol.     October 6, 2015. - January 11, 2016.

  Present (Sitting at New Bedford): Gants, C.J., Spina, Cordy,
               Botsford, Duffly, Lenk, & Hines, JJ.



Constitutional Law, Parole, Search and seizure, Burden of proof,
     Reasonable suspicion. Search and Seizure, Expectation of
     privacy, Presumptions and burden of proof, Reasonable
     suspicion. Practice, Criminal, Parole, Motion to suppress.
     Controlled Substances.



     Indictment found and returned in the Superior Court
Department on April 25, 2013.

     A pretrial motion to suppress evidence was heard by Thomas
F. McGuire, Jr., J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Botsford, J., in the Supreme Judicial
Court for the county of Suffolk, and the appeal was reported by
her to the Appeals Court. The Supreme Judicial Court granted an
application for direct appellate review.


     Rachel W. van Deuren, Assistant District Attorney, for the
Commonwealth.
     Nancy A. Dolberg, Committee for Public Counsel Services,
for the defendant.
                                                                   2


     CORDY, J.   In October, 2011, the New Hampshire parole board

issued a certificate of parole to the defendant, Lawrence Moore,

who was serving a sentence of from two and one-half to ten years

for assault with a firearm.   The defendant's parole was

transferred to the Commonwealth in May, 2012.   On November 16,

2012, the defendant's parole officer and others searched the

defendant's apartment without a warrant and seized seventeen

"twists" of "crack" cocaine in the defendant's bedroom drawer,

as well as a digital scale and a gun lock.   The defendant was

indicted for possession of cocaine with intent to distribute, in

violation of G. L. c. 94C, § 32A (c).1   He filed a motion to

suppress the evidence seized from his home, arguing that the

search was unconstitutional under the Fourth Amendment to the

United States Constitution and art. 14 of the Massachusetts

Declaration of Rights.2

     After a hearing, the motion judge issued a written order

allowing the defendant's motion to suppress, holding that, while

the search did not violate the Fourth Amendment, it was barred


     1
       The New Hampshire parole board also issued a warrant for
the defendant's arrest.
     2
       The defendant sought also to suppress evidence seized from
his girl friend, Virginia Sequeira, during a traffic stop made
prior to the search of the defendant's apartment. The motion
judge, noting that the Commonwealth agreed that it would not
introduce the drugs seized during the traffic stop at trial,
limited the motion to suppress to the evidence seized during the
warrantless search of the defendant's home.
                                                                     3


under art. 14.    The motion judge concluded that art. 14 offers

the same protections for parolees as it does for probationers,

and, therefore, searches of a parolee's residence must be

supported by both reasonable suspicion and either a search

warrant or a traditional exception to the search warrant

requirement.    See Commonwealth v. LaFrance, 402 Mass. 789, 792-

794 (1988).    In granting the motion to suppress, the judge ruled

that, while the Commonwealth had reasonable suspicion to search

the defendant's apartment for evidence of a drug-related parole

violation, the search was unconstitutional because there was

neither a search warrant nor the presence of a traditional

exception to the warrant requirement.

    The Commonwealth was given leave to proceed with an

interlocutory appeal to the Appeals Court.    We granted the

Commonwealth's application for direct appellate review in order

to determine the privacy protections afforded to parolees under

art. 14 against warrantless searches and seizures in their

homes.

    We conclude that art. 14 offers greater protection to

parolees than does the Fourth Amendment.    Article 14 does not,

however, offer as much protection to parolees as it affords to

probationers.    Therefore, where a parole officer has reasonable

suspicion to believe that there is evidence in the parolee's

home that the parolee has violated, or is about to violate, a
                                                                    4


condition of his parole, such suspicion is sufficient to justify

a warrantless search of the home.   Because we also agree with

the motion judge's finding, not contested on appeal by the

defendant, that the officer had reasonable suspicion that a

search of the defendant's home would produce evidence of a

parole violation, we vacate the allowance of the defendant's

motion to suppress the evidence.

    1.   Background.   As noted, the defendant was paroled on

October 11, 2011, by the New Hampshire parole board.      The

certificate of parole, with which the defendant agreed to

comply, contained several conditions, including that the

defendant would "permit the parole officer to visit [the

defendant's] residence at any time for the purpose of

examination and inspection in the enforcement of the conditions

of parole, and submit to searches of [his] person, property, and

possessions as requested by the parole officer."    The defendant

also agreed to "be of good conduct and obey all laws" and to

"not illegally use, sell, possess, distribute, or be in the

presence of drugs."

    On April 6, 2012, the defendant filed an application to

transfer his parole supervision to Massachusetts.   His

application acknowledged an agreement to comply with the terms

and conditions of parole set out by both New Hampshire and

Massachusetts.   In May, 2012, the Massachusetts parole board
                                                                   5


issued -- and the defendant signed -- a certificate of parole,

which included a condition, among others, stating, "supervise

for drugs."    Parole Officer Robert Jackson was assigned to

supervise the defendant.

     In late October or early November, 2012, Jackson received

an anonymous tip that the defendant was dealing in illegal drugs

in New Bedford.   Based on that call, Jackson decided to review

records of the defendant's location, obtained through a global

positioning system (GPS) device that the defendant was required

to wear.   The records revealed that the defendant traveled to

Boston on November 9, 2012, where he made two stops, for a few

minutes each, before returning to New Bedford.    During the

following two days, the defendant made several short stops in

New Bedford.   Continuing to monitor the GPS device, Jackson

observed the defendant, on November 16, 2012, make a "six, seven

minute stop in Boston," before heading back toward New Bedford.

     Jackson immediately issued a warrant for detainer purposes

for the defendant,3 and contacted the State police.   Shortly

thereafter, Trooper Marc Lavoie of the State police and

Detective Jason Gangi of the New Bedford police department

pulled over the vehicle in which the defendant had been

     3
       A warrant for detainer purposes, issued   by a parole
officer, allows for the fifteen-day detainment   of a parolee if
the parole officer has "reasonable belief that   a parolee has
. . . violated the conditions of his parole."    120 Code Mass.
Regs. § 303.04 (1997).
                                                                      6


traveling on his way back to New Bedford.     There was a woman

driving the vehicle who turned out to be the defendant's girl

friend, Virginia Sequeira.     Lavoie smelled a strong odor of

marijuana, and Gangi observed a marijuana cigarette in the

defendant's lap.

     State police Trooper Marc Cyr arrived at the scene and

separated Sequeira and the defendant.     The two gave differing

accounts for why they had been in Boston.     The defendant said he

had spent an hour at a friend's house.4    The police then searched

the defendant and the vehicle, finding nothing.     Cyr falsely

told Sequeira that the defendant had admitted to possession of

cocaine, and Sequeira then produced two bags containing cocaine.5

     After arresting the defendant and Sequeira, Cyr contacted

Jackson and related to him what had occurred.     As a consequence,

Jackson and three police officers went to, and conducted a

search of, the defendant's apartment.     Jackson found seventeen

bags of drugs in the defendant's bedroom, along with a digital

scale and gun lock.     Jackson did not have a warrant to search

the apartment.

     2.   Discussion.    In reviewing a motion to suppress, "we

     4
       This story was inconsistent with the global positioning
system (GPS) data that prompted the warrant for detainer and the
motor vehicle stop.
     5
       State police Trooper Marc Cyr had been involved in
arresting Virginia Sequeira for cocaine possession two years
prior to November 16, 2012.
                                                                     7


accept the judge's subsidiary findings of fact absent clear

error," but "review independently the motion judge's application

of constitutional principles to the facts found."    Commonwealth

v. Franklin, 456 Mass. 818, 820 (2010).    Where there has been an

evidentiary hearing, "we defer to the credibility findings of

the judge, who had the opportunity to observe and evaluate the

witnesses as they testified."   Commonwealth v. Peters, 453 Mass.

818, 823 (2009).

    The Fourth Amendment and art. 14 prohibit "unreasonable"

searches and seizures.   See Commonwealth v. Rodriguez, 472 Mass.

767, 775-776 (2015).   We determine whether a search is

reasonable by "balanc[ing] the intrusiveness of the police

activities at issue against any legitimate governmental

interests that these activities serve."    Id. at 776.    See Samson

v. California, 547 U.S. 843, 848 (2006).    "In balancing these

factors, we keep in mind that art. 14 may provide greater

protection than the Fourth Amendment" (quotation omitted).

Rodriguez, supra.

    a.   Parolee's expectation of privacy.    The United States

Supreme Court has, in a series of cases, established that, under

the Fourth Amendment, probationers and parolees have a

significantly diminished expectation of privacy.    In Griffin v.

United States, 483 U.S. 868, 875-876 (1987), the Court held,

under the "special needs" exception to the warrant requirement,
                                                                    8


that a warrantless search of a probationer's home, pursuant to a

State regulation requiring reasonable grounds and approval of

the probationer's supervisor for such a search, did not violate

the probationer's privacy rights under the Fourth Amendment.

Years later, in United States v. Knights, 534 U.S. 112, 121

(2001), the Court indicated that a warrantless search based on

reasonable suspicion that a probationer (who was subject, as a

condition of his probation, to warrantless searches) was engaged

in criminal activity was not intrusive because of the

"probationer's significantly diminished privacy interests."

Most recently, the Court found that a parolee's expectation of

privacy is diminished even beyond that of a probationer.      See

Samson, 547 U.S. at 850, 852 (allowing suspicionless and

warrantless searches of parolees based purely on status as

parolees).

    Under art. 14, we have already established that a

probationer has a diminished expectation of privacy.    See

LaFrance, 402 Mass. at 792 ("We accept for art. 14 purposes the

principle that a reduced level of suspicion, such as 'reasonable

suspicion,' will justify a search of a probationer and her

premises").   Not yet having had an opportunity to address the

same issue in the context of parolees, we now conclude that art.

14 provides to a parolee an expectation of privacy that is less

than even the already diminished expectation afforded to a
                                                                      9


probationer.

    In evaluating the defendant's expectation of privacy, his

status as a parolee is "salient."    Samson, 547 U.S. at 848,

quoting Knights, 534 U.S. at 118.    A parolee is, during the

balance of his or her sentence, effectively a ward of the

Commonwealth.    See 120 Code Mass. Regs. §§ 101.01, 101.03 (1997)

(parolees under custody of parole board, which is executive

agency).    Like probationers, parolees are on the "continuum of

[S]tate-imposed punishments" (quotation omitted).     Samson, 547

U.S. at 850.    However, unlike probationers, the parole system

entrusts to the Commonwealth the custody and supervision of

parolees, affording them an established alternative to the

incarceration to which they were sentenced.    Given that

probation is, instead, offered as a judicially imposed sentence

in lieu of incarceration, parolees have an expectation of

privacy that is diminished beyond that of probationers because

"parole is more akin to imprisonment than probation is."      Id.

    b.     Government interest in supervising parolees.     While a

parolee's expectation of privacy is diminished, the

Commonwealth's supervisory "interests, by contrast, are

substantial."    Samson, 547 U.S. at 853.   The Commonwealth need

not "ignore the reality of recidivism or suppress its interest

in 'protecting potential victims of criminal enterprise,'" id.

at 849, quoting Knights, 534 U.S. at 121, and "may therefore
                                                                    10


justifiably focus on [parolees] in a way that it does not on the

ordinary citizen."     Knights, supra.   See Samson, supra at 854

(Supreme Court has "acknowledged the grave safety concerns that

attend recidivism").

    The parole system reflects the need for enhanced

supervision.   See G. L. c. 127, § 130 (parole permits "shall be

granted only if the [parole] board is of the opinion . . . that

there is a reasonable probability that, if the prisoner is

released with appropriate conditions and community supervision,

the prisoner will live and remain at liberty without violating

the law and that release is not incompatible with the welfare of

society"); Diatchenko v. District Attorney for the Suffolk

Dist., 471 Mass. 12, 23 (2015) ("The question the [parole] board

must answer for each inmate seeking parole [is] whether he or

she is likely to reoffend . . .").

    We conclude that the Commonwealth's supervisory interests

are more significant than a parolee's diminished expectation of

privacy.

    c.     Constitutional implications.    We next consider the

constitutional ramifications of these determinations, and we

conclude that reasonable suspicion, but not a warrant, was

needed to justify a search of a parolee's home.

    We note at the outset, as did the motion judge, that the

Fourth Amendment offers no solace to parolees such as the
                                                                      11


defendant.    Under Samson, parolees do "not have an expectation

of privacy that society would recognize as legitimate."      Samson,

547 U.S. at 852.    A search such as the one Jackson conducted was

thus reasonable under the Fourth Amendment.    However, we must

also consider the privacy implications under art. 14, as "a

State is free as a matter of its own law to impose greater

restrictions on police activity than those [the Supreme] Court

holds to be necessary upon [F]ederal constitutional standards"

(emphasis omitted).     Oregon v. Hass, 420 U.S. 714, 719 (1975).

See Rodriguez, 472 Mass. at 776.

       Traditionally, we have maintained that art. 14 affords

greater protections for probationers than does the Fourth

Amendment.    In 1988, one year after the Supreme Court released

its decision in Griffin, we decided in LaFrance that art. 14

guarantees that any condition of probation compelling a

probationer to submit to searches must be accompanied by

reasonable suspicion.     LaFrance, 402 Mass. at 792-793.   We also

held that "a warrantless search of a probationer's home, barring

the appropriate application of a traditional exception to the

warrant requirement, cannot be justified under art. 14."       Id. at

794.    This interpretation remains the standard for probationer

searches under art. 14 despite the Supreme Court's subsequent

decision in Knights, construing the Fourth Amendment.

       We conclude that, in the parole context, although the
                                                                  12


privacy protections afforded to parolees under art. 14 are

incrementally less than those granted to probationers,

individualized suspicion is still the appropriate standard, at

least with respect to a search of the parolee's home.    To

require more would be "both unrealistic and destructive of the

whole object of the continuing [parole] relationship," Griffin,

483 U.S. at 879, while dispensing with individualized suspicion

in its entirety would, outside the realm of "special needs"

exceptions, establish a precedent we are not inclined to set.6

However, while we determined in LaFrance that there was no

reason "to eliminate the usual requirement imposed by art. 14

that a search warrant be obtained," LaFrance, 402 Mass. at 794,

we conclude that, with regard to parolees, imposing a warrant

requirement would hinder the Commonwealth in addressing its

significant supervisory interests.7


     6
       Our decision to establish a reasonable suspicion
requirement under art. 14 of the Massachusetts Declaration of
Rights for searches of parolees' homes obligates all such
parolee searches to be conducted under an individualized
suspicion standard. The parole board, in creating conditions of
release, may not contract around the reasonable suspicion
requirement by making the issuance of a prisoner's parole
subject to suspicionless searches and seizures of his home.
Such authority would inappropriately allow the parole board to
compel a parolee, keen to commute his or her sentence, to accept
a condition that would unnecessarily and unreasonably limit his
or her art. 14 privacy rights.
     7
       Despite our decision to eliminate the warrant requirement
for searches of parolees' homes, the Commonwealth is still
appropriately limited in its ability even to conduct such
                                                                  13


     d.   Application of principles to the present case.    Having

concluded that reasonable suspicion is sufficient to justify the

warrantless search of a parolee's home, we consider whether

Jackson had such suspicion in the present case.

     In LaFrance, we left open the definition of "reasonable

suspicion" for searches of probationers.   Id. at 793.   In so

doing, we suggested that an appropriate standard may be that set

out in Terry v. Ohio, 392 U.S. 1 (1968), and its progeny.

LaFrance, supra.   We now apply the reasonable suspicion standard

associated with stop and frisks to warrantless searches of a

parolee's home.8



warrantless searches, as parole officers may only "make such
investigations as may be necessary." G. L. c. 27, § 5.
     8
       In considering the legality of such searches, we look to
"whether the intrusiveness of the government's conduct is
proportional to the degree of suspicion that prompted it. . . .
[W]e must balance the need to . . . conduct the search against
the intrusion on the defendant" (citations omitted).
Commonwealth v. Torres, 433 Mass. 669, 672 (2001). In
justifying the search, we require that the officer's actions be
"based on specific and articulable facts and reasonable
inferences therefrom, in light of the officer's experience,"
Commonwealth v. Wilson, 441 Mass. 390, 394 (2004), indicating
that a search of a parolee's home, pursuant to a parole
condition, would render evidence that the parolee has violated,
or is about to violate, a condition of parole.

     "[I]n making that assessment it is imperative that the
facts be judged against an objective standard," such that "the
facts available to the officer at the moment of the seizure or
the search" would, taken as a whole, "warrant a man of
reasonable caution in the belief that the action taken was
appropriate" (quotations omitted). Terry v. Ohio, 392 U.S. 1,
21-22 (1968). See Commonwealth v. Gomes, 453 Mass. 506, 511
                                                                    14


     The motion judge found that, at the time of the search,

Jackson had reasonable suspicion that the defendant was dealing

in illegal drugs, in violation of the conditions of his parole,

and that evidence of such violation would be found in his

residence.9    We agree.

     In reaching this conclusion, we note that Jackson's "need

to . . . conduct the search" was high, as the defendant was on

parole for a violent crime.    Commonwealth v. Torres, 433 Mass.

669, 672 (2001).    The defendant's parole was subject to several

conditions, including that he "not illegally use, sell, possess,

distribute, or be in the presence of drugs."    He was also

subject to the condition that his parole officer supervise him

for drugs.    Therefore, when Jackson received an anonymous tip

that the defendant was dealing in drugs, it was incumbent on him

to investigate that tip for evidence of corroboration.    In so

doing, Jackson reviewed the defendant's recent GPS data, which

showed that, several days before, he had made a trip from New

Bedford with a brief stop in Boston.    The stop was made in what




(2009). "Seemingly innocent activities taken together can give
rise to reasonable suspicion" (quotation omitted), but
"reasonable suspicion may not be based merely on good faith or a
hunch." Id.
     9
         The defendant did not challenge this ruling on appeal.
                                                                  15


the Boston parole office referred to as a "high crime area."10

After returning to his home in New Bedford from that trip, the

GPS data revealed that the defendant made several short stops in

New Bedford over the following two days, consistent with the

delivery of drugs to others.   Based on his experience on the

gang unit task force, which often dealt with narcotics-related

investigations, Jackson became increasingly concerned that the

defendant was dealing in drugs.

     Jackson later checked the current GPS data on the defendant

and learned that he had just made another trip to Boston,

stopping off briefly (this time for six or seven minutes), again

in a high crime area, and was heading back towards New Bedford.

Acting on information from Jackson and on observation that the

automobile in which the defendant was traveling was exceeding

the speed limit, the police stopped it.

     During the stop, the driver of the automobile, the

defendant's girl friend, was "extremely nervous,"11 and the


     10
       "Although an individual's presence in a high crime area
alone will not establish a reasonable suspicion, . . . it may
nevertheless be a factor leading to a proper inference that the
individual is engaged in criminal activity" (citations omitted).
Commonwealth v. Thompson, 427 Mass. 729, 734, cert. denied, 525
U.S. 1008 (1998).
     11
       See Commonwealth v. DePeiza, 449 Mass. 367, 372 (2007)
("Although nervous or furtive movements do not supply reasonable
suspicion when considered in isolation, they are properly
considered together with other details to find reasonable
suspicion").
                                                                  16


officers observed the defendant in possession of marijuana.   The

defendant lied about where he had just been,12 and the officers

then found two concealed bags of cocaine on the defendant's girl

friend (with whom the defendant shared a bedroom in their joint

residence in New Bedford).   This activity established that the

defendant had violated the conditions of his parole regarding

possessing and being in the presence of drugs, and provided

further corroboration for the anonymous tip that the defendant

was dealing in drugs.13

     Based on the tip, the evidence of the defendant's conduct

consistent with that tip, and in light of Jackson's experience,

both with narcotics and with other parolees, it was reasonable

for him to suspect that a search of the defendant's home would

produce further evidence of drug-related parole violations,

including illegal possession or distribution.   See 2 W.R.

     12
       See Commonwealth v. Stewart, 469 Mass. 257, 264 (2014)
(defendant's false denial of having participated in suspicious
activity of which police were already aware "strengthens the
suspicion that the defendant had participated in a drug
transaction").
     13
       "Where police conduct an investigatory stop based on
information gleaned from an anonymous tip, courts assess the
sufficiency of the information in terms of the reliability of
the informant and his or her basis of knowledge." Commonwealth
v. Walker, 443 Mass. 867, 872, cert. denied, 546 U.S. 1021
(2005). Where the required standard is reasonable suspicion
rather than probable cause, "a less rigorous showing in each of
these areas is permissible." Commonwealth v. Mubdi, 456 Mass.
385, 396 (2010), quoting Commonwealth v. Lyons, 409 Mass. 16, 19
(1990). "Independent police corroboration may make up for
deficiencies in one or both of these factors." Lyons, supra.
                                                                   17


LaFave, Search and Seizure § 3.7(d), at 530-531 (5th ed. 2012)

("it is commonly held . . . that drug dealers ordinarily keep

their supply, records and monetary profits at home").14    Among

other things, the defendant's conduct over the course of

multiple days after his trip to Boston suggested that a stash

was stored somewhere overnight, and it was reasonable to

conclude that instrumentalities, whether they be drugs, records,

or profits from drug sales, would be located where the defendant

lived.15,16


     14
       See also United States v. Sanchez, 555 F.3d 910, 914
(10th Cir.), cert denied, 556 U.S. 1145 (2009) (it is "merely
common sense that a drug supplier will keep evidence of his
crimes at his home"); United States v. Spencer, 530 F.3d 1003,
1007 (D.C. Cir.), cert. denied, 555 U.S. 1017 (2008) ("Common
experience suggests that drug dealers must mix and measure the
merchandise, protect it from competitors, and conceal evidence
of their trade . . . in secure locations," and "[f]or the vast
majority of drug dealers, the most convenient location to secure
items is the home"); United States v. Grossman, 400 F.3d 212,
218 (4th Cir. 2005) (search made pursuant to warrant was upheld
because "it is reasonable to suspect that a drug dealer stores
drugs in a home to which he owns a key").
     15
       Parolees "have . . . an incentive to conceal their
criminal activities . . . because [they] are aware that they
may be subject to supervision and face revocation" of parole.
Samson v. California, 547 U.S. 843, 849 (2006).
     16
       Moreover, under the assumption that the defendant was
dealing in drugs, it was also reasonable to assume that the
drugs, cash, and any records from drug distribution not found
during a search of the defendant's automobile would be located
at his home. See Commonwealth v. O'Day, 440 Mass. 296, 302
(2003) ("nexus may be found in the type of crime, . . . the
extent of the suspect's opportunity for concealment, and normal
inferences as to where a criminal would be likely to hide the
drugs he sells" [quotation omitted]). See also United States v.
                                                                  18


    We need not conclude that the tip, the GPS findings, the

defendant's behavior, and the violation of the parole conditions

concerning drugs would have been sufficient to establish

probable cause in support of a search warrant for his home.

See, e.g., Commonwealth v. Pina, 453 Mass. 438, 441 (2009),

quoting Commonwealth v. Cinelli, 389 Mass. 197, 213, cert.

denied, 464 U.S. 860 (1983) ("Information establishing that a

person is guilty of a crime does not necessarily constitute

probable cause to search a person's residence"); Commonwealth v.

O'Day, 440 Mass. 296, 300 (2003) ("To establish probable cause

. . . the affidavit must contain enough information for the

issuing magistrate to determine that the items sought . . . may

reasonably be expected to be located in the place to be

searched" [quotation omitted]).   Rather, in light of the

defendant's diminished expectation of privacy, and the lesser

standard of reasonable suspicion, the facts in this case,

including seemingly innocent activities, taken together were

sufficient to justify a search of the defendant's home for



Lewis, 71 F.3d 358, 362-363 (10th Cir. 1995) (police, armed with
information deemed to be reliable that parolee was involved in
drug activity, had reasonable suspicion on that basis alone to
"justify[] the parole agents' warrantless search of his
residence"); 2 W.R. LaFave, Search and Seizure § 3.7(d), at 528-
530 (5th ed. 2004) ("[T]here need not be definite proof that the
seller keeps his supply at his residence . . . . [I]t will
suffice if there are some additional facts . . . which would
support the inference that the supply is probably located
there").
                                                                   19


evidence of a parole violation.     See Commonwealth v. Gomes, 453

Mass. 506, 511 (2009).

    3.   Conclusion.     Our decision today effectively balances

the Commonwealth's significant interest in supervising parolees

-- and, at the same time, protecting the Commonwealth's citizens

from the risks of recidivism -- with the parolees' diminished

expectations of privacy.    Individualized suspicion, jettisoned

by the Supreme Court in an analogous scenario, remains, under

art. 14, an important safeguard against unfettered police

authority.    However, because the need to supervise parolees

weighs heavily against that backdrop, reasonable suspicion that

there is evidence in the parolee's home that the parolee has

violated, or is about to violate, a condition of his or her

parole, is sufficient to justify a search of the parolee's home

without the need for a warrant.

    Because the defendant was a parolee when the officers

searched his home, and because the search was conducted under

reasonable suspicion that the defendant had violated a condition

of his parole by dealing drugs, the drugs, digital scale, and

gun lock seized during the search should not have been

suppressed.

                                      So ordered.
    HINES, J. (dissenting, with whom Duffly, J., joins).      I

agree with the court's ruling that a parole officer may conduct

a warrantless search of a parolee's home based on reasonable

suspicion that the search will reveal evidence that the parolee

has, or is about to, violate a condition of his or her parole.

I do not agree, however, with the court's application of that

principle to this case.    Even assuming the corroboration of the

anonymous tip that the defendant was selling drugs in New

Bedford, the totality of the information known to the police at

the time of the search does not establish reasonable suspicion

that evidence of the defendant's drug dealing activities would

be found in his home.     For this reason, I respectfully dissent.

    The test for reasonable suspicion to conduct a warrantless

search of a parolee's home is the same as that articulated in

Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, see

Commonwealth v. Silva, 366 Mass. 402, 406 (1974).     Ante at [13].

It requires that the officer's actions be based on "specific and

articulable facts and the specific reasonable inferences" that

the search would reveal evidence that the parolee has, or is

about to, violate a condition of parole.     Silva, supra.   The

court's analysis leans heavily on the tip that the defendant

violated the conditions of parole by selling illegal drugs and,

based in large part on that information, finds the required

nexus to the defendant's home.    The analysis is flawed insofar
                                                                   2


as it is premised on an unacceptably conclusory view of the

facts known to the parole officer at the time of the search.

The substance of the court's reasoning is that "[b]ased on the

tip, the evidence of the defendant's conduct consistent with

that tip, and in light of [the parole officer's] experience,

both with narcotics and with other parolees, it was reasonable

for him to suspect that a search of the defendant's home would

produce further evidence of drug-related violations, including

illegal possession or distribution."   Ante at [17].   The

required nexus between the defendant's criminal activity and his

home demands more specificity than is supplied by the bare-bones

"tip" and the "evidence of the defendant's conduct consistent

with that tip" on which the court relies.   Id.   At best, the

information relied on by the court to find a nexus between the

defendant's illegal activity and his home established only that

he was suspected of a crime and that he lived at the residence

where the search was conducted.   "Information establishing that

a person is guilty of a crime does not necessarily constitute

probable cause [or in this case reasonable suspicion] to search

the person's residence."   Commonwealth v. Pina, 453 Mass. 438,

441 (2009), quoting Commonwealth v. Cinelli, 389 Mass. 197, 213,

cert. denied, 464 U.S. 860 (1983).   Similarly, reasonable

suspicion that evidence of the defendant's illegal drug activity

would be found in the defendant's home "is not established by
                                                                     3


the fact that the defendant lives there."     Pina, supra.

    Although our cases addressing the nexus between the

suspected criminal activity and the place of the search arise in

the context of probable cause for the issuance of a search

warrant, the analytical framework underlying those cases is

instructive.    In that context, the issue is whether the warrant

establishes "a sufficient nexus between the defendant's drug-

selling activity and his residence to establish probable cause

to search the residence."     Id., quoting Commonwealth v. O'Day,

440 Mass. 296, 304 (2003).    Applying that framework to the

warrantless search of a parolee's home, the issue is the same:

whether there is a sufficient nexus between the criminal

activity and the defendant's home.    The test, however, is the

less rigorous standard of reasonable suspicion rather than

probable cause.

    As we recently observed, "[n]o bright-line rule can

establish whether there is a nexus between suspected drug

dealing and a defendant's home."     Commonwealth v. Escalera, 462

Mass. 636, 643 (2012).    Nonetheless, our cases provide

sufficient guidance to warrant the conclusion that the nexus was

lacking in this case.    We have found a sufficient nexus in cases

involving observations by police of a suspect leaving his or her

home and proceeding directly to a controlled sale on multiple

occasions.     See, e.g., Commonwealth v. Cruz, 430 Mass. 838, 841-
                                                                   4


842 (2000) (undercover officer purchased cocaine from defendant

in parking lot of defendant's apartment building during six

separate controlled sales); Commonwealth v. Monteiro, 80 Mass.

App. Ct. 171, 175 (2011) (multiple controlled purchases after

defendant observed leaving his home); Commonwealth v. Hardy, 63

Mass. App. Ct. 210, 211–212 (2005) (defendant left from

apartment for two controlled purchases).   A nexus may also be

shown where the police made a single observation of a suspect

departing from his or her home for a drug deal "coupled with

other information, such as statements from credible informants."

Escalera, supra at 644.   Ultimately, "there need not be definite

proof that the seller keeps his supply at his residence"

(citation omitted).   Id. at 645.   Rather, it will suffice "if

there are some additional facts [that] would support the

inference that the supply is probably located there" (citation

omitted).   Id.

     Accepting for the sake of argument the reliability of the

anonymous tip that the defendant was selling illegal drugs in

New Bedford,1 nothing in the information available to the parole


     1
       I am not persuaded that the anonymous tip was reliable
inasmuch as the additional information relative to the
defendant's movements fell short in corroborating the claim that
he was selling drugs in New Bedford. Although the parole
officer was able to track the defendant's movements, there was
no testimony detailing the defendant's specific location. Nor
does the record contain evidence that the defendant was observed
engaging in conduct consistent with drug activity.
                                                                     5


officer prior to the search connected that activity to the

defendant's home.   When questioned about the details of the tip

at the motion to suppress hearing, the parole officer responded

unequivocally that the anonymous tipster provided no information

other than "he [the defendant] was dealing drugs.   That's all."

Thus, the tip contained no information from which the parole

officer reasonably could infer that this particular illegal

activity was occurring at the defendant's home.

    The other available information concerning the defendant's

movements, on which the court relies, adds nothing to the

picture of how the defendant conducted his business and, more

specifically, whether the defendant's home was used in the

operation of the enterprise.   The parole officer was aware that

the defendant had made two trips to Boston, staying for only a

brief time and then returning to New Bedford.   On the days

following the return from Boston, the defendant moved about New

Bedford, suggesting that he might have been selling illegal

drugs.   Without more information, however, it is simply not

possible to draw any inferences regarding the location of the

defendant's supply or the place where the sales occurred.     That

the defendant was in the company of a person who had drugs on

her person and that the defendant was found in possession of a

"blunt" when he was stopped by the police, of course, is

evidence of a parole violation.   It is not suggested, however,
                                                                      6


that any such violation was the predicate for the search of the

defendant's home.    Unquestionably, the search was related to the

drug activity and it must be validated on that basis alone.

    I recognize that the "facts and inferences underlying the

officer's suspicion must be viewed as a whole when assessing the

reasonableness of his acts."     Commonwealth v. Thibeau, 384 Mass.

762, 764 (1981).    At the same time, a mere hunch is

insufficient.   Commonwealth v. Gomes, 453 Mass. 506, 511 (2009),

citing Commonwealth v. Grandison, 433 Mass. 135, 139 (2001).     In

my view, all of the information, taken together, amounted to no

more than a mere hunch that evidence of drug activity would be

found in the defendant's home.    To cross the mere hunch

threshold, our cases, as discussed above, have attached

relevance and significance to facts simply not present here.    In

the complete absence of specific articulable facts establishing

a nexus between the defendant's drug activity and his home, the

search cannot be justified.    Therefore, I respectfully dissent.
