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17-P-1262                                              Appeals Court

                   COMMONWEALTH   vs.   SHANE JUDGE.


                            No. 17-P-1262.

       Bristol.        September 13, 2018. - March 28, 2019.

            Present:   Wolohojian, Lemire, & Englander, JJ.


Controlled Substances. Practice, Criminal, Motion to suppress,
     Parole. Parole. Search and Seizure, Expectation of
     privacy, Reasonable suspicion, Protective sweep, Plain
     view, Administrative inspection. Privacy.


     Indictments found and returned in the Superior Court
Department on July 30, 2015.

     A pretrial motion to suppress evidence was heard by Gregg
J. Pasquale, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Margot Botsford, J., in the Supreme
Judicial Court for the County of Suffolk, and the appeal was
reported by her to the Appeals Court.


     David B. Mark, Assistant District Attorney, for the
Commonwealth.
     Diana Cowhey-McDermott for the defendant.


    LEMIRE, J.     After an evidentiary hearing, a judge of the

Superior Court allowed the defendant's motion to suppress
                                                                   2


evidence found in his bedroom during a routine parole home

visit.    The judge found that the parole officer lacked

reasonable suspicion to enter the bedroom, and that the entry

could not be justified as a protective sweep.    After receiving

leave from a single justice of the Supreme Judicial Court, see

Mass. R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017),

the Commonwealth brings this interlocutory appeal challenging

the order.   We affirm.

    1.    Facts.   We summarize the judge's detailed findings of

fact, supplementing with additional facts as necessary from

testimony and documentary evidence that he implicitly credited.

See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007).

    On May 22, 2015, the defendant, who was serving a criminal

sentence, was released from a house of correction and placed on

parole.    On the day of his release, he met with a transitional

parole officer who reviewed several forms with him and provided

him with documents, including a parole manual and a certificate

of parole, the latter of which formally allowed him to be

released from custody.

    The defendant's certificate of parole, which he was

required to sign, stated that he was released conditioned on his

compliance with the rules set out in the parole manual.     The

parole manual indicated that the defendant's primary parole

officer would visit him "at home, work, school or other place in
                                                                    3


the community with or without notifying [him] in advance."

According to the manual, unannounced home visits could occur "at

reasonable hours including weekends," or at any time in

emergency situations.   The manual is silent as to the frequency,

duration, or scope of routine home visits.

     The manual indicates that parole officers are permitted to

"search a parolee's home and property and seize contraband,"

defining "search" as including examination of areas "closed from

general public view, with some measure of intrusion, for the

purpose of detecting," but explicitly excluding "[v]isual

observation of an open space."   The manual states that parolees

are required to allow parole officers to conduct searches of

their person, home, and property, but that officers "may insist

upon a search only when that officer has reason to believe that

[the parolee] ha[s] contraband or illegal items in [the

parolee's] possession or control," or that the parolee has used

such items.1

     Approximately one month after his release, on June 23,

2015, at around 8:00 A.M., the defendant's primary parole




     1 We note that the Commonwealth did not argue that the
defendant consented to the search; as such, we do not address
the issue. Although the manual requires the parolee to sign a
consent to search form in which the parolee agrees to "consent
to the search of [the parolee's] person, premises and property
owned by [him] and/or under [his] care, custody and control,
without a search warrant," the defendant did not sign this form.
                                                                    4


officer, Richard Lyons, and another parole officer, Richard

Valenti, arrived at the defendant's residence in order to

conduct a routine home visit, and knocked on the front door.2

After a pause of between thirty seconds and one minute, Lyons

heard the defendant say, "Hold on."     After another minute, the

defendant's girlfriend, who appeared uneasy and confused, opened

the door and the parole officers entered the home.    The

defendant emerged from the bathroom after about ten seconds, and

Lyons escorted him back to the bathroom to provide a urine

sample for drug testing.3    Valenti asked the defendant's

girlfriend if anyone else was in the apartment, and she

responded in the negative.    At his request, she then directed

him to the defendant's bedroom.

     Valenti entered the bedroom and observed razor blades, a

digital scale, a white rock-like substance he believed to be

"crack" cocaine, and multiple small plastic bags of a substance

he believed to be heroin, all in plain view on a dresser.     The

defendant was subsequently arrested.4


     2 Though Valenti and Lyons each implied without explicitly
stating that their visit was unannounced, the defendant
subsequently testified that Lyons had notified him of the
impending visit the day earlier. The judge made no findings as
to whether the defendant had been previously notified of the
home visit.

     3 A condition of the defendant's parole was that he remain
free from illegal drug use.
                                                                   5


     2.   Discussion.     "In reviewing a ruling on a motion to

suppress evidence, we accept the judge's subsidiary findings of

fact absent clear error and leave to the judge the

responsibility of determining the weight and credibility to be

given . . . testimony presented at the motion hearing."

Commonwealth v. Meneus, 476 Mass. 231, 234 (2017), quoting

Commonwealth v. Wilson, 441 Mass. 390, 393 (2004).      We

"independently determine the correctness of the judge's

application of constitutional principles to the facts as found."

Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007).

     a.   Reasonable suspicion.    The Commonwealth argues,

contrary to the judge's findings below, that Valenti's entry

into the defendant's bedroom was justified by reasonable

suspicion that the defendant was violating the terms of his

parole.   We disagree.5

     Though parolees have a significantly diminished expectation

of privacy in their homes, their privacy interest is not

extinguished.   See Commonwealth v. Moore, 473 Mass. 481, 487

(2016).   The warrantless investigative search of a parolee's


     4 The defendant made inculpatory statements to Lyons as well
as to the arresting police officer. The judge suppressed these
statements as fruits of the unlawful search.

     5 We note that the Commonwealth also contends, and we agree,
that unlike the case of Commonwealth v. Moore, 473 Mass. 481
(2016), the search here was not an investigatory search and is
best characterized as an administrative search. Id. at 483-484.
                                                                     6


home is accordingly reviewed using "the reasonable suspicion

standard associated with stop and frisks."    Id. at 488.   Parole

conditions of release may not lower this standard by

"contract[ing] around the reasonable suspicion requirement [and]

making the issuance of a prisoner's parole subject to

suspicionless searches and seizures of his home."    Id. at 487

n.6.

       The Commonwealth argues that the delay after knocking but

before the parole officers were admitted to the defendant's

home, the demeanor of the defendant's girlfriend, and the

defendant's criminal history all combined to form reasonable

suspicion that the defendant "ha[d] violated, or [was] about to

violate, a condition of his parole," justifying the search of

his bedroom.   Id. at 482-483.

       Assuming without deciding that the parole officers had

reasonable suspicion to believe that the defendant had violated

the conditions of his parole based on this combination of

factors, the search of the bedroom remained unreasonable because

the scope of the search at issue exceeded that justified by any

suspicion raised by the circumstances.

       Searches "must be 'strictly tied to and justified by' the

circumstances which render[] [their] initiation permissible."

Commonwealth v. Silva, 366 Mass. 402, 407 (1974), quoting Terry

v. Ohio, 392 U.S. 1, 19 (1968).    "The degree of intrusiveness
                                                                    7


that is permitted is that which is 'proportional to the degree

of suspicion that prompted the intrusion.'"     Commonwealth v.

Moses, 408 Mass. 136, 141 (1990), quoting Commonwealth v.

Borges, 395 Mass. 788, 794 (1985).

    Here, the parole officers heard the defendant say, "Hold

on," from inside the apartment and, once they were admitted by

the defendant's girlfriend, saw the defendant exit the bathroom

after around ten seconds.    The arguable inference arising from

these facts is that the defendant had attempted to conceal

contraband in the bathroom or on his person, or that he had

attempted to destroy contraband while in the bathroom.     The

facts, however, provide no reason to believe that the defendant

had secreted contraband in his bedroom.

    Because the defendant's bedroom was not reasonably

connected to any suspicion arising from the circumstances, the

judge was correct in determining that the search of the bedroom

cannot be justified on that basis.

    b.   Protective sweep.     The Commonwealth's contention that

Valenti's entry into the bedroom was justified as a protective

sweep is equally unavailing.    A protective sweep requires a

reasonable belief "based on 'specific and articulable facts'

that the area could harbor a dangerous individual."

Commonwealth v. Matos, 78 Mass. App. Ct. 156, 159 (2010),

quoting Maryland v. Buie, 494 U.S. 325, 327 (1990).     Here, no
                                                                    8


evidence was presented at the motion hearing suggesting that the

defendant had a record of violence or firearm use.    Contrast

Commonwealth v. DeJesus, 70 Mass. App. Ct. 114, 120 (2007).

There was no articulable reason to believe that dangerous

individuals were in the home, and the defendant "from all

appearances, was completely compliant" with the parole officers.

Commonwealth v. Colon, 88 Mass. App. Ct. 579, 581 (2015).     The

home was familiar to Lyons, who had previously conducted a home

visit and had met with the defendant's girlfriend in order to

approve the residence prior to the defendant's release.6    In

these circumstances, there was no evidence of any danger

presented by the defendant's bedroom, and a protective sweep was

not justified.

     c.   Special needs search.   The Commonwealth argues that

entry into the defendant's bedroom was permitted even without

reasonable suspicion because routine parole home visits qualify

as an exception to the Fourth Amendment to the United States

Constitution and art. 14 of the Massachusetts Declaration of

Rights as special needs or administrative searches.




     6 Though Lyons testified that there was a pit bull dog in
the home during his previous visit, he additionally testified
that the dog was "somewhat friendly" and "wasn't lunging or
barking [at him] . . . so [he] wasn't too concerned" about it.
The Commonwealth has not argued that the possible presence of
the dog served to justify a protective sweep.
                                                                    9


    We have allowed "limited exceptions to the reasonable

suspicion requirement where an intrusion is limited and serves a

pressing public purpose."   Commonwealth v. Rodriguez, 430 Mass.

577, 580-581 (2000).   See, e.g., Landry v. Attorney Gen., 429

Mass. 336, 350 (1999) (routinely obtaining and analyzing

deoxyribonucleic acid from convicted persons for use in

government database); Commonwealth v. McGeoghegan, 389 Mass.

137, 143-144 (1983) (sobriety checkpoint roadblocks);

Commonwealth v. Wilson, 389 Mass. 115, 117 (1983) (prisoner

inventory searches); Commonwealth v. Harris, 383 Mass. 655, 657

(1981) (metal detector searches at entrance to court house);

Commonwealth v. Smith, 72 Mass. App. Ct. 175, 180-181 (2008)

(searches at entrance to public high school).    Such a search

must be proportional to its purpose, and "be as limited in its

intrusiveness as is consistent with satisfaction of the

administrative need that justifies it."     Commonwealth v.

Carkhuff, 441 Mass. 122, 127 (2004), quoting United States v.

Davis, 482 F.2d 893, 910 (9th Cir. 1973).    Prior notice of such

searches may minimize the degree of intrusiveness of the search,

but does not render the search automatically reasonable.      See

Commonwealth v. Garcia-German, 90 Mass. App. Ct. 753, 760

(2016).

    Administrative and special needs searches "must be

conducted as part of a scheme that has as its purpose something
                                                                     10


'other than the gathering of evidence for criminal

prosecutions.'"    Carkhuff, 441 Mass. at 126, quoting Harris, 383

Mass. at 657.   See Commonwealth v. Sullo, 26 Mass. App. Ct. 766,

768 (1989) (administrative searches "may not become a cover or

pretext for an investigative search").    As such, searches in

this category generally must be conducted pursuant to a neutral

policy that limits both arbitrariness and the discretion of the

officials conducting the search.    See Garcia-German, 90 Mass.

App. Ct. at 758.    "[W]ritten policies and procedures serve to

ensure that an administrative search is conducted consistently

with the neutral purposes that justify it, that the decision to

search is the result of the protocol rather than a discretionary

determination to search, and that 'there is no significant

danger of hindsight justification.'"     Id., quoting Commonwealth

v. Ford, 394 Mass. 421, 425 (1985).

    We turn now to the case at bar.      We observe that "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."

Moore, 473 Mass. at 485.    During the period of parole, a parolee

is "effectively a ward of the Commonwealth."    Id.   The

Commonwealth thus has an "established and indisputable interest"

in the ability to mandate periodic access by parole officers to

the homes of parolees without prior announcement, in order to
                                                                  11


fulfill its custodial and supervisory duties.   Landry, 429 Mass.

at 347.   Because "the Commonwealth's supervisory interests are

more significant than a parolee's diminished expectation of

privacy," the balance of interests weighs in favor of permitting

a system of routine parole home visits.   Moore, supra at 486.7

    To survive constitutional review, however, such a system

must be noninvestigatory and conducted pursuant to standard,

neutral procedures.   See, e.g., Commonwealth v. Anderson, 406

Mass. 343, 347 (1989) (roadblock must "meet standard, neutral

guidelines, and be conducted pursuant to a plan devised in

advance by law enforcement supervisory personnel"); Commonwealth

v. Bishop, 402 Mass. 449, 451 (1988) (written standard policies

required to justify inventory search).

    In the case at bar, the Commonwealth has failed to

introduce any internal parole board policy guiding parole

officers in their execution of routine home visits.   To the

extent that the parolee manual included in the record represents

parole board policy, unannounced routine home visits are



    7  We note the defendant's concession that routine parole
home visits to some areas of a parolee's residence, even without
reasonable suspicion, are constitutionally permissible. The
defendant appears to argue only that those visits may not extend
beyond the common areas of the residence to include more private
areas such as bedrooms. We note as well that Moore, 473 Mass.
at 487, addressed the standards for investigative searches of
parolee residences. We do not deal here with an investigatory
search, but rather with an administrative home visit.
                                                                  12


essentially without mandate or limit, to a degree that

"unacceptably invites the exercise of [parole] officer

discretion."   Commonwealth v. Peters, 48 Mass. App. Ct. 15, 21

(1999), quoting Commonwealth v. Rostad, 410 Mass. 618, 622

(1991).

    Assuming that a more detailed parole board policy on

routine home visits exists, "given the omissions in the

Commonwealth's proof, there is no way for a court to scrutinize

what the policy encompassed and the precision with which the

procedures set forth therein were defined," or whether, if it

exists, officers complied with such a policy in the case at bar.

Commonwealth v. Silva, 61 Mass. App. Ct. 28, 36 (2004)

(suppression required where Commonwealth did not introduce

sufficient evidence as to policies allowing police to search

motor vehicle for ownership information prior to towing).

Accord Peters, 48 Mass. App. Ct. at 20-21 (suppression required

where Commonwealth failed to introduce motor vehicle inventory

policy).   We are thus unable to conduct a constitutional review

to determine what, if any, constraint limited the discretion

given the parole officers here in the frequency or the scope of

routine home visits to parolees, and whether a tour of the

entire home is mandated during such visits, or merely permitted.

     As we have in analogous contexts, we now hold that

evidence seized from a parolee's home during routine parole home
                                                                  13


visits without prior reasonable suspicion must be suppressed

unless the visit is conducted pursuant to a neutral written

policy that provides standard procedures and limits parole

officer discretion.8   Cf. Anderson, 406 Mass. at 349-350; Bishop,

402 Mass. at 451.   Because the Commonwealth has not adequately

justified the search of the defendant's bedroom based on

reasonable suspicion tied to that bedroom or a neutral written

policy, we must affirm.

                                    Order allowing motion to
                                      suppress affirmed.




     8 We express no opinion on the permissible parameters of a
routine parole home visit policy, including whether any such
policy could mandate that parole officers conduct a protective
sweep of the premises prior to conducting a routine visit. We
also note that reasonable suspicion could develop during the
routine home visit.
