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SJC-12494

              COMMONWEALTH   vs.   TERRY LYNN OWENS.


                        November 7, 2018.


Search and Seizure, Exigent circumstances, Securing of premises.
     Constitutional Law, Search and seizure. Practice,
     Criminal, Motion to suppress. Controlled Substances.


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

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

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

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

     1 Neither the warrant nor the application was put in
evidence at the suppression hearing.

     2 The Appeals Court unanimously rejected the Commonwealth's
arguments that the defendant had no reasonable expectation of
privacy in the second-floor room and that a protective sweep of
the house was warranted for officer safety. See Commonwealth v.
Owens, 92 Mass. App. Ct. 193, 197-199 (2017); id. at 202-203
(Henry, J., dissenting). As to the defendant's expectation of
privacy, the Appeals Court concluded that he was lawfully on the
premises (regardless of the legality of the activity in which he
was engaged therein) and that it was reasonable to infer that
the room had been paid for and the door closed to protect the
occupants' privacy. Id. at 197-198. As to officer safety, the
Appeals Court upheld the motion judge's finding that there was
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     "[T]here is a fundamental difference between securing or
controlling the perimeter of a dwelling from the outside and the
entry and physical surveillance of a dwelling from the inside.
. . . [P]olice officers who secure a dwelling while a warrant
is being sought in order to prevent destruction or removal of
evidence may not enter that dwelling, in the absence of specific
information supporting an objectively reasonable belief that
evidence will indeed be removed or destroyed unless preventative
measures are taken." DeJesus, 439 Mass. at 621. The record
here does not satisfy this standard. At the time the police
officers decided to freeze the house, they knew only that the
house was being used for prostitution and that there were other
people in the house, including on the second floor. However,
there was a dearth of testimony supporting a reasonable belief
that the house contained physical evidence that was at risk of
loss or destruction. The judge specifically found that the
police lacked a reasonable basis to believe that Ahmed, the
owner of the house, supplied drugs or alcohol, and there was no
testimony that any drugs or alcohol was seen in the house before
the police decided to freeze it. There was some testimony,
implicitly credited by the judge, that Ahmed was believed to
supply condoms, but no testimony that any condoms were actually
seen in the house. The police officers did not identify any
other physical evidence (of prostitution or of any other
offense) in the house. To the extent that the existence of
physical evidence might be inferred from the fact that
prostitution was taking place in the house, the record does not
support any objective basis to believe that such evidence was
"susceptible to destruction or removal," particularly where no
evidence suggests that the second-floor occupants were aware of
the police presence. See Commonwealth v. Tyree, 455 Mass. 676,
686 (2010), quoting Commonwealth v. Cataldo, 69 Mass. App. Ct.
465, 474 (2007).

     Moreover, as the dissenting Justice observed, "[t]he police
in this case were at a loss during the suppression hearing to


no reasonable basis to believe that any person present in the
house posed a danger to the police or to others, where "[t]here
was no evidence that the prostitution business reportedly
conducted at the house or by Ahmed in the past included acts of
violence" and there was no "testimony reflecting specific
concerns about violence here." Id. at 199. Moreover, the
Commonwealth expressly declined to press the issue of officer
safety at oral argument before us. We agree with the Appeals
Court's reasoning and result as to both of these issues.
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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.'" Owens, 92 Mass. App. Ct. at 206 (Henry, J.,
dissenting). These generic explanations -- the only references
in the testimony to the possible loss or destruction of evidence
-- do not amount to "specific information supporting an
objectively reasonable belief that evidence will indeed be
removed or destroyed," as required by DeJesus, 439 Mass. at 621
(emphasis added). Of course, the potential loss or destruction
of evidence can constitute an exigent circumstance justifying a
warrantless entry and search, see id. at 620, but only if the
Commonwealth proves that the officers' belief was objectively
reasonable and supported by specific information. On the record
before us, there was an insufficient basis to believe that
evidence would be lost or destroyed. The motion to suppress was
properly allowed.

                                   Order allowing motion to
                                     suppress affirmed.

     Edward C. Gauthier, IV, for the defendant.
     Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
