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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 
2

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.
4

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.