Commonwealth v. Judge

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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
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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
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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.
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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
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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
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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.
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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
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'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
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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.
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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
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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.