Argued October 6, 2015.
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.
Present (Sitting at New Bedford): Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
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 ). 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.
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 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, 525 N.E.2d 379 (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 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 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, 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 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. 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.
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 ...