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Commonwealth v. Owens

Appeals Court of Massachusetts, Suffolk

September 11, 2017

COMMONWEALTH
v.
TERRY LYNN OWENS.

          Heard: October 4, 2016.

         Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on July 17, 2013. A pretrial motion to suppress evidence was heard by Kenneth J. Fiandaca, J.

         An application for leave to prosecute an interlocutory appeal was allowed by Francis X. Spina, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court.

          Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

          Trevor Davis for the defendant.

          Present: Kafker, C.J., Trainor, & Henry, JJ. [1]

          KAFKER, C.J.

         The defendant, Terry Lynn Owens, was charged with possession of a class B substance pursuant to G. L. c. 94C, § 34. The defendant moved to suppress evidence discovered when police officers secured a house used for prostitution while they obtained a warrant. After an evidentiary hearing, the motion judge allowed the defendant's motion. The Commonwealth appeals, claiming that the search was justified as a protective sweep or "freeze" to prevent the destruction of evidence. We conclude that the limited search was permissible in these circumstances, where the officers were already in the home pursuant to an undercover "sting" operation and knew there were other people in the home who might be alerted to the officers' presence and destroy evidence before they could obtain a search warrant, was permissible. We therefore reverse the order allowing the motion to suppress.

         Background.

         We recite the facts as found by the motion judge, supplemented by uncontroverted evidence drawn from the record of the suppression hearing and evidence that was implicitly credited by the judge. See Commonwealth v. Melo, 472 Mass. 278, 286 (2015). The judge's findings were as follows:

"Boston Police Officers Kevin McClay and Luis Anjos . . . were, on April 8, 2013, members of the Orchard Park [s]afe [s]treet [t]eam, . . . tasked with quality of life community policing in the Orchard Park/Dudley Triangle area of the Roxbury district. The team was in the area of 131 Eustis Street. . . . The house itself was known to officers as a place of prostitution. They knew that the owner, Farhad Ahmed, had recently been ejected by court order from a nearby home where he had been renting rooms by the hour for purposes of prostitution. They believed that Ahmed had commenced the same activity at 131 Eustis Street. Neighbors had complained to police about the prostitution being conducted at that address. Finally, police had interacted with known prostitutes and had learned from them that rooms in the house were available for use by the hour.
"On April 18, 2013, . . . officers were watching the home when they saw a man exit who they did not believe lived there. They detained him and he subsequently told the officers that he had been there to visit a prostitute. The man gave [the officers his information as well as] the name of the prostitute, 'Cinnamon, ' and her contact number. Officer McClay, posing as a prospective customer, called her and made contact the next day. McClay was familiar with the interaction: the female insisted on calling him back, declined to give information, and asked for him to call back a few hours later.
"McClay called back a few hours later, as directed, and the female informed him of the services she offered. They arra[ng]ed to meet the following day, but she would not give the address. Instead, she told McClay that she would text him the address just before the appointed time. She asked McClay if he was familiar with Roxbury and told him she would be near Massachusetts Avenue.
"A few minutes later she sent a text message with the address of 131 Eustis Street. Officer McClay arrived at that address. He had arra[ng]ed with members of his team that he would alert them when . . . she accepted money from him.
"The officer sent the female a text message saying he had arrived. She told him that she would let him in, and he saw the front door of the house open. He entered, and the female then closed the door and barred it with a [two-by-four] piece of lumber. He was in the front common hall. The man known to McClay as the owner, Farhad Ahmed, was standing in the hall nearby. McClay knew that Ahmed's apartment was on the first floor rear, and that there were four or five rooms on the second floor. One or more of those rooms, McClay knew, was rented by Ahmed for [twenty dollars] for two hours. There was testimony that Ahmed had supplies of alcohol, condoms and drugs for sale. There was no testimony as to the basis of knowledge of the officers as to the drugs and alcohol, and I do not find that the Commonwealth has established, by a preponderance of the evidence, that either were sold by Ahmed; Ahmed's history was of renting rooms in his houses for prostitution by the hour, and all of the police investigation here, both with the initial 'John' and with the female prostitute, involved the use of the premises for prostitution. Accordingly, while I find that the police officers' belief that the premises were used for prostitution was supported by specific facts known to them, I do not so find on the evidence here with respect to drugs.
"The female asked Officer McClay for [twenty dollars] to pay Ahmed. Officer McClay replied that, in fear of being robbed, he had left his wallet in his car. As the door was opened to allow McClay to go to his car, he signaled the other officers. They entered the building ...

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