Heard: October 4, 2016.
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,
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.
M. Campbell, Assistant District Attorney, for the
Davis for the defendant.
Present: Kafker, C.J., Trainor, & Henry, JJ.
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.
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 ...