Heard: September 13, 2018.
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.
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.
B. Mark, Assistant District Attorney, for the Commonwealth.
Cowhey-McDermott for the defendant.
Present: Wolohojian, Lemire, & Englander, JJ.
an evidentiary hearing, a judge of the Superior Court allowed
the defendant's motion to suppress 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
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).
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.
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 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.
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
one month after his release, on June 23, 2015, at around 8:00
A.M., the defendant's primary parole 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.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. ...