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Commonwealth v. Judge

Appeals Court of Massachusetts, Bristol

March 28, 2019

COMMONWEALTH
v.
SHANE JUDGE.

          Heard: September 13, 2018.

         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.

          Present: Wolohojian, Lemire, & Englander, JJ.

          LEMIRE, J.

         After 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 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 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 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] ...


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