A divided panel of the Massachusetts Appeals Court today overturned a Boston Municipal Court judge’s order suppressing drug evidence that was discovered when Boston cops searched a brothel without a warrant. The name of the case is Commonwealth v. Owens.
In April of 2013, Boston police officers were conducting surveillance on a known house of prostitution. The officers confronted a man leaving the house and he admitted he had been socializing with a lady of the night named Cinnamon (probably not the name on her birth certificate). Cinnamon’s phone number was provided to the police and one of the officers called her and scheduled a date at the whorehouse. The following day, the cop went to the whorehouse and met with Cinnamon and the owner of the house in a first-floor common hallway. The police knew the first floor of the house constituted the living quarters of the owner and at least one room on the second floor was reserved for hookers and their clients. Cinnamon asked the cop to pay her $20 (in order to rent a second floor room from the homeowner for a couple of hours). When the request for payment was made, additional cops entered the first floor of the home and arrested the homeowner and Cinnamon. The police knew there were additional people on the second floor and they decided to “freeze” the house while applying for a search warrant. The “freezing” process involves going from room to room to remove anyone who happens to be inside and ensuring evidence is not removed or destroyed. In an upstairs bedroom, the cops found the defendant who appeared to be seconds away from smoking crack cocaine. The defendant was charged with illegal possession of drugs.
The defendant filed a motion to suppress the drugs, arguing the police had unlawfully searched the home. A Boston Municipal Court judge agreed and ordered the drugs to be suppressed at trial. The Commonwealth appealed and the Appeals Court reversed. The Commonwealth advanced two theories on appeal. First, the Commonwealth argued the cops were conducting a protective sweep of the premises. A protective sweep is warranted when the police reasonably believe a location to be searched is harboring an individual that poses a danger to the cops or somebody else. In this case, the Appeals Court concluded the Commonwealth had not established the cops had a reasonable belief of the presence of a dangerous person. After all, there was no evidence the whorehouse had previously been the site of violence. However, the Appeals Court did find the search was appropriate to prevent the removal or destruction of evidence (in this case, the evidence consisted of condoms, lubricants, and photographic evidence). The Court found it was proper to conclude that such evidence would be destroyed if preventative measures were not taken. Accordingly, it was constitutionally appropriate for the police to have searched from room to room to remove anyone who might have been present.
One justice dissented, arguing there was no evidence that the people on the second floor of the house (including the defendant) even knew the police were present. Therefore, according to the dissent, it was improper to conclude evidence would be destroyed and the police should have been required to obtain a warrant.