The Massachusetts Appeals Court said today that prosecutors can use alleged cocaine and a crack pipe as evidence against a man caught up in raid on a Eustis Street house of prostitution in 2013.
A Superior Court judge had tossed the powder and the pipe as evidence against Terry Lynn Owens, charged with possession of a class B substance, writing that police who searched 131 Eustis St. didn't have a warrant and had no proof that Owens was participating in the commission of a crime that would have put them or others at immediate danger when they opened the door of the room he was allegedly sharing with a lady of the evening in April, 2013.
The appeals court agreed with Suffolk County prosecutors, who argued that they needed to secure the house until they could get a warrant as part of their investigation into prostitution there and that police were only conducting a protective sweep to ensure no evidence was destroyed, and that the evidence they seized was in plain sight in the room.
Cops entered the house as the culmination of an investigation into neighborhood complaints that Farhad Ahmed was renting rooms there by the hour to prostitutes and their clients - and that he provided accoutrements such as condoms and lube.
An undercover officer arranged for a tryst in the house with a woman who allegedly promised him a half hour romp "that included everything" for $100. After agreeing to her terms - which included a $20 payment to Ahmed - the court ruling says, he told her he'd left his money in his car; when he went outside, he signaled to other officers, who moved in.
Because they had seen other people enter the house, the officers decided they had to get everybody out, to protect any possible evidence against Ahmed. As part of their search to ensure nothing was touched, one officer:
Heard noise from the second floor. He ascended the stairs and entered the second room he came to. He knocked, then immediately opened the door. A female was on the bed, and a male, the defendant here, was next to a table. The defendant had an open can of beer and was sitting in front of a black pla[t]e on which was a white powder. He also had a pipe in his hand which the officer knew was of the type used to smoke crack cocaine.
In their appeal, prosecutors argued Owens had no right to privacy, because, come on, there was no proof proffered that either he or the lady actually paid for the room and, in any case, he was in a room with a prostitute, or, in legalese,
The defendant's "privacy rights and reasonable expectations are limited by the unique and transient nature of his room occupancy."
Nope, the court answered: "We recognize this is a somewhat novel question, given the rental-by-the-hour arrangement," but even somebody in a compromising position has a right to privacy, especially given that their door was closed:
Here, it was reasonable to find, or at least to infer, that the room was paid for and that the door was closed to protect the privacy of the renters. Both officers testified to their belief that the rooms in the house were rented by the hour. There was no evidence to suggest that the rental period had expired or that the defendant had abandoned the room.
The court added prosecutors failed to make their case that Owens was trespassing in the house, which again would have lowered his expectation of privacy.
But, in the end, at least in this case, that didn't matter, the court continued.
We agree with the Commonwealth, however, that the search was justified to prevent the removal or destruction of evidence. There was significant, uncontroverted testimony that the officers were securing the building from within to preserve evidence while they sought a search warrant. ... There was ample testimony about a number of people being present in the building, justifying the officers' concerns about the destruction of evidence. ... There was also specific testimony regarding what that evidence might be. The motion judge himself recognized that there was testimony regarding Ahmed's provision of condoms, and the judge apparently credited this testimony in contrast to the testimony about alcohol and drugs. In sum, the judge improperly concluded that the officers lacked the legal authority to secure the house from within to preserve evidence of the crime of operating a place of prostitution.
The justices added:
We also disagree that the police were precluded from securing the house from within because they could have proceeded with a warrant in the first place and avoided any exigency. Although the police had probable cause to believe that the house was being used as a place of prostitution based on the testimony of the neighbors, their interviews with known sex workers, and their interview with the man leaving the location on April 18, they also had legitimate reasons to proceed with the sting operation with Cinnamon and therefore develop firsthand conclusive evidence of prostitution at the location before proceeding any further.