The Supreme Judicial Court yesterday ruled prosecutors cannot use powder and a crack pipe as evidence against a man who was allegedly found with them upstairs in a Roxbury house being raided as a brothel in 2013.
The Massachusetts Appeals Court had ruled last year that the evidence was validly seized and could be used against Terry Lynn Owens even though police had no warrant.
But the state's highest court reversed that ruling, saying police and prosecutors had not supplied adequate evidence to prove that a warrantless search of the Eustis Street home was vital to preserve evidence after they arrested the house's owner and an alleged prostitute in a sting operation.
Owens was not the target of the police raid on April 8, 2013. After police moved in on a woman who'd offered an undercover cop a $100 tryst - and the house's owner, who wanted $20 for the room - they began a room to room search of the den of iniquity even though they had no warrant.
Suffolk County prosecutors said this was necessary to prevent anybody from destroying evidence, which courts have said is a valid reason to "freeze" and search a house. When officers went into one room on the second floor, they say they found a woman on a bed, with Owens sitting 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.
Owens was arrested and the evidence seized.
But the court said that under state law and prior court rulings, officers have to show very specific reasoning for freezing a house in advance of getting a warrant, and that, in this case, police and prosecutors provided no evidence the landlord was supplying drugs or alcohol to clients - or that there really was a risk somebody would destroy evidence:
At the time the police officers decided to freeze the house, they knew only that the house was being used for prostitution and that there were other people in the house, including on the second floor. However, there was a dearth of testimony supporting a reasonable belief that the house contained physical evidence that was at risk of loss or destruction. The judge specifically found that the police lacked a reasonable basis to believe that Ahmed, the owner of the house, supplied drugs or alcohol, and there was no testimony that any drugs or alcohol was seen in the house before the police decided to freeze it. There was some testimony, implicitly credited by the judge, that Ahmed was believed to supply condoms, but no testimony that any condoms were actually seen in the house. The police officers did not identify any other physical evidence (of prostitution or of any other offense) in the house. To the extent that the existence of physical evidence might be inferred from the fact that prostitution was taking place in the house, the record does not support any objective basis to believe that such evidence was "susceptible to destruction or removal," particularly where no evidence suggests that the second-floor occupants were aware of the police presence ...
On the record before us, there was an insufficient basis to believe that evidence would be lost or destroyed.