Parole, Search & Seizure, Protective Sweeps

(MARCH 2019)
[Parole, Search & Seizure, Protective Sweeps]


After an evidentiary hearing, a Superior Court judge decided to allow the defendant Shane Judge’s motion to suppressevidence found in his bedroom during a routine parole home visit. The judge found that the officer lacked reasonable suspicion to enter the bedroom and that the entry could not be justified as a protective sweep.

The Commonwealth appealed the allowance of the motion to the Massachusetts Appeals Court.

The Court ultimately affirmed the judgment of the Superior Court justice.


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 that included, among others, a parole manual.

The defendant was released on the condition that he would comply with the rules set out in the parole manual. The manual stated that the defendant’s primary parole officer would visit him “at home, work, school or other places in the community with or without notifying him in advance.” Unannounced home visits could occur “at reasonable hours including weekends,” or at any time in emergency situations. 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.” The manual did not mention the frequency, duration, or scope of routine home visits.

Approximately one month after his release, on June 23, 2015, at around 8 AM, 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.

When the officers knocked on the defendant’s door there was a pause of between 30 seconds and a minute, after which the defendant called out, “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 about ten seconds later.

Lyons then escorted the defendant back to the bathroom to provide a urine sample for drug testing. While this test was taking place, Valenti asked the defendant’s girlfriend if anyone else was in the apartment. The girlfriend responded in the negative. At Valenti’s request, the girlfriend then directed him to the defendant’s bedroom.

In the bedroom, Valenti observed razor blades, a digital scale, a white rock-like substance he believed to be “crack” cocaine, and multiple small plastic bags of a substance he believed to be heroin, all in plain view on a dresser.

The defendant was subsequently arrested.

Discussion: Reasonable Suspicion

The Commonwealth argued that Valenti’s entry into the defendant’s bedroom was justified by reasonable suspicion that the defendant was violating the terms of his parole. It further argued that the delay after knocking but before the parole officers were admitted to the defendant’s home, the demeanor of the defendant’s girlfriend, and the defendant’s criminal history all combined to form reasonable suspicion. The Court disagreed.

The Court first established that though parolees have a significantly diminished expectation of privacy in their homes, their privacy interest is not extinguished entirely. Likewise, parole conditions of release cannot lower a parolee’s privacy standard by “contracting around” the reasonable suspicion standard of a search. Searches must be strictly tied to and justified by the circumstances that make their initiation permissible.

It reasoned that the inference implied by the defendant’s uttering of “Hold on” logically inferred that the defendant had attempted to conceal contraband in the bedroom or on his person, or that he had attempted to destroy contraband while in the bathroom. The facts provided no reason to believe that the defendant had hidden contraband in his bedroom.

The Court determined that the scope of the search at issue exceeded that justified by any suspicion raised by the circumstances. It ruled that the judge was correct in determining that the search of the bedroom could not be justified on the basis provided by the Commonwealth.

Discussion: Protective Sweep

The Commonwealth also contended that Valenti’s entry into the bedroom was justified as a protective sweep. The Court ruled that this explanation was “equally unavailing.”

 The Court established that a protective sweep requires a reasonable belief “based on ‘specific and articulable facts’ that the area could harbor a dangerous individual.”

The Court concluded that there was no articulable reason to believe that dangerous individuals were in the home and that no evidence was put forward of any danger presented by the defendant’s bedroom. In short, the protective sweep was unjustified.

Discussion: Special Needs Search

The Commonwealth also argued that entry into the defendant’s bedroom was permitted even without reasonable suspicion because routine parole home visits qualify as an exception to the Fourth Amendmentof the United States Constitution and Article 14 of the Massachusetts Declaration of Rights as special needs or administrative searches.

The Court conceded that it has historically allowed “limited exceptions to the reasonable suspicion requirement where an intrusion is limited and serves a pressing public purpose.” However, such a search needs to be proportional to its purpose. Even if prior notice of a search minimizes the intrusiveness of the search, it does not make the search automatically reasonable.

The Court added that administrative and special needs searches need to be conducted as part of a scheme that has as its purpose something other than gathering evidence for criminal prosecution.

According to the Court, administrative searches need to be conducted consistently with the neutral purposes that justify them. The decision to search needs to be the result of protocol rather than a discretionary determination to search. There can be no significant danger of hindsight justification.

The Court determined that in the case in question the Commonwealth failed to introduce any internal parole board policy guiding parole officers in their execution of routine home visits. To the extent that the parolee manual included in the record represented parole board policy, the Court determined that unannounced routine home visits were essentially without mandate or limit, to a degree that “unacceptably invite[d] the exercise of parole officer discretion.”


The Court noted in its judgment that it was unable to conduct a constitutional review to determine what, if any, constraint limited the discretion given the parole officers in the frequency or the scope of routine home visits to parolees, and whether a tour of the entire home was mandated during such visits, or merely permitted.

The Court also noted that it sought to express no opinion on the permissible parameters of a routine parole home visit policy in general.

 However, the Court did affirm, as it affirmed in analogous cases, that the evidence seized from the parolee’s home during routine parole home visits without prior reasonable suspicion must be suppressed unless the visit is conducted in accordance with a neutral written policy that provides standard procedures and limits parole officer discretion.

The Court ultimately AFFIRMED the judgment of the Superior Court judge because the Commonwealth had not adequately justified the search of the defendant’s bedroom based on reasonable suspicion tied to that bedroom or a neutral written policy.



Commonwealth v. Shane JUDGE Commonwealth v. Shane JUDGE

Source: Commonwealth v. Shane Judge, 17-P-1262



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