author: Pyle, Judge.

text:
    IN RE: The COMMITMENT OF D.S.;
    D.S., Appellant/Respondent, v. Indiana University Health Bloomington Hospital, Appellee/Plaintiff.
    Court of Appeals Case No. 18A-MH-590
    Court of Appeals of Indiana.
    FILED August 23, 2018
    Attorney for Appellant: Isabella H. Bravo, Bloomington, Indiana
    Attorney for Appellee: James L. Whitlatch, Bunger & Robertson, Bloomington, Indiana
   Pyle, Judge.

Statement of the Case

[1] D.S. ("D.S.") appeals the trial court's order granting the petition filed by Indiana University Health Bloomington Health ("the Hospital") for her regular commitment. She argues that: (1) there was not sufficient evidence to prove that she was "gravely disabled;" (2) that the trial court's forced medication order was not the least restrictive treatment; and (3) that the testimony of psychiatrist Carey Mayer, M.D. ("Dr. Mayer") contained inadmissible hearsay. Because we conclude that there was not sufficient evidence to prove that D.S. was "gravely disabled," we reverse the trial court's decision and remand for the trial court to vacate the order of regular commitment.

[2] We reverse and remand.

Issue

Whether there was sufficient evidence to support the trial court's regular commitment of D.S.

Facts

[3] On January 27, 2018, Officer Kyle Thomas ("Officer Thomas") of the Bloomington Police Department ("BPD") responded to a 911 call regarding an incident (the "Incident") in downtown Bloomington, Indiana. When Officer Thomas responded to the call, he saw D.S. waving a sign out of a vehicle while screaming. He attempted to stop D.S.'s vehicle, but she continued driving until traffic blocked her vehicle. Believing D.S. to be suffering from psychosis, Officer Thomas forcibly removed D.S. from her vehicle and brought her to the Hospital for an emergency detention.

[4] At the Hospital, physician Daniel J. Garrison, M.D. ("Dr. Garrison") filed an Application for Emergency Detention ("Application") stating that D.S. appeared to have "acute or chronic psychosis, patient is manic and lead [sic] BPD in a chase in her car throughout downtown Bloomington." (App. Vol. 2 at 5). Dr. Garrison further alleged in the Application that D.S.'s decision-making was impaired, placing her in a potentially harmful situation, and he recommended that D.S. be admitted to the Hospital's Crisis Care Unit. The next day, the trial court approved the seventy-two (72) hour emergency detention of D.S., and D.S. was held at the Hospital.

[5] Three days later, on January 31, 2018, Hospital Social Worker James D. Baugh ("Baugh") completed a Report Following Emergency Detention ("Report") and filed in the trial court a Petition for Involuntary Commitment ("Petition") seeking regular commitment of D.S. for a period of one (1) year. In the Petition, Baugh alleged that D.S. was suffering from a psychotic disorder and "present[ed] as gravely impaired with helix of schizophrenia, bipolar, schizoaffective, and bipolar type." (App. Vol. 2 at 12). The Petition further alleged that D.S. was unable to care for herself, meet her basic needs, or identify appropriate shelter and that she had no family, friends, or others willing to assist her in meeting those needs. Psychiatrist Carey Mayer, M.D. ("Dr. Mayer") simultaneously filed a physician's statement alleging that D.S. was suffering from a psychiatric disorder and was "delusional, causing disturbance(s) involving the police." (App. Vol. 2 at 15).

[6] A week later, on February 6, 2018, the trial court held its hearing on the Hospital's Petition for the regular commitment of D.S. Two witnesses, Dr. Mayer and D.S. testified. First, Dr. Mayer testified about the circumstances under which D.S. was brought to the Hospital. At the outset of his testimony, he read into the record an assessment done by one of the Hospital's therapists when D.S. was admitted. Counsel for D.S. objected to the testimony on the basis that it was hearsay, and the trial court overruled the objection.

[7] Next, Dr. Mayer testified to his "own direct observations" of D.S. (Tr. 4). Dr. Mayer testified that he assessed D.S. to be "suffering from a schizoaffective disorder, bipolar type" and that she need[ed] medications "which unfortunately she refuse[d] to consider." (Tr. 5). He also testified that "for the last seven [or] eight days" D.S. had remained "psychotic" and "preoccupied" and that he therefore believes "she is gravely impaired and unable to provide for her own safety, shelter, food, clothing, [and] needs." (Tr. 5). Dr. Mayer also recommended a forced medication order of three drugs: Zyprexa, Abilify, and the injectable drug Invega. (Tr. 5). During cross-examination, Dr. Mayer agreed that D.S. was neither malnourished nor dehydrated when admitted to the Hospital, that she had a residence where she could stay upon release from the Hospital, and that she had secured these "shelter, food, and clothing without hospital assistance" and without taking "any type of medication." (Tr. 12).

[8] Finally, D.S. testified about her life outside of the Hospital. She stated that she had been living with a friend in Jackson County since approximately July 2016 and that she had been employed at an appliance production company in Bedford, Indiana from August 2016 until January 2018. She also stated that she maintained relationships with her parents and daughter who lived in Indiana and her two brothers who lived in other states. She testified that she had checking and savings accounts from which she paid weekly rent to her friend, a monthly car payment, and car insurance. She further testified that until her current hospitalization she had not been hospitalized since 2016. She indicated that she was unwilling to take Invega because of negative side effects, but that she would be willing to try an alternative.

[9] At the conclusion of the hearing, the trial court granted the Hospital's Petition for D.S.'s regular commitment, finding that D.S. was gravely disabled and in need of commitment for a period expected to exceed ninety (90) days. The trial court also granted the forced medication order, permitting the Hospital to treat D.S. with Invega, Abilify, and Zyprexa. D.S. now appeals.

Decision

[10] On appeal, D.S. argues that the trial court erred in ordering her regular commitment because there was insufficient evidence to prove that she was "gravely disabled" as required by statute. See IND. CODE § 12-7-2-96. In reviewing the sufficiency of the evidence to support a civil commitment, which requires clear and convincing evidence, " 'an appellate court will affirm if, considering only the probative evidence and the reasonable inferences supporting it, without weighing evidence or assessing witness credibility, a reasonable trier of fact could find the [necessary elements] proven by clear and convincing evidence.' " Commitment of M.E. v. Dep't of Veteran's Affairs , 64 N.E.3d 855, 861 (Ind. Ct. App. 2016) (quoting Civil Commitment of T.K. v. Dep't of Veteran's Affairs , 27 N.E.3d 271, 273 (Ind. 2015) (internal quotation omitted) ).

[11] INDIANA CODE § 12-26-2-5(e) provides that the petitioner in a case involving the involuntary commitment of mentally ill individuals must prove by clear and convincing evidence that: (1) the individual is mentally ill and either dangerous or gravely disabled; and (2) detention or commitment of that individual is appropriate. Clear and convincing evidence requires proof that the existence of a fact is "highly probable." M.E. , 64 N.E.3d at 861. " 'There is no constitutional basis for confining a mentally ill person who is not dangerous and can live safely in freedom.' " Id. (quoting Commitment of J.B. v. Midtown Mental Health Ctr. , 581 N.E.2d 448, 451 (Ind. Ct. App. 1991) ).

[12] D.S. does not dispute the trial court's finding that she is mentally ill. However, she argues that there was insufficient evidence to support the trial court's finding that she is gravely disabled. INDIANA CODE § 12-7-2-96 defines "gravely disabled" as:

A condition in which an individual, as a result of mental illness, is in danger of coming to harm because the individual:
(1) is unable to provide for that individual's food, clothing, shelter, or other essential human needs; or
(2) has a substantial impairment or an obvious deterioration of that individual's judgment, reasoning, or behavior that results in the individual's inability to function independently.

Because this statute is written in the disjunctive, a trial court's finding of grave disability survives if we find that there was sufficient evidence to prove either that the individual was unable to provide for his basic needs or that his judgment, reasoning, or behavior was so impaired or deteriorated that it resulted in his inability to function independently. Commitment of B.J. v. Eskenazi Hosp./Midtown CMHC , 67 N.E.3d 1034, 1039 (Ind. Ct. App. 2016). Our supreme court has previously held that a denial of mental illness and refusal to medicate, standing alone, are insufficient to establish grave disability because they do not establish by clear and convincing evidence that the individual is unable to function independently. See T.K. , 27 N.E.3d at 276. The United States Supreme Court has also held that, since everyone exhibits some abnormal conduct at one time or another, "loss of liberty [through a commitment] calls for a showing that the individual suffers from something more serious than is demonstrated by idiosyncratic behavior." Addington v. Texas , 441 U.S. 418, 426-27, 99 S.Ct. 1804, 1810, 60 L.Ed.2d 323 (1979).

[13] D.S. argues that there was insufficient evidence that she was gravely disabled because the only evidence bearing on that finding are the incident involving police and her refusal to take medication. She claims that this "scant" evidence is insufficient to establish that she: (1) is unable to provide for her essential human needs; or (2) has a substantial impairment or obvious deterioration of judgment that results in her inability to function independently. (Appellant's Br. 11).

[14] In response, the Hospital appears to concede that D.S. cannot be found gravely disabled under the first prong of the definition and argues only that D.S. is gravely disabled under the second prong of the definition. (See Appellee's Br. 14 (arguing that "lack of evidence that [D.S.] was not able to provide for her essential needs ... is not fatal" and that "D.S. had an obvious deterioration that affected her judgment and ability to function independently.") ). The Hospital then argues that D.S.'s apparent "inability to ... abide by the normal rules of conduct[,]' " as shown by the Incident, was sufficient to prove that D.S. was gravely disabled. (Appellee's Br. 15 (quoting Tr. 10) ). We disagree.

[15] While Dr. Mayer might have properly considered D.S.'s conduct during the Incident to be contrary to "the normal rules of conduct," (Tr. 10), the Hospital's burden of proof requires more than a showing that D.S. behaved abnormally or idiosyncratically. Addington , 441 U.S. at 426-27, 99 S.Ct. 1804. Rather, the Hospital needed to have shown by clear and convincing evidence that D.S. lacked the judgment and ability to function independently. B.J. , 67 N.E.3d at 1039. Other than Dr. Mayer's diagnosis of psychosis caused by schizoaffective disorder, the Hospital presented no evidence at all, much less clear and convincing evidence, that D.S. could not function independently. The Incident was one isolated event, and while D.S.'s actions during the Incident were unusual, there was no evidence that her unusual conduct prevented her from functioning independently outside the Hospital. See Addington , 441 U.S. at 427, 99 S.Ct. 1804 (warning against committing individuals based on "a few isolated instances of unusual conduct."). D.S. testified about her ability to work, pay bills, and live independently, and the Hospital presented no contrary evidence regarding her ability to do so.

[16] Further, it is apparent from Dr. Mayer's testimony that his opinion that D.S. was gravely disabled was based solely on the Incident, her denial of her illness, and her refusal to take prescribed medication. We have already noted above that the Incident was not a sufficient basis for regular commitment, and in T.K. , our supreme court affirmed that denial of illness and refusal to take medication are likewise not a sufficient basis for commitment. See T.K. , 27 N.E.3d at 276 (holding that "denial of illness and refusal to medicate, standing alone, are insufficient to establish grave disability because they do not establish, by clear and convincing evidence, that such behavior results in the individual's inability to function independently") (internal quotation omitted) ).

[17] Accordingly, because the only evidence the Hospital presented at trial did not constitute clear and convincing evidence to support D.S.'s regular commitment, we reverse the trial court's decision and remand for the trial court to vacate the regular commitment.

[18] Reversed and remanded.

Vaidik, C.J., and Barnes, Sr. J., concur.

      Because we reverse, we need not address whether the trial court's forced medication order was the least restrictive treatment or whether Dr. Mayer's testimony contained inadmissible hearsay.

      In Civil Commitment of T.K. v. Dep't of Veterans Affairs , 27 N.E.3d 271, 273 n. 1 (Ind. 2015), our supreme court explained:
      In Indiana, an adult person may be civilly committed either voluntarily or involuntarily. Involuntary civil commitment may occur under four circumstances if certain statutorily regulated conditions are satisfied: (1) "Immediate Detention" by law enforcement for up to 24 hours; (2) "Emergency Detention" for up to 72 hours; (3) "Temporary Commitment" for up to 90 days; and (4) "Regular Commitment" for an indefinite period of time that may exceed 90 days.
      (internal citations omitted).


source: Caselaw Access Project

author: Altice, Judge.

license: Public Domain

text:
    Shon L. HUDSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 49A02-1712-CR-2903
    Court of Appeals of Indiana.
    Filed September 5, 2018 Publication Ordered September 27, 2018
    Attorney for Appellant: Rory Gallagher, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Ian McLean, Supervising Deputy Attorney, General Indianapolis, Indiana
   Altice, Judge.

Case Summary

[1] Following a bench trial, Shon Hudson was convicted of battery resulting in bodily injury as a Class A misdemeanor. The sole issue he raises on appeal is whether he knowingly waived his right to a jury trial.

[2] We reverse and remand.

Facts & Procedural History

[3] On January 23, 2017, the State charged Hudson with battery resulting in bodily injury as a Class A misdemeanor. At the initial hearing, the trial court explained to Hudson his rights, including that he had "the right to a public and speedy trial, by a jury if you want one ." Supplemental Transcript Vol. 2 at 4-5 (emphasis supplied). Over the next couple of months, Hudson, represented by a public defender, appeared before the trial court for several, brief hearings, during which the court offered no additional advisements about Hudson's right to a jury trial or the procedural requirements of Ind. Crim. Rule 22 (Rule 22 ). A hearing scheduled for August 15, 2017, was continued, and an "off record request form," signed by the State and defense counsel but not Hudson, was submitted to the court. The form noted that the reason for the continuance was that the matter was to be "set for BT," and a bench trial was requested to be set for September 12, 2017. Appellant's Appendix Vol. II at 52. The trial court set the matter for a bench trial as requested. On the State's motion, the bench trial was rescheduled for November 21, 2017.

[4] Before the bench trial began, Hudson expressed his dissatisfaction with his public defender and indicated that he thought the matter was set for a jury trial. Hudson explained:

I'm not ready to go to court, I mean, I'm not ready to go to trial today, sir. My public defender hasn't did [sic] his job.... Why I'm concerned about this case, Your Honor, is it was an incident going on where I had another public defender who was supposed to set my trial for a jury trial. I get a new public defender, I got a bench trial.

Transcript Vol. 2 at 4. Hudson continued asserting complaints about his public defender and then reiterated, "I thought we were going ... to jury trial. I've never been to a bench trial." Id. at 6. The trial court addressed Hudson's comments, stating "I don't have any options. This is our date for trial. Everybody is here for trial that I'm aware of. We're going to proceed." Id. at 8. The trial court assured Hudson that the bench trial would be done "fully and fairly." Id. The court then moved forward with the bench trial and found Hudson guilty as charged. The court sentenced Hudson to 365 days incarceration with 359 days suspended to probation. Hudson now appeals. Additional evidence will be provided as necessary.

Discussion & Decision

[5] Hudson argues that he did not knowingly waive his right to a misdemeanor jury trial because he was never advised of the need to demand a jury trial in writing at least ten days before the scheduled trial date or of the consequences of failing to do so. The State argues that the trial court was not required to give formal notice of the procedural requirements set forth in Rule 22 before a valid waiver of a jury trial can occur.

[6] The right to a jury trial is guaranteed by both Article 1, Section 13 of the Indiana Constitution and the Sixth Amendment of the United States Constitution. Young v. State , 973 N.E.2d 643, 645 (Ind. Ct. App. 2012). While the Constitution does not differentiate between felonies and misdemeanors, in Indiana the procedure for asserting the right to a jury trial in misdemeanor cases is controlled by Rule 22, which provides, in relevant part:

A defendant charged with a misdemeanor may demand trial by jury by filing a written demand therefor not later than ten (10) days before his first scheduled trial date. The failure of a defendant to demand a trial by jury as required by this rule shall constitute a waiver by him of trial by jury unless the defendant has not had at least fifteen (15) days advance notice of his scheduled trial date and of the consequences of his failure to demand a trial by jury.

" 'Thus, when charged with a misdemeanor, a defendant can waive [his or] her right to a jury trial by failing to make a timely demand for trial by jury.' " Fiandt v. State , 996 N.E.2d 421, 423 (Ind. Ct. App. 2013) (quoting Young , 973 N.E.2d at 645 ).

[7] As this court has observed, "[t]he right to a jury trial is a fundamental right, and while the manner of preserving the right [in a misdemeanor case] is controlled by [ Rule] 22, it is not diminished." Duncan v. State , 975 N.E.2d 838, 842 (Ind. Ct. App. 2012). Indeed, it remains that even though a defendant charged with a misdemeanor can waive his right to a jury trial by inaction, it must also be shown that the waiver was "made in a knowing, intelligent, and voluntary manner, with sufficient awareness of the surrounding circumstances and the consequences." Doughty v. State , 470 N.E.2d 69, 70 (Ind. 1984) ; see also Patton v. United States , 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854 (1930) (holding that, before the constitutional right to a jury may be waived, the "express and intelligent consent of the defendant" must be obtained).

[8] In order to establish a valid waiver in a misdemeanor case, the record is sufficient if

1) it does not contain a request for a trial by jury; 2) it evidences that the defendant was fully advised of the right to a trial by jury and of the consequences for failing to timely request the right; and 3) it reflects that the defendant was able to understand the advice.

Eldridge v. State , 627 N.E.2d 844 (Ind. Ct. App. 1994), trans. denied. It is in this context of a knowing waiver that this court has held that " '[a] valid waiver cannot be made pursuant to [Rule] 22 in the absence of an advisement by the trial court of the consequences of a failure to demand a trial by jury not later than ten days prior to the trial date.' " Hanna-Womack v. State , 623 N.E.2d 439, 440 (Ind. Ct. App. 1993) (quoting Vukadinovich v. State , 529 N.E.2d 837, 839 (Ind. Ct. App. 1988) ); see also Fiandt , 996 N.E.2d 421 ; Levels v. State , 972 N.E.2d 972 (Ind. Ct. App. 2012).

[9] In Duncan , this court squarely addressed the issue presented herein. In that case the defendant was charged with thirteen Class A misdemeanors. At his initial hearing, the defendant appeared pro se and the trial court advised him of his right to a jury trial but did not mention the requirement to timely request a jury trial if desired or the consequences of failing to do so. The defendant was represented by counsel at subsequent hearings. The record did not suggest that the defendant was ever informed of the requirements for requesting a jury trial or the consequences of failing to do so. There was also nothing in the record indicating that the defendant ever requested a jury trial, timely or otherwise. Following a bench trial, the defendant was found guilty of six misdemeanor offenses. On appeal, the defendant argued that he did not knowingly waive his right to a jury trial.

[10] This court rejected the State's argument that it could be inferred that the defendant was adequately informed of his rights to a jury trial and the procedure for asserting such right because he was represented by counsel. We explained that "[b]ecause the right to a jury trial is a fundamental right, we cannot assume from a silent record that [the defendant] was informed by his counsel." Duncan , 975 N.E.2d at 843 ; see also Bex v. State, 952 N.E.2d 347, 349 (Ind. Ct. App. 2011) (noting as an initial matter that a represented defendant was not fully informed), trans. denied ; Hanna-Womack , 623 N.E.2d at 440 (noting that the defendant was not fully informed by the court and that there was also no indication that she was informed by her counsel).

[11] The Duncan court also rejected the State's argument that the matter should not be reversed because the defendant was not prejudiced, finding that the relevant inquiry was whether the defendant was adequately informed, not whether he was prejudiced. The court further noted that a violation of the right to trial by jury constitutes fundamental error, and thus, is not subject to harmless error analysis. 975 N.E.2d at 844 (citing Eldridge , 627 N.E.2d at 849 ).

[12] The Duncan court also considered the State's argument that reversal was not required because there was no indication that the defendant ever wanted, requested, or was denied a jury trial. The court noted that "it does not matter whether the defendant requested a jury trial." Id. at 844 (citing Casselman v. State , 472 N.E.2d 1310, 1311 n.1 (Ind. Ct. App. 1985) ). Although the court agreed with the State that it was possible the defendant went along with a bench trial and never requested a jury trial and only raised the issue on appeal because he wanted a new trial, the court nevertheless felt "obliged to find that [the defendant] did not waive his right to a jury trial. He was not able to meet the 'knowing' requirement of a valid waiver because he was not adequately informed of his rights and obligations as set out in Criminal Rule 22." Id. The court thus remanded the case for a jury trial.

[13] Here, the record reveals, and the State does not assert otherwise, that the trial court failed to advise Hudson of the consequences of failing to demand a jury trial or of the specific requirements for making such a demand. There is also no indication that Hudson ever formally requested a jury trial. The fact that Hudson was represented by counsel does not give rise to a presumption that Hudson was advised about the procedural requirements of Rule 22. As in Duncan , we find that Hudson has established that his waiver of his right to a misdemeanor jury trial was not knowing and is therefore invalid; we must therefore remand this case for a jury trial. See also Levels , 972 N.E.2d at 974 (holding that "[b]ecause the advisement [of the right to a misdemeanor jury trial] was insufficient, there was no valid waiver of a jury trial").

Judgment reversed and remanded.

Najam, J. and Robb, J., concur.

Order

[1] Appellant, by counsel, filed a Motion to Publish.

[2] Having reviewed the matter, the Court finds and orders as follows:

1. The Appellant's Motion to Publish is granted.
2. This Court's opinion heretofore handed down in this cause on September 5, 2018, marked Memorandum Decision, is now ordered published.
3. The Clerk of this Court is directed to send copies of said opinion together with copies of this order to the West Publishing Company and to all other services to which published opinions are normally sent.

[3] Ordered 9/27/2018.

[4] Najam, Robb, Altice, JJ., concur.

      The Casselman court rejected the State's argument that no error was committed because the defendant failed to demand a trial by jury in writing as required by Rule 22, finding the argument "specious." 472 N.E.2d at 1311 n.1. The State points out that the Casselman court did not make a holding on this issue, but rather its observations in this regard were dicta . We agree. Nevertheless, the Duncan court did not rely only on this comment by the Casselman court, but rather supported its conclusion that the defendant did not meet the knowing requirement of a valid waiver with citations to other cases adopting that analysis. See Levels , 972 N.E.2d 972 ; Vukadinovich , 529 N.E.2d 837.


text:
    COMMONWEALTH v. Terry Lynn OWENS.
    SJC-12494
    Supreme Judicial Court of Massachusetts.
    November 7, 2018
    Edward C. Gauthier, IV, Greenfield, for the defendant.
    Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.
    RESCRIPT
    The Commonwealth appeals from an order allowing Terry Lynn Owens's motion to suppress evidence discovered when police officers "froze" a house while they obtained a warrant. In a divided opinion, the Appeals Court reversed, concluding that the police officers' actions were justified to prevent the removal or destruction of evidence. Commonwealth v. Owens, 92 Mass. App. Ct. 193, 199, 82 N.E.3d 1093 (2017). A dissenting Justice opined that the evidence presented at the suppression hearing did not establish that the officers had "specific information supporting an objectively reasonable belief that evidence will indeed be removed or destroyed unless preventative measures are taken." Id. at 203-204, 82 N.E.3d 1093 (Henry, J., dissenting), quoting Commonwealth v. DeJesus, 439 Mass. 616, 621, 790 N.E.2d 231 (2003). We allowed the defendant's application for further appellate review and now affirm the suppression order for essentially the reasons given by the dissenting Justice.
    Facts. We summarize the motion judge's findings, which are more fully set forth in the Appeals Court's opinion. Owens, 92 Mass. App. Ct. at 194-196, 82 N.E.3d 1093. A team of Boston police officers believed, based on specific facts known to them, that a particular house in the Roxbury section of Boston was being used for prostitution. The building was at least a two-family dwelling, and the owner, Farhad Ahmed, lived in an apartment on the first floor. The police officers were informed that a woman known as "Cinnamon" worked there as a prostitute. One of the officers, posing as a prospective customer, made contact with Cinnamon, who, in a series of communications, described the services she offered, arranged to meet him, and gave him the address of the house. The officer arrived at the house and entered. Ahmed was present in the first-floor common hallway. The police officer was aware that Ahmed rented out one or more of the rooms on the second floor for twenty dollars per two hours. The motion judge expressly rejected any finding that alcohol or drugs were being sold on the premises or that the police officers had probable cause to believe that they were.
    Cinnamon asked the officer for twenty dollars. On the pretext of getting his wallet from his motor vehicle, the officer opened the door and signaled other police officers to enter. They arrested Cinnamon and Ahmed. Because the officers had seen other people enter the house and because they believed that a search warrant would be sought, they decided to "freeze" the house, meaning to remove all occupants from it. One officer, hearing a noise from the second floor, ascended the stairs. In a second-floor room, he found the defendant, who was sitting in front of a black plate on which there was a white powder and holding a pipe of a type used to smoke "crack" cocaine. The substance and related items were seized later, when a search warrant was obtained and executed.
    Discussion. The Commonwealth argues that the suppression order was improper because, among other reasons, the police officers were justified in conducting a warrantless search of the house, including the second floor, to prevent the loss or destruction of evidence. The motion judge properly found otherwise.
    "[T]here is a fundamental difference between securing or controlling the perimeter of a dwelling from the outside and the entry and physical surveillance of a dwelling from the inside.... [P]olice officers who secure a dwelling while a warrant is being sought in order to prevent destruction or removal of evidence may not enter that dwelling, in the absence of specific information supporting an objectively reasonable belief that evidence will indeed be removed or destroyed unless preventative measures are taken." DeJesus, 439 Mass. at 621, 790 N.E.2d 231. The record here does not satisfy this standard. 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. See Commonwealth v. Tyree, 455 Mass. 676, 686, 919 N.E.2d 660 (2010), quoting Commonwealth v. Cataldo, 69 Mass. App. Ct. 465, 474, 868 N.E.2d 936 (2007).

      Neither the warrant nor the application was put in evidence at the suppression hearing.

      The Appeals Court unanimously rejected the Commonwealth's arguments that the defendant had no reasonable expectation of privacy in the second-floor room and that a protective sweep of the house was warranted for officer safety. See Commonwealth v. Owens, 92 Mass. App. Ct. 193, 197-199, 82 N.E.3d 1093 (2017) ; id. at 202-203, 82 N.E.3d 1093 (Henry, J., dissenting). As to the defendant's expectation of privacy, the Appeals Court concluded that he was lawfully on the premises (regardless of the legality of the activity in which he was engaged therein) and that it was reasonable to infer that the room had been paid for and the door closed to protect the occupants' privacy. Id. at 197-198, 82 N.E.3d 1093. As to officer safety, the Appeals Court upheld the motion judge's finding that there was no reasonable basis to believe that any person present in the house posed a danger to the police or to others, where "[t]here was no evidence that the prostitution business reportedly conducted at the house or by Ahmed in the past included acts of violence" and there was no "testimony reflecting specific concerns about violence here." Id. at 199, 82 N.E.3d 1093. Moreover, the Commonwealth expressly declined to press the issue of officer safety at oral argument before us. We agree with the Appeals Court's reasoning and result as to both of these issues.

   Moreover, as the dissenting Justice observed, "[t]he police in this case were at a loss during the suppression hearing to articulate specific evidence or information that led them to act. Instead, the generic explanations, offered in relation to why they were clearing the rooms, were 'to make sure that ... nothing is moved, no evidence, nothing is taken out'; and 'to prevent anybody from going [back] in and destroying evidence or whatever.' " Owens, 92 Mass. App. Ct. at 206, 82 N.E.3d 1093 (Henry, J., dissenting). These generic explanations -- the only references in the testimony to the possible loss or destruction of evidence -- do not amount to "specific information supporting an objectively reasonable belief that evidence will indeed be removed or destroyed," as required by DeJesus, 439 Mass. at 621, 790 N.E.2d 231 (emphasis added). Of course, the potential loss or destruction of evidence can constitute an exigent circumstance justifying a warrantless entry and search, see id. at 620, 790 N.E.2d 231, but only if the Commonwealth proves that the officers' belief was objectively reasonable and supported by specific information. On the record before us, there was an insufficient basis to believe that evidence would be lost or destroyed. The motion to suppress was properly allowed.

Order allowing motion to suppress affirmed.