COMMONWEALTH v. ALEXANDER ROSEN SCHUH (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from a Superior Court judge's order allowing the defendant's motion to suppress evidence obtained following the warrantless entry into the defendant's residence and subsequent seizure of evidence found therein. The Commonwealth argues that the entry and search were justified because, among other reasons, the defendant was on parole, had a diminished expectation of privacy, and reasonable suspicion of criminal activity was not required to enter the defendant's residence for a routine home visit. We affirm.

Background. We summarize the facts as found by the motion judge, “supplemented by additional undisputed facts where they do not detract from the judge's ultimate findings.” Commonwealth v. Jessup, 471 Mass. 121, 127-128 (2015).

In December 2022, the defendant was released on parole under signed conditions of release. At this time, the defendant was given a “Supervision Manual for Parolees” (manual) and a parole packet, which included, inter alia, a “Certificate of Parole” and “Parole Consent to Search Acknowledgment Form,” which were reviewed with the defendant and explained to him.¹

On April 20, 2023, the defendant's parole officer conducted an unannounced home visit ² at the defendant's residence, which at that time was a room at a “motel-style establishment in West Yarmouth.”³ The parole officer “reviewed the defendant's location information as provided by his GPS ankle bracelet, which indicated that the defendant was at the Cape Cod Mall.” He then texted the defendant to ask him to return to his residence for the unannounced home visit. Around 2:30 P.M., the parole officer saw the defendant arrive at the residence complex in a pick-up truck with four other males. The defendant and two younger males left the vehicle and entered the defendant's residence. “When the defendant exited the vehicle, P.O. Miller observed him to be wearing a black fanny pack.” After seeing the defendant enter the residence, the parole officer got out of his car, knocked on the door, and “immediately opened the door himself, which was a slider-style glass door, and entered.” The parole officer greeted the defendant and asked the two other males for identification. Upon learning that the younger males did not have identification and were minors, the parole officer asked them to step outside. As the judge further found:

“Once in the hotel room, [the parole officer] observed a room cluttered with ‘stuff.’ He saw ten to fifteen shopping bags on the bed, boxes, packaging, and approximately twenty boxes of shoes. [The parole officer's] impression was that this was a great deal of ‘stuff’ for someone who was unemployed and frequently moving. [The parole officer] noticed that the defendant had removed the fanny pack from his person and that it was now at the foot of the bed ․ The parole officer asked the defendant why he was wearing it. The defendant stated that the pack was not his. [The parole officer] then asked what was in the fanny pack, to which the defendant responded that he did not know. [The parole officer] asked to look inside the fanny pack, and the defendant said, ‘yes, because it isn't mine.’ Upon opening the pack, [the parole officer] observed two clear plastic bags: one larger and one smaller, corner-cut. The larger of the bags, which was about size of a plum, contained an off-white powdered substance. [The parole officer] opined that, in his training and experience as a parole officer, the powder's appearance was consistent with that of fentanyl or heroin. [The parole officer] informed the defendant that he would have to contact the defendant's Parole Supervisor regarding the situation ․ Shortly thereafter, [a] Yarmouth Police Department Officer ․ arrived on the scene ․ and briefly engaged with [the parole officer], not realizing the defendant was inside the building. When [the parole officer] turned his attention to [the police officer], he put his back to the defendant. He then heard a person running, turned around, and saw the defendant run into the bathroom. The parole officer chased after him and observed the defendant flushing the largest bag of suspected narcotics down the toilet. [The police officer] followed and placed defendant in handcuffs outside the bathroom. Additional officers arrived on the scene and the defendant was escorted outside and secured in a cruiser. [The police officer] proceeded to do an initial search of the room and recovered a bag containing a white powder. During the search, [the parole officer] paced in and out of the room, at times going through the contents of bags and cabinets, and at other times making phone calls. [A Yarmouth Police Detective], arrived on scene and ultimately obtained a search warrant for the residence while [the officer] remained on scene to secure the residence. Thereafter, during the search conducted pursuant to the warrant, additional corner-cut baggies containing suspected narcotics were located.”

Following his arrest on various drug-related offenses, the defendant filed a motion to suppress evidence. After conducting an evidentiary hearing, a Superior Court judge issued a comprehensive memorandum and order allowing the motion. Specifically, the judge determined that (1) the Commonwealth did not have reasonable suspicion of prohibited activity, at least at the time that the parole officer entered the defendant's residence, and (2) the Commonwealth did not meet its burden to justify the entry as a constitutionally permissible administrative procedure. A single justice of the Supreme Judicial Court allowed the Commonwealth's application for interlocutory relief, and the appeal was docketed in this Court.

Discussion. “In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of [the judge's] ultimate findings and conclusions of law” (citation and quotation omitted). Commonwealth v. Scott, 440 Mass. 642, 646 (2004). We “leave to the [motion] judge the responsibility of determining the weight and credibility to be given ․ testimony presented at the motion hearing.” Commonwealth v. Meneus, 476 Mass. 231, 234 (2017), quoting Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). However, we “make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).

In the present case, the Commonwealth contends that the judge erred in allowing the motion to suppress because the parole officer did not need individualized suspicion to enter the defendant's residence for a routine administrative home visit. Although there is more than a measure of persuasiveness to the Commonwealth's argument, the claim fails in the particular circumstances of this case for the reasons discussed below.

There is no doubt that parolees have a diminished expectation of privacy in their homes. See Commonwealth v. Moore, 473 Mass. 481, 485 (2016) (“parolee is, during the balance of his or her sentence, effectively a ward of the Commonwealth”). “The parole system reflects the need for enhanced supervision,” and “the Commonwealth's supervisory interests are more significant than a parolee's diminished expectation of privacy.” Id. at 486. Accordingly, as a general rule, the Commonwealth need not obtain a search warrant, supported by probable cause to search a parolee's person or residence. Id. at 482. And yet, “[t]hough parolees have a significantly diminished expectation of privacy in their homes, their privacy interest is not extinguished.” Commonwealth v. Judge, 95 Mass. App. Ct. 103, 106 (2019). Thus, “where a parole officer has reasonable suspicion to believe that there is evidence in the parolee's home that the parolee has violated, or is about to violate, a condition of his parole, such suspicion is sufficient to justify a warrantless search of the home.” Moore, 473 Mass. at 483. See Judge, 95 Mass. App. Ct. at 106, quoting Moore, 473 Mass. at 487 n.6 (“Parole conditions of release may not lower this standard by ‘contract[ing] around the reasonable suspicion requirement [and] making the issuance of a prisoner's parole subject to suspicionless searches and seizures of his home’ ”).

Here, the Commonwealth concedes that at the time the parole officer entered the defendant's residence, he did not have reasonable suspicion that the defendant had violated or was about to violate a condition of his parole. As the Commonwealth correctly notes, however, that does not end our analysis. Rather, as the Commonwealth argues, we must also consider whether the entry into the defendant's residence was for permissible administrative purposes. The Commonwealth has an “established and indisputable interest in the ability to mandate periodic access by parole officers to the homes of parolees without prior announcement, in order to fulfill its custodial and supervisory duties.” Judge, 95 Mass. App. Ct. at 108 (citation and quotations omitted). “Because ‘the Commonwealth's supervisory interests are more significant than a parolee's diminished expectation of privacy,’ the balance of interests weighs in favor of permitting a system of routine parole home visits.” Id., quoting Moore, 473 Mass. at 486. “To survive constitutional review, however, such a system must be noninvestigatory and conducted pursuant to standard, neutral procedures.” Id. at 109.

In the present case, as the judge ruled, the Commonwealth did not argue that the parole conditions met the “standard neutral procedure” contemplated by our precedent, supra, and did not “identify evidence upon which the court should make such a determination.” Rather, the only evidence of a policy referencing entry into a parolee's home was the parolee manual. In this regard, we are guided by Judge, 95 Mass. App. Ct. at 109 wherein we stated:

“the Commonwealth has 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 represents parole board policy, unannounced routine home visits are essentially without mandate or limit, to a degree that unacceptably invites the exercise of [parole] officer discretion”(quotation and citation omitted).

The Commonwealth responds that Judge is inapposite because that case concerned a parole officer's entry into a defendant's bedroom, not his residence. In our view, that distinction is not critical in the limited context of the present case. Indeed, our ultimate conclusion in Judge was that “evidence seized from a parolee's home during routine parole home visits without prior reasonable suspicion must be suppressed unless the visit is conducted pursuant to a neutral written policy that provides standard procedures and limits parole officer discretion.” Id. at 109-110. We did not limit our opinion to the specific factual scenario described in Judge. Rather, the common thread is that the Commonwealth failed to sustain its burden to demonstrate how and why the parole officer's actions were justified as an administrative search pursuant to standard, neutral procedures. It was incumbent on the Commonwealth to introduce and argue such evidence, and we cannot say that the judge erred in determining that the Commonwealth did not.⁴

Order allowing motion to suppress affirmed.⁵

FOOTNOTES

1.   The manual provides, as relevant, that “your parole officer will ․ visit you at home, work, school, or other place in the community with or without notifying you in advance.” It further states that parole officers may “search a parolee's home and property and seize contraband,” and “may conduct a search when the parolee or other authorized person consents to the search, when the officer has a warrant, or when exceptions to the search warrant rule apply.” The defendant was further advised that “accepting a parole permit means that you must allow a parole officer of supervisor to search your person, your home, or any property under your control, including a motor vehicle, for illegal or contraband items“ (emphasis in original). In addition, under the Parole Consent to Search Acknowledgment Form the defendant consented to searches of his “person, premises and property owned by [him] and/or under [his] care, custody and control, without a search warrant.”

2.   The parole officer's responsibilities included supervising parolees and conducting home visits. “Generally, home visits were unannounced and conducted once or twice a month.” Also, at this time the parole officer had been supervising the defendant on parole for approximately six months and was aware that the defendant was on parole for selling drugs.

3.   The defendant was having difficulty securing steady housing at this time.

4.   To be clear, we reject the defendant's argument that the Commonwealth must have reasonable suspicion to enter a parolee's residence during a routine home visit. See Judge, 95 Mass. App. Ct. at 108, n.7. We further recognize that parole officers must be allowed reasonable and expedited access to parolees in various scenarios, unfettered by impracticable or unrealistic restrictions inconsistent with the Commonwealth's supervisory interests and a parolee's diminished expectation of privacy. See Moore, 473 Mass. at 486. We hold only that in this particular case, on the limited record before us, the Commonwealth's failure of proof at the motion hearing precludes reversal of the judge's decision.

5.   Where we decide this appeal on the basis of the Commonwealth's entry into the residence, we need not address the Commonwealth's further arguments regarding justifications relating to post-entry conduct including alleged consent, reasonable suspicion, and inevitable discovery.