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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v.
Supreme Judicial Court of Massachusetts, Hampshire.
Argued
Decided
Charles K. Stephenson, Asst. Dist. Atty. (John E. Shea,
Asst. Dist. Atty., with him) for Commonwealth.
Anne Rideout,
[399
Before [399
[399
The
defendants, each charged with unlawful possession of one or more controlled
substances and two charged also with playing poker for money, were successful
in persuading a judge in the six‑person jury session in
The facts
were presented by stipulation. Trooper
Kenneth Sullivan of the State police had been acting as an undercover narcotic
agent in Hampshire and Franklin counties.
He learned of weekly poker games held at various places early Saturday
mornings. The location was selected each
week just before the bars closed. Large
amounts of money were bet at the games, and drugs were sold and used. In his affidavit Sullivan stated that he
believed that there would be a card game that night (Friday, August 17, 1984,
into Saturday, August 18, 1984), at which large sums would be wagered and local
dealers would be selling narcotics. He
stated further that that night he would wear "a wire" which would be
monitored by his immediate superior to whom he would relay the location of that
night's game, either by the wire or by telephone. He added that, when all the players were
seated, he would signal via the wire to execute the warrant.
The raid
occurred at 3:30 A.M. on August 18, 1984, at a two‑family house on 535
Federal Street in Belchertown. The
second floor was rented; the first floor
was not rented but was occupied by the owner's grandson. The card game was on the second floor. Two defendants were arrested in the first
floor apartment, where a white powder alleged to be cocaine was found. The other four defendants were arrested on
the second floor, and controlled substances and monies were seized.
[399 Mass. 143] [1] 1. The Commonwealth argues first that a warrant was unnecessary
because Trooper Sullivan could have seized the suppressed evidence incident to
lawful arrests. See G.L. c. 94C, § 41
(1984 ed.) (warrantless arrests for narcotic offenses
committed in officer's presence); G.L.
c. 271, § 10A (1984 ed.) (warrantless arrests for certain gaming offenses while
officer lawfully on premises). In his
findings and rulings, the motion judge did not discuss the legality of the
seizure of the evidence on the ground that it was obtained incident to a lawful
arrest; it is not clear that the
Commonwealth relied on this theory below;
and the record before us does not demonstrate that Trooper Sullivan saw
offenses being committed by any defendant for which he or she could have been
arrested. There is no indication as to
what he did or saw at 535 Federal Street on that night. It is not shown that he ever was in the first
floor apartment, and it can only be inferred that at some time that night he
was in the second floor apartment. There
is, therefore, no demonstrated basis for finding that Trooper Sullivan saw any
crime committed for which any defendant could have been arrested at that time,
even if we were to conclude that because of consent Trooper Sullivan was
lawfully on the premises (a point the defendants do not discuss). See
United States v. Ruiz‑Altschiller, 694 F.2d
1104, 1107 (8th Cir.1982), cert. denied sub nom. Perry v. United States, 462
U.S. 1134, 103 S.Ct. 3117, 77 L.Ed.2d 1371 (1983).
We
conclude that the Commonwealth has not made a case for the seizure of the
evidence incident to a lawful arrest.
The Commonwealth makes no claim of exigent circumstances justifying a warrantless police entry into either apartment. See
Commonwealth v. Huffman, 385 Mass. 122, 124‑126, 430 N.E.2d 1190
(1982);
Commonwealth v. Forde, 367 Mass. 798, 800,
329 N.E.2d 717 (1975); Payton v. New York, 445 U.S. 573, 587‑588,
100 S.Ct. 1371, 1380‑81, 63 L.Ed.2d 639
(1980). Thus, the seizure of any
evidence suppressed by the trial judge can be sustained only if that evidence
was seized pursuant to a lawful search warrant, the question to which we now
turn.
[2] [3] 2.
The search warrant did not describe the place to be searched and, therefore, in
these circumstances, fails to meet statutory (G.L. c. 276, §§ 1 and 2 [1984
ed.] ) and constitutional requirements.
Section 1 of G.L. c. 276 requires that a [399 Mass. 144] search
warrant name or describe the "place to be searched." Section 2 provides that "[s]earch warrants shall designate and describe the building,
house, place, vessel or vehicle to be searched." Under art. 14 of the Massachusetts
Declaration of Rights, a search warrant must contain "a special
designation of the ... objects of search." The Fourth Amendment to the Constitution of
the United States requires that a search warrant "particularly"
describe "the place to be searched."
The purpose of these various provisions is to forbid general
searches. See Commonwealth v. Sheppard, 394 Mass. 381, 389, 476 N.E.2d 541
(1985);
Commonwealth v. Pope, 354 Mass. 625, 628‑629, 241 N.E.2d 848
(1968).
Obviously
a search warrant describing the place to be searched as "premises to be
identified by Trooper Sullivan prior to execution of the warrant" does not
satisfy these requirements. That
language in a search warrant eliminates the role of the neutral and detached
magistrate and substitutes a "blank check" to be filled in by a
designated police officer. Warrants of
far narrower scope have been held to be too broad. See
Commonwealth v. Hall, 366 Mass. 790, 799, 323 N.E.2d 319 (1975) (warrant
for "certain rooms in the 2nd fl apt" did not extend to third floor);
Commonwealth v. Erickson, 14 Mass.App.Ct.
501, 504, 440 N.E.2d 1190 (1982) (warrant for search of entire multiple‑occupancy
building too broad when there was probable cause to search only one apartment).
The
Commonwealth argues that the circumstances precluded advance identification of
the premises to be searched and relies by analogy on cases involving
anticipatory search warrants.
Anticipatory search warrants typically relate to contraband in transit,
where a specific described item is known to be on route to a specific person,
often at a specified place, and the warrant is issued before the item reaches that person's hands or the premises to
be searched. See Commonwealth v. Soares, 384 Mass. 149,
424 N.E.2d 221 (1981); Commonwealth v. Weeks, 13 Mass.App.Ct. 194, 431 N.E.2d 586 (1982). The usual requirement that the warrant be
based on probable cause that the items are then on the premises to be searched
is loosened when there is strong evidence that they will be on the premises
when the warrant is executed. Commonwealth v. Soares,
supra at 154‑155, 424 N.E.2d 221.
The belief that [399 Mass.
145] the specific item will probably
be in a specific place in the future justifies issuance of the warrant. A magistrate issuing such a warrant does not
abandon his role. Moreover,
practicalities justify the use of such an anticipatory warrant.
In the
case before us, the delegation to the individual police officer is substantial
and not closely circumscribed. The
Commonwealth has not shown that time pressures made it impractical to include
in the warrant the precise place to be searched. There may well have been time to submit to a
magistrate, by supplemental affidavit, the location of the place to be
searched, once Trooper Sullivan informed other law enforcement personnel of the
location.
[4] If we
were ever to accept as lawful such a broad description of a place to be
searched as appeared in this search warrant, the circumstances would have to be
far more pressing than this record shows.
The particularity requirement was not met here, and a police officer can
never validate a general warrant through objectively reasonable reliance on the
warrant. See United States v. Leon, 468 U.S. 897, 922‑923, 104 S.Ct. 3405, 3421‑22, 82 L.Ed.2d 677 (1984);
Commonwealth v. Lett, 393 Mass. 141, 145‑146,
470 N.E.2d 110 (1984).
Order allowing defendants' motions to
suppress affirmed.
FN1. The
other defendants are Daryl E. Heinicke, Kevin P. Lebeau, Joseph M. Pasterczyk,
Gary A. Rainaud, and Suzanne M. Smith.