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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Erickson, 14 Mass.App.Ct.
501 (1982)
Appeals Court of Massachusetts, Worcester.
Argued
Decided
Maurice J. McCarthy,
Lynn Morrill Turcotte,
Asst. Dist. Atty., for the Commonwealth.
Before GREANEY, CUTTER and PERRETTA, JJ.
GREANEY, Justice.
The
defendant has been convicted on complaints charging him under G.L. c. 94C, §
34, with unlawful possession of controlled substances (marijuana and amyl
nitrite), and under G.L. c. 148, § 39, with unlawful possession of
fireworks. He claims error in the denial
of his pretrial motion to suppress evidence seized pursuant to a search
warrant. We hold that the motion to
suppress should have been allowed.
[14 Mass.App.Ct.
502] The principal contention raised
by the motion to suppress is that the search warrant did not particularly
describe the place to be searched as required by the Fourth
Amendment to the United States Constitution, art. 14 of the
There was
evidence at the hearing on the motion to suppress that 11‑13 Benefit
Street is a large three story brick duplex building located in an area where
multiple‑occupancy dwellings are common.
The building is divided vertically.
A person cannot go between 11 and 13 Benefit Street without going out
the first floor entrance of one and entering the first floor entrance of the
other. The lack of interior access
cannot be ascertained from the exterior appearance of the building. The defendant lived on the second floor of 13
Benefit Street in a five‑room apartment bearing the number "2"
on its door. This side of the building
contains a separate apartment (numbered "1") and a room (numbered
"1A") on the first floor, the defendant's apartment on the second
floor, and an unnumbered apartment on the third floor. Entrance is gained to 13 Benefit Street
through a door from the porch which leads into the main hallway. A common passageway connects all three
floors. On the second floor there is a
landing and a door leading to the defendant's apartment. Access from the second floor to the third
floor is gained by turning right at the landing and continuing up the stairs to
the next landing.
There is a
separate entrance for 11 Benefit Street.
The first floor of this side of the duplex contains an unnumbered door
leading to rooms belonging to an individual.
To the left of that door is another door with no number on it. The second and third floors contain doors
leading to rooms or apartments.
The
separate entrances to each side of the building are visible from the
street. The entrance to number 13 is set
farther back than the entrance to number 11.
The agent executing the affidavit testified that
the building looked to him "like a three‑family house; if you were to look at it from [14 Mass.App.Ct.
504] the front, it would not be
distinct in any way from one side or the other, other than the
entryway." The agent had observed
at least two or three separate mailboxes outside the entrances to each side of
the building. The defendant testified
that he received separate utility and telephone bills for his apartment.
[1] A
warrant which directs the search of an entire multiple‑occupancy
building, when probable cause exists to search only one or more separate
dwelling units within the building, is void because of the likelihood that all
units within the dwelling will be subjected to unjustified and indiscriminate
search.
United States v. Hinton, 219 F.2d 324, 326 (7th Cir. 1955);
United States v. Votteller, 544 F.2d 1355,
1363 (6th Cir. 1976); United States v. Whitney, 633 F.2d 902,
907 (9th Cir. 1980), cert. denied, 450 U.S. 1004, 101 S.Ct.
1717, 68 L.Ed.2d 208 (1981); United States v. Diange,
32 F.Supp. 994 (W.D.Pa.1940). 2 LaFave, Search
and Seizure § 4.5(b) (1978). Annot., Search Warrant:
Sufficiency of Description of Apartment or Room to be Searched in
Multiple‑Occupancy Structure, 11 A.L.R.3d 1330, 1333‑1339
(1967). This rule is inapplicable to
cases where probable cause exists to search the whole building, see United States v. Olt,
492 F.2d 910, 911‑912 (6th Cir. 1974); United States v. Gill, 623 F.2d 540, 543‑544
(8th Cir.), cert. denied, 449 U.S. 873, 101 S.Ct.
214, 66 L.Ed.2d 94 (1980); 2 LaFave, Search and Seizure § 4.5(b), at 81; or, in certain situations, where it is shown
that general access to, and control over, all the building's sub‑units
are available to building occupants, see
United States v. Gusan, 549 F.2d 15, 18‑19
(7th Cir.), cert. denied, 430 U.S. 985, 97 S.Ct.
1682, 52 L.Ed.2d 379 (1977); United States v. Whitney, 633 F.2d at 907‑908. Such warrants may also be upheld where the
officers who applied for, and executed, the warrant did not know or have reason
to know prior to the actual search that the building was not a one‑family
dwelling. See United States v. Santore, 290 F.2d 51,
58‑59, 67, aff'd in relevant part on rehearing
en banc, 290 F.2d 74 (2d Cir. 1960), cert. denied, 365 U.S. 834, 81 S.Ct. 745, 5 L.Ed.2d 743 (1961); United States v. Dorsey,
591 F.2d 922, 925‑926, 930‑931 (D.C.Cir.
1978);
United States v. Rios, 611 F.2d 1335, 1347 (10th Cir. [14 Mass.App.Ct.
505] 1979), cert. denied, 452 U.S.
918, 101 S.Ct. 3054, 69 L.Ed.2d 422 (1981);
Owens v. Scafati, 273 F.Supp.
428, 429 (D.Mass.1967), cert. denied, 391 U.S. 969, 88 S.Ct.
2043, 20 L.Ed.2d 883 (1968). (FN2)
[2] The
Commonwealth contends that probable cause existed to search the entire structure
because the agents reasonably could have concluded that the entire building was
a facility for the storage and sale of illegal weapons and, consequently, that
firearms and ammunition would be found in every room and apartment. There is no mention in the affidavit of
anything suspicious occurring in rooms on the second floor of 11 Benefit Street
or on the second and third floors of 13 Benefit Street. The activities detailed in the affidavit
involved named individuals other than the defendant and took place in rooms
where these individuals lived on the third floor of 11 Benefit Street, a first
floor room at 13 Benefit Street, and in a first floor room at 11 Benefit
Street. The observation of shell casings
and suspicious activities in certain common areas would not support a
conclusion that every dwelling unit in the building contained a cache of
contraband weapons. There was no showing that the defendant
had knowledge of his neighbors' conduct or anything to warrant an inference
that he was engaged in a joint criminal venture or was independently dealing in
illicit firearms. Moreover, there was no
showing in the affidavit that the defendant had "the run of the whole
structure." See United States v. Dorsey, 591 F.2d at
931. Nor was it demonstrated that he
was the owner or landlord or otherwise in a position to exercise control over
the entire building. [14 Mass.App.Ct.
506] Cf. Restatement (Second)
Property §§ 12.4‑12.5 (1977), or that the persons suspected as illegal
weapons dealers had access to the defendant's apartment. In the circumstances, the defendant's prior
criminal record of narcotics offenses (as contrasted with firearms violations)
is not sufficient, even in conjunction with the criminal records of the other
occupants, to authorize a search of the entire building. Contrast
Commonwealth v. Anderson, 362 Mass. 74, 75 n.1, 77, 284 N.E.2d 219 (1972);
Commonwealth v. Snow, 363 Mass. 778, 784, 298 N.E.2d 804
(1973). We conclude that probable cause
was not established for a search of the whole building or the defendant's
apartment on the second floor of 13 Benefit Street.
The
Commonwealth argues that, in the absence of any specific information that the
structure had been separated into halves and partitioned into separate
apartments, the agents could not have known that the building was a multiple‑occupancy
structure until after their search was underway. Relying on
United States v. Dorsey, supra, and the exceptions enumerated above, the
Commonwealth urges that the warrant be upheld.
The warrant's validity is not determined by what the agents knew, but by
what they should have known, about the building's nature prior to their
search. See United States v. Voteller, 544 F.2d at
1363‑1364; United States v. Esters, 336 F.Supp. 214, 219 (E.D.Mich.1972). The facts in cases like Dorsey, in which warrants were upheld, differ materially from the
facts in this case. (FN3) Here, the
multiple‑occupancy character of 11 and [14 Mass.App.Ct. 507] 13 Benefit Street should have been reasonably apparent prior to
the search. Apart from the information
imparted from the other multi‑family structures in the neighborhood, the
building's separate entrances, and the number of mailboxes on each side, agents
had kept the building under surveillance for six months prior to the
search. The agent who signed the
affidavit knew that several individuals lived in the building and that some of
these individuals had separate mailboxes and their own telephones. Moreover, one of his informants had been
inside the building and had supplied information that the suspected individuals
lived on different floors.
The
Commonwealth refers to cases which indicate that a warrant must be read in its
entirety and not in a hypertechnical fashion.
United States v. Ventresca, 380 U.S. 102,
109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965);
Commonwealth v. Von Utter, 355 Mass. 597, 600, 246 N.E.2d 806 (1969);
Commonwealth v. Stewart, 358 Mass. 747, 751, 267 N.E.2d 213 (1971);
Commonwealth v. Martin, 6 Mass.App. 624,
627, 381 N.E.2d 1114 (1978). We cannot,
however, overlook the particularity requirement where the presence of criminal
activity on the second floor of 13 Benefit Street (and any participation by the
defendant in such activity elsewhere in the premises) is left to speculation and
where the agents should have known that they were dealing with a multiple‑occupancy
building. The affidavit was insufficient
as it stood.
We refrain
from entering judgments for the defendant on the ground that the Commonwealth
has no reasonable prospect[14 Mass.App.Ct. 508] of making its proof without reference to the
evidence which should have been suppressed.
See Commonwealth v. Taylor, ‑‑‑
Mass. ‑‑‑, ‑‑‑, Mass.Adv.Sh. (1981) 821, 834 n.17, 418 N.E.2d 1226. Charges against other defendants whose
apartments were searched on the basis of apparent probable cause are pending in
the United States District Court for the District of Massachusetts. The trial of these cases may provide the
Commonwealth with evidence, apart from the evidence which we order suppressed,
sufficient to make out a case against this defendant. If the prosecutor finally determines that
such evidence is lacking, he will be obliged then so to notify the court. Cf. Supreme Judicial Court Rule 3:22A (now redesignated Rule 3:08), PF 1, 6, and 11, 377 Mass. 923,
925, 926‑927 (1979).
Judgments reversed. Findings set aside.
FN1. The
defendant's threshold contention that the informants' credibility and
reliability were insufficient to permit a finding of probable cause under the
"two‑pronged" test of
Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct.
1509, 1514, 12 L.Ed.2d 723 (1964), is without merit. The affidavit, taken as a whole, satisfies
the Aguilar requirements and any
arguable defects are cured by police corroboration of the information. See
Commonwealth v. Alessio, 377 Mass. 76, 82, 384
N.E.2d 638 (1979); Commonwealth v. DiAntonio,
8 Mass.App. 434, 438, 395 N.E.2d 358 (1979).
FN2. There are other exceptions to the
general rule which are not presented in this case and need not be
enumerated. Most of the Massachusetts
cases appear to deal with fact patterns in which defects in the warrant's
description can be, and are, cured by reference to physical facts known to the
officers executing the warrant. See e.g. Commonwealth v. Pope, 354 Mass. at 629,
241 N.E.2d 848; Commonwealth v. Todisco,
363 Mass. 445, 448‑450, 294 N.E.2d 860 (1973); Commonwealth v. Rugaber, 369 Mass. 765, 767‑769, 343 N.E.2d 865
(1976);
Commonwealth v. Gill, 2 Mass.App. 653, 654‑656,
318 N.E.2d 628 (1974); Commonwealth v. Cohen, 6 Mass.App. 653, 654‑656, 382 N.E.2d 1105 (1978). See also
Commonwealth v. Lillis, 349 Mass. 422, 423‑425, 209 N.E.2d 186 (1965)
(warrant lacking in descriptive particularity cured by correctly naming
occupant of sub‑unit to be searched).
FN3. In
United States v. Dorsey, supra, for example, a warrant authorizing the
search of the whole of a rooming house upon probable cause as to one of its
occupants was upheld even though police had been in the building on prior
occasions. The court noted that
"the dwelling in question showed no outward signs of multiple residency‑‑such
as separate entrances, doorbells, mailboxes, nameplates, apartment numbers, or
room for rent signs." 590 F.2d at
930. Prior police observation of the
interior indicated that "the doors to the upstairs bedrooms had no
numbers, no locks, ... and apparently were left wide open, bearing out the view
that any occupant of the house had 'the run' of the whole structure." Id.
at 931. Additionally, police
investigation indicated that only three people lived primarily at the address,
two of whom were related, the third person sharing a bedroom with one of the
others. Police had checked to see if the
building had been registered as a rooming house. It had not.
Checks of utility company records would not have revealed the character
of the building. Ibid.
Similarly,
in United States v. Santore,
supra, the two‑family home searched was "to all outward
appearances a one‑family house with a front door and a side door, and it
had always been registered with the local authorities as a one‑family
dwelling." 290 F.2d at 67. The home had been subdivided in
contravention of a local ordinance requiring permission to do so. The court held, based on the building's
appearance and the concealment of its subdivision, that there had been no
notice to law enforcement officials of the nature of the premises until after
they had been entered for service of the warrant. Ibid.