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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. Garcia, 23 Mass.App.Ct.
259 (1986)
Appeals Court of Massachusetts,
Argued
Decided
Patricia A. O'Neill, Committee for Public Counsel
Services, for defendant.
Elin H. Graydon,
Asst. Dist. Atty., for the Com.
Before GREANEY, C.J., and QUIRICO and GRANT, JJ.
[23 Mass.App.Ct. 260]
GRANT, Justice.
The
defendant has appealed from Superior Court convictions of possession of Class A
(heroin) and Class B (cocaine) controlled substances with intent to distribute
them. G.L. c.
94C, §§ 32 and 32A, respectively. Two
questions have been argued.
1. The
heroin and cocaine which gave rise to the prosecutions were discovered and
seized by the police in the course of executing a warrant to search the defendant's
apartment in
We start
with a brief discussion of the history of the statutory provisions with respect
to search warrants which are now found in G.L. c.
276, §§ 2 (as appearing in St.1964, c. 557, § 2), 2A (inserted by St.1964, c.
557, § 3) and 2B (as amended by 1965, c. 384).
Nighttime searches have been expressly authorized ever since 1836. See Rev.Sts. (1836) c. 142, § 4; Gen.Sts. (1860) c. 170, § 4; Pub.Sts. (1882) c. 212, § 4;
[1] The
present G.L. c. 276, § 2, authorizes the issuance of
a warrant which commands the officer "to search in the daytime, or if the
warrant so directs, in the nighttime."
Section 2A, which prescribes the form of the warrant, commands the
officer "in the daytime (or at any time of the day or night) to make an
immediate search." (FN3) Section 2B, which prescribes the contents of
the affidavit which constitutes part of the application for the warrant, is
silent on the questions whether and why the applicant may be seeking
authorization to search in the nighttime.
(FN4) We have recently held that
there is no particular statutory requirement applicable to an application for a
nighttime warrant and no requirement that the magistrate state or identify the
cause for issuing such a warrant. Commonwealth v. DiStefano,
22 Mass.App.Ct. 535, 541‑543, 495 N.E.2d 328,
further appellate review denied, 398 Mass. 1104 (1986). If the magistrate issues a warrant which can
be executed in the nighttime, he is presumed to have had cause for doing so. Id.
at 543, 495 N.E.2d 328.
[2] We
turn now to the various attacks which the defendant has launched on the
nighttime warrant which was executed in this case. (FN5)
He urges first that it does not appear that there was any [23 Mass.App.Ct.
262] showing made to the magistrate
of a cause which would justify his issuance of a nighttime warrant or any
showing that the magistrate actually found the existence of such cause. We have already pointed out that there is no
statutory requirement of any such showing or finding. There is nothing unusual about nighttime
searches for narcotics (see Commonwealth
v. Cromer, 365 Mass. 519, 521, 313 N.E.2d 557 [1974]; Commonwealth v. Rugaber, 369 Mass. 765, 767, 343 N.E.2d 865 [1976] ),
which are notoriously easy to move and destroy.
See Commonwealth v. Amaral, 16 Mass.App.Ct. 230,
235, 450 N.E.2d 656 (1983). In the
present case, as appears from the affidavit in support of the application for
the warrant, the police were looking for Class A and Class B substances; their informant had described the defendant
as one of the largest heroin smugglers and dealers in the Lynn area; and within thirty‑six hours of his
meeting with the police, the informant had seen more than 100 bundles of heroin
and large quantities of cocaine (measured in ounces and half‑ounces) in
the defendant's presence and apartment.
We think it clear from the DiStefano case that the existence of good cause for a
nighttime search is to be presumed from the fact that the magistrate issues a
warrant directing such a search. 22 Mass.App.Ct. at 543, 495 N.E.2d 328. On this point, and in a case such as the
present, we think the defendant is pointing his finger in the wrong
direction; he failed to introduce any
evidence at the hearing on the motion to suppress that there had been no cause
for a nighttime search.
[3] The
defendant's final contention with respect to the warrant is that it fails to
show that the issuing magistrate exercised his discretion on the question
whether he should authorize a nighttime search.
This contention is grounded on nothing firmer than the magistrate's
failure to strike from the face of the warrant the words "in the
daytime" found in the phrase "in the daytime (or at any time of the
day or night)" which is prescribed[23
Mass.App.Ct. 263] by G.L. c. 276, §
2A. (FN6) Inappropriate words were struck from other
parts of the form, and we are not persuaded that the failure to strike the
words in question reflects anything more than a clerical oversight which would
not affect the validity of the warrant.
Compare Commonwealth v. Truax, 397 Mass. 174, 181‑182, 490 N.E.2d 425
(1986). Indeed, it is not beyond reason
that those words were deliberately left in for the purpose of making it doubly
clear that a nighttime search was being authorized as well as a daytime search.
Until this
point, our discussion has proceeded on the assumption that the warrant in this
case was executed in the "nighttime" within the meaning of G.L. c. 276, § 2, or during the "night" within
the meaning of G.L. c. 276, § 2A. We have already adverted to the fact that
there is no definition of the quoted words in G.L. c.
276. (FN7) Nor does there appear to be any judicial
construction of those words for purposes of those statutory provisions. In the DiStefano case we noted that under § SS 220.2(3) of the
Model Code of Pre‑Arraignment Procedure (1975) "nighttime" does
not arrive for warrant purposes until 8:00 P.M. 22 Mass.App.Ct.
at 541, 495 N.E.2d 328. As the motion
judge noted, under Fed.R.Crim.P. 41(h), as amended
effective July 1, 1974, "nighttime" does not arrive for warrant
purposes until 10:00 P.M. The absence of
any definition of that word in our law and the range of possibilities
just indicated suggest that it will be instructive to consider whether the
search in the present case was "unreasonable" within the meaning of
art. 14 of the Massachusetts Declaration of Rights. (FN8)
[4] [23 Mass.App.Ct.
264] The search was commenced after
dark at approximately 6:00 P.M. on November 2, 1983. When the officers knocked, the defendant's
wife was seated in the living room of the apartment reading a magazine. When the officers entered, the defendant was
seated on the bed in the adjoining bedroom.
According to the defendant's wife, he was watching television. According to the officer who testified at the
suppression hearing, the defendant was using a notebook and a calculator. It does not appear that there was anyone else
in the apartment, or that either the defendant or his wife was in a state of
undress. There does not appear to have
been present any of the factors which have caused some to regard nighttime
searches with revulsion. See, e.g., Gooding v. United States, 416 U.S. 430,
462‑463, 94 S.Ct. 1780, 1796‑1797, 40
L.Ed.2d 520 (1974) (Marshall, J., dissenting).
We are of opinion that this search can not be declared
"unreasonable" within the meaning of art. 14 of the Declaration of
Rights.
If we are
wrong in this, the search must still be upheld because the defendant has failed
to show that he was prejudiced by the time of day at which the search was
conducted. For example, it does not
appear that the police discovered something incriminating which they would not
have discovered if the search had been conducted the previous afternoon or the
following morning. Compare Commonwealth v. Cromer, 365 Mass. at
525‑526, 313 N.E.2d 557 (defendant required to show prejudice resulting
from unreasonable delay in executing warrant); Commonwealth v. Sheppard,
394 Mass. 381, 389‑391, 476 N.E.2d 541 (1985) (defendant not prejudiced,
in the circumstances, by failure to meet particularity‑of‑description
requirements of G.L. c. 276, § 2, and art. 14);
Commonwealth v. Truax, 397 Mass. at 180‑182,
490 N.E.2d 425 (failure to delete inapplicable words in application for warrant
and erroneous deletion of applicable words ["there is probable
cause"] on the face of the warrant); Commonwealth v. Aldrich, 23 Mass.App.Ct. 157, 160‑163, 499 N.E.2d 856 (1986)
(return signed and sworn to by officer who did not participate in search).
2. When
the case was called for trial before a second judge, the defendant waived his
right to trial by jury in accordance with procedures which are not challenged
here. See Ciummei v. Commonwealth, 378 Mass. 504,
507‑511, 392 N.E.2d 1186 (1979); Common[23
Mass.App.Ct. 265]
wealth v. Schofield, 391 Mass. 772, 773 ‑776, 463 N.E.2d 1181 (1984). There then followed a colloquy between court
and counsel which concluded with the judge's finding the defendant guilty of
both the offences charged. The
defendant's contention on this aspect of the case is that he is entitled to a
new trial because, in effect, he pleaded guilty without having first been
informed of the consequences of doing so in the manner and to the extent
required by Mass.R.Crim.P. 12(c)(3), 378 Mass. 868 (1979), and without having first been
given the advisement as to the possible consequences of a guilty plea on his
status as an alien which is required by G.L. c. 278,
§ 29D, inserted by St. 1978, c. 383,
whenever a defendant pleads guilty or nolo contendere. (FN9) See
Commonwealth v. Mahadeo, 397 Mass. 314, 316‑317,
491 N.E.2d 601 (1986).
[5] The
question for decision here is whether the defendant effectively stipulated to
the truth of facts which constituted all the elements of the offences charged
and were conclusive of guilt (see
Commonwealth v. Hill, 20 Mass.App.Ct. 130, 130‑131,
132, 478 N.E.2d 169 [1985] ) or whether he
simply stipulated that the Commonwealth's witnesses would testify in the manner
asserted by the prosecutor. See Commonwealth v. Triplett, 398 Mass.
561, 570, 500 N.E.2d 262 (1986). If the
defendant did nothing more than stipulate as to evidence which warranted, but
did not require, findings of guilty (see
Commonwealth v. Nydam, 21 Mass.App.Ct.
66, 68 n. 2, 484 N.E.2d 642 [1985] ), he is not to be taken as having pleaded
guilty to either indictment. With those
distinctions in mind, we turn to the colloquy which gave rise to the findings
of guilty.
The judge,
who had obviously been advised in at least a general way of what to expect,
advised counsel that he wanted to "hear the facts of the case." However, it seems clear from the context in
which the judge used the words "facts" that what he meant was
"evidence." Indeed, just two
pages earlier in the [23 Mass.App.Ct. 266]
transcript, in the course of the colloquy over waiver of a jury trial, the
judge had used "facts" in the sense of "evidence" when he
explained to the defendant that whether he would find him guilty would depend
on "what facts I hear and what law should be applied to the case." The judge's inquiry as to the
"facts" was followed by a series of statements by the prosecutor
which he characterized as "facts."
However, what followed was little more than a summary of the evidence
most favorable to the Commonwealth which had been adduced at the hearing on the
motion to suppress conducted some thirteen months earlier. The prosecutor's further representations were
interspersed with assertions such as "[t]he police would testify" and
"[t]he testimony would be."
Defense counsel (FN10) remained silent throughout the prosecutor's
presentation. At its conclusion the
judge asked both counsel whether "those are agreed upon, stipulated
facts?" The prosecutor responded,
"Yes, Your Honor." Defense
counsel responded, "That's correct";
he offered no evidence. The judge
then put the whole colloquy in proper perspective when he said, "there's
sufficient evidence to warrant
findings of guilt on" both indictments (emphasis supplied) "[a]nd I find that he's guilty of [both]."
[6] At no time
did the defendant offer a change of plea.
Nowhere did he or his counsel agree to the truth of any of the
representations made by the prosecutor.
See Commonwealth v. Stevens,
379 Mass. 772, 774, 776, 400 N.E.2d 261 (1980).
The prosecutor made no representation, nor was there any stipulation, as
to the intent with which the defendant may have possessed the heroin or the
cocaine. Contrast Commonwealth v. Hill, 20 Mass.App.Ct. at
130, 132 n. 2, 478 N.E.2d 169. These
were not District Court complaints for minor offences in which the usual
reasons for admitting to sufficient facts are to test the waters on the
severity of the penalty or to secure a continuance without a finding in the
hope that a complaint will be dismissed somewhere down the road. (FN11)
Contrast Commonwealth v. Duquette, 386 Mass. 834, [23 Mass.App.Ct. 267] 835‑836, 843, 438 N.E.2d 334 (1982); Commonwealth v. Mahadeo, 397 Mass. at 316, 491 N.E.2d 601. These were Superior Court indictments for
serious offences in which there was no defence to the
merits, in which the defendant's only hope lay in persuading an appellate court
to reverse the order denying his motion to suppress the items found in his
apartment, but in which appellate review would be foreclosed if he were to
plead guilty or it should subsequently be ruled that he had done so in effect.
Commonwealth v. Nydam, 21 Mass.App.Ct. at 68‑69, 484 N.E.2d 642, and cases
cited.
We see
nothing tantamount to a plea of guilty to either indictment. We think it clear that the defendant did
nothing more than suffer convictions in circumstances which would preserve his
right to appellate review of the denial of his motion to suppress. Compare
Commonwealth v. Stevens, 379 Mass. at 774‑776, 400 N.E.2d 261; United States v. Lawson, 682 F.2d 1012,
1014‑1016 (D.C.Cir.1982); United States v. Schmidt, 760 F.2d 828,
834‑835 (7th Cir.1985).
(FN12) Neither the provisions of Mass.R.Crim.P. 12(c) nor those of G.L.
c. 278, § 29D, apply in the circumstances of this case.
Judgments affirmed.
(FN1.) An additional ground for suppression
has been rendered immaterial by the findings of fact made by the motion
judge. There has never been any
challenge to the sufficiency of the facts recited in the application for the
warrant to support a finding of probable cause to believe that both substances
would be found in the apartment. See
generally Commonwealth v. Upton, 394
Mass. 363, 365‑377, 476 N.E.2d 548 (1985).
(FN2.)
The "satisfactory evidence" did not have to appear on the face of the
warrant.
Wright v. Dressel, 140 Mass. 147, 150, 3
N.E. 6 (1885).
(FN3.)
There is no statutory definition of the word "immediate." See
Commonwealth v. Cromer, 365 Mass. 519, 522, 313 N.E.2d 557 (1974).
(FN4.)
This silence is to be contrasted with the explicit requirements of § 2B that
the affidavit set out all the facts on which the applicant intends to rely for
a finding of probable cause and that those facts warrant such a finding. See
Commonwealth v. Monosson, 351 Mass. 327, 329‑330,
221 N.E.2d 220 (1966); Commonwealth v. Upton, 394 Mass. at 366‑369,
476 N.E.2d 548.
(FN5.)
As we read the defendant's brief, many of his arguments depend to some extent
on art. 14 of the Massachusetts Declaration of Rights, which has found new
popularity as a result of the Supreme Judicial Court's decision to adhere to
stricter standards for determining probable cause than those which now prevail
under the Fourth Amendment to the Constitution of the United States. See
Commonwealth v. Upton, 394 Mass. at 369‑373, 476 N.E.2d 548.
(FN6.)
The defendant notes that the words "strike inapplicable clauses" are
printed at the foot of the warrant.
Those words do not appear in the form of warrant prescribed by § 2A and
have no legal effect. They can not be
taken as anything more than the gratuitous advice of some legal stationer.
(FN7.)
The motion judge relied on the provisions of G.L. c.
278, § 10, in reaching his conclusion that the search in this case was made in
the nighttime. Section 10 defines
"nighttime" for the purposes of the burglary statutes (see, e.g., Commonwealth v. Williams, 56 Mass. (2 Cush.) 582, 589
[1849];
Commonwealth v. Kingsbury, 378 Mass. 751, 752, 393 N.E.2d 391 [1979]
) but has no application to search warrants.
(FN8.)
See note 5, supra.
(FN9.)
It appears from the defendant's supplemental appendix that the Immigration and
Naturalization Service has indicated its intention to lodge a detainer against the defendant, probably as the prelude to
the commencement of deportation proceedings.
The defendant is a native of the Dominican Republic.
(FN10.) The defendant was represented at
trial, as he is on appeal, by counsel supplied by the Committee for Public
Counsel Services.
(FN11.) See generally Smith, Criminal Practice
& Procedure § 1202, at 676 (2d ed. 1983).
(FN12.) The two
cases last cited were decided under Fed.R.Crim.P.
11(c), which is the Federal analog of Mass.R.Crim.P.
12(c)(3).