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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. Gauthier, 425
Supreme Judicial Court of Massachusetts,
Argued
Decided
Emmanuel N. Papanickolas (James C. Spanos,
with him),
Before WILKINS, C.J., and ABRAMS, LYNCH,
FRIED and MARSHALL, JJ.
FRIED, Justice.
After
the denial of a motion to suppress evidence seized in a search pursuant to a
warrant, the defendant was convicted of narcotics trafficking and possession,
and illegal possession of a firearm. The
defendant appealed and the
I
In
late 1992, an officer of the State police had informed a narcotics officer with
the Lynn police that Glenn Janice was selling marihuana from his automotive
supply business in that city and described the vehicles in which Janice picked
up the marihuana from his supplier prior to deals with his customers. The Lynn officer began a surveillance of
Janice's activities, home, and business.
As result of this surveillance, he was led to the defendant's residence
as the possible place where Janice received his supplies. The officer recognized the address as he had
arrested the defendant on narcotics charges at that address almost one decade
earlier. According to the motion judge,
"the matter was disposed of on motions." The officer then arranged with a
confidential informant to make a series of controlled purchases of narcotics
from Janice, which the officer hoped would eventually allow him to make a case
against both Janice and his supplier. In
a controlled purchase, the informant is searched prior to entering a location,
given money to make the purchase, and then relieved of the contraband after he
makes the purchase. The first relatively [425 Mass. 39] small purchase confirmed that Janice was indeed supplying
narcotics from his office. After a
second, larger purchase, the informant told the police that Janice had told him
that, after he closed his shop at 6 P.M., he would have to bring money to his
supplier to replenish his supply.
Accordingly, Janice was followed as he left his business that
evening. He drove to the defendant's
residence and was seen leaving it a short time later carrying a brown paper
bag. Finally a purchase, large enough
that Janice would be unlikely to be able to supply it from his own stock and
thus would be forced to turn to his source, was arranged. A search warrant was obtained. The warrant, as required by and in the form
prescribed by G.L. c. 276, § 2A, set out the property for which the search was
to be made, the time period during which the search could be made, and a
description of the premises‑‑the defendant's residence‑‑to
be searched. The warrant authorized a
nighttime search but did not authorize entry without prior announcement. The affidavit on which the warrant was
obtained set out the facts stated above and went on to state:
"This officer requests [an]
Anticipatory Search Warrant. The event
activating the warrant will be Janice arriving at [the defendant's residence]
after the order is placed. As Janice exits [the residence] a search of
his person and/or any packages he is in possession of will be searched. Upon finding him in possession of marijuana,
all three warrants would be immediately activated." (FN2)
As
instructed by the police, the informant called Janice at his automotive supply
shop in the afternoon and ordered a quantity of narcotics. After closing time, the informant telephoned
Janice again to say that he would pick up his order in about one and one‑half
hours. As expected, Janice left his
business at closing time, went by his residence, and then drove to the
defendant's residence. He entered
carrying nothing. The officer testified
at the motion hearing that he observed Janice "place something ... [o]n
the back floor, behind the driver's seat" of his vehicle and drive off
before the police could reach him. He
was stopped one and one‑half [425
Mass. 40] miles away, following an
attempted escape. A search behind the
driver's seat discovered a bag containing marihuana. Janice was arrested, and the warrants were
executed.
II
A
[1]
The motion judge found that there was probable cause to authorize the search of
the defendant's residence pursuant to a warrant without specifying whether this
depended on the occurrence of the triggering event. A concurring opinion of the Appeals Court
concluded that there was no probable cause to search the residence in the
absence of the triggering event. Gauthier, supra at 769‑770 n. 1,
673 N.E.2d 580 (Greenberg, J., concurring).
We reach the same conclusion.
Although the reliability of the informant as to the information which he
had supplied was amply demonstrated, nothing that he had said sufficiently
pointed to the defendant as Janice's supplier or to the defendant's residence
as the place from which he supplied Janice.
Neither the officer's previous search one decade before at that
residence nor the single previous observation of an empty‑handed Janice's
entering and leaving it with a brown paper bag were sufficient to make up that
deficiency. Of course that is why the
officer had devised the scheme set out in the anticipatory warrant, and, had
events unfolded as anticipated, there would have been ample basis for the
search of Gauthier's residence. But they
did not.
[2]
Although the words in the affidavit "[a]s Janice exits" the
defendant's residence, in some contexts, may bear a construction that would
include apprehension and a search of Janice one and one‑half miles
distant from the residence and after an automobile chase, in this context they
will not. The point of structuring the
events as the police did was to apprehend Janice, who had entered the premises
empty‑handed, carrying the contraband as he left. This would be more than enough to warrant the
inference that Janice had obtained the contraband there. But the officer did not even testify that he
had observed what Janice was carrying as he left the premises, only that they
observed him "place something ... [o]n the back floor, behind the driver's
seat." Because it had been
established that Janice was himself an active dealer in narcotics, this is not
enough to make out that whatever Janice had been observed [425 Mass. 41] placing
in the car was the contraband later discovered there. It is entirely possible that he had that
particular bag of narcotics in the car all along. The triggering event language in warrants
such as this one should be read sensibly and in context, and, when that is
done, we must conclude that the triggering event failed to materialize here.
B
[3]
The Appeals Court reversed, not on this basis, but because the description of
the triggering event did not accompany the warrant that was shown to the
defendant on execution. A description of
the triggering event was not included on the face of the warrant, and the
affidavit in which it was set out did not accompany the warrant. (FN3)
The Appeals Court noted that its decision in Commonwealth v. Callahan, 41
Mass.App.Ct. 420, 671 N.E.2d 958 (1996), decided after the argument to the
Appeals Court in this case, was controlling.
That case affirmed the order allowing a motion to suppress because the
triggering event was not set out in the warrant or in an attached affidavit,
even though the executing officer had the affidavit with the triggering event
set out in it in his possession, id.
at 422, 671 N.E.2d 958, and even though the affidavit set out the triggering
event with sufficient specificity. Id. at 426, 671 N.E.2d 958. Accordingly, the Appeals Court rightly held
that its very recent decision, if applied to Gauthier, would require that his
motion to suppress should have been allowed.
The Appeals Court did not consider, nor did the motion judge, whether
the triggering event set out in the affidavit had actually occurred. In
Commonwealth v. Soares, 384 Mass. 149, 154‑155, 424 N.E.2d 221
(1981), we concluded that anticipatory warrants were not per se
unconstitutional under the Fourth Amendment to the United States Constitution
and rejected the contention that the authorizing statute, G.L. c. 276, § 1,
requires that explicit directions concerning the triggering [425 Mass. 42] event
appear on the warrant. We reaffirm our
holding in Soares, and, to the extent
that Callahan states a constitutional
compulsion, we extend our holding in
Soares to conclude that we discern no such compulsion under either the
Federal or State Constitution.
[4]
The warrant clauses of the Fourth Amendment to the United States Constitution
and in art. 14 of our Declaration of Rights, in addition to requiring a prior
showing of probable cause before a judicial officer, both require that the
warrants describe the place to be searched and the things to be seized. The Fourth Amendment states that this must be
done "particularly," while art. 14 requires a "special
designation" of these matters.
"It is well known that art. 14 was adopted to prohibit the abuse of
official power brought about by two devices which the British Crown used in the
colonies: the general warrants and the
writs of assistance.... The general
warrants empowered their holder to seize and burn books or other printed matter
deemed 'offensive to the state.'
... The writs of assistance were
a special kind of general warrant which permitted their bearer, usually a
customs official, to search with unlimited discretion for smuggled goods
without special application to a court.
See 2 Legal Papers of John Adams 108 (L. Wroth & H. Zobel
eds.1965)." Jenkins v. Chief Justice of the Dist. Court
Dep't, 416 Mass. 221, 229, 619 N.E.2d 324 (1993). Accord
People v. Glen, 30 N.Y.2d 252, 259, 331 N.Y.S.2d 656, 282 N.E.2d 614, cert.
denied sub nom. Baker v. New York, 409 U.S. 849, 93 S.Ct.
58, 34 L.Ed.2d 91 (1972) (warrant clause intended to preclude use of the
"hated general writs of assistance of pre‑Revolutionary
times"). See Stanford v. Texas, 379 U.S. 476, 481‑484, 85 S.Ct. 506, 509‑511,
13 L.Ed.2d 431 (1965); Amar, Fourth
Amendment First Principles, 107 Harv.
L.Rev. 757, 771‑782 (1994).
No official is to be armed with unfettered authority to enter on private
property, search there, and seize what he pleases. By including the designation of the places to
be searched and the items to be seized in the warrant, there is particular
assurance that the magistrate has not granted such a general power. It is a recognition of the right of the
citizen to be free of such official intrusion except by specific judicial
authorization that these specifications must be set out in the warrant itself. That is what the warrant does: it warrants the search of a particular place
and the seizure of particular items, and the subject of the search is informed
by it that the search is proceeding according to such authorization. [425
Mass. 43] The warrant executed in
this case complied with these requirements, though it did not‑‑neither
on its face nor by an attached affidavit‑‑set out the triggering
event on which it might be activated.
But we do not believe that any such requirement can fairly be read into
either of these two constitutional provisions. Nor do we believe that the
lack of such a requirement sufficiently implicates the values and purposes of
those provisions that we should extend them to include such a requirement. The warrant procedure does not contemplate
that the person to whom the warrant is presented should be able to judge from
that presentation at the time of execution its full legality and perhaps to
decide on that basis whether or not to comply.
Rather, it is intended to notify that person that the officers have been
authorized to be in that particular place and to search for that particular
thing. See, e.g., Matter of the Application of Lafayette Academy, Inc., 610 F.2d 1,
5 (1st Cir.1979). Other questions of a
warrant's validity are deferred to later proceedings: a motion to suppress or possibly an action
for damages for a common law or constitutional tort. Most clearly, there is no constitutional
requirement that the evidence supplying the constitutionally mandated probable
cause appear with the warrant when it is served. A statement of the triggering event is not as
clear a case as that, but it is close enough.
In many cases‑‑just as with cases where the affidavit
setting out the probable cause may be challenged‑‑the subject of
the warrant will not be in any position to judge at the time of execution
whether the triggering event had or had not occurred. (This may be such a case.) And so it is hard to see what purpose would
be served in those cases by a general requirement that the triggering event be
made known to the subject of the search at the time he is presented with the
warrant authorizing it.
[5]
The Callahan decision relies
principally on the decision in United
States v. Ricciardelli, 998 F.2d 8 (1st Cir.1993), in reaching its
conclusion. Ricciardelli was principally concerned
with whether the triggering event was defined with sufficient
definiteness. (FN4) We agree with the court that, only if the
triggering event is clearly and narrowly defined are "opportunities [425 Mass. 44] for exercising unfettered discretion ... eliminated." Id.
at 12. Accord United States v. Gendron, 18 F.3d 955, 964‑967 (1st Cir.),
cert. denied, 513 U.S. 1051, 115 S.Ct. 654, 130 L.Ed.2d 558 (1994). We have no doubt that the conditions stated
in the affidavit here fully satisfied this requirement, and our conclusion that
the triggering event had not occurred is ample evidence of our ability to
insist on definiteness and on compliance with the condition so definitely
stated. The court in Ricciardelli went on to say that the "magistrate must set
conditions governing an anticipatory warrant that are 'explicit, clear, and
narrowly drawn so as to avoid misunderstanding or manipulation by government
agents.' " Id., quoting United States v. Garcia, 882 F.2d 699, 703‑704 (2d Cir.),
cert. denied sub nom. Grant v. United States, 493 U.S. 943, 110
S.Ct. 348, 107 L.Ed.2d 336 (1989). From
this language, Callahan and the
defendant draw the conclusion that the limiting conditions must appear on the
face of or must accompany the warrant.
But it is quite clear from the context of the case that the Ricciardelli case was not addressing
that issue. It was at most assumed that
the magistrate's setting out of these clear conditions would cause them to
appear on the face of the warrant, but that was not at all the issue here. In this case, the conditions set out in the
affidavit on which the warrant was issued were indeed "explicit, clear,
and narrowly drawn." Ricciardelli, supra. Our action in invalidating the seizure
demonstrates that such conditions stated in the affidavit limit the authority
under that warrant. But even if Ricciardelli can be taken to have
decided this further point as well, for the reasons given above we are simply
not persuaded that such a requirement is constitutionally compelled. As the Commonwealth points out, Ricciardelli placed heavy reliance on Garcia, supra, yet the United States
Court of Appeals for the Second Circuit itself held in United States v. Moetamedi, 46 F.3d 225, 229 (2d Cir.1995),
that "an anticipatory warrant is valid even though it does not state on
its face the conditions precedent to its execution, when (1) 'clear, explicit,
and narrowly drawn' conditions for the execution of the warrant are contained
in the affidavit that applies for the warrant application, and (2) those
conditions are actually satisfied before the [425 Mass. 45] warrant
is executed." The court applied
this rule to uphold the search warrant even though the affidavit was neither
incorporated into the warrant nor attached to it. Id. (FN5) That is precisely
what we conclude today in reaffirming
Commonwealth v. Soares, 384 Mass. 149, 424 N.E.2d 221 (1981).
The
judgments are reversed, and the verdicts are set aside. An order shall be entered allowing the
defendant's motion to suppress.
So ordered.
(FN1.) The Appeals Court concluded that,
without the evidence that should have been suppressed, there was insufficient
evidence to go forward, Commonwealth v.
Gauthier, 41 Mass.App.Ct. 765, 767, 673 N.E.2d 580 (1996), and the
Commonwealth does not quarrel with that conclusion. Accordingly, there is no occasion for us to
deal with a number of other issues raised by the defendant on appeal. Because we conclude that the affidavit does
not establish probable cause in the absence of the triggering event, we need
not consider whether an anticipatory warrant may be executed in the absence of
the triggering event if on its face no triggering event was necessary to
establish probable cause.
(FN2.) The other two warrants related to
Janice's business and residence and are not in issue.
(FN3.) General Laws c. 276, § 2B, provides in
part that "[t]he person issuing the warrant shall retain the affidavit and
shall deliver it within three days after the issuance of the warrant to the
court to which the warrant is returnable.
Upon return of said warrant, the affidavit shall be attached to it and
shall be filed therewith, and it shall not be a public document until the
warrant is returned." Neither the
Appeals Court nor the parties address this provision and its possible bearing
on the contention that the affidavit should have been attached to the warrant
when executed. Because the consideration
of this question is not necessary to our decision, we also do not address it.
(FN4.) A second condition imposed by that
Federal court, which is related to definiteness requires that, if the
contraband is not on the premises to be searched at the time of the issuance of
the warrant, it "must be on a sure and irreversible course to its
destination, and a future search of the destination must be made expressly
contingent upon the contraband's arrival there." United States v. Ricciardelli,
998 F.2d 8, 12 (1st Cir.1993). This
condition has no applicability in this case, and we intimate no view as to
whether we would impose it in a case that presented that issue.
(FN5.) In reaching its conclusion, the court
in United States v. Moetamedi, 46
F.3d 225, 229 (2d Cir.1995), cited United
States v. Tagbering, 985 F.2d 946, 950 (8th Cir.1993) ("[E]ven if [the
soliciting] affidavit was not incorporated into the warrant, it contained a
representation to the issuing judge that the warrant would not be executed
until the package was delivered and accepted.
In such circumstances, we do not believe the Constitution requires that
this limitation be written into the warrant itself"), a case which was
cited by Ricciardelli, supra at 11,
as well with apparent approval. This
only heightens our doubts that the United States Court of Appeals for the First
Circuit was focusing on the issue presented here at all.