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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. Grimshaw, 413
Supreme Judicial Court of Massachusetts,
Middlesex.
Argued
Decided
[413
Marc A. Eichler, Sp. Asst.
Dist. Atty., for the Com.
Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.
LYNCH,
Justice.
The
defendant appeals from an order of a District Court judge denying the
defendant's motion to suppress physical evidence. At issue is whether a search conducted on
Following
a District Court bench trial on
The judge
made the following findings: On
The judge
did not determine whether the search at 8:50 P.M. was a nighttime search. Instead he concluded that "the search
must be upheld because the defendant ... has failed to show that he was
prejudiced by the time of day at which the search was conducted. 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."
[413 Mass. 75] The defendant contends that 8:50 P.M. falls during the nighttime
and, since the search was conducted in violation of the
warrant's express prohibition against a nighttime search and G.L. c. 276, § 2 (1990 ed.), (FN1) the evidence should be
suppressed to implement rights granted by the Fourth and Fourteenth Amendments
to the United States Constitution, art. 14 of the Declaration of Rights of the
Massachusetts Constitution, and G.L. c. 276, §§ 1 and
2.
At the
outset, it is not necessary for this court to determine whether the search in
this case was conducted at night. For
purposes of analysis, we will assume that the warrant was executed at night. The question remains, however, whether the
seized evidence should be suppressed. We
conclude that, in the circumstances of this case, the evidence need not be
suppressed and that, therefore, the judge correctly denied the defendant's
motion.
1. Background of nighttime warrant
requirement. At common law there
was a strong hostility to nighttime searches of a dwelling house.
Commonwealth v. Hinds, 145 Mass. 182, 13 N.E. 397 (1887). Nighttime searches were regarded with
revulsion because of the indignity of rousing people from their beds.
Commonwealth v. DiStefano, 22 Mass.App.Ct. 535, 541, 495 N.E.2d 328 (1986). The underlying rationale was that nighttime
police intrusion posed a great threat to privacy, violated the sanctity of
home, and endangered the police and slumbering citizens. 2 W.R. LaFave,
Search and Seizure § 4.7(b), at 266 (2d ed. 1987). See, e.g.,
Gooding v. United States, 416 U.S. 430, 463, 94 S.Ct.
1780, 1797, 40 L.Ed.2d 250 (1974) (Marshall, J., dissenting) (nighttime [413 Mass. 76] searches involve greater intrusion than ordinary searches);
Monroe v. Pape, 365 U.S. 167, 210, 81 S.Ct. 473, 496, 5 L.Ed.2d 492 (1961) (Frankfurter, J.,
dissenting in part) ("Searches of the dwelling house were the special
object of this universal condemnation of official intrusion. Night‑time search was [considered] the
evil in its most obnoxious form"); Jones v. United States, 357 U.S. 493,
498, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958)
("it is difficult to imagine a more severe invasion of privacy than the
nighttime intrusion into a private home").
The common law, however, did not expressly prohibit nighttime
searches. See Commonwealth v. Hinds, supra, 145 Mass. at 183, 13 N.E. 397
(declining to answer whether nighttime search warrant was valid at common law
because validity and effect of warrant determined by statute that authorized
nighttime search warrants). Many courts
have specifically or by implication rejected the claim that the nighttime
search limitation has any basis in either State or the Federal
Constitutions. See Gooding v. United States, 416 U.S. 430, 94 S.Ct.
1780, 40 L.Ed.2d 250 (1974) (treating nighttime execution of search warrant as
one of statutory interpretation and not as a Fourth Amendment issue);
United States v. Searp, 586 F.2d 1117,
1121 (6th Cir.1978), cert. denied, 440 U.S. 921, 99 S.Ct.
1247, 59 L.Ed.2d 474 (1979) (nighttime search limitation under Fed.R.Crim.P. 41 not part of any constitutionally rooted
prohibition against unreasonable searches); United States v. Burke, 517 F.2d 377 (2d
Cir.1975) (provision of rule 41 authorizing search at night not constitutional
requirement); United States v. Ravich,
421 F.2d 1196 (2d Cir.), cert. denied, 400 U.S. 834, 91 S.Ct.
69, 27 L.Ed.2d 66 (1970) ( "peculiar abrasiveness of official
intrusions" at nighttime is reason for requirement of specific
authorization for nighttime search); People v. Glass, 56 Cal.App.3d 368, 372,
128 Cal.Rptr. 413 (1976) (no showing of "good
cause" required for execution of a search warrant at night because such a
requirement is statutory and not constitutional); State v. Brock, 53 Or.App. 785, 794, 633 P.2d 805 (1981) ("genesis
of the rule limiting nighttime searches" purely statutory), aff'd, 294 Or. 15, 653 P.2d 543 (1982). See also
Commonwealth v. Goggin, 412 Mass. 200, 202, 587
N.E.2d 785 (1992) ("knock and announce" rule is a common law rule and
is not constitutionally required); United States v. Dauphinee,
538 F.2d 1, 3 (1st Cir.1976) (procedural steps [413 Mass. 77]
regarding warrant return under Fed.R.Crim.P. 41[d]
essentially ministerial); United States v. Castle, 213 F.Supp. 52, 54 (D.D.C.1962) (Federal statutory provision
allowing nighttime search only upon showing of probable cause was not
unconstitutional).
[1] Since
1836 nighttime searches have been expressly authorized by statute in
Massachusetts. Commonwealth v. Garcia, 23 Mass.App.Ct. 259, 260, 501 N.E.2d 527 (1986). Presently, G.L. c.
276, § 2, permits a nighttime search "if the warrant so
directs." The statute thus
embodies the important common law values of sanctity of the home and protection
of the police and citizens associated with the nighttime search
limitation. As such, the nighttime rule
is designed to govern police conduct as a safeguard against abusive, arbitrary
action in carrying out a constitutionally authorized search. Notably, there is no separate or additional
requirement that there be a showing that cause exists for the issuance of a
warrant to search in the nighttime. Commonwealth v. Garcia, supra at 261, 501
N.E.2d 527. The statute, furthermore,
does not contain any specific provision requiring suppression of evidence for
its violation. Cf. G.L.
c. 272, § 99 P (1990 ed.) (provision in
State's wiretap statute permitting suppression of evidence seized in violation
of statutory requirements).
[2] 2. Evidence seized in violation of criminal
statutes not automatically suppressed.
Generally, evidence seized in violation of the law will be suppressed
only if the violation is substantial or rises to the level of a Federal or
State constitutional violation. Commonwealth v. Sheppard, 394 Mass. 381,
389‑390, 391 & n. 8, 476 N.E.2d 541 (1985) (no suppression required
for violation of G.L. c. 276 and technical violation
of art. 14 of the Massachusetts Declaration of Rights where the search was not
conducted in unreasonable manner within meaning of art. 14). See
Commonwealth v. Freiberg, 405 Mass. 282, 300, 540 N.E.2d 1289 (1989) (error
in return of warrant not a constitutional violation, therefore no ground for
voiding an otherwise lawful search); Commonwealth v. Aldrich, 23 Mass.App.Ct. 157, 161‑163, 499 N.E.2d 856 (1986)
(noncompliance with warrant return requirement ministerial not requiring
suppression of [413 Mass. 78] evidence). Cf.
State v. Miller, 429 N.W.2d 26, 35 (S.D.1988) (although violation of statutory
ten‑day rule, probable cause had not dissipated, therefore suppression
not required because "the letter, not the spirit, of the law was
violated").
The
defendant contends that the police invalidly executed the warrant by exceeding
the scope of the daytime search requirement of the warrant. Therefore, the defendant argues, the search
was tantamount to a warrantless search. We disagree.
"[A]s
a general rule, the mere fact that an unlawful search and seizure has occurred
should not automatically result in the exclusion of any illegally seized
evidence." Commonwealth v. Gomes. Accordingly, "the decision whether to
exclude such evidence should properly turn on:
(1) the degree to which the violation undermined the principles
underlying the governing rule of law ... and (2) the extent to which exclusion
will tend to deter such violations from being repeated in the future"
(citations omitted). Id.
Other courts also examine the circumstances before suppressing evidence
seized without a nighttime search authorization. As the court in United States v. Searp, supra at 1125,
said: "When there has merely been a
violation of the procedural rules governing night searches, suppression, with
its attendant potential for a miscarriage of justice, is not justified when
there was neither a possibility of bad faith conduct on the part of the police,
nor prejudice to the defendant (in the sense that the search might not have occurred or would not have been so abusive if
the requirements of the Rule had been observed). The test is met, and suppression would be
required when, based on the facts and circumstances known to the police at the
time application was made for the warrant, there is a reasonable possibility
that permission for a night search would have been refused even if an
appropriate request had been made."
Cf. United States v. Burke, supra
at 386 ("courts should be wary in extending the exclusionary rule in
search and seizure cases to violations which are not of constitutional
magnitude").
[413 Mass. 79] [3] The circumstances in this case do not require suppression of
the evidence. It is clear from the
record that the police were acting lawfully in obtaining the warrant and,
except as to time, had engaged in no misconduct in executing it. It is equally clear from the record that, had
the police requested a nighttime warrant, they could have obtained one. See
Commonwealth v. DiStefano, supra, 22 Mass.App.Ct. at 541‑543, 495 N.E.2d 328. It was already dark when the police applied
for the warrant which was issued at approximately 4:30 P.M. Although the police should have examined the
warrant more carefully when the warrant was obtained, considering that it was
already dark, it was reasonable for them to assume that the warrant authorized
a nighttime search. They immediately
proceeded to the premises, which they had kept under constant
surveillance. The supporting affidavit
clearly establishes that probable cause existed for the issuance of the
warrant. In fact, the defendant neither
challenges the validity of the warrant nor claims that probable cause did not
exist for the warrant to issue.
Moreover, the police entered in a peaceful manner after knocking; the time of the evening was not so late that
most people would have already retired;
and the defendant as well as the other persons present in the apartment
were awake, fully clothed, and sitting in the living room. They therefore did not suffer the indignity
of being roused from their sleep nor experience the fear generated by the
police‑state technique of the anonymous knock on the door in the dead of
night. In these circumstances the police
presence was not an intrusive violation on the sanctity of the home that the
nighttime limitation is meant to preserve.
Neither the common law nor the legislative intent behind the nighttime
rule was infringed. The procedural
letter, not the substantive spirit, of the law was violated.
Neither
would suppressing deter future police misconduct. Here the police complied with the law except
for the failure to request the nighttime search. The warrant described the particular
apartment and persons to be searched and the property or articles to be
seized. The police limited the scope of
their search to the apartment and to the property particularized[413 Mass. 80] in the warrant. The police at all times were acting
reasonably in obtaining and executing the warrant and their technical violation
of the statute was a matter of procedure that infringed no substantive right of
the defendant. We therefore conclude
that the principle of deterrence underlying the exclusionary rule will not be
undermined by the failure to suppress the evidence in this case. See
Commonwealth v. O'Connor, 406 Mass. 112, 118 n. 5, 546 N.E.2d 336
(1989). We therefore affirm the judge's
order denying the defendant's motion to suppress.
[4] 3. "Nightime"
defined for warrant purposes. Since
the statutes, rules of procedure, and our prior discussion contain no clear
standard for the application of the "nighttime" limitation, we offer
the following remarks to guide police in the future when applying for, and
executing, warrants. "At common
law, in criminal cases, night means 'a period when the light of day had so far
disappeared, that the face of a person was not discernible by the light of the
sun or twilight.' " Sodekson v. Lynch,
314 Mass. 161, 164, 49 N.E.2d 901 (1943), quoting Commonwealth v. Williams, 2 Cush. 582,
589 (1849). By 1847 the term was defined
by statute for all purposes of criminal proceedings as "the time between
one hour after sunsetting on one day, and one hour
before sunrising on the next day."
Commonwealth v. Williams, supra, and that definition continues today
in the form of G.L. c. 278, .§ 10 (1990 ed.). (FN2)
See Sodekson
v. Lynch, supra, quoting G.L. (Ter.Ed.) c. 278, §
10.
The
Legislature has never defined "nighttime" or "night" for
the purpose of executing a nighttime search warrant. (FN3) [413 Mass. 81] The peculiar and special meaning of nighttime in G.L. c. 278, § 10, is applicable to the crimes of burglary
and breaking and entering. There is no
indication that the Legislature intended that statutory definition to apply to
the procedural law regarding search warrants. Commonwealth v. Garcia, 23 Mass.App.Ct. 259, 263 n. 7, 501 N.E.2d 527 (1986).
Under Fed.R.Crim.P. 41(h), nighttime does not begin for warrant
purposes until 10 P.M. Under the Model
Code of Pre‑Arraignment Procedure § SS 220.2(3) (1975), nighttime for
warrant purposes is between 8 P.M. and 8 A.M.
Since no universal standard has been called to our attention or has
emerged from our study, we shall in the future apply a rule that protects the
public from unreasonable intrusions by the police, is in keeping with current
life‑styles, and gives the police notice as to the precise time in all
seasons when permission for a nighttime search must be requested. We conclude that these ends are best achieved
by the nighttime rule articulated in Fed.R.Crim.P.
41(h). Henceforth, for warrant purposes,
nighttime begins at 10 P.M. and ends at 6 A.M.
Order denying the defendant's motion to
suppress affirmed.
(FN1.) General Laws c. 276, § 2 (1990 ed.),
provides: "Search warrants shall
designate and describe the building, house, place, vessel or vehicle to be
searched and shall particularly describe the property or articles to be
searched for. They shall be
substantially in the form prescribed in section two A of this chapter and shall
be directed to the sheriff or his deputy or to a constable or police officer,
commanding him to search in the daytime, or if the warrant so directs, in the
nighttime, the building, house, place, vessel or vehicle where the property or
articles for which he is required to search are believed to be concealed, and
to bring such property or articles when found, and the persons in whose
possession they are found, before a court having jurisdiction."
(FN2.)
General Laws c. 278, § 10 (1990 ed.), states:
"If a crime is alleged to have been committed in the night time,
night time shall be deemed the time between one hour after sunset on one day
and one hour before sunrise on the next day;
and the time of sunset and sunrise shall be ascertained according to
mean time in the place where the crime was committed."
(FN3.)
General Laws c. 4, § 6 (1990 ed.), provides:
"In construing statutes the following rules shall be observed,
unless their observance would involve a construction inconsistent with the
manifest intent of the law‑making body or repugnant to the context of the
same statute.... Third, Words and
phrases shall be construed according to the common and approved usage of the
language; but technical words and
phrases and such others as may have acquired a peculiar and appropriate meaning
in law shall be construed and understood according to such meaning."