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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. Grzembski,
393
Supreme Judicial Court of Massachusetts,
Argued
Decided
Andrew Silverman, Worcester, for defendant.
William F. George, Asst. Dist. Atty., for
Commonwealth.
Before HENNESSEY, C.J.,
and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.
LYNCH, Justice.
The
defendant was convicted of breaking and entering in the daytime and of larceny
after a jury‑waived trial in the Superior Court. He appealed, contending that his motion to
suppress an inculpatory statement was improperly
denied. The
On
The
defendant contends that the Superior Court judge erred in denying the
defendant's motion to suppress his statement made to the chief after the
arrest. He argues that the statement
should have been suppressed because the arrest was without probable cause and
his subsequent statements to the police were tainted by that illegality. We conclude that the motion judge did not err
in admitting the defendant's statement in evidence and that the record supports
the judge's finding that there was probable cause to arrest the defendant. We, therefore, affirm the defendant's
conviction.
On
Later on
September 9, the defendant was arraigned on the complaints charging breaking
and entering in the daytime and larceny.
Prior to trial, the defendant moved to suppress both the evidence seized
from his apartment and the statement made by him at the Dudley District Court. After a hearing, the judge allowed the motion
to suppress the evidence seized, but denied the motion to suppress the
statement. In allowing the motion to
suppress the evidence seized pursuant to the search warrant, the judge stated
that "[t]he description in the warrant of (jewelry) was entirely lacking
in any specification ... and could not be the basis of a rightful
seizure."
As for the
defendant's argument that his statement should be inadmissible because it was
tainted by an illegal arrest, the motion judge found that "[a]lmost no evidence relating to the arrest of the defendant
was offered to the court. The
determination of whether or not the police had probable cause to arrest was
only touched upon in a peripheral manner." The judge [393 Mass. 519] then
considered the information known by the police at the time of the arrest. This information included Dodge's statement
on September 7, and the knowledge of the police that items reported by Dodge to
have been stolen had in fact been stolen from the victim's home. The search warrant affidavit revealed that
the police also knew that the defendant had been on the victim's premises on
the date of the breaking and entering and that the defendant had a previous record
for burglary and larceny. The judge
concluded that "[w]hile the matter is not one
entirely free from doubt, it is the opinion of the court that this was
sufficient information for the police to have probable cause to arrest this
defendant for the burglary and larceny at the [Sturbridge] house." The judge stated further that "[e]ven if the court had not reached the conclusion that the
arrest in this case had been legal, the court would nevertheless be persuaded
that any taint that may have come from an illegal arrest was sufficiently attenuated
by the time that the police chief and the defendant arrived at the district
court." After the suppression
hearing, the defendant waived a jury trial and was convicted of breaking and
entering and larceny.
The
defendant argues here that his postarrest statement
to the chief should have been suppressed because it was the fruit of his
illegal arrest. We conclude that, since
the police had probable cause to arrest the defendant, the motion to suppress
the statement was denied properly. It is
therefore unnecessary for us to consider the Commonwealth's argument that the
statement was sufficiently attenuated from the arrest to permit its admission.
The
statements in the search warrant affidavit were based on information provided
by Sturbridge police officers to certain Connecticut State police
detectives. (FN5) In the affidavit, Detectives Green and Smith
stated that they were members of the Connecticut State police department. The affidavit recited that on September 7,
1982, Detective Green was assigned to assist the chief of the Sturbridge police
department in the investigation [393
Mass. 520] of a burglary and larceny
of a home in Sturbridge. The incident
was described as "occurr[ing]
on 8‑23‑82 and ... involv[ing] the theft of T.V.s, Jewelry,
Cameras, Stereos and radios amounting to $6,000." The affidavit further stated that on
September 7, 1982, the chief "obtained a written and signed statement from
Edward A. Dodge ... of 53 West St., Southbridge, Ma." The affidavit then summarized Dodge's
statement in which he said that, on the morning of September 7, he had visited
his step‑brother, Philip Livernois, at 104 Main
Street in North Grosvenordale, Connecticut. While at the Livernois
apartment, Dodge noted a "19 [inch] RCA XL 100 Color T.V.
with AM/FM radio" which Livernois admitted to
him was stolen. Livernois
also told Dodge that a friend who lived upstairs in apartment 103 "had
some stolen items, such as a Sony Stereo Amp Model 60‑65 # SN: 160‑34‑8319." (FN6)
The affidavit stated that the upstairs apartment was occupied by James Grzembski.
In
addition to Dodge's statement, the police knew that on the day of the incident
both Livernois and Grzembski
were working for Philip R. Lanctot of 819 Dennison
Drive, Southbridge, who operated the Hemlock Landscaping Company. Livernois and the
defendant "were cutting grass on the victim's property on the day in
question [August 25]." Finally, the
affidavit stated that both Livernois and Grzembski have "an extensive record and [have] been
convicted for Burglary and Larceny."
At the
suppression hearing, the circumstances of the defendant's arrest were not
presented to the judge except "in a peripheral manner." The chief testified, however, "that
[the officers] had picked up ... Grzembski on a warrant." Furthermore, defense counsel stated in his
motion to suppress the statements that "complaints and warrants were
issued by Dudley District Court."
Even though the record fails to describe the arrest warrant issued by
the District Court, or to indicate [393
Mass. 521] the facts presented in
any warrant application, (FN7) we conclude that there is a sufficient basis in
the record to support the motion judge's finding that there was probable cause
to issue the arrest warrant.
"Probable
cause to arrest has been defined as facts and circumstances within the
knowledge of the police and of which they had trustworthy information which
were 'sufficient to warrant a prudent man in believing that the ... [defendant]
had committed ... an offense.' " Commonwealth v. Bowden, 379 Mass. 472,
476, 399 N.E.2d 482 (1980), quoting Beck
v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13
L.Ed.2d 142 (1964). In the instant case,
the police knew at the time of the arrest that the defendant had been on the
victim's premises on the day of the incident and had previously been convicted
of burglary and larceny. Furthermore,
the police had received a statement from a named private citizen, Dodge,
describing a conversation between Dodge and Livernois,
his step‑brother. (FN8) Although Dodge's statement constituted
hearsay, it nevertheless had sufficient indicia of reliability and
trustworthiness to ground a finding of probable cause. The statement was from an identified citizen
living at a known address who asserted that he had personally learned of
certain criminal activity from his step‑brother. As Dodge's relative and an apparent
participant in the criminal activity, Livernois
constituted a sufficiently reliable source of information. In his statement, Dodge stated that Livernois admitted having stolen a television with radio
similar to one known to have been stolen from the house in Sturbridge. Taken together with police knowledge from
independent sources that the defendant was on the premises on the day of
the incident and had a record of burglary
[393 Mass. 522] and larceny,
this information was sufficient to support a reasonable belief that the
defendant had committed a crime. At the
suppression hearing, the judge did not find that probable cause was lacking for
either the arrest or the search; in
excluding the seized evidence, the judge found that the search warrant lacked
sufficient specificity as to the items to be seized. The same information was known by the police
(FN9) at the time of the application for the arrest warrant as was provided in
the affidavit supporting the application for the search warrant.
The
defendant has argued that under Illinois
v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76
L.Ed.2d 527, reh'g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983), and two predecessor
cases, Spinelli
v. United States, 393 U.S. 410, 89 S.Ct. 584, 21
L.Ed.2d 637 (1969), and Aguilar v. Texas,
378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964),
the information provided by Dodge lacked sufficient indicia of reliability. We conclude that this line of cases and our
recent decision in Commonwealth v. Upton,
390 Mass. 562, 458 N.E.2d 717 (1983), rev'd and
remanded, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d
721 (1984), reargued here October 2, 1984, are distinguishable because in those
cases the identity of the informant was unknown or uncertain. Information provided by a named informant is
generally accorded more weight, and many of the policy considerations
underlying the concern in those cases to ensure reliability are not implicated
when the police indicate in the warrant application or affidavit who the
informant is. Commonwealth v. Atchue,
393 Mass. 343, 347, 471 N.E.2d 91 (1984).
Considered all together, the evidence in the record supports the motion
judge's finding that there was probable cause to issue a warrant to arrest the
defendant.
Judgment affirmed.
(FN1.) The affidavit supporting the search
warrant states incorrectly that the breaking and entering occurred on August
23, 1982. This discrepancy in dates is
not significant in our determination of probable cause to arrest the defendant.
(FN2.)
A summary of Dodge's statement was given in an affidavit prepared for a search
warrant application prior to the arrest.
The record fails to reveal the content of the affidavit, if any, in
support of the application for the arrest warrant.
(FN3.)
The stolen items included: a gold
watch; a Sony stereo amplifier, model 60‑65
with SSN: 160‑34‑8319; a TEAC recorder F‑300 SN: 7514; an RCA nineteen inch XL100 color television
with AM/FM radio SN:
936‑360632; and assorted
cameras and jewelry.
(FN4.)
The items seized included: a Sanyo
television SN:
F8102978; a silver pig bank
containing money; a tan leather
jacket; two knives with cases; and two jewelry boxes, each containing
assorted jewelry.
(FN5.)
Detective Green testified at the hearing that he and Detective Smith, the other
affiant, had received the information included in the affidavit from the chief
and Officer Neil Martin of the Sturbridge police department.
(FN6.)
In light of the motion judge's finding that the police did not have the
information relating to the serial number and model at the time of the warrant
application, we disregard the information in considering whether probable cause
existed.
(FN7.)
There is no requirement in Massachusetts that an application for an arrest
warrant be supported by an affidavit. Commonwealth v. Baldassini,
357 Mass. 670, 676, 260 N.E.2d 150 (1970).
An application for a search warrant, however, must be supported by a
signed affidavit "contain [ing] the facts,
information, and circumstances upon which [the affiant] relies to establish
sufficient grounds for the issuance of the warrant." G.L. c. 276, § 2B,
as amended by St.1965, c. 384. See K.B. Smith, Criminal Practice and Procedure § 82 (1983).
(FN8.)
Livernois subsequently pleaded guilty to complaints
arising out of the breaking and entering of the Sturbridge home.
(FN9.)
We find that it is not significant that while two Connecticut State police detectives
procured the search warrant, the arrest warrant was procured by Sturbridge
police officers in a Massachusetts District Court. The information in the affidavit supporting
the search warrant was provided to the Connecticut police detectives by certain
police officers in Massachusetts who knew the contents of Dodge's statement and
also knew of the defendant's presence on the premises on the day of the
incident and of his prior record. See
note 5, supra.