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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. Guaba, 417
Supreme Judicial Court of Massachusetts,
Argued
Decided
[417
John C. McBride,
Before [417
[417
This is an
interlocutory appeal from an allowance of the defendant's motion to suppress evidence. The motion judge, holding that the search of
an apartment pursuant to a validly issued warrant constituted a warrantless search due to the failure of the police to
possess the warrant in hand at the commencement of the search, ordered the
suppression of the evidence seized during the search. Because we agree that, under art. 14 of the
Declaration of Rights of the Massachusetts Constitution, law enforcement
officials are required to possess a copy of the warrant in hand when executing
a search warrant, we affirm.
On September
11, 1991, a confidential informant told Boston police detective Timothy Lynch
that a thirty year old, Hispanic male, weighing approximately 150 pounds, and
being about five feet, six inches tall, would be leaving 10 Ernst Street,
apartment 3, in the Jamaica Plain section of Boston and would be driving a blue
motor vehicle with a particular registration number en route to deliver a
package of cocaine. Later that day,
At the
apartment, the police found Sandra Rodriguez and two young children. The police informed her that the defendant
had been arrested and that they were seeking a search [417
Prior to
trial, the defendant moved to suppress the evidence seized during the motor
vehicle search and the search of the apartment.
After a hearing, the motion judge denied the motion concerning the
evidence seized during the motor vehicle stop but allowed the motion concerning
the evidence seized during the apartment search. Citing
Commonwealth v. Rutkowski, 406 Mass. 673, 550
N.E.2d 362 (1990), the motion judge held that, because the search warrant was
not at the premises when the search began, the search constituted a warrantless search.
She further held that the search did not meet any of the narrowly‑drawn
exceptions to the warrant requirement and, accordingly, ordered that the
evidence seized from the apartment be suppressed.
1. Commonwealth's leave to appeal. The defendant argues that the single justice
improperly allowed the Commonwealth's application for leave to appeal because
the Commonwealth failed to file its notice of appeal in a timely manner. The procedural facts follow.
On
September 3, 1992, the motion judge filed a written memorandum containing her
findings of fact, rulings of law, and order concerning the two suppression
motions. On October 20, 1992, the
Commonwealth filed a notice of appeal from the order suppressing the evidence
seized from the apartment. In its
motion, the Commonwealth stated its intent to seek leave to appeal the
suppression order from the single justice of this court and asserted that it
did not receive a copy of the judge's written decision until September 22, [417 Mass. 749] 1992. On this same date,
the defendant filed a motion to dismiss the appeal, arguing that the
Commonwealth had not filed the notice within the thirty‑day period
mandated by Mass.R.A.P. 4(b), as amended, 378 Mass.
928 (1979). On January 22, 1993, the
Commonwealth applied pursuant to Mass.R.Crim.P.
15(b)(2), 378 Mass. 884 (1979), to the single justice of this court for leave
to appeal from the suppression order.
The defendant failed to file a memorandum in opposition. On February 9, 1993, the single justice,
without a hearing, issued an order allowing the Commonwealth's application and
transferred the case to the Appeals Court. Over six months later, on August 13,
1993, the defendant filed a motion to reconsider the order allowing the
application for interlocutory appeal. On
September 2, 1993, the defendant's motion to reconsider was denied without a
hearing. The defendant objected to this
denial. Subsequently, we transferred
this case from the Appeals Court on our own motion.
The
defendant argues that the Commonwealth was required by Mass.R.A.P.
4(b) to file a notice of appeal in the Superior Court within thirty days after
the suppression order on September 3, 1992.
Thus, the defendant argues, the Commonwealth's filing of the notice on
October 20, 1992, was untimely and that, under our decision in Commonwealth v. Bouvier,
399 Mass. 1002, 504 N.E.2d 355 (1987), the single justice could not properly
allow the Commonwealth's application for leave to appeal.
The
Commonwealth argues that its notice of appeal was timely in that it filed the
notice within thirty days after it received a copy of the judge's written
decision on September 22, 1992.
Supported by affidavit, the Commonwealth contends that the prosecutor
was informed by a clerk in the Superior Court clerk's office that the delivery
of the written decision constitutes official notification of the decision and
that the thirty‑day period for filing a notice of appeal begins when the
parties were so notified. The
Commonwealth asserts that Mass.R.A.P. 4 is unclear as
to when the thirty‑day time period begins to run as to interlocutory
motions and, hence, that it was justified in relying on the clerk's
advice. The [417 Mass. 750]
Commonwealth concedes that it knew before it received the written decision that
the judge had granted the motion to suppress.
In addition, the Commonwealth argues that, even if its notice of appeal
is held to be untimely, the allowance of its application for leave to appeal
should still be affirmed because its tardiness is excusable in light of its
reasonable reliance on the clerk's advice, the importance of the issue raised
in this appeal, and the absence of any prejudice to the defendant. (FN1)
[1] We
begin by stating that the single justice may have extended the Commonwealth's
time to file its notice of appeal under Mass.R.A.P.
2, 365 Mass. 845 (1974), in light of the Commonwealth's late reception of the
written decision and its reliance on the information given by the clerk.
Commonwealth v. Santana, 403 Mass. 167, 169, 526 N.E.2d 1051
(1988). An extension in these
circumstances would not have been improper.
However, because the single justice did not accompany his order with a
written memorandum, we are uncertain as to the basis of his decision. Even assuming, however, that the single
justice found that the Commonwealth's filing of its notice of appeal was
timely, we affirm the single justice's allowance of the Commonwealth's
application for leave to appeal.
The
Commonwealth has a right to apply to this court for an interlocutory appeal
"from a[n] ... order of the superior court determining a motion to
suppress prior to trial." G.L. c. 278, § 28E (1992 ed.). See
Commonwealth v. Bouvier, supra. This section further provides that the
"[r]ules of practice and procedure with respect
to appeals authorized by this section shall be the same as those applicable to
criminal appeals under the Massachusetts Rules of Appellate
Procedure." Rule 15(b)(2) of the
Rules of Criminal Procedure [417
Mass. 751] also expressly provides
for this right. The Commonwealth must
file its application for leave to appeal "within such reasonable time
after the ruling of the judge as the judge may allow and in any event before
the defendant has been placed in jeopardy...." Mass.R.Crim.P.
15(b)(3), 378 Mass. 884 (1979). Also,
the Commonwealth must file a notice of appeal with the Superior Court as
required by Mass.R.A.P. 3(a), 378 Mass. 927 (1979).
Commonwealth v. Santana, supra 403 Mass. at 169, 526 N.E.2d
1051. Rule 4(b) provides that the notice
of appeal required by rule 3 must be "filed ... within thirty days after the verdict or finding of guilt or
within thirty days after imposition of
sentence" (emphasis added).
[2][3][4][5]
Although it is clear that the Commonwealth, when applying for leave to appeal a
suppression order, must file a notice of appeal as required by rules 3 and 4,
it is unclear as to when the thirty‑day period begins to run. Rule 4(b) expressly refers only to a verdict,
finding of guilt, or imposition of the sentence and does not expressly refer to
interlocutory appeals. In the interests
of consistency and certainty, we hold that the notice of appeal for an
interlocutory appeal from an order, under Mass.R.A.P.
4(b), must be filed within thirty days after the order is filed. However, because we acknowledge that the rule
was unclear as to interlocutory appeals and because we accept the
Commonwealth's assertions that it did not receive the written decision until
nineteen days after the allowance of the defendant's motion to suppress and
that it relied upon the advice of the clerk, we hold that the Commonwealth's
notice of appeal was timely filed.
(FN2) In the future, any delay in
receiving the judge's written decision [417
Mass. 752] will not be relevant in
determining if the appellant has filed within the thirty‑day period. Of course, a delay may be relevant in the
determination of whether to extend the time to file the notice of appeal under
either Mass.R.A.P. 4(c) or Mass.R.A.P.
14(b). (FN3) Additionally, Mass.R.A.P.
2 offers another potential avenue of relief.
(FN4) A party should have "a
reasonable period of time to study the judge's decision to see if an appeal
might have merit...." Commonwealth v. Lewin
(No. 3), 408 Mass. 147, 150, 557 N.E.2d 721 (1990). It was not error for the single justice to
allow the Commonwealth's application for leave to appeal.
2. Absence of warrant at search. The Commonwealth asserts that the motion
judge erred in ruling that the search of the apartment constituted a warrantless search.
Pointing out that the statutes which set out the requirements for
warrants fail to contain any express language requiring the police to possess a
warrant at the beginning of a search, the Commonwealth argues that, under
traditional principles of statutory construction, no such requirement should be
inferred. In the alternative, the
Commonwealth argues that the police's failure to possess the warrant at the
beginning of the search merely constitutes a technical error in the warrant's
execution, requiring suppression only upon a showing of prejudice to the
defendant. It further argues that,
because the warrant in this case authorized the police to seize drugs and
because [417 Mass. 753] drugs are readily identifiable as
contraband, the police conducted the search within the scope of the warrant,
resulting in no prejudice to the defendant.
The motion
judge determined, and there is no contention otherwise, that the search was
commenced after the issuance of the warrant and that the warrant was validly
issued. Our inquiry is limited to
whether the police's failure to possess the warrant in hand at the beginning of
the search renders the search illegal and, if it does, whether suppression is
required.
[6][7] The
Commonwealth correctly notes that neither art. 14 of the Declaration of Rights
nor G.L. c. 276, §§ 1 et seq., contains any express
language requiring law enforcement officials to possess a copy of a search
warrant in hand when they commence a search pursuant to a warrant. The Commonwealth further notes that the
jurisdictions which require the presence of the warrant at a search do so
expressly by statute or court rule and generally characterize the requirement
as directory or ministerial. (FN5) However, although we have never addressed
this precise issue, we have expressed the proposition that the presence at the
search of documents describing the items to be seized is crucial in order for a
warrant to meet the particularity requirements of art. 14 and G.L. c. 276, § 2.
Furthermore, we have held that art. 14 "may, in some circumstances,
provide more substantive protection to criminal defendants than does the Fourth
Amendment" to the United States Constitution. Commonwealth v. Amendola, 406 Mass. 592, 599 n. 3, 550 N.E.2d 121 (1990); Commonwealth v. [417 Mass. 754] Upton, 394 Mass. 363, 373, 476 N.E.2d 548
(1985). Because we conclude that in
order to ensure that art. 14's general requirement of a warrant achieves its
purposes, we hold art. 14 implicitly requires law enforcement officials to
possess a copy of the warrant when executing it, unless there are exigent
circumstances which would permit a warrantless
search. Commonwealth v. Paniaqua, 413 Mass.
796, 797‑798, 604 N.E.2d 1278 (1992).
We should make clear that nothing in this opinion should be read to
indicate that, in exigent circumstances, law enforcement officials may not
search a dwelling without possessing a warrant even if no warrant has
issued. (FN6)
In Commonwealth v. Rutkowski,
406 Mass. 673, 550 N.E.2d 362 (1990), we stated that "[e]vidence should be suppressed in order to deter future
police misconduct when ... the police carry out a search without any document in hand adequately describing the items
for which they purport to be searching" and that "[t]he absence from
the defendant's premises of a document which would have furnished detailed
information to guide the scope of the search and to inform the defendant of
that scope is not merely a technical violation." Id. at 677, 550 N.E.2d
362. (Emphasis added.) In Rutkowski, the warrant described the items to be seized
as stolen goods "more specifically detailed in the supporting
affidavit" and the police conducted the search accompanied by only the
warrant and not by the affidavit. Id. at 674, 550 N.E.2d 362. Because the descriptive affidavit was not
present at the search and available to inform the defendant of the limits of
the search, we disregarded the affidavit and treated the search as one
conducted pursuant to an unlawful general warrant. Id. We then suppressed the evidence seized,
concluding that the violation was a substantial violation of [417 Mass. 755] the "principles underlying art. 14 of the Declaration of
Rights and G.L. c. 276, § 2." Id.
at 677, 550 N.E.2d 362.
[8][9]
Just as the absence of the affidavit describing the items to be seized rendered
the search in Rutkowski
an unlawful search pursuant to a general warrant, the absence of the warrant
should render the search in this case a warrantless
search. The presence of the warrant at
the search serves several purposes. The
warrant guides law enforcement officials as to the permissible scope of the
search, particularly describing both the area to be searched and the items to
be seized. Furthermore, the presence of
the
warrant serves to put the occupant whose premises are to be searched
on notice of the police's authority to search and the reasons for the
search. Not only were the officers
without guidance as to the scope of the authorized search, as in Rutkowski,
but also the occupant of the apartment was without notice as to the officers'
authority to search. Although many
jurisdictions regard the failure of the police to possess the warrant at the
commencement of the search as a technical error, mandating suppression only
when the warrant's absence prejudices the defendant, we view the omission as
invalidating the reasonableness of the search.
Even assuming that the officers were without the need of the warrant to
guide them as to the items to be seized because the warrant in this case
authorized the seizure of drugs, the warrant also guides the law enforcement
officials as to which premises they are authorized to search. Furthermore, where a warrant is required, a
search by law enforcement officials, even if conducted within the scope of the
warrant, without the document exhibiting their authority to search is
unreasonable per se. The failure of the
police to possess a copy of the warrant when they commenced searching the
apartment rendered the search warrantless.
[10] As
noted above, the judge determined that the search did not fall within any of
the narrowly‑drawn exceptions to the warrant requirement.
Commonwealth v. Forde, 367 Mass. 798, 800,
329 N.E.2d 717 (1975). Accordingly, she
ordered the suppression of the evidence seized during the search of the
apartment. The [417 Mass. 756]
Commonwealth does not assert that the judge erred in determining that the
search failed to meet any of the exceptions.
Therefore, the order suppressing the evidence seized during the
apartment search is affirmed. The case
is remanded to the Superior Court for proceedings consistent with this opinion.
So ordered.
(FN1.) The Commonwealth also argues that the
defendant waived his argument concerning the propriety of the single justice's
granting leave to appeal in that he failed to file a memorandum in opposition
to the Commonwealth's application and waited over six months before filing a
motion to reconsider. We have reviewed
the record and conclude that, in these circumstances, the defendant
sufficiently raised this issue below to raise it here.
(FN2.)
We do not read Commonwealth v. Bouvier, 399 Mass. 1002, 504 N.E.2d 355 (1987), as
mandating a different result. In that
case, the Commonwealth failed to file a notice of appeal when seeking leave to
appeal, but instead filed a motion to stay the proceedings pending appeal. We declined to equate the motion to stay the
proceedings with a notice of appeal, citing concerns of disturbing "a well‑integrated
procedure for the appeal of lower court decisions." In particular, we noted the rule that
required the clerk to compile the record upon the filing of the notice of
appeal. In this case, because the
Commonwealth filed a notice of appeal, this concern will not be frustrated here
if we allow the appeal.
(FN3.)
Massachusetts Rule of Appellate Procedure 4(c) as amended, 378 Mass. 928
(1979), provides in pertinent part:
"Upon a showing of excusable neglect, the lower court may extend
the time for filing the notice of appeal by any party for a period not to
exceed thirty days...." Rule 14(b),
365 Mass. 844 (1974), provides in pertinent part: "The appellate court or a single justice
for good cause shown may upon motion enlarge the time prescribed by these rules
or by its order for doing any act, or may permit an act to be done after the
expiration of such time...."
(FN4.)
Massachusetts Rule of Appellate Procedure 2, 365 Mass. 845 (1974), provides in
full: "In the interest of
expediting decision, or for other good cause shown, the appellate court or a
single justice may ... suspend the requirements or provisions of any of these
rules in a particular case on application of a party or on its own motion and
may order proceedings in accordance with its direction. Such a suspension may be made on reasonable
terms."
(FN5.)
For example, the Federal Courts of Appeal have uniformly held that violations
of Fed.R.Crim.P. 41(d), which requires the
presentation of a copy of the warrant at the time of search, are ministerial in
nature and a motion to suppress should only be granted when the defendant shows
legal prejudice or that the noncompliance was in bad faith. See
United States v. Marx, 635 F.2d 436, 441 (5th Cir.1981);
United States v. McKenzie, 446 F.2d 949, 954 (6th Cir.1971);
United States v. Woodring, 444 F.2d 749,
751 (9th Cir.1971). To show prejudice,
the defendant must show that "the search might not have occurred or would
not have been so abrasive if the Rule had been followed."
United States v. Burke, 517 F.2d 377, 386‑387 (2d
Cir.1975). See 2 W.R. LaFave, Search & Seizure § 4.12(a) 358‑359 (2d
ed. & Supp.1994)., and cases cited.
(FN6.)
This case is distinguishable from Commonwealth v. Blake, 413 Mass. 823, 824
n. 2, 604 N.E.2d 1289, in that the defendant in that case did not argue that he
was entitled to any relief on appeal on the ground that the warrant was
apparently not in the possession of the officers at the scene when the search
began.
In
Commonwealth v. Yesilciman, 406 Mass. 736,
743, 550 N.E.2d 378 (1990), the issue whether the warrant had to be present at
the search was not raised. We add that
the police may still secure "an area to be searched before a warrant is
procured" and until the police arrive at the area with the warrant.