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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. Haefeli, 361
Supreme Judicial Court of Massachusetts,
Argued
Decided
Alexander Whiteside, II,
Robert Snider, Asst. Dist. Atty., for the
Commonwealth.
Before TAURO, C.J., and CUTTER, REARDON, QUIRICO
and HENNESSEY, JJ.
QUIRICO, Justice.
The
defendant was charged in each of seven indictments with a separate crime of
receiving stolen property knowing it to have been stolen. One indictment involved blank checks, and the
others involved various pieces of mail containing some blank checks, cancelled[361
The only
exception argued by the defendant is that taken to the denial of his pretrial
motion to suppress certain evidence which the police had seized in part from an
automobile and in part from his apartment.
The defendant argues that after he had been arrested a police officer
unlawfully searched without a warrant an automobile which he had driven before
his arrest. He argues that the search of
his apartment, although conducted pursuant to a warrant, was unlawful because
of alleged deficiencies in the affidavit contained in the application for the
warrant.
THE SEARCH OF THE AUTOMOBILE.
The
defendant was arrested by Boston police officer Robert E. Hughes on January 12,
1970. There was evidence of the
following events and occurrences leading up to and immediately following the
arrest.
On
November 24, 1969, the apartment of Miss Mona Lacy at 1152 Commonwealth Avenue
in Boston had been broken into and ransacked.
Articles stolen from the apartment included the following: a check
cashing courtesy card issued to Miss Lacy by the Star Market Co., some checks
with her name and address printed on them issued by the Barclay Bank and Trust
Company of Boston, her driving license issued by the State of Delaware, and six
or seven credit cards or identification cards issued to her in her name by a
bank, a public library, stores, clubs and other organizations. This break and theft, and numerous thefts
from the United States mail, were under investigation by Officer Hughes.
[361 Mass. 273] Officer Hughes was also investigating a series of offences
involving the passing of worthless checks.
A number of such checks were cashed by a girl using the name of Mona
Lacy at a Star Market Co. store which had a system of photographing persons
cashing checks there. Officer Hughes saw
this same girl in about twenty different photographs, and he circulated the
photographs, or reproductions of them, to certain business people in the
general vicinity where the worthless checks had been cashed.
Officer
Hughes knew the defendant from some prior experiences. He had information that the defendant was involved in the passing of worthless
checks. He received information from
many informants, including one or more of the victims of the worthless check
passing, that the girl shown in the photographs mentioned above was accompanied
by a male. The girl and the male were
seen leaving various Star Market Co. stores, banks and other stores in Boston
and vicinity. The informants gave
Officer Hughes a description of the male which fitted the defendant's general
description, including his haircut and mustache, which presented definitely
identifiable features.
Officer
Hughes had also received information about the registration number of an
automobile in the course of his investigation of the check passing operations
of the girl and male in question. He
learned that this number had been issued to a man named Kaler,
and that the automobile had not been reported stolen.
One of the
places where Officer Hughes either left or showed a photograph of the girl who
passed the worthless checks was a real estate office on Commonwealth Avenue, in
Boston. On January 12, 1970, the person
in charge of that office called Officer Hughes and told him that a girl
resembling the one in the photograph had been in the office and intended to
return. Officer Hughes went to the
office and 'staked out' the area. About
5:45 P.M. he saw an automobile bearing the registration mentioned above park on
Commonwealth Avenue about fifty feet [361
Mass. 274] from the office. The driver of the automobile was a male
fitting the description previously given to Officer Hughes, and the officer
recognized him as the defendant Haefeli. He also recognized a girl passenger in the
automobile as the girl shown in the photographs mentioned above. Both occupants of the automobile went into
the real estate office.
Officer
Hughes followed the two persons into the office and questioned them. He asked the girl whether her name was Mona
Lacy, which is the name she had used in passing worthless checks. She 'looked awfully startled' and answered
that it was not. She was in fact Janice Kaler but the officer did not know that. He asked her what her name was and she gave a
name other than Janice Kaler. She also said that the automobile in which
they had arrived was hers. He then asked
the defendant his name and he answered that it was 'David Becker.' At that time Officer Hughes placed both the
girl and the defendant under arrest. He
knew then that the defendant was in fact David Haefeli,
but he did not know that the girl was Janice Kaler,
the daughter of the person to whom the registration plates on the automobile
had been issued, and that she had her father's permission to use the
automobile.
A couple
of minutes after making the arrests, Officer Hughes borrowed a flashlight, left
the office and went to the automobile to try to find out who its true owner
was. He shone his flashlight through the
closed window of the automobile. On the
front floor, on the passenger side of the automobile, he saw a manila envelope
containing a quantity of bank checks, about one or two inches of which were
exposed. He could not see anyone's name
on the checks. He opened the door and
took the checks out. The checks were for
use on the Capital Bank & Trust Company in Boston, and had the name 'Joseph
Shain' imprinted on them. They were the subject of indictment No.
48,369 on which the defendant was convicted.
After
seizing the Shain checks, Officer Hughes pursued his
search of the automobile in an effort to determine [361 Mass. 275] its
true owner, and in so doing he looked in the glove compartment for the
registration. There he found and seized
an identification card issued to Mona Lacy by the Star Market Co. for the
purpose of cashing checks at one of its stores.
THE VALIDITY OF THE AUTOMOBILE SEARCH.
We first
consider the validity of the police search of the automobile and the resulting seizure of the blank checks belonging
to Joseph Shain and the identification card belonging
to Mona Lacy. Admittedly Officer Hughes
had no search warrant to search the automobile, and the Commonwealth conceded
in argument before this court that the search was not incident to the arrest of
the defendant and Janice Kaler. Thus narrowed, our consideration must focus
on whether there were exigent circumstances which permitted Officer Hughes to
search the automobile without a warrant.
Basically, the question reduces itself to whether his action constituted
an 'unreasonable' search and seizure of the kind prohibited by the Fourth
Amendment to the United States Constitution.
United States v. Roberts, 434 F.2d 1016, 1017 (5th Cir.).
'(T)he
reasonableness of a search is in the first instance a substantive determination
to be made by the trial court from the facts and circumstances of the case and
in the light of the 'fundamental criteria' laid down by the Fourth Amendment
and in opinions of . . . (the United States Supreme) Court applying that
Amendment. Findings of reasonableness,
of course, are respected only insofar as consistent with federal constitutional
guarantees.' Ker
v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 1630,
10 L.Ed.2d 726. We must therefore
examine the Federal judicial precedents on this subject.
One of the
earliest cases decided by the United States Supreme Court on the validity of a warrantless search of an automobile was Carroll v. United
States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. There the
court said, at 153, 45 S.Ct. at 285, that 'the
guaranty of freedom from unreasonable searches and seizures by the [361 Mass. 276] Fourth Amendment has been construed, practically since the
beginning of the Government, as recognizing a necessary difference between a
search of a store, dwelling house, or other structure in respect of which a
proper official warrant readily may be obtained and a search of a ship, motor
boat, wagon, or automobile for contraband goods, where it is not practicable to
secure a warrant because the vehicle can be quickly moved out of the locality
or jurisdiction in which the warrant must be sought.' The court upheld the search after declaring,
at 155‑‑156, 45 S.Ct. at 286, that '(t)he
measure of legality of such a seizure is, therefore, that the seizing officer
shall have reasonable or probable cause for believing that the automobile which
he stops and seizes has contraband liquor therein which is being illegally
transported.' To emphasize that it was
not basing its decision on the existence of probable cause to arrest the driver
or occupants of the automobile, the court said, at 158‑‑159, 45 S.Ct. at 287: 'The right to search and the validity of the
seizure are not dependent on the right to arrest. They are dependent on the reasonable cause
the seizing officer has for belief that the contents of the automobile offend
against the law. . . . The character of the offense for which, after
the contraband liquor is found and seized, the driver can be prosecuted does
not affect the validity of the seizure.'
The rule of the Carroll decision was followed in upholding warrantless searches of automobiles in Husty
v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629; Scher v. United
States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 and Brinegar v. United
States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879.
In
Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, two men carrying guns robbed a
gasoline service station attendant and then fled in a blue compact station
wagon in which there were two other men.
This information and a description of a sweater and a trench coat worn
by the two robbers were broadcast over the police radio. Within an hour a light blue compact station
wagon answering the description and carrying four men was stopped by the police
about two miles from the service station.
One of the men was wearing a sweater fitting the description of [361 Mass. 277] that worn by one of the robbers, and a trench coat was found in
the car. The four occupants were
arrested. The station wagon was not
searched at the place of arrest, but was driven to the police station where it
was searched. The search resulted in the discovery
and seizure of two guns and ammunition, and some money and articles taken in
the robbery. As a preliminary matter,
the court held that the search at the police station was not 'incident to' the
arrests. The court nevertheless upheld
the search and seizure on another ground thus stated in the court's own
language, at 47‑‑52, 90 S.Ct. at 1979:
'(T)here was probable cause to arrest the occupants of the station wagon that
the officers stopped; just as obviously was there probable cause to search the
car for guns and stolen money. . .
. The Court (in the Carroll case) also
noted that the search of an auto on probable cause proceeds on a theory wholly
different from that justifying the search incident to an arrest. . . .
Neither Carroll, supra, nor other cases in this Court require or suggest
that in every conceivable circumstance the search of an auto even with probable
cause may be made without the extra protection for privacy that a warrant
affords. . . . In enforcing the Fourth Amendment's
prohibition against unreasonable searches and seizures, the Court has insisted
upon probable cause as a minimum requirement for a reasonable search permitted
by the Constitution. As a general rule,
it has also required the judgment of a magistrate on the probable‑cause
issue and the issuance of a warrant before a search is made. Only in exigent circumstances will the
judgment of the police as to probable cause serve as a sufficient authorization
for a search. Carroll, supra, holds a
search warrant unnecessary where there is probable cause to search an
automobile stopped on the highway; the car is movable, the occupants are
alerted and the car's contents may never be found again if a warrant must be
obtained. Hence an immediate search is
constitutionally permissible. . . . For constitutional purposes, we see no
difference between on the one hand seizing and holding a car before presenting
the probable cause issue [361 Mass.
278] to a magistrate and on the
other hand carrying out an immediate search without a warrant. Given probable cause to search, either course
is reasonable under the Fourth Amendment.'
The next
and most recent occasion on which the United States Supreme Court discussed in
depth the subject of warrantless searches of
automobiles was the decision of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, decided June 21, 1971, and
extending over eighty‑five printed pages.
While this discussion may not have been necessary to the decision of
that case, five of the Justices concluded that the seizure of an automobile
allegedly used in the commission of a homicide was illegal, a warrant for its
seizure having been held invalid and the case not coming within any of the
exceptions to the warrant requirement.
This result was reached in a lengthy opinion in which four Justices
joined, and in a short concurring opinion by another Justice. Three of the other four Justices wrote
opinions in part concurring and in part dissenting, and the fourth joined in
one of those opinions. A large part of
the principal opinion and of the dissenting opinions is devoted to a review of
the earlier cases, especially the Carroll and Chambers cases, and in expressing
divergent views on what those cases decided.
A reading
of all of the opinions written in the Coolidge case indicates that the Justices
of the United States Supreme Court were in seemingly irreconcilable disarray as
to what the law was or ought to be with reference to the warrantless
search of an automobile. (FN1)
[361 Mass. 279] The numerous decisions in
which the United States Courts of Appeal of the various circuits have cited and
attempted to interpret and apply the Carroll and Chambers decisions are in
similar disarray. They contain such
divergent interpretations and applications that no useful purpose would be
served by considering any of them in detail.
The decisions cited in the margin (FN2) will suffice to illustrate the
extent of the judicial attention devoted to this question and the disparate
views which have emerged.
[1] Having
traveled the length of the high road of the leading Federal judicial precedents
without finding any very helpful signs pointing out the present state of the
law on the subject of warrantless searches of
automobiles, we return to our starting point and make a new start seeking only
to determine whether Officer Hughes's search of and siezure
from the automobile in this case [361
Mass. 280] were 'unreasonable'
within the meaning of the Fourth Amendment.
We hold that they were not.
When
Officer Hughes effected the arrest of the defendant and Janice Kaler, both gave him false names which did not match the
name of the person he knew to be the registered owner of the automobile. Yet Janice Kaler,
with her true identity thus concealed, asserted that she was the owner of the
automobile. Moreover, Officer Hughes
recognized Haefeli, and therefore knew that he had
given a false name. Faced with this
unexplained false name and the discrepancy regarding the ownership of the
automobile, Officer Hughes had reasonable grounds to suspect that the
automobile was stolen or that it was being used without authority. (FN3) See Commonwealth v. Chaisson,
Mass., 266 N.E.2d 311. (FNa)
[2] [3]
Within two minutes after making the arrests, Officer Hughes went outside to the
automobile and with the aid of a flashlight he looked inside. In so doing, he saw the manila envelope with
checks protruding on the floor of the front passenger's seat. That did not constitute a search of the
automobile. Commonwealth v. LaBossiere, 347 Mass. 384, 198 N.E.2d 405. See Commonwealth v. Wilson, Mass., 276 N.E.2d
283. (FNb)
Seeing the checks, when combined with all of the information which
Officer Hughes already possessed, was sufficient to constitute probable cause
to search the automobile. See
Commonwealth v. Gizicki, Mass., 264 N.E.2d 672. (FNc) The defendant
appears to concede this when he states in his brief that 'it appears evident
that the facts known to Officer Hughes would have provided a sufficient showing
of probable cause for a search‑‑at no time during the hearing on
the motion to suppress was it suggested that Officer Hughes lacked sufficient
information to establish probable cause.'
While making that concession, the defendant argues that the existence of
probable cause is not enough to justify a warrantless
search, and that there must also be some exigency which [361 Mass. 281] makes
it unnecessary to obtain a warrant. We
need not decide whether there must be a concurrence of both probable cause and
such an exigency because we have already concluded that there was probable
cause, and we conclude further that there was such an exigency.
We hold
that the situation which existed before Officer Hughes saw the checks on the
floor of the automobile constituted an exigency which justified his warrantless search for anything bearing on the ownership or
right to use the automobile. Thus the
justification for his search without a warrant did not derive from the fact
that he observed the checks. His
intrusion into the unlocked automobile and glove compartment for the limited
purpose of investigating ownership was not unreasonable in the
circumstances. As a law enforcement
officer he had a duty to pursue his investigation of highly suspicious
circumstances which strongly indicated either a theft or unauthorized use of
the automobile by the persons he had arrested.
If he left the automobile while he tried to obtain a search warrant, he
could not be sure that it would be there when he returned. On all of the facts, reasonableness dictated
that he do just what he did. His search
of the automobile was therefore lawful.
[4] [5]
While Officer Hughes was lawfully searching the automobile for anything bearing
on its ownership or the right to use it, he came upon Mona Lacy's
check cashing courtesy card and Joseph Shain's
checks, all of which he had reasonable cause to believe had been stolen. He thus had the right to seize the card and
checks even though they were not the original object of his search. Where, as here, the intrusion which brings
the police within plain view of an object they have reasonable cause to believe
was stolen is lawful, their seizure of such object is also lawful, and it is
immaterial whether the lawful intrusion is supported by a warrant or is under a
recognized exception to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 465,
91 S.Ct. 2022, 29 L.Ed.2d 564. See Harris v. United States, 390 U.S. 234,
236, 88 S.Ct. 992, 19 L.Ed.2d 1067. 'What the 'plain view' cases have in common
is that the police officer in each of them had a [361 Mass. 282] prior
justification for an intrusion in the course of which he came inadvertently
across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior
justification‑‑whether it be a warrant for another object, hot
pursuit, search incident to lawful arrest, or some other legitimate reason for
being present unconnected with a search directed against the accused‑‑and
permits the warrantless seizure. Of course, the extension of the original
justification is legitimate only where it is immediately apparent to the police
that they have evidence before them; the 'plain view' doctrine may not be used
to extend a general exploratory search from one object to another until something
incriminating at last emerges.' Coolidge
v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022,
2038, 29 L.Ed.2d 564. See Commonwealth
v. Wojcik, Mass.,
266 N.E.2d 645. (FNd)
If the
decision in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, can be considered a reliable
precedent, despite the criticism and questions about it in Coolidge v. New
Hampshire, supra, it probably furnishes an additional or alternative ground for
upholding the warrantless search of the automobile in
this case. Because in both the Chambers
case and the present case the automobiles were searched in circumstances which
were not incident to an arrest, the searches were not justified by that
exception to the general requirement of a warrant. In the Chambers case the police had probable
cause to believe that the automobile contained weapons used in the commission
of a robbery and some of the proceeds of the crime. In the present case, at least after seeing
the checks protruding from an envelope on the floor of the automobile, Officer
Hughes had probable cause to believe that the checks were the fruits of prior
thefts which the police were investigating and that they were instruments of
the type used in the commission of the crimes of forging, uttering and passing
worthless checks which they were also investigating. In both cases, therefore, the police had
reasonable cause to believe that the automobiles contained stolen goods and
instruments used or to be used in the [361
Mass. 283] commission of a
crime. Also, both automobiles were on
public highways, and the drivers and all other occupants had been placed under
arrest before the searches were made.
Additionally, in the present case there were the questions of the
ownership of the automobile, of its possible theft by the persons arrested or
of their use of it without authority of the owner.
For all of
the reasons discussed above, we hold that there was no error in the denial of
the defendant's motion to suppress the articles seized by Officer Hughes during
the search of the automobile.
THE SEARCH OF THE DEFENDANT'S
APARTMENT.
After
arresting the defendant and Janice Kaler, Officer
Hughes, either by reason of what he knew previously or what was said to him by
the defendant, went to a rooming house at 901 Beacon Street, Boston, for the
purpose of ascertaining the defendant's exact place of residence. He talked with the rooming house proprietor
and learned that the defendant occupied room number 3 on the first floor at
that address. He gave the proprietor a
description of Janice Kaler and was told that she
occupied room number 3 jointly with the defendant. Thereupon a Boston police detective working
on the case went to the Municipal Court of the Roxbury District and applied for
a warrant to search the defendant's room.
The search
warrant was issued and it was executed at 8:30 P.M. on the same day the
defendant was arrested. In the execution
of the warrant the police found and seized all of the articles which supported
the defendant's convictions for receiving stolen goods under indictments Nos.
47,997, 48,359, 48,362, 48,366, 48,367, and 48,368. The checks involved in the seventh
indictment, No. 48,369, were those which had been found in the automobile. All of the articles seized under the search
warrant were admitted in evidence against the defendant over his objection and
exception, after denial of his motion that they be suppressed.
[361
Mass. 284] THE VALIDITY OF THE
SEARCH OF THE
DEFENDANT'S APARTMENT.
The
defendant argues that his motion to suppress the articles seized in his
apartment pursuant to the search warrant should have been allowed on the sole
ground that '(t)he affidavit in support of Detective Sullivan's application for
a search warrant was insufficient to establish probable cause for the
belief that stolen mail, checks and identification would be found in room
number three at 901 Beacon Street.' A
copy of the application including the challenged affidavit is set forth in the
margin. (FN4)
[6] In
applying for a search warrant in this case, it was not necessary for the
Commonwealth to provide an affidavit which convinced the issuing magistrate
beyond a reasonable doubt that there were stolen articles in the [361 Mass. 285] defendant's apartment.
Commonwealth v. Stewart, Mass., 267 N.E.2d 213. (FNe) '(T)he issue in warrant proceedings is not
guilt beyond reasonable doubt but probable cause for believing the occurrence
of a crime and the secreting of evidence in specific premises.' United States v. Harris, 403 U.S. 573, 584,
91 S.Ct. 2075, 2082, 29 L.Ed.2d 723; Commonwealth v.
Lillis, 349 Mass. 422, 424, 209 N.E.2d 186; Brinegar
v. United States, 338 U.S. 160, 175‑‑176, 69 S.Ct.
1302, 93 L.Ed. 1879; Jones v. United States, 362 U.S.
257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697; Rugendorf v. United States, 376 U.S. 528, 533, 84 S.Ct. 825, 11 L.Ed.2d 887.
Thus the question presented for our decision is whether the application
and affidavit for the search warrant were legally sufficient to establish
probable cause to believe that stolen mail, checks and identification material,
including such items stolen from the apartment of Mona Lacy at 1152
Commonwealth Avenue on November 24, 1969, would be found in room number 3 at
901 Beacon Street in Boston. In
answering this question, we must interpret the affidavit 'in a commonsense and
realistic fashion,' United States v. Ventresca, 380
U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d
684. 'on the basis of a consideration of
all of its allegations as a whole, and not by first dissecting it and then
subjecting each resulting fragment to a hypertechnical
test of its sufficiency standing alone.'
Commonwealth v. Stewart, Mass., 267 N.E.2d 213, 216. (FNf) Commonwealth v.
Brown, 354 Mass. 337, 345, 237 N.E.2d 53.
In short, '(a) policeman's affidavit should not be judged as an entry in
an essay contest. It is . . . entitled
to commonsense evaluation.' Spinelli v. United States, 393 U.S. 410, 438‑‑439,
89 S.Ct. 584, 600, 21 L.Ed.2d 637 (dissenting
opinion).
[7] Judged
by the standards stated above, we hold that '(t)he information in the affidavit
taken as a whole together with inferences which reasonably could be drawn from
the information by a judicial mind may justify the conclusion that probable
cause exists' to believe that checks and identification material stolen from
the apartment of Mona Lacy at 1152 Commonwealth Avenue, on November 24, 1969,
could be found in room number 3 at 901 Beacon Street. Commonwealth v. Brown, 354 Mass. 337, 345,
237 N.E.2d 53. The affidavit in this
case states that the affiant is a detective with the Boston police department,
that [361 Mass. 286] earlier on that day he arrested a
female subject for receiving stolen property and for forging and uttering
stolen checks; that he also arrested a male in her company for receiving stolen
property; that at the time of their arrest they had in their possession
identification material in the name of Mona Lacy which, with checks, had been
stolen from the latter's apartment on November 24, 1969; and that the subjects
he arrested were 'David Haefeli, 21 years, 901 Beacon
Street, Boston and Janice Kaler, 19 years of 901
Beacon St., Boston.' All of this
information was based on his personal knowledge. It is reasonable to infer that as a result of
placing them under arrest he learned the address at which they lived, if he did
not know it previously. It is also
reasonable to infer, from their possession of Mona Lacy's
identification material, that they had either stolen it themselves from the
Lacy apartment or had received it from the thief knowing it to have been
stolen, and that in either event the other articles stolen from the apartment
might be found where they lived. This
much the officer believed and recited in his affidavit.
The
defendant argues in his brief that '(a)s the affiant has not revealed the basis
of his belief (that the defendant and Janice Kaler
were involved in larcenies), his conclusion cannot be credited.' In support of this argument the defendant
cites Spinelli v. United States, 393 U.S. 410, 416,
89 S.Ct. 584, 21 L.Ed.2d 637. The affidavit before us makes clear that the
basis of the affiant's belief was in large part his experience earlier in the
day in arresting the two persons and finding in their possession something he
knew had been stolen from the Lacy apartment.
That is sufficient to support the issuance of the search warrant. We note that in any event the Spinelli decision is of questionable validity on this point
in view of the United States Supreme Court's later comments about that decision
in United States v. Harris, 403 U.S. 573, 581‑‑583, 91 S.Ct. 2075, 29 L.Ed.2d 723, and concurring opinions, 409
U.S. 585‑‑586, 91 S.Ct. 2075, 29 L.Ed.2d
723.
There was
no error in the denial of the defendant's
[361 Mass. 287] motion to
suppress the articles obtained in the execution of the warrant.
Exceptions
overruled.
FN1. The divergent views of some of the Justices
seemed to result from their opposition to the 'Exclusionary Rule,' so called,
as applied to the States. In this
concurring opinion, Mr. Justice Harlan said, at 490‑‑492, 91 S.Ct. at 2050: 'From the several opinions that have been
filed in this case it is apparent that the law of search and seizure is due for
an overhauling. State and federal law
enforcement officers and prosecutorial authorities must find quite intolerable
the present state of uncertainty, which extends even to such an everyday
question as the circumstances under which police may enter a man's property to
arrest him and seize a vehicle believed to have been used during the commission
of a crime. I would begin this process
of re‑evaluation by overruling Mapp v. Ohio,
367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961),
and Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). The former of these cases made the federal
'exclusionary rule' applicable to the States.
The latter forced the States to follow all the ins and outs of this
Court's Fourth Amendment decisions, handed down in federal cases. . . .
Until we face up to the basic constitutional mistakes of Mapp and Ker, no solid progress
in setting things straight in search and seizure law will, in my opinion,
occur. . . . Recent scholarship has suggested that in
emphasizing the warrant requirement over the reasonableness of the search the
Court has 'stood the fourth amendment on its head' from a historical
standpoint.' In his dissenting opinion
Mr. Chief Justice Burger said in part, at 492‑‑493, 91 S.Ct. at 2051: 'I am not prepared to accept the proposition
that the Fifth Amendment requires the exclusion of evidence seized in violation
of the Fourth Amendment. . . . This case illustrates graphically the
monstrous price we pay for the Exclusionary Rule in which we seem to have
imprisoned ourselves.' The Chief Justice
then cited his dissent in Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403
U.S. 388, 411, 91 S.Ct. 1999, 29 L.Ed.2d 619, another
case decided the same day. The Bivens case involved the application of the Exclusionary
Rule in the Federal courts, and at 418‑‑419, 91 S.Ct.
1999, 29 L.Ed.2d 619 of his dissent the Chief Justice referred to and amplified
his dissent in the Coolidge case.
FN2.
Simpson v. United States, 346 F.2d 291 (10th Cir.); United States v. Nikrasch,
367 F.2d 740 (7th Cir.); Cotton v.
United States, 371 F.2d 385 (9th Cir.);
United States v. Graham, 391 F.2d 439 (6th Cir.), cert. den. sub nom. Graham v. United States, 393 U.S. 941. 89 S.Ct. 307, 21
L.Ed.2d 278; Pennington v. United States, 392 F.2d 421 (5th Cir.), S.C. reh. sub nom. United
States v. Pennington, 441 F.2d 249 (5th Cir.), cert. den. 404 U.S. 854, 92 S.Ct. 97, 30 L.Ed.2d 94; Leffler
v. United States. 409 F.2d 44 (8th Cir.);
United States v. Johnson, 413 F.2d 1396 (5th Cir.), S.C. reh. en banc, 431 F.2d 441 (5th Cir.); United States v. Roberts, 434 F.2d 1016 (5th
Cir.); United States v. Lowery, 436 F.2d
1171 (5th Cir.), cert. den. sub nom.
Lowery v. United States, 401 U.S. 978, 91 S.Ct.
1208, 28 L.Ed.2d 329; United States v. Powers, 439 F.2d 373 (4th Cir.), cert.
den. sub nom. Powers v. United States,
402 U.S. 1011, 91 S.Ct. 2198, 29 L.Ed.2d 434.
FN3. It does not appear from the record whether
either Haefeli or Janice Kaler
produced a driving license or registration certificate at the time of their
arrest. See G.L.
c. 90, s 11, as amended.
FNa. Mass.Adv.Sh. (1971) 49, 52.
FNb. Mass.Adv.Sh. (1971) 1731, 1733.
FNc. Mass.Adv.Sh. (1970) 1431, 1433‑‑1434.
FNd. Mass.Adv.Sh. (1971) 91, 94‑‑97.
FN4. 'January 12, 1970
I,
William H. Sullivan, being duly sworn, depose and say:
1. I am a detective, Boston Police Department,
District 14
2. I have information based upon photographs of
a female subject whom I arrested this date for Receiving Stolen Property and
also for Forging & Uttering stolen checks and also of a male subject whom I
arrested in her company for Receiving Stolen Property. I have probable cause to believe, as a result
of evidence found on these subjects (in their possession) at the time of their
arrest, that these two subjects have been involved in the larcenies of mail
(U.S.) on this District. These subjects
(David Haefeli, 21 years, 901 Beacon Street, Boston
and Janice Kaler, 19 years of 901 Beacon St., Boston)
had identification in the name of one Mona Lacey, 1152 Commonwealth Ave.,
Allston‑‑whose apartment had been burglarized on Nov. 24, 1969;
checks and identification were reportedly stolen in this break.
3. Based upon the foregoing reliable information‑‑and
upon my personal knowledge and belief‑‑and attached affidavits‑‑there
is probable cause to believe that the property hereinafter described‑‑has
been stolen‑‑or is being concealed, etc. and may be found in the
possession of David A. Haefeli and Janice Kaler at premises 901 Beacon St., Boston.
4. The property for which I seek the issuance of
a search warrant is the following: Stolen mail, checks and identification, such
as driver's licenses, credit cards, charge plates.
WHEREFORE,
I respectfully request that the court issue a warrant and order of seizure,
authorizing the search of Room #3, on the first floor of a 3 story brick
rooming house numbered 901 Beacon St., Boston and directing that if such
property or evidence or any part thereof be found that it be seized and brought
before the court; together with such other and further relief that the court
may deem proper.
William
H. Sullivan
Signature
of Applicant'
FNe. Mass.Adv.Sh. (1971)
231, 232.
FNf. Mass.Adv.Sh. (1971)
231, 234.