|
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. Hall, 366
Supreme Judicial Court of Massachusetts,
Argued
Decided
Michael D. Cutler,
[366
Before [366
[366
The
defendant was convicted after a jury waived trial in the Superior Court on indictments
for possession of cocaine with intent to distribute (G.L.
c. 94C, ss 31, 32), possession of marihuana with
intent to distribute (id.), and possession of a firearm without an
identification card (G.L. c. 140, s 129C). He was sentenced to one year's imprisonment
for each offense, the terms to run concurrently.
On this
appeal subject to G.L. c. 278, ss
33A‑‑33G, the assignments of error attack the judge's failure upon voir dire to suppress the cocaine, marihuana, and firearm
in question as having been seized illegally by the police. The facts brought out at voir
dire were in outline these. Upon an
affidavit referring to a tip, surveillance of premises, and overheard
conversations, a search warrant issued on October 2, 1972, for 'certain rooms
in the 2nd fl apt 2nd fl of 2 1/2 wooden dwelling house' at 22 Rosedale Street,
Dorchester, a three‑story building with one apartment on each floor. Under the warrant Boston police at about
10:15 P.M. that evening entered and searched the second‑floor apartment,
in which the defendant Hall and his wife resided, found there a small quantity
of marihuana and a handgun, and thereupon arrested the defendant's wife (FN1)
and two other persons present. They
found papers indicating that the Halls owned the building (which was the fact);
also keys to the front door of the building and to the unoccupied apartment on
the third‑floor which was in the course of being renovated. One of the officers was called to the street
and received information that there was a larger quantity of drugs in the third‑floor
apartment. Having tried but failed
because of the late hour to make arrangements to obtain a fresh search warrant
for that apartment, the police after consulting a legal advisor of the Boston
police department [366 Mass. 792] proceeded to search it
nevertheless. Large quantities of
cocaine and marihuana were found there sufficient if admissible to support the
charges of 'intent to distribute.' The defendant
appeared at the apartment with another in the early morning and was also
arrested.
The judge
at voir dire made findings and rulings holding that
the warrant for search of the second‑floor apartment was adequately
supported and validating also the search of the third‑floor apartment by reading
the warrant to cover that apartment as an 'extension' of the second‑floor
apartment. He also found the search,
'under all the circumstances,' reasonable.
The
defendant argues on this appeal, first, that all the evidence seized should
have been suppressed because the affidavit on which the warrant issued was
entirely invalidated by the inclusion in it of information secured through
illegal eavesdropping in the hallway outside the second‑floor apartment;
if this illegality did not taint the entire document, then the rest was anyway
insufficient to support the issuance of the warrant. Second, assuming that the warrant legalized
search of the second‑floor apartment and thus justified seizure of the
handgun and its reception in evidence, it could not be read to cover the third‑floor
apartment, and exigent circumstances did not exist that could legalize a warrantless search of that apartment; so the evidence
consisting of the drugs found there should have been suppressed.
Our
analysis leads us to the conclusion that the firearm was properly seized in the
second‑floor apartment and the conviction based thereon should be
affirmed; but the seizure of the drugs in the third‑floor apartment was
illegal and the relevant convictions should be reversed.
1. The valid search of the second‑floor
apartment. We reproduce in the margin
the text of the affidavit presented to the assistant clerk of the Municipal
Court of the Dorchester District who issued the warrant. (FN2)
It sets out [366 Mass. 793] three pieces of information: an
informant's tip, observartions by police officers of
'suspected users and dealers of Narcotics' entering and leaving the premises,
and a report of conversations in the second‑floor apartment about sale
and use of drugs overheard by police officers.
As to the overheard conversations, it appeared at voir
dire that after receiving the tip (to be described below), the police on two
evenings, September 30 and October 1, maintained a surveillance of the building
and also eavesdropped on the landing and stairway outside the second‑floor
apartment.
A word is
needed here about the layout of the building.
Entrance to 22 Rosedale Street is through an unlocked door into a
vestibule with two doors, and three doorbells to ring the three apartments. One of the doors opens into the first‑floor
apartment which is not a factor in this case. The second opens on an
interior staircase leading to the defendant's second‑floor apartment and
thence to the vacant third‑floor apartment. The two doors off the downstairs vestibule
are equipped with locks; the second door can be opened either with a key or by
a buzzer mechanism from the upstairs apartments. That door was locked on October 2 when the
police entered to execute their search under the warrant. However, on the two previous nights the
police [366 Mass. 794] managed to pass the doorway without
themselves using a key or ringing a doorbell as they proceeded to the second
floor to listen to the sounds coming from the apartment. (FN3)
[1] [2]
The judge concluded that this police eavesdropping did not infringe upon the
defendant's right of privacy, but we incline to disagree. The question cannot be answered by
classifying 'apartment hallway' as either a 'protected' or 'unprotected' area. Because 'the Fourth Amendment protects people,
not places,' Katz v. United States, 389 U.S. 347, 351, 88 S.Ct.
507, 511, 19 L.Ed.2d 576 (1967), we must rather ask what expectation of privacy
could be justifiably held by one engaging in conversation inside the particular
second‑floor apartment. See Warden
v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d
782 (1967); Texas v. Gonzales, 388 F.2d 145 (5th Cir. 1968); Lorenzana v. Superior Court of Los Angeles, 9 Cal.3d 626,
108 Cal.Rptr. 585, 511 P.2d 33 (1973). In a typical apartment building the need of
each tenant for privacy competes with the fact that other tenants and their
guests and business invitees, the landlord's caretaking employees, and still
others, must also use such areas as hallways, stairs, lobbies, and cellars. This necessarily limits the individual
tenant's ability to control access to those places, and correspondingly his
expectation of privacy. Our court has
held, in line with other jurisdictions, that where a common area in an
apartment building is not locked off, so that anyone can enter it, a tenant
cannot complain if a policeman stationing himself there overhears a
conversation in the apartment.
COMMONWEALTH V. DINNALL, ‑‑‑
MASS. ‑‑‑ , 314 N.E.2D 903, (1974)(FNA). Cf. Commonwealth v. Thomas, 358 Mass. 771,
267 N.E.2d 489 (1971). For other
examples, see United States v. Llanes, 398 F.2d 880
(2d Cir. 1968), cert. den. 393 U.S. 1032, 89 S.Ct.
647, 21 L.Ed.2d 576 (1969); United States v. Freeman, 426 F.2d 1351 (9th Cir.
1970); United States v. Lewis, 227 F.Supp. 433
(S.D.N.Y.1964); People v. Berutko, 71 Cal.2d 84, 77 Cal.Rptr. 217, 453 P.2d 141 (1969). But the present case is quite different from
the Dinnall or Thomas case or the like. Here only the defendant lived behind the
downstairs[366 Mass. 795]
vestibule door and off the stairway to the second and third floors. Further, he was the owner of the building,
not merely a tenant. The hallway was
thus in his exclusive control; he did not share its use with other tenants or
with an absentee landlord; and the arrangement made‑‑the lock on
the downstairs door and the buzzer system‑‑was designed to exclude
members of the public and to admit none but the defendant's own guests and
invitees. (FN4) See Commonwealth v. Dinnall,
supra, ‑‑‑ Mass. at ‑‑‑ ‑ ‑‑‑,
(FNb), 314 N.E.2d 903; Commonwealth v. Thomas, supra,
358 Mass. at 773‑‑775, 267 N.E.2d 489. A justified expectation of privacy therefore
arose. (FN5) That the lock on the vestibule door could be
and was bypassed on the two occasions when the eavesdropping took place cannot
alter the picture, for police do not have carte blanche to pass through doors
that are unlocked or even ajar if the area beyond has a private character. See Commonwealth v. Spofford,
343 Mass. 703, 705, 180 N.E.2d 673 (1962); Sabbath v. United States, 391 U.S.
585, 589‑‑591, 88 S.Ct. 1755, 20 L.Ed.2d
828 (1968); People v. Haven, 59 Cal.2d 713, 715‑‑717, 31 Cal.Rptr. 47, 381 P.2d 927 (1963); People v. Williams, 24
A.D.2d 274, 276, 265 N.Y.S.2d 416 (1965).
It follows
that the overheard conversations may not be considered in deciding whether
there was probable cause to issue the search warrant. COMMONWEALTH V. PENTA,
‑‑‑ MASS. ‑‑‑ , 282 N.E.2D 674 (1972)(FNC); United States v. Hunt, 496 F.2d 888 (5th Cir.
1974). But the further question for
decision is whether reference to those conversations in the affidavit fatally
infected the warrant, supposing that the remaining evidence provided in the
affidavit was legally obtained and would itself be enough to ground a finding
of probable cause. Before the recent
decision in United States v. Giordano, 416 U.S. 505, 94 S.Ct.
1820, 40 L.Ed.2d 341 (1974), the answer would surely have been no. United States v. Sterling, 369 F.2d 799, 802
(3d Cir. 1966); James v. United States, 135 U.S.App.D.C.
314, 418 F.2d 1150, 1151‑‑[366
Mass. 796] 1152 (1969); Howell v. Cupp, 427 F.2d 36, 38 (9th Cir. 1970); United States v.
Tarrant, 460 F.2d 701, 703‑‑704 (5th Cir. 1972); United States v. Koonce, 485 F.2d 374, 379 (8th Cir. 1973). United States v. Epstein, 240 F.Supp. 80, 82 (S.D.N.Y.1965). As the court said in the James case, supra,
it can hardly be thought in such a situation that the warrant is 'fruit of the
poisonous tree,' or that the warrant must be held void in order to effectuate a
sound policy of deterring official lawlessness. 418 F.2d at 1151‑‑1152. But in the majority opinion in the Giordano
case we find a discordant footnote of uncertain meaning. On a motion to suppress evidence secured by
means of a court approved 'pen register,' it appeared that the application for
the pen register had referred to certain logs of conversations illegally
monitored. Speaking of the illicit logs
as 'a critical element' (416 U.S. at 533‑‑534, n. 19, 94 S.Ct. 1820) in the approval of the use of the pen register,
the Supreme Court, without apparently overruling the James line of cases, held
that the evidence obtained by the pen register should be suppressed. But, as the opinion dissenting on that point
noted, 416 U.S. at 548, 94 S.Ct. 1820, (Powell, J.,
concurring in part and dissenting in part), a prior application for pen
register authority, not referring to the logs of the wiretapped conversations,
contained enough to show probable cause on which authority for a pen register
could be granted; and the information from that original, approved, application
was included in the later application which that court invalidated. Perhaps, then, 'critical element' is to be
taken as meaning an impressive or important element in relation to the totality
of material put before the court, even though the rest would independently have
merited that approval. (FN6) This would be a curious rule, for it would
appear to invite speculation about how far the mind of the magistrate was
affected by the several parts of the application. Reserving doubts about the Giordano
proposition, we now try to fit it to our case.
[366 Mass. 797] [3] We need to decide, first, whether the evidence apart from the
overheard conversations provides probable cause. The major part of that material is the
informant's tip, and the defendant argues that it falls short of showing
probable cause. Under Aguilar v. Texas,
378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d
723 (1964), there may be reliance on tips if the affidavit provides 'some of
the underlying circumstances from which the informant concluded that the
narcotics were where he claimed they were, and some of the underlying
circumstances from which the officer concluded that the informant . . . was
'credible' or his information 'reliable" (footnote omitted). See Spinelli v.
United States, 393 U.S. 410, 415‑‑416, 89 S.Ct.
584, 21 L.Ed.2d 637 (1969); Commonwealth v. Stewart, 358 Mass. 747, 750, 267
N.E.2d 213 (1971); Commonwealth v. Stevens, ‑‑‑ Mass. ‑‑‑,
‑‑‑ (FNd), 283 N.E.2d 673 (1972);
Commonwealth v. Kane, ‑‑‑ Mass. ‑‑‑, ‑‑‑
(FNe), 290 N.E.2d 164 (1972); Commonwealth wealth v.
Avery, ‑‑‑ Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑ (FNf), 309 N.E.2d 497
(1974). Here there is a sufficient
recital of prior police use of the informant to indicate that he was
reliable. As to the 'underlying circumstances'
lending credit to his report, the affidavit tells us that the informant had a
conversation about drug sales with a friend and a third person unknown to the
informant; that the third person told the informant and friend to follow him to
a house in Dorchester, which they did, the house being 22 Rosedale Street; that
the friend and third person entered, the informant remaining outside; that when
the two emerged the third person told the informant that 'he (FN7) sells good
Cocaine and clean Grass,' whereupon the friend exhibited the white powder he
had just bought from the third person; and that the third person invited the
informant, if he was interested in buying some, to come to the second‑floor
apartment and use the friend's name. The
informant could thus reasonably infer on the basis of his own observations that
the substance was cocaine and that it had come from the second‑floor
apartment. The Aguilar test is satisfied
here, as our decisions and others expounding[366 Mass. 798] and applying Aguilar amply demonstrate. Commonwealth v. Avery, and Commonwealth v.
Stewart, both supra. Commonwealth v.
Snow, ‑‑‑ Mass. ‑‑‑, ‑‑‑ ‑
‑‑‑ (FNg), 298 N.E.2d 804
(1973). See Spinelli
v. United States, supra, 393 U.S. at 416, 89 S.Ct.
584; United States v. Carter, 337 F.Supp. 604
(D.Minn.1971), affd. sub nom. United States v. Smith, 462 F.2d 456 (8th
Cir. 1972). (FN8) To the tip must be added the observations by
the police of suspected drug users and dealers entering and leaving the
premises. (FN9) These lend further support to the belief that
there were drugs in the second‑floor apartment. See COMMONWEALTH V. ANDERSON, ‑‑‑
MASS. ‑‑‑ , 284 N.E.2D 219 (1972)(FNH);
Commonwealth v. Duran, ‑‑‑ Mass. ‑‑‑ (FNi), 293
N.E.2d 285 (1973); Commonwealth v. Snow, supra, ‑‑‑ Mass. at ‑‑‑
‑ ‑‑‑ (FNj), 298 N.E.2d 804.
[4]
Returning now to the Giordano point, when the foregoing evidence legally
obtained is contrasted with the overheard conversations, the latter appear to
be not a 'critical element.' This is the
case not only substantively but textually, for the overheard conversations are
summarized in one sentence at the end of a rather long recital giving
prominence to the contents of the tip.
In the Giordano case the application for pen register authority set out
verbatim the logs of the wiretapped conversations which, because of their
length and vivid detail, would be likely to impress themselves sharply on the
mind of the magistrate; there is no such long recital in the text of the
illegally overheard conversations here.
We conclude that the warrant authorizing the search of the second floor
was valid, and it follows that the handgun conviction should be upheld.
[5] [6]
2. The invalid search of the third‑floor
apartment. Search of the third floor is
another matter. The [366 Mass. 799]
Commonwealth argues, and the judge agreed, that the third‑floor apartment
was only as 'extension' of the second‑floor apartment, and so was covered
by the warrant. This argument is not
persuasive. The warrant application recites
'certain rooms in the 2nd fl apt 2nd fl of 2 1/2 wooden dwelling house' and the
warrant refers to the same, which seems in terms to limit the scope of search
to the second floor. Evidently the
police on the scene understood the warrant that way, and so, apparently, did
the advisor whose opinion they sought.
No one requires elegant precision of these documents, but particularity
is demanded of warrants by the Fourth Amendment itself, see Berger v. New York,
388 U.S. 41, 58‑‑59, 87 S.Ct. 1873, 18
L.Ed.2d 1040 (1967); United States v. Wroblewski, 105
F.2d 444, 446 (7th Cir. 1939), and they are to be read without poetic
license. A case resembling ours is Keiningham v. United States, 109 U.S.App.D.C.
272, 287 F.2d 126 (1960), where a warrant for '1106 Eighteenth Street N.W.' was
held not to allow search of the adjoining row house at 1108 even though the
police found a door cut into the wall between the two houses and the defendants
were shown to have used both as a single unit.
Rejecting the contention that because of that use the warrant for 1106
should 'somehow be construed' to cover 1108 as well, the court said at 129,
'The authority to search is limited to the place described in the warrant and
does not include additional or different places.' Other cases of similar import are cited in
the margin. (FN10) Although, as we have said, the defendant had [366 Mass. 800] a reasonable expectation of privacy in the hallway because of his
control of the area leading from the vestibule door, it does not follow that a
reference to 'certain rooms in the 2nd fl apt 2nd fl' can be interpreted to
comprise
the third floor as well; rather cases like United States v. Hinton,
219 F.2d 324 (7th Cir. 1955), apply, which hold that different apartments in a
single building are as distinct as separate dwelling houses, so that a separate
warrant on probable cause is ordinarily needed for each. Cases like State v. Brochu,
237 A.2d 418 (Me.1967), in which a warrant for a private house was held to
allow search of the garage also, or Fine v. United States, 207 F.2d 324 (6th
Cir. 1953), allowing such a warrant to embrace a shed in the yard, are not to
the contrary; as such cases make clear, a reference to a detached single house
or dwelling is commonly understood to take in the whole property, including
subsidiary structures. (FN11)
[7] But if
the warrant is not to be read to cover the third floor, we have to turn to the
question whether a warrantless search could be
justified as being based on probable cause and occurring in 'exigent
circumstances.' Probable cause can, we
think, be pieced out. To the data in
hand when the second‑floor search was completed, including the fact that
the defendant owned the building, and that keys to the vacant third‑floor
apartment were in the second‑floor apartment, we are to add the
information received by the officer called to the street. This was the officer who knew the reliable
informant; he was one of five officers in the building carrying out the search. Two colleagues, stationed outside the
building in an unmarked car, with communication[366 Mass. 801] facilities to those inside and to the police
station, summoned the officer downstairs by means of a walkie‑talkie. The informant, waiting around the corner,
told the officer that he had been trying to reach him since 6 P.M. to say that
the 'main stash' was in the unoccupied third‑floor apartment. Someone else, said the informant, had gone
between 5 and 6 P.M. to buy drugs and the defendant had gone upstairs to get
them. That other person was the
informant's girl friend whom the officer had met previously; she had been
present on occasions when the informant had given the officer information, but
she had never before supplied information.
Now the officer telephoned her (the informant dialed her number) and she
confirmed the informant's story. Her own
reliability was unproved. Nevertheless
we believe the sum total of previously available information, when combined
with her story, provided probable cause for a search of the third floor. Cf. Commonwealth v. Stewart, 358 Mass. 747,
267 N.E.2d 213 (1971); COMMONWEALTH V. SNOW, ‑‑‑ MASS. ‑‑‑
, 298 N.E.2D 804, (1973)(FNK).
The police
now sought advice from the assistant to the departmental legal advisor as to
what to do about the third floor. He
advised them to get a fresh warrant, otherwise to call him again. The police telephoned a number of clerks of
the Municipal Court of the Dorchester District but evidently reached but one,
who said he had no key to the court house.
We may accept the judge's finding that the police acted diligently in
seeking a warrant, although they were aware that on other occasions warrants
had been issued by clerks from their homes.
Responding to a further call‑‑it was now near midnight‑‑the
assistant legal advisor told the police they could enter the third‑floor
apartment with the Halls' key. They did
so and found the cocaine and marihuana.
[8] In our
opinion the commendable effort of the police to stay within the law did not
succeed, as the circumstances cannot be held 'exigent.' Supreme Court authority from Johnson v.
United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), to Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970), established strict
standards as to exigency, and the burden of showing it is on the [366 Mass. 802] Commonwealth. Vale v.
Louisiana, supra, at 34, 90 S.Ct. 1929; McDonald v.
United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948).
Cf. COMMONWEALTH V. ANTOBENDETTO, ‑‑‑
MASS. ‑‑‑ , 315 N.E.2D 530 (1974)(FNL). In the Vale case the court refused to
validate a warrantless search of a house following an
arrest in front of the house; the fact that narcotics in the house could be
easily removed, hidden, or destroyed was irrelevant since the police knew there
was no on inside the house. Just so in
the present case it appeared at voir dire that the
police knew there was no one in the third‑floor apartment. In the Vale case, to be sure, the majority of
the court may have been somewhat affected by their belief that the police could
have obtained a search warrant before they went to make the arrest, (FN12) but
in the Johnson case there was no prior opportunity, yet the court reached the
same result: the warrantless search of a hotel room,
based on the detection of the odor of opium from outside, was held illegal
because it was not shown that the evidence was threatened with removal or
destruction. Even if we assume a
requirement of a 'threat' of destruction or removal, as in the Johnson case,
333 U.S. at 15, 68 S.Ct. 367, 92 L.Ed.
436, (FN13) instead of the possibly tighter requirement, suggested by the more
recent Vale case, that the goods be 'in the process of destruction,' or 'about
to be removed from the jurisdiction,' 399 U.S. at 35, 90 S.Ct,.
at 1972, the search here still does not fit the 'exigent' category, for in the
cases held 'exigent' a quite specific threat has been found: 'based on the
surrounding circumstances or the information at hand' it is reasonably
concluded that 'the evidence will be destroyed or removed before . . . (the
police) can secure a search warrant.'
United States v. Rubin, 474 F.2d 262, 268 (3d Cir. 1973). The proposition is exemplified in many
situations. (FN14) In our case [366 Mass. 803] the
evidence could be destroyed or removed only if someone, not on the premises,
returned and managed to get into the third‑floor apartment. That such a possibility by itself is not
enough to establish exigent circumstances is clear from the Vale case and other
decisions. (FN15) A number of police officers were on hand;
they could readily have maintained a presence to prevent
suspicious access to the premises until a warrant could be obtained. (FN16)
United States v. Goldenstein, United States v.
Nelson, United States v. One 1949 Buick Sedanette,
and United States v. Costa, all supra.
See Note, Police Practices and the Threatened Destruction of Tangible
Evidence, 84 Harv.L.Rev. 1465, 1474‑‑1476
(1971). (FN17) To avoid intrusion on any privacy, the [366 Mass. 804] police could have retreated to the vestibule. And since those present in the second‑floor
apartment had already been arrested, and on the basis of evidence found there
the police had grounds and intended to and did in fact arrest the defendant
when he appeared, there was no one with a cognizable right of entry into the
premises who could complain of its curtailment by the police. See Note, supra, at 1471‑‑1481.
The delay
facing the police before they could obtain a warrant was not one or two hours
but perhaps as much as eight hours, but the cases do not suggest that the
result should turn on such measurements of time; rather the question is whether
the longer delay introduces a substantially greater risk of loss or destruction
of evidence or of harm to the police.
(FN18) No such showing of
increased risk was made here. It is
significant that the police did not balk at waiting the length of time needed
to apply for and secure a fresh warrant if a court clerk were available. There was no showing that the police feared
the appearance during the longer period of confederates bent on preventing
seizure of a possible cache in the third‑floor apartment or threatening
or attacking the police; had any associates of the Halls appeared, they could,
as noted, have been denied entrance. The
Commonwealth on all the facts thus failed to meet its burden of showing
exigency, and the third‑floor search must be held illegal.
Judgment
of conviction for possession of firearm affirmed; other judgments reversed and
findings set aside.
FN1. The voir dire was
in respect to the charges brought against Mrs. Hall as well as the defendant,
but the trial proper proceeded against the defendant only, another disposition
having been made of the charges against Mrs. Hall.
FN2.
'On September 30, 1972 Det. Linsky, Currier and
Simmons received information from a reliable informant who has proved reliable
in the past and has given the above officers information that has led to the
arrest of (1) Little Cannabis, (2) Douglas & Tate, Cocaine both arrests led
to the convictions, said informant told the above officers that on Sept. 30,
1972 he was with another male who was having conversation with another male at
the corner of Woodrow Avenue and Blue Hill Ave. in the Dorchester area of the
city. The conversation between the males
(all three of them) was relative to the sale and use of Cocaine and
Cannabis. The unknown male told the
informant and his friend to follow him to a house in Dorchester, the informant
and his friend followed the other male who was in a cab, to 22 Rosedale St.,
Dorchester upon reaching this house the man in the cab got out came back to the
informant's car told the informant's friend to come with him, which he
did. Both males then left the informant
and went into 22 Rosedale Street, Dorchester, after a period of time the
informant's friend and the unknown male returned (coming from 22 Rosedale St.)
to the car upon arriving at the car the unknown male told the informants that
he sells good Cocaine and clean Grass and with that the informant's friend
showed the informant the white powder he just bought from the unknown male, the
unknown male then told the informant that if he was interested in buying some
at any time to come to the second floor apartment at 22 Rosedale St., Dor. and use his friend's name. With this the informant's friend and the
unknown male got in the car and drove back to Woodrow Avenue and Blue Hill
Avenue. On September 30 and October 1,
1972 the above officers and other officers of the DUC
did observe a number of suspected users and dealers of Narcotics enter and
leave the second floor apartment at 22 Rosedale St., Dorchester. Conversation was also heard coming . . .
(from) the apartment at this time. The
conversation was relative to the sale and use of Cocaine and Cannabis.'
FN3.
As to the police visit on October 1, the record suggests that the door
may have been unlocked. There is clearer
testimony that on September 30 the police came in surreptitiously behind two
persons who had rung the second‑floor apartment doorbell and been
admitted by the buzzer.
FNa. Mass.Adv.Sh. (1974) 1351.
FN4.
The judge at voir dire found that the area was
a 'common hallway' but this was only another way of stating his conclusion of
law which does not bind us.
FNb. Mass.Adv.Sh. (1974) at 1352‑‑1353.
FN5.
We draw support for our conclusion from those cases in which a small
number of tenants share a hallway but the outer door is kept locked, and it is
held that this limitation of access itself is enough to create an expectation
of privacy. United States v. Case, 435
F.2d 766 (7th Cir. 1970). United States
v. Blank, 251 F.Supp. 166 (N.D.Ohio
1966). State v. DiBartolo,
276 So.2d 291 (La.1973). Contra, United
States v. St. Clair, 240 F.Supp. 338 (S.D.N.Y.1965).
FNc. Mass.Adv.Sh. (1972) 1015.
FN6.
Cf. United States v. Nelson, 459 F.2d 884 (6th Cir. 1972) (two to one)
(warrant may not be sustained if issuance is in doubt without the tainted
evidence).
FNd. Mass.Adv.Sh. (1972)
1095, 1097.
FNe. Mass.Adv.Sh. (1972) 1811, 1813.
FNf. Mass.Adv.Sh. (1974) 467, 470‑‑471.
FN7. The Commonwealth argues from the text of the
affidavit that the third person was in fact the defendant. This is possible but cannot be said to be
established. We do not deem it crucial
to the case.
FNg. Mass.Adv.Sh. (1973) 967, 970‑‑973.
FN8. The conclusion is strengthened by comparing
our case with cases such as Commonwealth v. Causey, 356 Mass. 125, 248 N.E.2d
249 (1969), and Von Utter v. Tulloch, 426 F.2d 1 (1st Cir. 1970), cert. den.
400 U.S. 826, 91 S.Ct. 50, 27 L.Ed.2d 55 (1970),
where warrants were found to be inadequately supported in both those cases
there was no indication of how the information was obtained.
FN9. The affidavit states that the suspected
persons were observed entering and leaving the second‑floor apartment,
but as the surveillance was carried on from the street, it is likely that the
affiant meant to refer to the building.
But our conclusion that the warrant was good for the second‑floor
apartment would not change even if the surveillance evidence were excluded from
consideration.
FNh. Mass.Adv.Sh. (1972) 1145.
FNi. Mass.Adv.Sh. (1973) 383.
FNj. Mass.Adv.Sh. (1973) at 970‑‑973.
FN10. United States v. Kaye, 139 U.S.App.D.C. 214, 432 F.2d 647 (1970) (warrant for search of
store does not authorize search of upstairs apartment with separate street
entrance). United States v. One 1949
Buick Sedanette, 112 F.Supp.
218 (D.Mass.1953) (warrant for search of 'first building on the left hand side'
does not authorize search of third building as well). United States v. Zovluck,
274 F.Supp. 385 (S.D.N.Y.1967) (warrant for search of
hotel room does not authorize search of mail box in lobby). State v. Mills, 246 N.C. 237, 98 S.E.2d 795
(1957) (warrant for search of dwelling does not authorize search of room in
adjacent house rented to same person).
Clanton v. State, 59 Okl.Cr. 365, 60 P.2d 415
(1936) (warrant for search of service station does not authorize search of cafe
operated by same person in separate building).
See Commonwealth v. Lillis, 349 Mass. 422, 209 N.E.2d 186 (1965)
(warrant for search of one apartment does not allow search of second apartment,
in which different family resided, simply because occupant of first apartment
occasionally visited second apartment).
See also Commonwealth v. Todisco, ‑‑‑
Mass. ‑‑‑ (Mass.Adv.Sh. (1973) 613, 294 N.E.2d 860 (1973)) (necessary
particularity in description of apartment afforded by reading the warrant
together with the affidavit).
FN11. It is not intended to lay down a rule that
the description in a warrant of the location and area to be searched may never
be construed more liberally than in the present case. For example, the evidence when the warrant is
executed may show that the illegal activities spill over into a directly adjacent
or contiguous area under the same control, in which case a liberalized reading
of the warrant may be proper. Thus in
United States v. Evans, 320 F.2d 482 (6th Cir. 1963) (distinguishing the Keiningham case, supra, at 483 n. 2), where search under a
warrant for 1000 Baldwin Street revealed that a common wall between its attic
and the attic of the adjacent building 1004 had been broken through, the
connection with 1004 sealed, and the two areas used as one, the warrant was
held to cover the attic of 1004. The
record before us does not present such a case.
FNk. Mass.Adv.Sh. (1973) 967.
FNl. Mass.Adv.Sh. (1974) 1225.
FN12. The assumption is questioned by Mr. Justice
Black in dissent, 399 U.S. at 40, 90 S.Ct. 1929
(1970).
FN13. See United States v. Rubin, 474 F.2d 262 (3d
Cir. 1973); United States v. Blake, 484 F.2d 50 (8th Cir. 1973).
FN14. For example, in the Rubin case, suspects were
inside the building in question, and the police were aware of a specific
attempt by someone outside to warn them of their peril. See also Ker v.
California, 374 U.S. 23, 42, 83 S.Ct. 1623, 10
L.Ed.2d 726 (1963) (occupant of apartment might distribute or hide drugs); Theobald v. United States, 371 F.2d 769 (9th Cir. 1967)
(people inside the room might destroy the evidence); Dorman v. United States,
140 U.S.App.D.C. 313, 435 F.2d 385 (1970) (armed
fugitive believed to be inside residence); United States v. Bradley, 455 F.2d
1181 (1st Cir. 1972) (suspects in the midst of a narcotics transaction); United
States v. Davis, 461 F.2d 1026 (3d Cir. 1972) (suspects in dwelling in the
midst of cutting heroin preparatory to going out on the street with it); United
States v. Evans, 481 F.2d 990 (9th Cir. 1973) (specific risk that a suspect
would get a warning and act to destroy evidence); State v. Patterson, 192 Neb.
308, 220 N.W.2d 235 (1974) (suspects inside, and attempts to arrest as they
left singly could alert thouse inside).
FN15. See United States v. Goldenstein,
456 F.2d 1006, 1010 (8th Cir. 1972); United States v. Nelson, 459 F.2d 884, 887
(6th Cir. 1972); United States v. One 1949 Buick Sedanette,
112 F.Supp. 218, 221 (D.Mass.1953); United States v.
Costa, 356 F.Supp. 606 (D.D.C.1973). Cf. United States v. Small, 297 F.Supp. 582 (D.Mass.1969) (lock changed on storage locker
so owner could not remove drugs inside).
The
strictness with which courts construe the exigent circumstances exception is
emphasized by cases in which warrantless searches are
held to be invalid despite the presence of people inside the dwelling in
question, either because no evidence was presented to suggest that they were
aware of any imminent raid, see Ludlow v. State, Ind., 314 N.E.2d 750 (1974),
or because though they were related to the suspect, it was not claimed that
they themselves engaged in criminal activity.
See United States v. Carignan, 286 F.Supp. 284 (D.Mass.1967) (mother at home); United States
v. Wilcox, 357 F.Supp. 514 (E.D.Pa.1973) (estranged
wife at home).
FN16. Compare Commonwealth v. Haefeli,
‑‑‑ Mass. ‑‑‑, ‑‑‑ (Mass.Adv.Sh. (1972) 423, 432), 279 N.E.2d 915 (1972), which
allowed search of an automobile where the trial judge found that only one
officer was on the scene who could not both return for a search warrant and
watch the automobile to prevent its removal.
We
are far from saying that exigent circumstances cannot be found where more than
one officer is on the scene; the decision will always depend on an evaluation
of all the circumstances. Cf. United
States v. Pino, 431 F.2d 1043 (2d Cir. 1970), which
found an immediate warrantless search of an apartment
justified when two officers arrested two men at 1 A.M., citing the possible
danger of leaving a single officer to guard the site for an extended time until
a warrant could be obtained.
FN17 The leeway now allowed the police to conduct
immediate searches of automobiles in lieu of holding them pending a warrant,
see Commonwealth v. Rand, ‑‑‑ Mass. ‑‑‑ (Mass.Adv.Sh. (1973) 729), 296 N.E.2d 200 (1973);
Commonwealth v. Miller, ‑‑‑ Mass. ‑‑‑, ‑‑‑
(Mass.Adv.Sh. (1974) 2139, 2142), 318 N.E.2d 909, is
based on Supreme Court cases emphasizing the special nature of automobiles and
the lesser expectation of privacy one may have with respect to them. See Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); Chambers v. Maroney, 399 U.S. 42, 48, 52, 90 S.Ct.
1975, 26 L.Ed.2d 419 (1970). There is
therefore no basis for automatically extending an automobile rule to cover
dwelling searches, see Chambers v. Maroney, supra, at
52, and the Vale line of cases makes clear that it should not be so extended.
FN18. See United States v. Rubin, 474 F.2d at 268
(3d Cir. 1973).