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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. Hawkins, 361
Supreme Judicial Court of Massachusetts,
Argued
Decided
[361
Richard E. Rafferty, Asst. Dist. Atty., for
Commonwealth.
[361
[361
The
defendant's appeal under G.L. c. 278, ss 33A‑‑33G, following conviction for receiving
stolen government bonds, raises the following issues: (1) the validity of the
search warrant, (2) whether the stolen bonds were the subject of a legal search
and seizure, and (3) the correctness of the judge's ruling admitting in
evidence a Blue Cross‑Blue Shield identification card and the Bank Americard found on the defendant. (FN1)
[1] For
our purposes we assume the validity of a search warrant authorizing a search
for drugs. We discuss whether the
seizure of the government bonds was based on probable cause and whether the
defendant's motion for their suppression should have been allowed. The evidence relating to the issue is as
follows. The police officers, pursuant
to a warrant authorizing the search for drugs in an apartment shared by the
defendant and a codefendant, who was found not guilty, searched the apartment
and found no drugs. In the course of the
search Officer Arthur McNamara found in a bureau drawer a 'Vanity Fair
container' in which was a brown envelope containing several
Reverend
Weeks testified that certain bonds were stolen from his residence and that the
theft was reported to police station 9.
The stolen bonds were later identified by him as his property. There was no evidence that any of the police
officers in the search (one of whom was from police headquarters) were aware of
the theft reported to station 9. Nor was
there any evidence as to how the information given to the police was handled,
conveyed or distributed to other police officers or stations, or, in general,
as to what the police practice was in these matters.
[2]
Articles not named in a search warrant, except weapons or contraband, may be
seized only if the police have probable cause to believe that they were
stolen. '(I)n almost every case in which
such a seizure has been upheld . . . the officer making the seizure then knew
or had probable cause to believe that the articles were stolen.' Commonwealth v. Wojcik,
Mass., 266 N.E.2d 645 and cases cited therein. (FNa) In the instant case the police admitted they
had no actual knowledge that the bonds had been stolen until after
investigating their ownership. The mere
fact that the names on the bonds were different from that of the defendant was
insufficient to provide probable cause for their seizure.
In the
face of the denial by the police, who conducted the search, of any knowledge
that the bonds were stolen, we are compelled to conclude that the seizure was
not based on probable cause and that the subsequent arrest was illegal. It follows that the motion to suppress should
have been allowed. We cannot, in the
circumstances of this case, apply 'the elementary rule of composite knowledge
of police officers engaged in a coo perative effort,
where the knowledge of one may be the knowledge of all.' Commonwealth v. Ballou,
350 Mass. 751, 757, 217 N.E.2d 187, 191.
Commonwealth[361 Mass. 387]
v. McDermott, 347 Mass. 246, 197 N.E.2d 668. (FN3) In the instant case the police were not aware
of the theft reported to station 9 nor were they engaged in a coo perative effort with officers in connection with the stolen
bonds who did have this knowledge.
In
concluding that there was error in denying the motion to suppress the stolen
bonds, we are aware that the evidence to be suppressed points overwhelmingly to
the defendant's guilt. That as a result
of suppression a guilty person may go free is serious and regrettable. However, it would be far more dangerous and
harmful to the cause of justice to establish a precedent which would allow
police who have procured a warrant permitting a search for a specific item to
then indiscriminately seize other belongings for the purpose of further investigation. Such tactics cannot be tolerated. The officers here undoubtedly proceeded upon
an honest belief that they were acting within the law. They had a right to look into the brown
envelope in their search for drugs. Once
having ascertained the presence of bonds instead of drugs and without probable
cause to believe they were stolen, their authority to possess the envelope and its contents ended.
A contrary
rule would deprive the defendant and every other citizen of the protection
afforded by the Fourth Amendment to the Constitution of the United States, 'to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures . . . and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.' 'The requirement that warrants shall
particularly describe the things to be seized makes general searches under them
impossible and prevents the seizure of one thing under a warrant describing
another. As to [361 Mass. 388] what is
to be taken, nothing is left to the discretion of the officer executing the
warrant.' Marron
v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76,
72 L.Ed. 231.
Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct.
506, 13 L.Ed.2d 431.
In the
circumstances of this case it might appear to some that the defendant is being
given unwarranted protection. However,
if the situation in the instant case were transposed to a different setting,
for example, to the home of a person of wealth, it would appear irrational to
argue that United States government bonds could be taken from his possession,
even momentarily, in order to establish their ownership. It is fundamental in our concept of justice that
the denial of constitutional protection to the worst of men effectively serves
to deny the same protection to the best of men.
Judgment
reversed.
Verdict
set aside.
BRAUCHER, Justice (dissenting).
I agree
that the police did not have probable cause to seize the bonds until they had
probable cause to believe that the bonds had been stolen. They acquired such probable cause only after
they made a telephone call to an owner named on one of the bonds.
I also
agree that the police had a right to look into the brown envelope in their
search for drugs. But they were under a
duty to keep the defendant's belongings in order and were therefore justified
in noting that the articles were United States savings bonds with names and
addresses different from that of the defendant.
Compare Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067.
Such bonds are not transferable.
31 U.S.C. s 757c(a) (1970). 31 C.F.R. (1971) s 315.15. McDonald v. Hanahan,
328 Mass. 539, 540, 105 N.E.2d 240.
Their presence in a small apartment being searched for narcotics
warranted a further threshold inquiry.
See Commonwealth v. Lehan, 347 Mass. 197, 204,
196 N.E.2d 840; Commonwealth v. Wilson, Mass., 276 N.E.2d 283; (FNa) Terry v. Ohio, 392 U.S. 1, 22‑‑23, 88 S.Ct. 1868, 20 L.Ed.2d 889; Sibron
v. New York, 392 U.S. 40, 69, 88 S.Ct. 1889, 20
L.Ed.2d 917 (concurring opinion of White, J.).
If a
threshold inquiry is unreasonably extended, there is danger to the security
guaranteed by the Fourth [361 Mass.
389] Amendment. See Stanley v. Georgia, 394 U.S. 557, 569‑‑572,
89 S.Ct. 1243, 22 L.Ed.2d 542 (concurring opinion by
Stewart, J.), where Federal agents spent some fifty minutes exhibiting a
discovered lewd film, using the defendant's premises and his projector. But in the present case the police made a
telephone call which could have taken only a few minutes. There is no indication that it prolonged the
concurrent search for narcotics. The
telephone call was likely to produce a less serious invasion of an innocent
defendant's privacy than the alternative of sending an officer out to
investigate and to bring back a new warrant.
The record
indicates that the police took the bonds from one room to another before they
had probable cause. It does not indicate .
a definitive 'seizure' until afterwards.
Compare United States v. Berkowitz, 429 F.2d 921, 924 (1st Cir.); State v. Moriarity,
268 F.Supp. 546, 566 (D.N.J.). Once they had probable cause they were 'not
required to close . . . (their) eyes to the realities of the situation,' but
could lawfully seize the bonds. Seymour
v. United States, 369 F.2d 825, 826‑‑827 (10th Cir.), cert. den.
386 U.S. 987, 87 S.Ct. 1297, 18 L.Ed.2d 239. United States v. Berkowitz, supra, 429 F.2d
at 924‑‑925. See Harris v. United
States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d
1067; United States v. Palmer, 435 F.2d 653, 654‑‑655 (1st Cir.).
I do not
believe that it is proper for either the police or this court to base a
judgment on the assumed wealth or poverty of the defendant. If police, acting lawfully in searching a
millionaire's mansion, found in a bureau drawer in his bedroom United States
savings bonds bearing the names of several other people, they would have solid
reason for making further inquiry.
Millionaires have no more right to steal than anyone else.
FN1. The cards were seized after the defendant's
arrest for possession of stolen bonds and therefore the correctness of the
ruling is dependent on the validity of the arrest.
FN2.
The testimony of Sergeant McNamara was that: 'As a result of information
(he) received . . . (he placed the defendant) under arrest . . ..' Officer McNamara stated that up to the time
of the telephone call 'there was no knowledge that these bonds were
stolen. . . . After the conversation with Reverend Weeks .
. . (he) knew they were contraband.'
FNa. Mass.Adv.Sh. (1971) 91, 96.
FN3.
In Commonwealth v. McDermott, supra, at 249, 197 N.E.2d at 670, we
stated: 'It is without significance that Trooper Nielsen (who had the requisite
knowledge) was not one who made the arrest.
The three officers were engaged in a cooperative effort in the
performance of their duty. The knowledge
of one was the knowledge of all.' See
Commonwealth v. Chaisson, Mass., 266 N.E.2d 311 (Mass.Adv.Sh. (1971)
49, 52).
FNa. Mass.Adv.Sh. (1971) 1731, 1732‑‑1733.