|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Lett, 393
Supreme Judicial Court of Massachusetts,
Argued
Decided
Henry E. Quarles, Jr.,
Robert P. Snell, Asst. Dist. Atty., for the
Commonwealth.
Before WILKINS, LIACOS,
ABRAMS and LYNCH, JJ.
ABRAMS, Justice.
Following
the return of three indictments charging the defendant, Deborah H. Lett, with possession of heroin with intent to distribute
and other related offenses, (FN1) she moved
[393 Mass. 142] to suppress
drugs, drug paraphernalia, and other items seized during a search of her
Brockton apartment on December 31, 1981.
The defendant also sought to suppress statements she made to the police
at the time of the search. (FN2) The matter was submitted to the trial judge
for decision based upon stipulated facts and the parties' briefs without oral
argument. The judge found the search
warrant valid in part, and his order, entered on
We
summarize the facts. On the morning of
December 31, 1981, a detective of the Brockton police department's narcotic
division, accompanied by three State troopers, executed a search warrant for
the defendant's apartment at 301 Pine Grove Drive in Brockton. (FN3)
The warrant was issued in the Brockton District Court two days prior to
its execution on the basis of the detective's affidavit, and authorized a
search of the defendant's apartment, for "Heroin a white powder as
described G.L. C94C sec 1," and "one gold womans [sic ]
ring with diamond." Permitted
entry by the defendant's daughter, the detective and two State troopers found
the defendant in bed. The officers
informed her of her rights "per Miranda" and told her of the search
warrant "for 'dope' (heroin)."
The defendant denied possession of any heroin. An initial search of the defendant's [393 Mass. 143] pocketbook revealed a plastic bag containing thirty‑eight
packets of white powder, another plastic bag containing $1,000 in cash, and a
third bag containing $134 in cash. The
officers, informing the defendant they had found the "dope," inquired
about the diamond ring. She stated, "What
you found in my pocketbook is all I have.
I don't have any diamond ring."
Resuming the search, the police further uncovered a yellow glove
containing a hypodermic syringe and a silver spoon in a bureau drawer; a small glass vial containing white powder in
the defendant's handbag; a black box
containing "cocaine paraphernalia";
and, atop a medicine cabinet, a silver spoon, burned on the bottom,
"with white residue in it."
The defendant, in response to the officers' questions, then acknowledged
that she used about four bags of "dope" a day; that she had purchased and sold twenty bags
at $50 each within the previous few days;
and that she had regularly sold "dope" in the past. She further stated that the $1,000 recovered
in her handbag was "dope money."
The officers did not find the diamond ring. (FN4)
They took the defendant to the police station where she was booked, fingerprinted, and photographed.
The judge
found that the detective's affidavit failed to establish probable cause to search
the defendant's apartment for heroin.
However, he deemed the affidavit adequate to support probable cause to
search for the diamond ring and concluded that, with the exception of the
personal papers and $134 in cash, all other items were properly seized. The judge found that items at issue
"came into the officers' 'plain view' while they were conducting a legal
search of the defendant's apartment, limited in scope to areas where the ring
specified in the warrant might reasonably be found." See
Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct.
2022, 29 L.Ed.2d 564 (1971). (FN5)
[393 Mass. 144] On appeal, the defendant does not dispute the judge's
determination that there was probable cause to search for the ring. Rather she confines her argument to the
inapplicability of the doctrine of "plain view" to a case where the
articles found in plain view were themselves described in an invalid clause of
a search warrant. The Commonwealth,
moreover, concedes that the clause in the warrant permitting a search for
heroin is invalid. Having no occasion,
therefore, to review the judge's ruling on the validity of the ring and heroin
clauses, we face squarely the issue of the effect of a partially tainted search
warrant upon the admissibility of evidence seized pursuant to its valid
portion, an issue as yet undecided by this court. Commonwealth v. Labelle, 15
Mass.App. 175, 181 n. 9, 443 N.E.2d 1351 (1983).
[1] 1. "Severance" of the warrant. We note at the outset that the defendant
made no claim in her motion to suppress that the search violated rights
guaranteed by art. 14 of the Declaration of Rights of the Constitution of the
Commonwealth. Thus she may not raise
that argument for the first time on appeal.
See Commonwealth v. Marchionda, 385 Mass. 238, 242, 431 N.E.2d 177 (1982);
Commonwealth v. Lewis, 346 Mass. 373, 383, 191 N.E.2d 753 (1963),
cert. denied, 376 U.S. 933, 84 S.Ct. 704, 11 L.Ed.2d
653 (1964). We therefore look only to
Federal standards to determine whether the evidence sought to be suppressed was
lawfully obtained.
[2][3][4]
We find ample guidance in the law of other jurisdictions (FN6) which have held
that "the infirmity of part of a warrant requires [393 Mass. 145] the
suppression of evidence seized pursuant to that part of the warrant ... but
does not require the suppression of anything described in the valid portions of
the warrant (or lawfully seized‑‑on plain‑view grounds, for
example‑‑during their execution).
This approach ... complies with the requirements of the fourth amendment."
United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir.1983). We are persuaded that "it would be harsh
medicine indeed if a warrant which was issued on probable cause and which did
particularly describe certain items were to be
invalidated in toto merely because the affiant and
magistrate erred in seeking and permitting a search for other items as
well.... It would be ironic, to say the
least, if the efforts of the police to therefore 'advise the court of everything
which conceivably might be found in the premises' should result in the warrant
being declared invalid in its entirety" (citations omitted). 2 W.R. LaFave,
Search and Seizure § 4.6(f), at 111‑112 (1978 & Supp.1984). Some of the purposes which have been stated
in support of the exclusionary rule are the deterrence of unlawful police
conduct, the dissociation of the courts from such misconduct, and the
preclusion of benefit to the prosecution from unconstitutional police
activity. See United States v. Fitzgerald, supra at 636. Where none of these purposes will be served,
rigid adherence to the exclusionary rule only can frustrate the public interest
in admitting the evidence obtained. The
partial suppression remedy for a partially invalid warrant, we believe, effects
a pragmatic balance between the deterrent effect of suppression and the cost to
society of excluding probative evidence.
See United States v. Christine,
687 F.2d 749, 757‑760 (3d Cir.1982).
We, therefore, join the "weight of authority favor[ing] partial suppression." United States v. Riggs, 690
F.2d 298, 300 (1st Cir.1982).
[5][6][7]
Partial suppression, of course, is not an appropriate remedy in all
circumstances. "It is beyond doubt
that all evidence seized [393 Mass. 146] pursuant to a general
warrant must be suppressed. The cost to
society of sanctioning the use of general warrants‑‑abhorrence for
which gave birth to the Fourth Amendment‑‑is intolerable by any
measure. No criminal case exists even
suggesting the contrary" (emphasis supplied). United States v. Christine,
supra at 758. Severance of the
invalid from the valid portions of a warrant is unacceptable where "no
portion of the warrant is sufficiently particularized to pass constitutional
muster .... Otherwise the abuses of a
general search would not be prevented" (citation omitted).
United States v. Cardwell, 680 F.2d 75, 78 (9th Cir.1982). See Aday v. Superior Court of Alameda County, 55 Cal.2d
789, 797, 13 Cal.Rptr. 415, 362 P.2d 47 (1961). The record in the instant case, however,
belies any suggestion that the police detective was given authorization to
conduct a general rummaging search of the defendant's apartment. The magistrate specifically authorized him to
search for heroin and a diamond ring.
While the authorization to search for heroin failed for lack of probable
cause, the valid authorization to search for the ring sufficiently limited the
officer's discretion so as to withstand constitutional challenge. Contrast
Kinsey v. State, 602 P.2d 240 (Okla.Crim.App.1979) (warrant authorized
search for ten specific items "and other stolen property," latter
description insufficient and requires suppression of all items even those named
in the warrant). The judge was thus
correct in allowing that portion of the warrant to stand.
[8] 2.
"Plain view. "
Having established that it is constitutionally permissible to admit
evidence seized pursuant to the valid portion of a search warrant, we must
determine which, if any, of the items recovered in the instant case were
legally seized under the valid "diamond ring" clause. The defendant contends that the doctrine of
plain view, as elaborated in Coolidge v.
New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29
L.Ed.2d 564 (1971), is inapplicable "in situations where the police knew
what they were looking for, what they might expect to find and in fact explicitly searched for said items"
(emphasis in original). The plain view
exception, she argues, requires that the police come upon the evidence
inadvertently; that is, that they were
not specifically planning to look for the evidence but fortuitously came across [393 Mass. 147] it in their search for items they were entitled to look for.
Coolidge v. New Hampshire, supra at 469‑471, 91 S.Ct. at 2040.
Because the detective and the State troopers fully anticipated the
recovery of the heroin and drug paraphernalia, the defendant submits that those
items must be suppressed.
[9][10][11][12]
We reject this line of reasoning and find that the application of the doctrine
of plain view to a search conducted pursuant to a partially valid warrant is
ordinarily permissible. See, e.g., United States v. Freeman, 685 F.2d 942,
953 (5th Cir.1982); Commonwealth v. Casuccio,
308 Pa.Super. 450, 467‑468, 454 A.2d 621
(1982);
State v. Noll, 116 Wis.2d 443, 446, 343 N.W.2d 391 (1984). The requirement of inadvertent discovery
demands that if the police have probable cause to search for an item, and are
thus systematically looking for it, they must mention it in their warrant or
forfeit its admission in evidence. But
"the inadvertence requirement of
Coolidge [is] particularly ill‑suited when applied to items listed in
the invalid portion of a severed warrant, for it [is] at odds with the more ...
basic requirement that search warrants describe things to be seized with
particularity. The inadvertence
requirement applied to items in the invalid portion of a warrant would have the
curious effect of penalizing law enforcement officials for including as much
detail as possible concerning the object of their search. A police officer with a marginal case for
probable cause to search for a given object might well be tempted not to list
it in the warrant, although he might then be put in a double bind since Coolidge holds ... that deliberate
failure by the officer to list an item he believes there is probable cause to
search for is not permitted if he is planning to look for it."
United States v. Freeman, supra at 954 n. 7. The proper inquiry, then, is not whether the
discovery was inadvertent but whether the items seized in plain view were seized
within the scope and intensity of the search permitted under the terms of the
valid portions of the warrant. See
generally, 2 W.R. LaFave, supra § 4.6(f), at 113.
[13][14]
The police detective and the State troopers were entitled to search for a diamond
ring, an item which is "by [its] nature small and easily concealable
anywhere." United States v. Freeman, supra at
953. The search of the defendant's
pocketbook,[393 Mass. 148]
bureau, medicine chest, and in fact, of her entire apartment would have
been well within the scope and intensity authorized by the valid part of the
warrant. The ring was never found; thus, the officers' lawful authority
continued throughout the duration of the search actually conducted. Because the heroin and drug paraphernalia
were in plain view during a permissible search, the motion to suppress those
items was properly denied.
[15][16]
It is possible that, in other circumstances, the determination whether items
seized in plain view were in fact seized during the execution of the valid
portion of a severed warrant may impose an impossibly difficult task upon a
trial court. State v. Noll, 116 Wis.2d 443, 471 n. 1,
343 N.W.2d 391 (1984) (Abrahamson, J., dissenting). It is likewise possible that engrafting the
plain view doctrine on the severability rule might allow a police officer to
seize an item without an objectively based, articulable
suspicion that it is "a fruit, instrumentality, or evidence of a
crime." Id. at 470, 343 N.W.2d 391. These possibilities, however, are not
realized on the facts before us. We
conclude that the officers did not exceed the broad scope of the search
permitted them under the diamond ring clause of the warrant; and that, despite the lack of probable cause
to search for the heroin in the first instance, the officers might certainly
have entertained the reasonable, articulable
suspicion that the thirty‑eight packets of white powder, inter alia, were contraband.
See Sullivan v. District Court of
Hampshire, 384 Mass. 736, 744, 429 N.E.2d 335 (1981) (officer need not have
scientific proof that item seized is contraband).
[17] The
defendant finally contends that the statements she made at the time of her
arrest and search should be suppressed in accordance with Wong Sun v. United States, 371 U.S. 471, 83 S.Ct.
407, 9 L.Ed.2d 441 (1963). Having
concluded that the search of her apartment did not offend the Fourth Amendment,
we hold that her admissions are not the "fruit[s] of
the poisonous tree." Id. at 488, 83 S.Ct.
at 417. (FN7)
[393 Mass. 149] The order of the judge denying in part the motion to suppress is
affirmed. The case is remanded to the
Superior Court for further proceedings.
So ordered.
(FN1.) On February 10, 1982, the defendant was
indicted for possession of a controlled substance in Class A (heroin), G.L. c. 94C, § 32;
unlawful possession of a Class D controlled substance (marihuana), G.L. c. 94C, § 34;
and unlawful possession of a hypodermic needle and syringe, G.L. c. 94C, § 27(e
). A fourth indictment, charging the
defendant with conspiracy to violate the Controlled Substances Act, G.L. c. 94C, § 40, was returned on May 26, 1982.
(FN2.)
In her motion the defendant relied exclusively on the Fourth Amendment to the
Constitution of the United States.
(FN3.)
The parties have stipulated that all facts relevant to the issues presented by
the motion to suppress are set forth in the detective's report of the execution
of the search.
(FN4.)
Aside from the items noted above, the inventory of property taken pursuant to the
warrant included: "(3) 1 clear
plastic bag containing green vegetable matter .... (7) miscellaneous personal papers." The Commonwealth did not ask the single
justice to report the validity of the judge's order to suppress the
"miscellaneous personal papers" and the $134 in cash. We therefore do not reach that issue.
(FN5.)
The judge determined that, even if the search went beyond the permissible scope
of a search for the diamond ring, the police, once they had discovered the
heroin, had probable cause for a more extensive search for drugs: "here the police continued their search
in good faith reliance upon what they believed was a valid warrant to search
for drugs." Because we find that
the officers did not exceed the permissible scope of a search for the diamond
ring, we do not reach the judge's alternate "good faith" holding.
(FN6.)
See, e.g., United States v. Fitzgerald,
724 F.2d 633 (8th Cir.1983), cert. denied, 466 U.S. 950, 104 S.Ct. 2151, 80 L.Ed.2d 538 (1984); United States v. Riggs, 690
F.2d 298 (1st Cir.1982); United States v. Christine, 687 F.2d 749
(3d Cir.1982); United States v. Freeman, 685 F.2d 942
(5th Cir.1982); United States v. Cook, 657 F.2d 730 (5th
Cir.1981); United States v. Jacob, 657 F.2d 49 (4th
Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct.
1435, 71 L.Ed.2d 653 (1982); United States v. Espinoza, 641 F.2d 153
(4th Cir.), cert. denied, 454 U.S. 841, 102 S.Ct.
153, 70 L.Ed.2d 125 (1981). State courts
have reached the same result. See, e.g., State v. Maddasion,
130 Ariz. 306, 636 P.2d 84 (1981); Aday v. Superior
Court of Alameda County, 55 Cal.2d 789, 13 Cal.Rptr.
415, 362 P.2d 47 (1961); State v. Kealoha,
62 Haw. 166, 613 P.2d 645 (1980); Palmer v. State, 426 So.2d 950
(Ala.Crim.App.1983); Norris v. State, 640 P.2d 1374
(Okla.Crim.App.1982); Commonwealth v. Casuccio,
308 Pa.Super. 450 (1982); Sanders v. State, 649
S.W.2d 59 (Tex.Ct.App.1982); Walthall v. State, 594 S.W.2d 74
(Tex.Crim.App.1980); State v. Olson, 32 Wash.App.
555, 648 P.2d 476 (1982).
(FN7.)
On appeal the defendant argues that the officers executed the search warrant in
bad faith and that the police did not comply with the warnings required by Miranda. The defendant did not raise these issues
below and thus these issues were not reported to us. We therefore do not reach them.