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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. Manning, 406
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Patricia M. Darrigo, Asst.
Dist. Atty., for the Com.
Daniel Patrick Leonard, for Roy E. Manning.
Joan M. Griffin,
[406
Before [406
WILKINS, Justice.
The police
had obtained the crucial information on which the affidavit was based from one
James Walsh, whom they had arrested earlier on the day of the search. A judge in the Superior Court ruled that
Walsh had been arrested without probable cause and allowed the defendants'
motions to suppress the evidence seized during the search. A single justice of this court granted the
Commonwealth leave to appeal to the
The issue
in this case is whether the defendants, in seeking to suppress evidence of
their alleged criminal conduct, may properly rely on the unlawfulness of
Walsh's arrest. If they may, the claim
is that, because the search was based on information obtained from Walsh
following his unlawful arrest, the product of the unlawful arrest and the
unlawful search must be suppressed as fruits of the poisonous tree. See
Wong Sun v.
On April
23, 1987, Detective Daniel Hutchinson of the Waltham police department's
narcotics unit telephoned Detective Steven Carl of the Framingham police
department. According to Carl,
Hutchinson told Carl that, based on information from a confidential informant,
he expected that there would be an illicit drug sale in Framingham. He described the expected purchaser of the
drugs, his motor vehicle, and the location of the anticipated sale. Acting on the transmitted information,
Framingham police arrested James [406
Mass. 427] Walsh and found a plastic
bag containing cocaine as well as an envelope containing hypodermic needles and
syringes. The Framingham police
questioned Walsh who provided them with information concerning the sale of
drugs by the defendant Manning in an apartment occupied by Manning and the
defendant Kimberly Hobson. Detective
Carl prepared an affidavit in support of a warrant to search that apartment,
and a search warrant was issued. The
search was conducted, and controlled substances were found. The defendant Patey
was a visitor at the apartment at the time of the search. All three defendants were arrested and
indicted on various narcotics offenses.
The
defendants moved to suppress the evidence seized at the apartment, alleging
that, with the information obtained from Walsh excised, the application for the
warrant lacked probable cause. In
December, 1987, the judge assumed (without deciding) that the defendants had
standing to challenge the lawfulness of Walsh's arrest and concluded that
Walsh's arrest was founded on probable cause.
He ruled that the information the confidential informant had furnished
to the Waltham police (and that Hutchinson had passed on to Detective Carl)
provided probable cause to arrest Walsh.
He denied the motions.
The
defendants moved for reconsideration.
They asserted that the informant was Jayne Walsh and that she could not
have been a reliable informant because she had never furnished reliable
information to the Waltham police prior to her disclosing the anticipated drug
purchase by James Walsh. At a hearing on
the motion to reconsider, Jayne Walsh so testified and (now former) Detective
Hutchinson of the Waltham police department confirmed that his informant had
not previously given him reliable information.
He also testified that he had not told Detective Carl that the
confidential informant had previously provided him with reliable
information. The judge concluded that
James Walsh had been arrested without probable cause, and allowed the motions
to suppress.
[406 Mass. 428] The defendants Manning and Hobson presumably may challenge the
search of their own apartment, a place as to which it seems likely they had a
reasonable expectation of privacy. See Rawlings v. Kentucky, 448 U.S. 98, 105‑106,
100 S.Ct. 2556, 2561‑2562, 65 L.Ed.2d 633
(1980);
United States v. Salvucci, 448 U.S. 83, 92‑93,
100 S.Ct. 2547, 2553‑2554, 65 L.Ed.2d 619
(1980);
Commonwealth v. Podgurski, 386 Mass. 385,
387‑388 & n. 5, 436 N.E.2d 150 (1982), cert. denied, 459 U.S. 1222,
103 S.Ct. 1167, 75 L.Ed.2d 464 (1983). We shall assume, without deciding, that the
defendant Patey, who was charged with a possessory crime, automatically has standing to challenge
the search of the Framingham apartment.
(FN3)
[1] The
issue, whether expressed in terms of standing or in terms of the reach of the
exclusionary rule, is whether the defendants may rely successfully on the
unlawfulness of Walsh's arrest to invalidate the search of the Framingham
apartment. In Commonwealth v. Santoro, 406 Mass. 421, 548 N.E.2d 862 (1990), we
hold today that a defendant could not rely on the unlawfulness of a search of
the premises of another that in turn
led to information that provided probable cause to search the defendant's
premises. Applying the same principle
here, we hold that the defendants may not successfully advance the unlawfulness
of Walsh's arrest as the sole ground for invalidating the Framingham search.
In this
case, however, the defendants present theories of standing that were not argued
in the Santoro case. The fact that the defendants may challenge
the Framingham search, even on some theory of "automatic standing,"
does not mean that they automatically have the right to rely on any
unlawfulness in the process by which information was gathered leading to
probable cause to search the Framingham apartment. See Rakas v. Illinois, 439 U.S. 128, 137‑138 & n.
6, 99 S.Ct. 421, 427‑428 & n. 6, 58 L.Ed.2d
387 (1978). Similarly, in the Santoro case, the fact that Santoro had
the right to challenge a statutory violation did not mean [406 Mass. 429]
suppression of the unlawfully intercepted telephone conversations was required.
Commonwealth v. Santoro, supra, at 423, 548 N.E.2d at 864.
The
question is whether the principles underlying the exclusionary rule, which is
largely the need to discourage future police misconduct, require the exclusion
of the evidence seized in Framingham.
The Commonwealth has dropped the charges against Walsh, as it had to in
light of his unlawful arrest. In the
normal course, we regard the dismissal of charges against the person whose
rights were primarily violated to be a sufficient deterrent to improper police
conduct. The United States Supreme Court
agrees with this reasoning. See Rakas v.
Illinois, supra, 439 U.S. at 137, 99 S.Ct. at
427;
Alderman v. United States, 394 U.S. 165, 174‑175, 89 S.Ct. 961, 966‑968, 22 L.Ed.2d 176 (1969).
[2] The
defendants argue, however, that they are entitled to "target
standing," standing because the police were seeking to reach the
defendants (or at least the defendant Manning) when they unconstitutionally
intruded on Walsh's rights. The Supreme
Court has rejected the concept of target standing. Rakas
v. Illinois, supra, 439 U.S. at 133‑138, 99 S.Ct.
at 424‑428. We need not decide
here whether, under the Constitution of the Commonwealth, we would recognize
the right of one who is the target of an investigation, to challenge
unconstitutional conduct toward a third person.
Unconstitutional searches of small fish intentionally undertaken in
order to catch big ones may have to be discouraged by allowing the big fish,
when caught, to rely on the violation of the rights of the small fish, as to
whose prosecution the police are relatively indifferent. See 4 W. LaFave,
Search and Seizure § 11.3(h), at 354‑355 (1987).
The
obvious problem with application of the "target" theory here is that
it is not supported on the record. The
judge explicitly found that Detective Carl of the Framingham police did not act
recklessly or with the intention of making any misstatements in the affidavit
in support of the search warrant. The
evidence does not support any finding of intentional wrongdoing. There is no evidence or finding by the motion
judge that Manning (or any other defendant) was a special target of the Waltham
police, or that the Waltham police violated Walsh's constitutional rights for
the purpose of [406 Mass. 430] reaching Manning. An affidavit of Jayne Walsh, not in evidence
before the motion judge, cannot provide support for the assertion that Manning
was a target of the Waltham police.
Jayne Walsh testified, but the defendants did not question her about the
facts set out in her affidavit. We, therefore,
reject the target standing argument on this record. We are not impressed with the defendants'
claim that they have derivative standing because, if Walsh had been a
codefendant, he (and hence they, they argue) would have had standing to
challenge the lawfulness of his arrest.
The judge
in his discretion may elect to reconsider the motions to suppress, based on a
claim that one or more of the defendants was a target of the police, who
intentionally violated Walsh's rights with the goal of obtaining incriminating
evidence against one or more of the defendants.
The orders
allowing the defendants' motions to suppress evidence are vacated, and the
cases are remanded for further proceedings.
So ordered.
(FN1.) Two against Kimberly A. Hobson, one
against Andrew C. Patey, and two against Roy E.
Manning.
(FN2.)
The Commonwealth entered a "nolle prosequi" as to charges entered against Walsh.
(FN3.) This
court has not yet decided whether under art. 14 of the Massachusetts
Declaration of Rights we will recognize automatic standing. See
Commonwealth v. Mora, 402 Mass. 262, 266, 521 N.E.2d 745 (1988).