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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
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Commonwealth v. McRae, 31 Mass.App.Ct.
559 (1991)
Appeals Court of Massachusetts,
No. 90‑P‑1526.
Argued
Decided
Further Appellate Review
Denied
Yvonne P. Toyloy,
Committee for Public Counsel Services, for defendant.
Mary O'Sullivan Smith, Asst. Dist. Atty., for Com.
Before ARMSTRONG, DREBEN
and GREENBERG, JJ.
ARMSTRONG, Justice.
[1]
Applications for search warrants and the accompanying affidavits, in the usual course, are drawn by often overburdened
police officers, frequently in haste, and it is well settled that they are not
to be subjected to " 'hypertechnical'
scrutiny," Commonwealth v. Wright,
15 Mass.App.Ct. 245, 248, 444 N.E.2d 1294 (1983)
(quoting from United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct.
741, 746, 13 L.Ed.2d 684 [1965] ), as if they were professionally drawn legal
documents, but rather are to be assessed in a common sense and realistic
fashion. General Laws c. 276, § 2B, also
requires, however, that probable [31
Mass.App.Ct. 560]
cause must be found, if at all, "within the four corners" of the
affidavit required by that section, rather than by taking into consideration
extraneous material, even if known to the police and imparted orally to the
issuing magistrate. Commonwealth v. Monosson,
351
The
affidavit recites that the investigating officer, Smith, interviewed the
victim, who described the attacker's appearance and the knife he carried (a
folding buck knife or jackknife). The
victim made no identification from several mugshot
books, but participated in a composite drawing procedure, producing an image
which another officer thought to resemble Steven McRae, the defendant. The affidavit recites that the defendant was
then interviewed and denied owning a brown leather jacket, a buck knife or
jackknife, or a knit ski cap. (Note that
this is the first mention in the affidavit of a leather jacket or a knit ski
cap.) The victim was then shown a photo
array that included a photo of the defendant, and she identified him as her
attacker. Officer Smith next talked with
a confidential informant, not otherwise described, who related that the
defendant did in fact own a brown leather jacket and a knit ski cap, that he
carried a folding knife, and that he often walked late at night in the
neighborhood where the victim was attacked.
The affidavit concludes with Officer Smith's belief that the jacket,
cap, and knife "may be found in the apartment listed or on [the] person of
[the defendant]".
The
principal problems with the affidavit, the defendant argues, are, first, that
it fails to state a connection between the apartment to be searched and the
defendant; second, that it fails to
state the relevance of the brown leather jacket or [31 Mass.App.Ct. 561] the ski cap, neither being mentioned in the affidavit as parts of
the victim's description of the attacker;
and, third, that the information supplied by the confidential informant
did not meet the Aguilar‑ Spinelli (FN1) tests for reliability.
The search
warrant application consisted of three documents: an application form, which, in part, referred
to the place to be searched as, "104 Belmont Ave., Brockton, a (4) four
family dwelling, 1st floor rt side, 3 rms and bath, which is occupied by and/or in the possession
of Steven Paul McRae"; the
affidavit; and, as an attachment, the
composite sketch appearing on a "wanted" form that includes the date,
time, and place of the "occurrence," plus the following as the
"Subject's Description: White male,
between ages of 25‑28, 5'10"', 160 lbs., slim to medium build, dark
curly shoulder‑length hair.
Subject was wearing a brown leather coat and a knit ski hat."
[2][3][4]
The application form, in our view, sufficiently stated the connection between
the defendant and the apartment that was searched. The application form is itself subscribed by
Officer Smith under penalties of perjury, and the affidavit's mention of
"the apartment listed" had no other possible referent than the
apartment listed on the application form.
The situation is not different in principle from consideration
by the issuing magistrate of multiple affidavits, sanctioned in Commonwealth v. Saville,
353 Mass. 458, 460, 233 N.E.2d 9 (1968), and
Commonwealth v. DiAntonio, 8 Mass.App.Ct.
434, 441, 395 N.E.2d 358 (1979). The
composite drawing "wanted" form was, in effect, incorporated by
reference in the affidavit, which described its creation and referred to it as
"(Attached)." Compare Commonwealth v. Taylor, 383 Mass. 272,
276‑277, 418 N.E.2d 1226 (1981); Commonwealth v. Sheppard, 387 Mass. 488,
500 & nn. 11 & 12, 441 N.E.2d 725 (1982), rev'd, 468 U.S. 981, 104 S.Ct.
3424, 82 L.Ed.2d 737 (1984), on remand, 394 Mass. 381, 476 N.E.2d 541 (1985);
Commonwealth v. Truax, 397 Mass. 174, 179
& n. 1, 490 N.E.2d 425 (1986); Commonwealth v. DeCologero,
19 Mass.App.Ct. 956, 958‑959, 473 N.E.2d 219
(1985);
Commonwealth v. [31 Mass.App.Ct. 562]
Bass, 24 Mass.App.Ct. 972, 974‑975, 512
N.E.2d 519 (1987). The
"wanted" form contained more of the victim's description of the
subject than had been recited in the affidavit proper; it referred to the leather jacket and the ski
hat. But even if this were not true, the
issuing magistrate could properly infer from the victim's having described the
attacker to the police, coupled with their questioning the alleged attacker,
when identified, as to his ownership of a brown leather jacket, a knit ski cap,
and a folding knife, that these items had all, like the knife, been included in
the victim's description and that the failure to state so expressly (as to the
jacket and hat) in the affidavit was mere inadvertence. Compare
Commonwealth v. Cefalo, 381 Mass. 319, 329‑330,
409 N.E.2d 719 (1980). See also Commonwealth v. Pellier,
362 Mass. 621, 624‑625, 289 N.E.2d 892 (1972) (which upheld a search
warrant based on an affidavit that gave the street address of the apartment to
be searched but omitted to tell which city).
We need not consider the information supplied by the confidential
informant; the affidavit sufficed
without it.
[5][6] It
is accepted that "[i]n evaluating [an]
affidavit, the information contained within it must be read as a whole and
reasonable inferences are valid considerations." Commonwealth v. Wright, 15 Mass.App.Ct. at 248, 444 N.E.2d 1294. See
Commonwealth v. Alessio, 377 Mass. 76, 82, 384
N.E.2d 638 (1979). Subject to
commonsense limitations and the usual rules for evaluating reliability, those
considerations may include written, drawn, or printed information incorporated
by reference, explicitly or implicitly, or even information on the application
form, which, being sworn, is itself an affidavit. So long as the material is before the issuing
magistrate, it does not violate the purpose of G.L.
c. 276, § 2B, which has as a primary justification the preservation of a contemporary,
written record of the basis on which the warrant was issued, and the avoidance
of later reliance on possibly mushy recollections. See
Commonwealth v. Monosson, 351 Mass. 327, 330, 221
N.E.2d 220 (1966); Commonwealth v. Sheppard, 394 Mass. at
388, 441 N.E.2d 725; Commonwealth v. Truax,
397 Mass. at 179, 490 N.E.2d 425. Here,
the entire package‑‑the sworn application, the sworn affidavit, and
the incorporated composite [31 Mass.App.Ct. 563]
drawing form‑‑was before the magistrate who issued the
warrant. All were properly considered by
the judge in reviewing after the fact the sufficiency of the showing of
probable cause.
[7] The
passage of time from attack to search (twelve days) did not make too remote the
inference that the attacker's clothing and knife would be found in his
residence‑‑particularly given the leeway employed in after‑the‑fact
review of applications for warrants. See Commonwealth v. Corradino,
368 Mass. 411, 416, 332 N.E.2d 907 (1975); Commonwealth v. Alessio,
377 Mass. at 82, 384 N.E.2d 638.
We mention
a question, not briefed, but raised in oral argument when the defendant's
counsel noticed that one photocopy of the affidavit, which appears three times
in the appendix, does not show the word "(Attached)" after the words
"composite drawing." This
suggests, she argues, that the composite drawing "wanted" form may
not have been attached at all and thus should not be considered under
principles of incorporation by reference.
We cannot properly speculate as to the reason for the discrepancy
in the photocopies. If it were critical,
it would have to be considered by the trial court on a motion for a new trial
under Mass.R.Crim.P. 30(b), 378 Mass. 900
(1979). (At the suppression hearing it
was accepted that the composite had been attached to the affidavit.) But, in our view, as earlier stated, the
composite was not critical, the affidavit having sufficiently implied without
it that the leather jacket and a ski cap were included in the victim's
description of her attacker.
Judgments affirmed.
(FN1.)
Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12
L.Ed.2d 723 (1964). Spinelli v. United
States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d
637 (1969). See Commonwealth v. Upton, 394 Mass. 363, 374‑375, 476 N.E.2d
548 (1985).