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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. Pellegrini, 405
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Jamie Ann Sabino,
Edward D. Rapacki, Asst. Dist. Atty., for Com.
Before WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.
ABRAMS, Justice.
The
defendant appeals from his convictions for possession of fireworks and illegal
storage of fireworks, G.L. c. 148, §§ 39, 40.
The sole question on appeal is whether the motion judge erred in denying
the defendant's motion to suppress evidence which was seized pursuant to a
warrant the issuing judge intended to sign but, in fact, failed to sign. We transferred the case to this court on our
own motion. We affirm the convictions.
The facts
are not in dispute. (FN1) On
Fall's
affidavit consisted of two parts: a form
affidavit with the particulars filled in by Fall, and a two‑page, typed
affidavit containing Fall's testimony concerning probable cause. The form affidavit incorporated the
typewritten affidavit by reference. In
the presence of the judge, Fall signed both documents. The judge signed both documents, attesting
that the officer swore to the truth of their contents in front of the
judge. The judge then handed Fall the
warrant authorizing the search, and said, "You have a good
warrant." At this point, the judge
intended that the warrant issue but he failed to sign the warrant.
The judge
retained the signed affidavits. See G.L.
c. 276, § 2B (1986 ed.). Fall took the
warrant and went to the garage at
[1] The
defendant does not dispute the fact that the affidavit established probable
cause to search the garage and that there
[405 Mass. 88] were no defects
in the warrant as to the description of items, the description of the place to
be searched, and the execution of the warrant.
The defendant does argue that the judge's failure to sign the warrant
rendered the warrant a nullity and that therefore the search was a warrantless
search not justified by exigent circumstances.
The Commonwealth argues that the inadvertent failure of the judge to sign
the warrant was a ministerial error which did not nullify the warrant. We agree with the Commonwealth.
[2]
Ministerial errors do not nullify search warrants. See, e.g.,
Commonwealth v. Truax, 397 Mass. 174, 181‑182, 490 N.E.2d 425 (1986)
(inadvertent deletion of words "there is probable cause" from the
warrant).
Commonwealth v. Wilbur, 353 Mass. 376, 381, 231 N.E.2d 919 (1967),
cert. denied, 390 U.S. 1010, 88 S.Ct. 1260, 20 L.Ed.2d 161 (1968) (absence of
the teste of the first justice of the court); Commonwealth v. Chamberlin,
22 Mass.App.Ct. 946, 949, 494 N.E.2d 63 (1986) (failure to place name of
affiant in the proper space on his affidavit beneath the affiant's signature).
Commonwealth v. Young, 6 Mass.App.Ct. 953, 383 N.E.2d 515 (1978)
(failure of police officer to sign affidavit). Commonwealth v. Hanscom, 2
Mass.App.Ct. 840, 311 N.E.2d 95 (1974) (omission of affiant's name and date in
the acknowledgement of the affidavit).
Further, we said that the failure of a clerk of court to sign a civil writ,
as required by the State Constitution, was a defect of form capable of
amendment. See Austin v. Lamar Fire Ins. Co., 108 Mass. 338, 340 (1871).
These
cases indicate that a failure to sign an otherwise valid warrant, in a
situation where there is no question that the judge intends to issue the
warrant, should be deemed a ministerial defect which does not invalidate the
warrant. Some courts have so held. See, e.g.,
United States v. Turner, 558 F.2d 46, 50 (2d Cir.1977); Yuma County Attorney v. McGuire,
109 Ariz. 471, 472‑473, 512 P.2d 14 (1973); People v. Sanchez, 131
Cal.App.3d 323, 329, 182 Cal.Rptr. 430 (1982); People v. Superior Court,
75 Cal.App.3d 76, 79, 141 Cal.Rptr. 917 (1977); (FN3) Sternberg v. Superior Court,
41 Cal.App.3d [405 Mass. 89] 281, 291‑292, 115 Cal.Rptr. 893
(1974);
State v. Spaulding, 239 Kan. 439, 447, 720 P.2d 1047 (1986). Other courts hold that failure to sign a
warrant invalidates the warrant and renders its issuance a nullity. See, e.g.,
State v. Surowiecki, 184 Conn. 95, 97, 440 A.2d 798 (1981); Byrd
v. Commonwealth, 261 S.W.2d 437, 438 (Ky.1953); People v. Hentkowski, 154
Mich.App. 171, 177‑178, 397 N.W.2d 255 (1986); State v. Spaw, 18 Ohio
App.3d 77, 79, 480 N.E.2d 1138 (1984).
(FN4) We conclude that, where, as
here, there is no dispute that the judge intended to issue the warrant, and the
judge signed the officer's affidavit, the failure to sign the warrant "is
no more than a clerical error." Commonwealth v. Truax, supra 397 Mass. at
182, 490 N.E.2d 425. (FN5)
[3][4] The
Fourth Amendment to the United States Constitution requires that "no
warrant shall issue, but upon probable cause, [405 Mass. 90]
supported by oath or affirmation, and particularly describing the place to be
searched and the things to be seized."
The defendant does not dispute that the judge intended to issue the
warrant, that there was probable cause to support the warrant, and that the
warrant described the place to be searched and the items to be seized with
sufficient particularity. There is no
Federal requirement either under the Fourth Amendment or case law from the
United States Supreme Court which requires that a judge sign the actual
warrant. Where, as here, the judge's
name as the official who took the affiant's oath appears on the affidavit on
which the warrant is based, where the judge said to the officer, "[You
have] a good warrant," and where all the other Federal requirements are
met, we think the warrant is valid as a matter of Federal law. "As long as the [judge] in fact performs
the substantive tasks of determining probable cause and authorizing the
issuance of the warrant, the [Fourth A]mendment is satisfied."
United States v. Turner, supra at 50.
Although
the State Constitution and Massachusetts statutory law provide that the warrant
must issue, neither one explicitly provides that the warrant must be
signed. See art. 14 of the Massachusetts
Declaration of Rights; G.L. c. 276, §§ 1‑2B
(1986 ed.). Despite this fact, and
despite the plain meaning of the word "issue," the dissent
asserts that "the judge could not 'issue' the search warrant until he
signed the document." Post at 518. This conclusory proposition has no basis in
the language of the State Constitution or statutes. The words "issue" and
"sign" are not synonomous. If
the Legislature wished to make the signing of warrants a requirement without
any exception, it could have done so explicitly.
We
recognize that the accepted practice is for persons authorizing search warrants
to sign the warrants and for police officers and the public to rely on signed
warrants. The signature of the
authorizing official affords the householder notice that there was official
authorization for the warrant. The
signature makes the person whose premises are to be searched aware that he or
she may have a judicial remedy if police abuse the warrant's dictates. It also impresses on the person authorizing
the search the seriousness of what is being ordered. For these
[405 Mass. 91] reasons, as a
general rule, warrants must be signed by the authorizing authority.
[5]
Nevertheless, here the judge signed the affidavit supporting the warrant, and
told the police officer that he had "a good warrant." (FN6)
Before executing the search, the police officer told the defendant the name
of the judge who authorized the warrant.
Further, the police did not exceed the authority of the warrant in any
respect in its execution or return. In
these narrow circumstances, where there is no dispute the judge intended the
warrant to issue when he handed it to Fall, the defendant's motion to suppress
properly was denied.
Judgments
affirmed.
LIACOS,
Justice (dissenting).
The court
today rules, ante at 515, that a search warrant, which
a judge inadvertently failed to sign, is valid because the absence of the
judge's signature "should be deemed a ministerial defect which does not
invalidate the warrant." (FN1) I dissent.
[405 Mass. 92] A search warrant, unsigned by a judge, is a nullity, void on its
face, and void ab initio. Kelley v. State, 55 Ala.App. 402, 403,
316 So.2d 233 (1975). State v. Vuin, 185 N.E.2d 506, 510 (Ohio
Ct.C.P.1962). See State v. Spaw, 18 Ohio App.3d 77, 79, 480 N.E.2d 1138 (1984). Such a warrant is invalid because "it
shows on its face that it lacks the signature of any [judge or] magistrate,
such being the only authorized officer to put life in the paper."
Kelley v. State, supra 55 Ala.App. at 404, 316 So.2d
233.
Article 14
of the Massachusetts Declaration of Rights states that "no warrant ought
to be issued but in cases, and with
the formalities prescribed by the laws" (emphasis added). Similarly, G.L. c. 276, § 1, commands an
authorized court or justice to "issue
a warrant" if satisfied that there is probable cause to do so (emphasis
added). G.L. c. 276, § 1 (1986
ed.). A judge or magistrate
"issues" a warrant only when he or she signs the appropriate document
and entrusts it to the proper person. People v. Hentkowski, 154 Mich.App. 171,
177, 397 N.W.2d 255 (1986). Although the
parties here have stipulated that the judge intended to sign the warrant but
failed to do so by inadvertence, I conclude that the judge could not
"issue" the search warrant until he signed the document. "[A] lawful signature on the search
warrant by the person authorized to issue it [is] essential to its
issuance." State v. Surowiecki, 184 Conn. 95, 97,
440 A.2d 798 (1981) (citing various authorities for the proposition). See
People v. Hentkowski, supra 154 Mich.App. at 177, 397 N.W.2d 255 (judge
inadvertently failed to sign warrant).
It has
been stated that "[c]ourts never regard lightly the extraordinary and
unusual procedure authorized by search warrants and are ever mindful of the
constitutional guarantee to citizens to be free from unreasonable search and
seizure." State
[405 Mass. 93] v. Cochrane, 84 S.D. 527, 530, 173
N.W.2d 495 (1970), quoting Byrd v.
Commonwealth, 261 S.W.2d 437, 438 (Ky.1953). "[S]tatutes authorizing and regulating
searches and seizures and the issuance of search warrants are strictly
construed against the state and liberally in favor of the individual."
State v. Cochrane, supra 84 S.D. at 531, 173 N.W.2d 495.
The
signature requirement is supported by policy considerations concerning three
sets of actors‑‑judges, police officers, and the public. A judge's signature on a search warrant
serves as an "identifiable objective manifestation" of the judge's
subjective intent to issue a search warrant. State v. Surowiecki, supra 184 Conn. at
97, 440 A.2d 798. The signature
requirement impresses upon a judge the seriousness and importance of issuing a
search warrant. People v. Hentkowski, supra 154 Mich.App.
at 178, 397 N.W.2d 255.
Furthermore,
the potential for abuse and police misconduct in allowing unsigned warrants is
clear.
Id. Because officers who
execute a search warrant must limit their search to the dictates of a warrant,
they must first review the document. Id.
Police officers cannot reasonably rely upon an unsigned document as
authority to conduct a search. Id. at 178‑179, 397 N.W.2d 255.
State v. Spaw, 18 Ohio App.3d 77, 79, 480 N.E.2d 1138 (1984). The signature requirement is not overly
burdensome to police officers who can take corrective measures and thereafter
conduct the search. People v. Hentkowski, supra 154 Mich.App.
at 178, 397 N.W.2d 255.
Lastly,
the signature requirement protects and assures persons in control of property
which is to be searched. When such
persons are presented with a document which purports to be a search warrant,
they must be able to review the document and determine whether to allow the
search. "The custodian should not
have to guess as to whether a magistrate intended ... to sign the document
which is presented to the custodian." Id. at 179, 397 N.W.2d 255. See
People v. Superior Court, 75 Cal.App.3d 76, 80, 141 Cal.Rptr. 917 (1977)
(stating that secondary purpose of search warrant is to apprise householder
that search has been authorized by magistrate).
There is
no allegation in this case of wrongdoing either on the part of the police
officer or the judge; this was simply a
case of inadvertence. There was,
however, a confrontation [405 Mass.
94] between the defendant and the
officer executing the search warrant that illustrates one of the deficiencies
of an unsigned search warrant. The
defendant called to the officer's attention the fact that the search warrant
was not signed and was therefore not valid to search the garage. The officer told the defendant that he knew
the warrant was good and that he just came from the judge who had told him that
he had a good warrant. (FN2) The defendant advised the officer that the
police could not enter the premises with an unsigned warrant and that if they
did, the defendant would sue.
Nevertheless, the officers proceeded to search the premises. The court glosses over this confrontation and
simply states that "no substantial rights of the defendant have been
affected by the lack of signature on the warrant at the time of the
search" because the officer told the defendant the name of the judge who
authorized the search. Ante at 516 n. 3. I disagree.
A property owner has the right, under art. 14, to obtain the protection
of a warrant signed by a judge.
I would
invalidate the defective search warrant and would suppress the evidence.
(FN1.) On April 29, 1986, the Commonwealth and
the defendant filed an "agreed statement of facts filed in lieu of hearing
on defendant's motion to suppress evidence." At trial, a statement of essentially the
same agreed facts was read into the record.
(FN2.)
Fall attested to the following facts to establish probable cause. He saw the defendant and Dominic Bianchi,
Jr., loading into a truck boxes from the garage at 19 Dunstan Street. Both men were known to deal in
fireworks. Fall telephoned the canine
division/bomb squad of the police department.
That division sent an experienced officer, along with a dog trained to
detect explosive odors. Other officers
arrived at the garage before Fall did.
These other officers saw numerous boxes labeled with an orange sticker
which is known to warn of explosives.
The defendant told the officers that they were fireworks, and said that
he had no license for them. Further, the
trained dog acted in such a manner as to indicate that there were explosives in
the garage.
(FN3.)
In People v. Superior Court, supra,
the court emphasized that the police officer did not realize that the warrant
was unsigned before executing the search.
Therefore, the unsigned warrant did not conflict with "[a]
secondary purpose" of the law:
"appris[ing] the householder that the search had been authorized by
a magistrate." Id. 75 Cal.App.3d at 80, 141 Cal.Rptr.
917. In the case before us, the
defendant and the officers noticed before the search that the warrant was
unsigned. However, the court in People v. Superior Court, supra, was
analyzing the policies underlying not only the Fourth Amendment but also
"the California statutes which prescribe the methods of the issuance of
search warrants." Id. 75 Cal.App.3d at 80, 141 Cal.Rptr.
917. California statutes explicitly
provide that a warrant must be "signed
by a magistrate" (emphasis added). Id. 75 Cal.App.3d at 79, 141 Cal.Rptr.
917. Massachusetts has no analogous
language in its search warrant statute.
See G.L. c. 276, § 1 et seq.
(1986 ed.). At least in this
case, where Fall told the defendant the name of the judge who had authorized
the search before he entered the premises, no substantial rights of the
defendant have been affected by the lack of signature on the warrant at the
time of the search.
(FN4.)
Courts of some jurisdictions with State statutes which explicitly provide that
warrants must be signed have concluded that a signature is necessary for the
warrant to be valid. See State v. Surowiecki, supra 184 Conn. at
100, 440 A.2d 798 (Shea, J., dissenting), and cases cited.
(FN5.)
The dissent states that the cases from other jurisdictions do not support the
conclusion we reach. See post at 517 n. 1. The dissent fails to recognize that these
cases conclude, as we do, that an unsigned warrant is not always invalid. Two of these cases, one Federal and one from
California, deal with telephonic warrants.
The Federal decision is based on the principle that the signing of the
warrant is a "purely ministerial task." United States v. Turner, supra. The California case relies on older cases
for the proposition that "the inadvertent absence of a magistrate's
signature on the traditional warrant ... does not invalidate the warrant."
People v. Sanchez, supra. A
candid examination of the other three cases discussed by the dissent
demonstrates that the cases, in fact, support our conclusion. The attempted distinctions are not
persuasive. See, e.g., Yuma County Attorney v. McGuire, supra,
citing Commonwealth v. Wilbur, 353
Mass. 376, 231 N.E.2d 919 (1967). People v. Superior Court, supra 75
Cal.App.3d at 79, 141 Cal.Rptr. 917. State v. Spaulding, supra.
(FN6.)
The dissent correctly notes that we have not adopted under State law the
"good faith" doctrine of United
States v. Leon, 468 U.S. 897, 906‑907, 104 S.Ct. 3405, 3411, 82
L.Ed.2d 677 (1984). See Commonwealth v. Treadwell, 402 Mass.
355, 356 n. 3, 522 N.E.2d 943 (1988). We
do not do so in this case. The Federal
good faith doctrine concerns only the propriety of excluding evidence obtained
"pursuant to a subsequently invalidated warrant." United States v. Leon, supra
468 U.S. at 918, 104 S.Ct. at 3418. The Leon case assumes a violation of the
Fourth Amendment. Because we rule that
the warrant in question was valid, there is no basis for discussing the
exclusionary rule or any Federal exception to the exclusionary rule.
(FN1.)
The court cites six cases to support the proposition that an otherwise valid
search warrant is not invalidated by the lack of a judge's signature.
Ante at 515. The court fails
to point out that two of those cases involve telephonic search warrant statutes
which explicitly allow telephonic judicial approval and provide other
safeguards against unreasonable searches and seizures. See
United States v. Turner, 558 F.2d 46 (2d Cir.1977); People v. Sanchez, 131
Cal.App.3d 323, 329, 182 Cal.Rptr. 430 (1982).
In another case, Yuma County Attorney v. McGuire, 109
Ariz. 471, 512 P.2d 14 (1973), the court assesses the validity of an unsigned
search warrant in light of the fact that the State legislature has authorized
the use of telephonic search warrants.
In People v. Superior Court, 75
Cal.App.3d. 76, 80, 141 Cal.Rptr. 917 (1977), another case cited by the court,
the affiant testified that the judge signed numerous duplicate copies of the
search warrant, but not the original. No
such allegation is made here.
Furthermore, that court specifically ruled that the unsigned warrant was
not invalid because no confrontation occurred between the householder and the
police officer executing the warrant.
Also
cited by the court is State v. Spaulding,
239 Kan. 439, 720 P.2d 1047 (1986).
Kansas has a statute stating that evidence shall not be suppressed
because of technical irregularities in a search warrant. Neither the Massachusetts statutory scheme
nor art. 14 of our Declaration of Rights has a similar provision. See G.L. c. 276, § 1 et seq. (1986 ed.).
In
my view, none of these cases supports the court's ruling.
(FN2.) I am not comforted by the fact that the
judge told the police officer in this case that he had a good warrant. This court has not yet ruled on the relevance
of an officer's subjective "good faith" intent. See
Commonwealth v. Sheppard, 394 Mass. 381, 391‑393, 476 N.E.2d 541
(1985);
United States v. Leon, 468 U.S. 897, 906‑907, 104 S.Ct. 3405,
3411, 82 L.Ed.2d 677 (1984). In Leon, the good faith exception was
applied where the warrant was facially valid.
This is not so here. I note also
that two courts have held the "good faith" exception to the exclusionary
rule cannot apply to an unsigned search warrant because the defect is readily
apparent on the face of the instrument. State v. Spaw, 18 Ohio App.3d 77, 78‑79,
480 N.E.2d 1138 (1984) (officers executing unsigned warrant could not be acting
in good faith). See Miller v. State, 703 S.W.2d 352, 355 (Tex.App.1985).