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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. Piscopo, 11 Mass.App.Ct.
905 (1981)
Appeals Court of Massachusetts, Essex.
No. 97‑P‑0557.
Argued
Decided
James E. McCall (Robert F. Benson, Jr., with him)
for the defendant.
Elin H. Graydon,
Assistant District Attorney, for the Commonwealth.
Before PORADA, GILLERMAN and BECK, JJ.
PORADA, Justice.
On appeal
from his convictions for trafficking in cocaine and possession of steroids with
intent to distribute, the defendant asserts the following claims of error: (1) the denial of his suppression motions and
an Amral/
Franks motion (FN1); (2) the
admission in evidence of his defaults in this case and the judge's instruction
to the jury on consciousness of guilt based on that evidence; (3) the failure of the judge to reinstruct
the jury on reasonable doubt; (4) the
exclusion of evidence relating to the possession of steroids by his sister's
boyfriend, whom the defendant claims to be the true culprit in this case; and (5) the admission in evidence of testimony
regarding items, found in the execution of a search warrant, which were listed
on the return of the warrant but which were not removed from the scene by the
police and, thus, not produced by the Commonwealth for the defendant's
inspection. We affirm the convictions.
1. Motions to suppress and motion for Amral/Franks hearing.
The defendant argues that his motions to suppress were wrongly denied
because he should have been afforded an evidentiary hearing to determine the
reliability of the trained dog who made a positive "hit" on the
United States postal service express mail package containing the illegal
steroids; the dog sniff of the package
constituted a warrantless, illegal search; and probable cause was lacking for the
issuance of both the Federal and State warrants.
[1] While
it is correct that the defendant did file a discovery motion aimed at
determining the reliability of the dog in detecting steroids, the defendant in
his initial motion to suppress and the memorandum of law filed in support
thereof did not challenge the reliability of the dog. Rather, he relied on claims that the postal
inspector did not have probable cause or reasonable suspicion to detain the
package and expose it to a dog sniff and that the dog sniff itself was indeed
an illegal, warrantless search. [45 Mass.App.Ct.
792] Accordingly, based on those
issues, the motion judge did not err in ruling on the suppression motions based
solely on the affidavits filed in support of the issuance of the Federal
warrant and the State warrant where the defendant did not challenge the
truthfulness of any statements contained in the affidavits. (FN2)
[2][3][4]
We now turn to the issue of probable cause.
Where there is nothing in the record to suggest that at the time of the
application for a search warrant by the postal inspector there was any
involvement by a State official, the determination of the validity of the
Federal warrant must be reviewed under Federal law.
[5][6] [45 Mass.App.Ct.
793] It is equally well settled that
a dog sniff of mail is not a search under the Fourth Amendment.
United States v. Place, 462 U.S. at 706‑707, 103 S.Ct. 2637. While
the defendant concedes that dog sniffs in certain circumstances have been held
not to be searches, he argues that this principle should not be applied to
express mail packages because of the sender's expectation of privacy in
packages shipped via the United States mail and that art. 14 of the Declaration
of Rights of the Massachusetts Constitution provides greater protection than
the Fourth Amendment. Both arguments
fail. As noted, there was no State
involvement in the exposure of the package to a dog sniff or the application
for the Federal warrant and thus we need not address whether a dog sniff is a
search under art. 14. Also, as noted
above, under Federal law, items in the United States mail, including express
mail packages, may be exposed to a dog sniff if reasonable suspicion exists of
criminal activity, and the detention is not of unreasonable length.
United States v. Allen, 990 F.2d at 671. Accordingly, the motion judge was correct in
determining that the dog's positive alert to the package within a short time
following its detention, coupled with the other information set forth in the
affidavit, established probable cause to issue the Federal search warrant.
[7]
Likewise, she did not err in concluding that probable cause existed for the
anticipatory search warrant. Once the
package was legally opened and the illegal steroids discovered, the matter was
then turned over to local police in Massachusetts who properly could use this
information in conjunction with information obtained in their own investigation
that the defendant used steroids, had a prior arrest for possession of
narcotics, and lived at that address to establish probable cause for the
issuance of a search warrant.
[8]
Nevertheless, even if we were to assume that the judge should have waited until
the defendant had completed his discovery before ruling on the suppression
motions, any error was cured by the judge's allowing the defendant after her
denial of the suppression motions to make a showing that an evidentiary hearing
was warranted. In response thereto, the
defendant filed a motion for an Amral/Franks hearing.
See Franks v. Delaware, 438
U.S. 154, 155‑156, 98 S.Ct. 2674, 57 L.Ed.2d
667 (1978); Commonwealth v. Amral,
407 Mass. 511, 522, 554 N.E.2d 1189 (1990).
The motion was accompanied by an affidavit[45 Mass.App.Ct. 794] of counsel which alleged
that the dog employed in the sniff had not been trained to detect steroids and
included a discussion of case law and materials suggesting why a dog sniff may
not be considered reliable, and an affidavit of an expert witness attesting to
the information needed by him to determine the reliability of the dog.
[9] In
denying the motion, the motion judge ruled that the defendant had failed to
make a preliminary showing required under
Franks that any information in the affidavit was false or misleading, or to
point out anything in the discovery materials furnished to the defendant which
would indicate the dog was unreliable. Franks v. Delaware, 438 U.S. at 171, 98 S.Ct. 2674. We
conclude that, although the reliability being challenged here is that of a
trained dog rather than that of a confidential informant, it was incumbent upon
the defendant to make a substantial preliminary showing before obtaining an
evidentiary hearing that the affiant intentionally or
recklessly distorted information about the dog's reliability in his affidavit.
Commonwealth v. Amral, 407 Mass. at 522‑523,
554 N.E.2d 1189. Commonwealth v. Oliveira, 35 Mass.App.Ct. 645, 652, 624 N.E.2d 598 (1993).
[10]
Although we do not have the benefit of the discovery materials furnished by the
Commonwealth to the defendant about the dog, the defendant does not point to
anything in those materials which would demonstrate the dog's
unreliability. Instead, he relies solely
on the fact that the package contained steroids which the dog was not trained
to detect. However, there has been no
showing that the affiant misrepresented the substances which the dog was
trained to detect or any other information about the dog in the affidavit
furnished to the magistrate.
In
addition, the fact that the package contained a substance other than the ones
the dog was trained to detect is irrelevant in determining probable cause to
issue the warrant because probable cause is assessed upon the information known
to the authorities and presented at the time the warrant issues, and the
defendant failed to demonstrate that any of that information was false or
misleading. See United States v. Allen, 990 F.2d at 671 n. 1 (the fact that the
dog hit upon a package which contained a substance which he was not trained to
find is irrelevant in determining probable cause); United States v. Trayer, 898 F.2d 805, 808 (D.C.Cir.),
cert. denied, 498 U.S. 839, 111 S.Ct. 113, 112
L.Ed.2d 83 (1990) (a deviation of a drug dog from its training is not
necessarily detrimental to its being relied upon to determine probable
cause). The judge [45 Mass.App.Ct. 795] did not err in concluding that the defendant had not made the
necessary showing for an evidentiary hearing pertaining to this matter.
Finally,
on the first day of trial the defendant filed a renewed motion to
suppress. Upon the trial judge's inquiry
whether the motion raised any issues not previously presented in his motions to
suppress, the defendant responded that the same issues were presented. The trial judge denied the motion because
those issues had been previously decided.
There was no error in her doing so. Commonwealth v. Miles, 420 Mass. 67, 86,
648 N.E.2d 719 (1995).
[11][12]
2. Evidence of defaults. The defendant argues that the judge erred in
allowing the prosecution to question the defendant about his defaults in this
case. The judge did so only after the
defendant had testified that he had left the United States because he did not
want to testify against his sister.
Because there was evidence that the defendant knew he was in default and
that his motive for leaving the United States could well have been triggered by
the pending charges against him, the judge did not abuse her discretion in
allowing the prosecution to present this evidence. Commonwealth v. Goldoff, 24 Mass.App.Ct. 458,
466, 510 N.E.2d 277 (1987). Commonwealth v. Gonzalez, 42 Mass.App.Ct. 235, 240 n. 5, 675 N.E.2d 1177 (1997). See
Commonwealth v. Brown, 394 Mass. 394, 397, 476 N.E.2d 184 (1985). There is also no merit to the defendant's
contention that this evidence did not warrant an instruction on consciousness
of guilt, which the transcript reveals he himself requested.
[13] 3. Reasonable doubt instruction. The defendant argues that the judge's
failure to reinstruct the jury on reasonable doubt shifted the burden of proof
to him and prejudiced him. The argument
fails because the jury asked for a reinstruction only on the elements of the
crimes charged. In response, the judge
repeated the elements of each offense and reminded the jury that a guilty
verdict required proof by the Commonwealth beyond a reasonable doubt. The judge was not required to do more.
Commonwealth v. Waite, 422 Mass. 792, 807 n. 11, 665 N.E.2d 982
(1996).
Commonwealth v. Watkins, 425 Mass. 830, 841 n. 13, 683 N.E.2d 653
(1997).
[14] 4. Exclusion of evidence pertaining to a third
party's use of steroids. The
defendant argues that he should have been permitted to introduce in evidence
that his sister's boyfriend had been arrested for unlawful possession of
steroids in 1996. The judge excluded
this evidence as too remote from the incidents in question which occurred in
1993. In light of the lapse of time [45 Mass.App.Ct.
796] between the two incidents, the
judge did not abuse her discretion in excluding this evidence. Commonwealth v. Rosa, 422 Mass. 18, 22‑23,
661 N.E.2d 56 (1996). In any event, the
defendant did introduce evidence that the sister's boyfriend was arrested for
unlawful possession of steroids in 1993 (FN3) and did argue to the jury that
the drugs could have belonged to his sister's boyfriend.
[15][16]
5. Missing items set forth in the search
warrant return. Although a police
officer was permitted to testify about various items listed on the return of
the search warrant, which were found in the room adjoining that in which the
package of illegal steroids was found, the items themselves were not produced
for the defendant's inspection before trial or introduced in evidence because
the police allegedly had left those items behind at the scene at the time of
the execution of the warrant. As a
result, the defendant argues that the admission of this evidence unfairly
impaired his right to effective cross‑examination. From the record, it is obvious that the trial
judge in allowing the admission of this evidence applied the balancing test set
forth in Commonwealth v. Willie, 400
Mass. 427, 432‑433, 510 N.E.2d 258 (1987). Because the defendant did not demonstrate
that access to this evidence would have produced anything favorable to his
case, we conclude the judge did not abuse her discretion in allowing the police
to testify about those items. In any
event, defense counsel, in his closing argument, capitalized on this loss by
pointing out the deficiencies in the Commonwealth's case against the defendant,
see Commonwealth v. Greenberg, 34 Mass.App.Ct. 197, 204, 609 N.E.2d 90 (1993), and there was
ample other evidence in the case to support a conviction. See
Commonwealth v. Sasville, 35 Mass.App.Ct.
15, 26, 616 N.E.2d 476 (1993). Thus, it
is unlikely that the prejudice, if any, to the defendant from the loss of this
evidence was significant.
Judgments affirmed.
(FN1.) See
Franks v. Delaware, 438 U.S. 154, 155‑156, 98 S.Ct.
2674, 57 L.Ed.2d 667 (1978); Commonwealth v. Amral,
407 Mass. 511, 522, 554 N.E.2d 1189 (1990).
(FN2.)
Although the issue of the defendant's reasonable expectation of privacy in the
package does not appear to have been challenged below and the motion judge
erroneously found that the package was addressed to the defendant and,
therefore, he had a reasonable expectation of privacy, it is unlikely that he
had a reasonable expectation of privacy in the package where it was not
addressed to him and he did not exhibit any possessory
interest or control over the package at the time of its detention or subsequent
search.
Commonwealth v. Pina, 406 Mass. 540, 544‑546,
549 N.E.2d 106, cert. denied, 498 U.S. 832, 111 S.Ct.
96, 112 L.Ed.2d 67 (1990). Thus, it
would appear that there was no search in the constitutional sense under the
Fourth Amendment and the motion could have been denied on this ground. Id.
at 544, 549 N.E.2d 106.
(FN3.)
Although the judge said she would instruct the jury to disregard this testimony
when it was initially introduced, she did not.
Subsequently, when the defendant testified again about the arrest of his
sister's boyfriend, she did strike that testimony.