|
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. Sbordone, 424
Supreme Judicial Court of Massachusetts,
Argued
Decided
R. Michael Cassidy, Assistant Attorney General, for
the Commonwealth.
Paul W. Shaw,
Before WILKINS, C.J., and ABRAMS, LYNCH, O'CONNOR
and GREANEY, JJ.
ABRAMS, Judge.
At issue
is whether the participation of a chief civilian investigator in the execution
of search warrants contravenes art. 14 of the
After a
hearing, a Superior Court judge allowed the defendant's motion and ordered the
records suppressed. The judge concluded
that, although civilian participation may be permissible in executing search
warrants, here the searches were unconstitutional because the police failed to
supervise and appropriately to limit the civilian's involvement. The judge also rejected the Commonwealth's
argument that the seized evidence was nevertheless admissible under the
inevitable discovery doctrine, ruling that suppression was necessary because of
the severity of the constitutional violation.
A single justice of this court allowed the Commonwealth's request for
leave to pursue an interlocutory appeal pursuant to G.L. c. 278, § 28E. See Mass. R.Crim. P. 15(b)(2), 378 Mass. 882
(1979). For the reasons stated below, we
vacate the judge's order of suppression.
We
summarize the motion judge's factual findings as follows. Robert Tryon, a Massachusetts State trooper
assigned to the office of the Attorney General, applied for the first warrant
to search the medical offices and appurtenant storage areas of the defendant's
chiropractic clinic in December, 1992.
The affiant for the warrant application was Tito Medeiros, an [424 Mass. 804] investigator for the insurance fraud bureau (IFB), (FN2) who
specialized in the investigation of fraudulent bodily injury claims. The application expressly requested that
"Tito Medeiros, Investigator from the Insurance Fraud Bureau of
Massachusetts be authorized to be present during and assist in the search of
said premises," and the assistant attorney general who presented the
application for judicial approval also repeated this request orally.
The
Commonwealth sought Medeiros's aid in executing the warrant because of his
general expertise in investigating insurance fraud and his particular
involvement in the ongoing, year‑long investigation of the
defendant. That investigation also led
to the indictment of several of the defendant's patients. (FN3)
The State troopers assigned to the matter were not extensively trained
in investigating insurance fraud, they did not have Medeiros's
proficiency for identifying the types of insurance documents used to commit
fraud, and they did not share his extensive knowledge of the aliases and the
use of false social security numbers, the dates of claims and losses, and the
modus operandi of this particular fraud ring.
A Superior Court judge issued the warrant and orally authorized
Medeiros's presence and assistance in the search. The warrant authorized the seizure of all
sign‑in sheets, logs, or appointment books of the defendant's clinic, and
all records concerning several individuals whose names were listed on an
addendum.
The
warrant was executed on December 5, 1992.
Trooper Tryon, who had possession of the warrant, entered the clinic
first, displayed the warrant, and secured the premises. Trooper Tryon, Trooper Scott Jennings,
Medeiros, an assistant attorney general, and a paralegal from the Attorney
General's office were present during the search, as were the defendant and
several of his office staff. (FN4) While Tryon was speaking with the defendant,
Trooper Jennings waited in the reception area [424 Mass. 805] as
Medeiros began searching through the thousands of files which were stored in
that area. A clinic employee explained
that those files were active, and that the closed files were stored upstairs on
the second floor. The search team then
went upstairs, where there were thousands of closed files stored alphabetically
in file cabinets and boxes. The two
State troopers, Medeiros, and the paralegal all searched the cabinets and
boxes, removing treatment files which were labeled with names listed on the
addendum to the warrant. (FN5) At some point during the search, Medeiros,
unaccompanied by either State trooper, went with the office manager to her
office and searched her desk and other areas for files labeled with names
listed on the addendum. The office
manager then observed Medeiros entering another office to search for
files. Trooper Tryon reviewed each file
before it was seized. The two State
troopers took possession of all seized files, secured them at the Attorney
General's office, and then prepared the inventory.
Trooper
Tryon later applied for a second and a third warrant to search the defendant's
clinic. These warrants were similar to
the first search warrant. Again,
Medeiros was the affiant, the applications expressly requested judicial
authorization for Medeiros's presence and assistance, the assistant attorney
general who presented the applications repeated this request orally, and the
Superior Court judges who issued the subsequent warrants orally authorized
Medeiros to be present during and to assist in the searches. The description of the records subject to
seizure was also the same as on the first search warrant, except that the
addenda to each warrant listed a different set of names and aliases.
On May 14,
1993, Medeiros went with Troopers Tryon and Jennings to execute the second
search warrant at the clinic. Again, the
search process consisted primarily of looking through files that were clearly
labeled and alphabetically stored, and this time two of the defendant's employees
assisted the search team in locating files bearing names which were designated
on the addendum. As with the first
search, Medeiros actively participated, searching through an employee's desk as
well as through file cabinets and storage
[424 Mass. 806] boxes. (FN6)
Again, Trooper Tryon reviewed each document before it was seized. At the conclusion of the search, Tryon took
possession of all seized records, secured them at the Attorney General's
office, and prepared the inventory.
Medeiros
returned with Troopers Tryon and Jennings to execute the third search warrant at the clinic on April 7, 1994. (FN7)
This time, Medeiros divided the names on the addendum among the two
State troopers, three clinic employees, and himself, and they all actively
searched for files. During the search, a
disagreement arose between Medeiros and the office manager as to whether
certain appointment books and sign‑in sheets were within the scope of the
warrant, and Medeiros decided not to seek seizure of the particular documents
in dispute. (FN8) Again, Trooper Tryon took possession of all
seized items, secured them at the Attorney General's office, and prepared the
inventory.
[1][2] 1. Civilian participation. We have not addressed the question whether,
and to what extent, a civilian may participate in a search conducted pursuant
to a valid search warrant. But see Rodriques v. Furtado, 410 Mass. 878,
881, 575 N.E.2d 1124 (1991) (implicitly recognizing the authority of a private
physician to execute a warrant for a body cavity search). Article 14 and G.L. c. 276, § 2, neither
expressly permit nor prohibit civilian assistance in executing search
warrants. Thus, the motion judge relied on
authority from other jurisdictions to conclude that art. 14 and G.L. c. 276, §
2, do not prohibit the police from utilizing civilians "in appropriate
circumstances" where such assistance "is necessary or will materially
assist the police in executing a warrant."
(FN9)
This
portion of the judge's ruling is well supported by the [424 Mass. 807] weight
of authority. See generally 2 W.R.
LaFave, Search and Seizure § 4.10(d), at 676 (3d ed.1996) ("at least when
such a person can be of assistance to the executing officers in determining the
location or identity of the items to be seized, it is not objectionable that
the officers ... are accompanied during execution by a private
person"). Indeed, Federal agents
are expressly authorized by statute to utilize civilian assistance when they execute
search warrants. See 18 U.S.C. § 3105 (1994). See also
United States v. Robertson, 21 F.3d 1030, 1032‑1034 (10th Cir.),
cert. denied, 513 U.S. 891, 115 S.Ct. 238, 130 L.Ed.2d 161 (1994);
United States v. Clouston, 623 F.2d 485, 486 (6th Cir.1980). Where the applicable statute is silent regarding
civilian participation, as is the case here in the Commonwealth, other State
courts have in particular circumstances upheld civilian assistance in the
execution of a search warrant. See,
e.g., Harris v. State, 260 Ga. 860,
401 S.E.2d 263 (1991) (dentist authorized to execute search warrant for dental
X‑rays and impressions); State v. Ricci, 472 A.2d 291, 298
(R.I.1984) (crime victim allowed to be present during search to confirm
identity of stolen jewelry). As the
motion judge correctly noted, a civilian may possess a peculiar expertise or
knowledge regarding the means of retrieval or identification of items covered
by a warrant, and a rule permitting civilian assistance in such circumstances
actually enhances the reasonableness of the search by lessening its
intrusiveness. See also People v. Boyd, 123 Misc.2d 634, 638,
474 N.Y.S.2d 661 (N.Y.Sup.Ct.1984) (use of corroboration witness to identify
stolen property provided "a fair method for augmented assurance that the
warrant w[ould] not be executed with excess"); Schalk v. State, 767 S.W.2d
441, 454 (Tex.App.1988), cert. denied, 503 U.S. 1006, 112 S.Ct. 1763, 118
L.Ed.2d 425 (1992) (where police officer did not have the proficiency necessary
to differentiate a trade secret from a legitimate computer software program,
the assistance of a civilian software expert limited the items seized rather
than increasing them).
[3] The
motion judge determined that, because of the complexity of the investigation,
the specialized nature of the sought‑after documents, and the lack of
information regarding the clinic's filing practices, at
the outset there was a reasonable basis to conclude that Medeiros's assistance
during the search [424 Mass. 808] would be materially helpful to the
State troopers. (FN10) However, the judge ruled that Medeiros's
active involvement exceeded the proper limits of civilian assistance because
the executing officers did not closely supervise him, instead they granted him
complete latitude to search for files, at times unaccompanied, and failed to
restrict his participation to those acts which were within his special area of
expertise. Finding that the search was
virtually a "purely mechanical exercise" of retrieving clearly
labeled and alphabetically stored files based on names listed on the addenda,
the judge concluded that the facts did not support the Commonwealth's assertion
that it was necessary for Medeiros to play an active role in the searches.
The case
law from other jurisdictions supports the placement of restrictions on the
extent of civilian involvement in police searches conducted pursuant to a
warrant. See, e.g., Clouston, supra at 486‑487 (participation of telephone
company employees in warranted search held constitutional where they were
instructed that they must stay with a Federal agent at all times and that their
only role was to identify stolen telephone equipment, not to search for it);
People v. Boyd, supra at 638, 474 N.Y.S.2d 661 (presence of
corroboration witness held constitutional where only role was to confirm
identity of stolen items that were retrieved by police). See also
Stack v. Killian, 96 F.3d 159, 162‑163 (6th Cir.1996) (discussing
split in authority regarding whether television crew's filming of the search
process is unconstitutional because the crew's presence was unnecessary to the
execution of the warrant).
There are
also sound policy reasons for holding the police responsible for appropriately
limiting a civilian's role in the conduct of a warranted search. The motion judge noted, unlike civilians,
police officers "have taken an oath to uphold federal and state
constitutions and laws and are trained to conduct a search lawfully and in
accordance with the provisions of a warrant ... and, unlike sworn police
officers, civilians are not subject to departmental discipline for any failure
to adhere to the law." See Morris v. State, 622 So.2d 67, 68‑69
(Fla.Dist.Ct.App.1993)[424 Mass. 809]
(invalidating search where Medicaid fraud investigators displaced,
rather than assisted, the police officer charged with executing the warrant).
[4]
Accordingly, the officers should have limited Medeiros's role in the search to
remaining present to assist the officers with any technical questions which may
have arisen as the officers executed the warrant, particularly where the
officers had ascertained the alphabetical filing system and had the cooperation
of clinic employees. This ruling
comports with the underlying rationale that permitting knowledgeable or expert
civilians to participate in executing a warrant minimizes the intrusiveness of
the search.
[5] We
recognize the wide variety of circumstances in which police may seek civilian
assistance in conducting a warranted search.
Although adequate police supervision ensures that the warrant is
properly executed and its scope is not exceeded, the required level of
supervision varies depending on the circumstances. See
State v. Kern, 81 Wash.App. 308, 314‑315, 914 P.2d 114 (1996) (search
upheld where police officer unqualified to search bank records allowed
disinterested bank employees to conduct warranted search for defendant's
records outside of police supervision).
We agree with the motion judge that "[w]hile there may be
extraordinary circumstances, e.g., a search through computerized files or
obtaining dental impressions, where it is necessary for a civilian with
specialized knowledge actually to conduct the search, the present case does not
fall within that category." See United States v. Schwimmer, 692 F.Supp.
119, 126‑127 (E.D.N.Y.1988) (upholding search executed by civilian
computer expert); Harris v. State, supra (upholding search executed by
dentist). (FN11)
[6][7][8]
2. Inevitable discovery. "[A]s a general rule, the mere fact that
an unlawful search and seizure has occurred should not automatically result in
the exclusion of any illegally seized evidence." Commonwealth v. Gomes, 408
Mass. 43, 46, 556 N.E.2d 100 (1990).
"[T]he decision whether to exclude such evidence should properly
turn on: (1) the degree to which the
violation undermined the principles underlying the governing rule of [424 Mass. 810] law, and (2) the extent to which exclusion will tend to deter
such violations from being repeated in the future." Id. Under the inevitable
discovery doctrine, if the Commonwealth can demonstrate by a preponderance
standard that discovery of the evidence by lawful means was certain as a
practical matter, the evidence may be admissible as long as the officers did
not act in bad faith to accelerate the discovery of evidence, and the particular
constitutional violation is not so severe as to require suppression. (FN12) Commonwealth v. O'Connor, 406 Mass. 112,
117‑118, 546 N.E.2d 336 (1989).
[9] The
motion judge correctly determined that the Commonwealth met its burden in
proving the inevitability of the lawful discovery of the evidence in
question. The defendant does not
challenge the motion judge's conclusion that all three warrants were well
supported by probable cause, the records seized were within the scope of the
warrants, and the Commonwealth would have discovered the evidence even without
Medeiros's involvement in the search.
Nor does the defendant contest the judge's well‑reasoned
conclusion that exclusion would not serve a deterrent purpose considering the
paucity of previous Massachusetts case law to guide the officers as to the
proper limitations of utilizing civilian assistance in the execution of
warrants.
What is
contested is the motion judge's ruling that the severity of the constitutional
violation requires suppression. See O'Connor, supra at 118, 546 N.E.2d
336. The judge ruled that "the
violation goes to the heart of the principles underlying the governing
law" because art. 14 and G.L. c. 276,§ 2, "expressly require[ ] that
warrants be executed by public officers."
But see supra at 1187‑89,
for a discussion of the need for expert civilian assistance in some
circumstances. At their core, art. 14
and G.L. c. 276, § 2, are intended to protect individual privacy interests. See
Commonwealth v. Pratt, 407 Mass. 647, 660, 555 N.E.2d 559 (1990);
Commonwealth v. Blood, 400 Mass. 61, 68‑69, 507 N.E.2d 1029
(1987). Active civilian participation in
conducting a search, absent adequate justification and police supervision,
greatly increases the potential for an unreasonable intrusion of privacy
because civilians are not sworn to uphold the law, [424 Mass. 811] and
they are not specially trained to conduct searches lawfully and in accordance
with the provisions of a warrant. See Morris v. State, supra at 69 ("the
oath [taken by law enforcement personnel] is of no small moment as a protection
to our citizens when their privacy is lawfully intruded upon by a search
pursuant to a warrant").
However,
we conclude that, in these particular circumstances, Medeiros's participation constituted
only a minimal incremental intrusion on the defendant's privacy and does not
require suppression. See Commonwealth v. Beldotti, 409 Mass.
553, 559, 567 N.E.2d 1219 (1991) (minimally intrusive search for occult blood
on defendant's hands and arms did not require suppression). Medeiros was the chief insurance fraud
investigator for a statutorily created entity which customarily worked with the
Attorney General's office in a collaborative investigatory effort. Thus, the intrusion on the defendant's
privacy was lessened.
For the
most part, at least one of the two police officers, if not both, were in close
physical proximity to Medeiros, thus protecting against excessive execution of
the warrant. Contrast Morris, supra (search invalidated where
police officer waited outside for the entire duration of the search, completely
failing to participate in and supervise search conducted by six Medicaid fraud
investigators). Although a close
question, the brief occasions on which Medeiros searched employee offices and
the office manager's desk unaccompanied by either police officer do not rise to
the level of egregiousness requiring suppression, particularly where the office
manager testified that Medeiros merely looked at the names of files rather than
rifling through them.
Medeiros
did not search anywhere that the officers were not authorized to search
pursuant to the warrant, he did not request seizure of anything not properly
subject to seizure, and there is no suggestion on the record that he conducted
himself in a manner which would have been inappropriate for a law enforcement
officer. See State v. Klosterman, 317 N.W.2d 796, 803 (N.D.1982) ("non‑law
enforcement personnel must, in effect, be governed by the same rules as law
enforcement personnel in considering their conduct during the
search"); 2 W.R. LaFave, Search and
Seizure, § 4.10(d), at 676 (3d ed.1996) (same language).
The result
would be different had Medeiros been an
[424 Mass. 812] ordinary
civilian brought in merely to confirm the identity of stolen property and then
allowed to participate actively in the search.
Contrast United States v.
Clouston, 623 F.2d at 486. However,
Medeiros was the affiant for all three warrants and already possessed
comprehensive knowledge of the defendant's medical and business practices,
particularly regarding the information uncovered pursuant to the searches.
The record
demonstrates that Medeiros at all times acted solely in furtherance of the
purpose of the warrant. Contrast Buonocore v. Harris, 65 F.3d 347 (4th
Cir.1995) (civil rights case discussing objectionability of police officers in
allowing company security officer who accompanied them during a warranted
search to conduct an independent search not in aid of the police, but rather
for his own purposes in recovering stolen property not listed in the warrant),
and cases cited therein.
Finally,
Medeiros did not handle any of the traditional law enforcement functions which
must be performed by the police in executing the search. Contrast
Morris, supra at 68 (police officer did not take custody of any of the
seized records, and he signed the inventory sheet prepared entirely by nonlaw
enforcement personnel without checking its accuracy or determining whether the
seized documents were within the scope of the warrant). Here the two police officers, and not
Medeiros, properly presented the warrant, secured the premises, reviewed
evidence retrieved by others to ensure seizure was authorized, took possession
of all seized evidence, and prepared the inventory for filing the return of
warrant. We note that the delegation of
these functions to Medeiros would have been fatal to the Commonwealth. In these limited circumstances, we hold that
the constitutional violation is not so egregious as to require suppression. See
O'Connor, supra at 119, 546 N.E.2d 336.
The order
of suppression is vacated, and the case remanded to the Superior Court for
further proceedings.
So ordered.
(FN1.) The defendant, Gary Sbordone, relies
exclusively on art. 14 and G.L. c. 276, § 2.
Federal officers are governed by 18 U.S.C. § 3105 (1994), which differs
from our statute. The United States
Supreme Court has not addressed this issue.
(FN2.)
The insurance fraud bureau (IFB) was created by statute to investigate
insurance fraud. St.1990, c. 338, §§ 1‑2.
(FN3.)
The IFB had initiated the investigation and, pursuant to its statutory mandate,
it then reported the matter to the Attorney General. See St.1990, c. 338, § 1 (i ).
Tito Medeiros was its principal investigator on the case and, as was
customary, he provided ongoing investigatory support for the Attorney General's
subsequent inquiry.
(FN4.)
The assistant attorney general did not actively participate in the search. He waited for the defendant's attorney to
arrive and then met with him inside the clinic.
The defendant's attorney was allowed to observe the search.
(FN5.)
The defendant has made no claim that his rights were violated by the
paralegal's participation in the search.
(FN6.)
The motion judge made no finding, and the record is unclear, as to whether a
State trooper accompanied Medeiros while he searched the employee's desk.
(FN7.)
An assistant attorney general was also present, but there was no evidence that
he participated in the search.
(FN8.)
On the record before us, these documents appear to be within the warrant.
(FN9.)
The judge also ruled that advance judicial authorization is a prerequisite to
utilizing civilian assistance in the execution of a warrant. The police expressly requested and received
such authorization for Medeiros's presence and assistance in each search. The better practice is to have the warrant
itself indicate that permission has been obtained for a named civilian to be
present at the search to assist the police.
(FN10.)
We note that the motion judge did acknowledge that the second and third
searches presented "closer questions" because, by then, the police
knew that the files were alphabetically stored, and the State troopers might
have learned from their involvement in the first search to recognize the nature
and appearance of the documents that were subject to seizure.
(FN11.) In some searches, such as body cavity
searches, competing privacy interests may require that an appropriate civilian
actually execute the search outside of the presence of the police so as to
minimize the intrusiveness of the search.
See Rodriques v. Furtado, 410
Mass. 878, 575 N.E.2d 1124 (1991). No
such circumstances were presented here.
(FN12.) Although here we consider these three
searches as a whole because they were so intimately connected, searches
conducted pursuant to separate warrants ordinarily should be considered
individually for purposes of applying the inevitable discovery exception.