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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. Scardamaglia,
410
Supreme Judicial Court of Massachusetts,
Argued
Decided
Geoffrey E. Spofford,
Worcester, for defendant.
Claudia R. Sullivan, Asst. Dist. Atty., for the Com.
Before LIACOS, C.J., WILKINS, ABRAMS, NOLAN and LYNCH, JJ.
WILKINS, Justice.
We
consider again the circumstances, if any, in which a criminal defendant may
challenge the use against him of evidence obtained in or as a result of a
search and seizure that allegedly violated another's rights under art. 14 of
the
[410
The
defendant challenges the lawfulness of the search on the ground that the police
obtained probable cause justifying the issuance of the search warrant by
violating the constitutional rights of one Scott Burnham. The defendant seeks to rely on that
violation, asserting that he was a target of the allegedly unlawful stop of Burnham
who indicated that he had just purchased the cocaine found on him from the
defendant at the defendant's home.
The motion
judge had before him the affidavit of Detective Albert Bourget
of the Holden police department that had been presented in support of the
issuance of the warrant to search the defendant's home. He also had Burnham's affidavit describing
the circumstances of Bourget's stop of Burnham's
motor vehicle which resulted in Burnham turning over one‑quarter ounce of
cocaine to Bourget.
Bourget's affidavit also presented information provided by
a confidential informant, and, on its face, provided probable cause to search
the defendant's home. The informant's
information alone may not have provided probable cause to search the
defendant's home, and, as we shall discuss later, it may not have demonstrated
probable cause to stop Burnham.
Bourget stated in his affidavit that, tipped off by a
confidential informant that Burnham had just purchased cocaine from the
defendant at the defendant's home on Pinecroft Avenue
and as to what kind of a vehicle Burnham was driving, Bourget
stopped Burnham's vehicle and advised Burnham of his Miranda rights. In response to questions, Burnham said that
he had come from the home of his friend Mark on Pinecroft. Bourget then said
that he had information that [410
Mass. 377] Burnham had just
purchased one‑quarter ounce of cocaine for $200. "I further advised him that he was going
to be stripped [sic ] searched and
his car was going to be searched and if he had any cocaine I would give him the
chance to give it to me." Burnham
turned over what Bourget said he knew was
approximately one‑quarter ounce of cocaine. Burnham implicitly acknowledged that
"his friend Mark on Pinecroft" was the
defendant.
Burnham's
affidavit does not contradict the Bourget
affidavit. He says that Bourget gave him Miranda warnings before his arrest and
threatened him with a strip search in the bushes, if he did not turn over
"certain alleged contraband that he said I was holding."
The
defendant contends that (1) he was entitled, as a target of Bourget's
efforts, to challenge the allegedly unconstitutional stop of Burnham; (2) the judge was obliged to disregard that
portion of Bourget's affidavit setting forth
information that he had obtained from Burnham;
and (3) because the warrant to search his home was not issued on
probable cause (once Burnham's information was removed), all the evidence
seized pursuant to the warrant should have been suppressed.
Target
standing has not been warmly received in the courts. In Rakas v. Illinois, 439 U.S. 128, 133‑138, 99 S.Ct. 421, 425‑428, 58 L.Ed.2d 387 (1978), the
Supreme Court rejected target standing under the Fourth Amendment to the United
States Constitution, and later, in United
States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980), the Court rejected its
recognition under the supervisory powers of the Federal courts. In refusing to adopt target standing, the
Supreme Court gave three reasons: (1)
because the right of privacy protected by the Fourth Amendment is a private one
that may not be asserted vicariously, the remedy provided by the exclusionary
rule must also be private in nature (Rakas v. Illinois,
supra 439 U.S. at 133‑134, 99 S.Ct. at 424‑426); (2) the necessary inquiry into the
motivations of law enforcement personnel as to "targeting" would
create "very substantial administrative difficulties" not justified
by the hypothesized increase in Fourth Amendment protection (id. at 136‑137, 99 S.Ct. at 426‑427);
and (3) the deterrent[410
Mass. 378] purposes of the exclusionary rule would
adequately be served by suppression of evidence at the trial of the person
whose rights were actually violated, and by the prospect of civil damages for
violation of that person's constitutional or State law privacy or property
rights (id. at 134, 99 S.Ct. at 425). The
Court concluded that any marginal increase in the deterrent effect of an
exclusionary rule did not justify the loss to society of valid, incriminating
evidence against one whose Fourth Amendment rights had not been violated. Id.
at 137‑138, 99 S.Ct. at 427‑428.
In cases
in which a defendant has asserted standing under a State Constitution to
challenge an unreasonable search or seizure as to someone else, courts without
elaboration have declined to apply a different standing test than that the
Supreme Court established under the Federal Constitution. See
State v. Brown, 113 Idaho 480, 483‑484, 745 P.2d 1101 (1987);
State v. Nichols, 628 S.W.2d 732, 737 (Mo.App.1982);
State v. Benjamin, 417 N.W.2d 838, 840 (N.D.1988). No jurisdiction has adopted target
standing. (FN1)
[410 Mass. 379] We have left open the question whether target standing has
vitality under art. 14 of the Massachusetts Declaration of Rights. See
Commonwealth v. Manning, 406 Mass. 425, 429, 548 N.E.2d 1223 (1990). In the
Manning case, we said that "[i]n 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, [439 U.S. 128], 137 [99 S.Ct. 421, 427,
58 L.Ed.2d 387] [1978]; Alderman v. United States, 394 U.S. 165,
174‑175 [89 S.Ct. 961, 967‑968, 22
L.Ed.2d 176] (1969)." In Manning, there was no demonstration of
intentional police wrongdoing and no showing that, when the police violated the
rights of another, they did so with the sole or even principal goal of
obtaining incriminating evidence against one or more of the defendants. Id.
406 Mass. at 429‑430, 548 N.E.2d 1223.
The Manning case involved
challenged police conduct that produced no tangible evidence against the
defendants but only information that was used to justify the issuance of a
search warrant. Id. at 426, 548 N.E.2d 1223. Without accepting target standing under art.
14, we left open, on remand, the possibility that the judge might permit the
defendants to renew their motions to suppress. Id. at 430, 548 N.E.2d
1223.
Once again
we need not decide whether we will accept target standing in any circumstance
because this defendant in any event is not entitled to target standing. No tangible evidence seized in the allegedly
unlawful stop of Burnham was introduced against the defendant. Bourget's conduct
was not significantly improper. He may
even have had probable cause to believe that Burnham was carrying cocaine in
his vehicle and, if so, he was justified in stopping Burnham and in searching
him without obtaining a warrant. At
least the question of probable cause was a close one. (FN2)
[410
Mass. 380] Our reluctance to grant a
wide scope to target standing, and perhaps thereby to deny the trier of fact highly relevant evidence of guilt, comes from
our conclusions that (1) the administrative costs to the criminal justice
system of handling such claims would be substantial and (2) the need to create
a deterrent effect on police misconduct by the recognition of target standing
is not great except perhaps in the case of distinctly egregious police conduct.
The motion
to suppress evidence seized at the defendant's home was properly denied.
Judgments affirmed.
(FN1.) Louisiana has construed its uniquely
phrased constitutional provision to grant universal standing. See
State v. Owen, 453 So.2d 1202, 1205 (La.1984); State v. Boyd, 359 So.2d
931, 949 (La.1978). California adopted
universal standing in 1955 (People v.
Martin, 45 Cal.2d 755, 761, 290 P.2d 855 [1955] ), but a 1982
constitutional amendment had the effect of abrogating "the 'vicarious
exclusionary rule' under which a defendant had standing to object to the
introduction of evidence seized in violation of the rights of a third
person." In re Lance W., 37 Cal.3d 873, 879, 210 Cal.Rptr. 631, 694 P.2d 744 (1985).
The
violation of the rights of another person under the Fifth Amendment to the
United States Constitution presents a different issue. "Due process is implicated when the
government seeks a conviction through use of evidence obtained by extreme
coercion or torture. The issue is
whether the government's investigation methods resulted in a fundamentally
unfair trial." United States v. Chiavola,
744 F.2d 1271, 1273 & 1274 (7th Cir.1984), and cases cited.
A
distinction may fairly be made between (1) the use of information received and
physical evidence obtained as a result of questioning a person who was not
warned of his rights and (2) the use of evidence received pursuant to an
unconstitutional search and seizure. See
People v. Varnum, 66 Cal.2d 808, 812‑813,
59 Cal.Rptr. 108, 427 P.2d 772 (1967), appeal dismissed, cert. denied, 390 U.S. 529 (1968)
("there is nothing unlawful in questioning an unwarned suspect so long as
the police refrain from physically and psychologically coercive tactics
condemned by due process and do not use against the suspect any evidence
obtained. Accordingly, in the absence of
such coercive tactics, there is no basis for excluding physical or other nonhearsay evidence acquired as a result of questioning a
suspect in disregard of his Fifth and Sixth Amendment rights when such evidence
is offered at the trial of another person" [footnote omitted] ).
(FN2.) Bourget's
informant was shown to be reliable on the basis of information in the affidavit
in support of his application for a search warrant. The basis of the informant's knowledge was
arguably adequate and was reinforced in certain respects by Bourget's
observations. Bourget
stopped Burnham who was "driving a two tone tan Mercury," at
approximately 5:45 P.M. on September 4, 1987.
The informant had told Bourget that Burnham
purchased one‑quarter ounce of cocaine from the defendant at the
defendant's home for $200 "within the past
1/2 hour (approx. 5:30 P.M.)" and that Burnham had just left the
defendant's home in a light colored two‑tone Ford. An inference that the informant saw the sale
of cocaine or heard of it in an admission made by one of the participants in
the sale may have been reasonably warranted.