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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. Sheppard, 394
Supreme Judicial Court of Massachusetts,
Argued
Decided
John Reinstein, Nancy Gertner,
Newman Flanagan, Dist. Atty. (Michael J. Traft and Judith G. Zeprun, Asst.
Dist. Attys., with him), for the Commonwealth.
Barbara A.H. Smith, Asst. Atty. Gen., for the
Attorney General, intervenor.
William C.
O'Malley, Dist. Atty., for the Plymouth District, & others, amici curiae,
submitted a brief.
Maureen B. Brodoff,
Stephen R. Kaplan,
Before HENNESSEY,
C.J., and WILKINS, LIACOS, ABRAMS, LYNCH and O'CONNOR, JJ.
HENNESSEY, Chief Justice.
This case
presents a significant question relating to the administration of criminal laws
in the Commonwealth: whether, in the
circumstances presented here, we will recognize a rule of exclusion under
either G.L. c. 276 or art. 14 of the Declaration of Rights of the Constitution
of the Commonwealth. We conclude that
the trial judge was justified in finding that the police acted on a warrant
issued on probable cause, and that the search of the defendant's home was conducted
as if the warrant had met the statutory and constitutional requirements of
particularity. Therefore, we hold that,
in these circumstances, exclusion of the evidence seized is not required. Consequently, there was no error in the
denial of the defendant's motion to suppress, and the judgment of the Superior
Court is affirmed.
The
defendant was convicted of murder in the first degree of Sandra D. Boulware,
and appealed to this court on the ground that the trial judge erred in
admitting evidence seized pursuant to a defective search warrant. We reversed the conviction because the
warrant failed to list with the requisite particularity the items to be seized.
Commonwealth v. Sheppard, 387
The United
States Supreme Court reversed. Massachusetts v. Sheppard, 468 U.S. 981,
104 S.Ct. 3424, 82 L.Ed.2d 737 (1984).
The Supreme Court held [394
Mass. 383] that the Fourth Amendment
does not require exclusion in cases, such as this one, where "the officer
conducting the search acted in objectively reasonable reliance on a warrant
issued by a detached and neutral magistrate that subsequently is determined to
be invalid." Id., 104 S.Ct. at 3428. See
United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677
(1984). After the Supreme Court remanded
the case, we directed, by order of July 13, 1984, "further briefing ... on
the question whether in view of the violation of art. 14 of the Declaration of
Rights of the Constitution of the Commonwealth and G.L. c. 276, § 2, the
evidence obtained as a result of that violation should be excluded."
The
evidence adduced at the trial for this brutal murder has been adequately
described in our first review of this conviction, Sheppard I, supra, 387 Mass. at 489‑496, 441 N.E.2d 725, and
need not be restated here. The facts
with respect to the issuance of the defective warrant are summarized as
follows. (FN2) One day after the body of the victim was
found, and after a preliminary investigation which established probable cause, id. at 492‑493 n. 7, 441 N.E.2d
725, the district attorney for the Suffolk District and two police officers,
Sergeant Bornstein and Detective Peter J. O'Malley, concluded that they should
obtain a warrant to search the home of the defendant at 42 Deckard Street in
Roxbury.
Id. at 492, 441 N.E.2d 725.
Detective O'Malley prepared an affidavit in support of the application
for the warrant, but, because it was Sunday, no suitable form for the search
warrant itself could be obtained. Id. at 492‑493, 441 N.E.2d
725. Detective O'Malley did find a
warrant form which had once been in use by the Municipal Court of the
Dorchester District to authorize searches for controlled substances, and he
attempted to adapt this form to authorize a search of the premises at 42
Deckard Street. Id.
"He crossed out the words 'controlled substance' " on one
section of the form, and "replaced the word 'Dorchester' with the word
'Roxbury.' He inserted a reference to
'2nd & Basement' of 42 Deckard Street as the place to search. However, the reference to 'controlled
substance' was not deleted [394
Mass. 384] in those portions of the
form that constituted the application for a search warrant and would constitute
the warrant itself." Id.
Detective
O'Malley and a group of other law enforcement officials then went to the home
of a judge, who was also unable to locate an appropriate form. Id.
at 494, 441 N.E.2d 725. Accordingly,
the judge made a few changes on the form provided by Detective O'Malley, and
then dated and signed the warrant.
"The judge made no change in the substantive portion of the
printed warrant form which, therefore, contained authority 'to search for any
controlled substance, article, implement or other paraphernalia used in, for,
or in connection with the unlawful possession or use of any controlled
substance.' The warrant made no
reference to the items listed in Detective O'Malley's affidavit in support of
the application. (FN3) It neither listed them, nor incorporated them
by reference; nor was the affidavit
attached to the warrant." Id. at 494, 441 N.E.2d 725. (FN4)
Detective
O'Malley and others executed the warrant later that same afternoon. Id. They met the defendant's mother and sister at
42 Deckard Street, showed them the warrant, and told them that they were going
to search the defendant's room and the cellar.
"It does not appear that either of the two women read the warrant
or asked to have it read." Id.
Detective O'Malley had with him throughout the search a copy of the
affidavit listing the items to be seized. Id. A great deal of incriminating evidence was
found on the premises, which we later characterized as "most important in
rounding out a case based only on circumstantial evidence." Id.
at 496, 441 N.E.2d 725. (FN5)
[394 Mass. 385] The defendant moved to suppress the items uncovered in the search
of his home on the ground that they were seized pursuant to a defective
warrant. The Superior Court judge
concluded that the warrant was issued on probable cause, but agreed with the
defendant's contention that it was defective because it failed to list the
items to be seized. Id. at 497, 441 N.E.2d 725. However, the judge admitted the evidence on
the ground that the officers had conducted the search with a reasonable and
good faith belief in the validity of the warrant. He found that the judge who had issued the
warrant "told Detective O'Malley that he would make the necessary changes
in the warrant form so as to provide a suitable form of search warrant and that
the warrant as delivered was sufficient authority in form and content to carry
out the search as requested. He found
also that the search at 42 Deckard Street was carried out within the limits
that Detective O'Malley understood the warrant to permit and that Detective
O'Malley had the affidavit and search warrant with him at 42 Deckard
Street. He concluded that 'the actual
search undertaken was within the limits of the authority the police thought
reasonably had been granted.' " Id. at 497, 441 N.E.2d 725.
1. General Laws c. 276. (FN6)
Note 6‑Continued
"THE COMMONWEALTH OF
MASSACHUSETTS.
"(County), ss.
(Name) Court.
"To
the Sheriffs of our several counties, or their deputies, any State Police
Officer, or any Constable or Police Officer of any city or town, within our
said Commonwealth.
"Proof by affidavit having been made
this day before (name of person authorized to issue warrant) by (names of
person or persons whose affidavits have been taken) that there is probable
cause for believing that (certain property has been stolen, embezzled, or obtained
by false pretenses; certain property is intended for use or has been used as
the means of committing a crime; certain property has been concealed to prevent
a crime from being discovered; certain property is unlawfully possessed or kept
or concealed for an unlawful purpose).
"We therefore command you in the daytime
(or at any time of the day or night) to make an immediate search of (identify
premises) (occupied by A.B.) and (of the person of A.B.) and of any person
present who may be found to have such property in his possession or under his
control or to whom such property may have been delivered, for the following
property:
(description
of property)
"and
if you find any such property or any part thereof to bring it and the persons
in whose possession it is found before (court having jurisdiction) at (name of
court and location).
"Dated at (city or town) this ... day of
..........,19 .
Clerk."
"The
affidavit in support of the application for a search warrant shall be in
substantially the following form:
"THE
COMMONWEALTH OF MASSACHUSETTS.
"(County),
ss.
(Name)
Court.
....................,19 .
"I, (name of applicant) being duly
sworn, depose and say:
"1. I am (describe position, assignment,
office, etc.).
"2. I have information, based upon
(describe source, facts indicating reliability of source and nature of
information; if based on personal knowledge and belief, so state).
"3. Based upon the foregoing reliable
information (and upon my personal knowledge) there is probable cause to believe
that the property hereinafter described (has been stolen, or is being
concealed, etc.) and may be found (in the possession of A.B. or any other
person) at premises (identify).
"4. The property for which I seek the
issuance of a search warrant is the following: (here describe the property as
particularly as possible).
"Wherefore, I respectfully
request that the court issue a warrant and order of seizure, authorizing the
search of (identify premises and the persons to be searched) and directing that
if such property or evidence or any part thereof be found that it be seized and
brought before the court; together with such other and further relief that the
court may deem proper.
...........................Name.
"Then personally appeared the above
named ........................ and made oath that the foregoing affidavit by
him subscribed is true.
"Before me this ........................
day of ................. 19 .
Justice
or Special Justice,
Clerk
or Assistant Clerk
of
the .......... Court."
The defendant first contends that
exclusion is required by G.L. c. 276, § 2, which provides that
"[s]earch warrants shall [394
Mass. 386] designate and describe
the building, house, place, vessel or vehicle to be searched and shall particularly describe the
property[394 Mass. 387]
or articles to be searched for" (emphasis added). Section 2A describes in some detail the form
in which warrants shall be issued, and explicitly requires that the warrant
contain a "description of [the] property" which is the object of the
search. The warrant at issue here
clearly failed to meet these statutory requirements. Sheppard I, supra at 499‑501,
441 N.E.2d 725. It is equally clear
that the warrant failed to meet the particularity requirement of art. 14 of the
Declaration of Rights. Id.
See Commonwealth v. Taylor, 383 Mass. 272,
275, 418 N.E.2d 1226 (1981).
[394
Mass. 388] General Laws c. 276 does
not specify the circumstances in which an exclusionary remedy will be applied
to the fruits of a seizure conducted pursuant to a defective warrant. In cases in which we are asked to infer a
remedy, we are guided by the principle of statutory construction that the act
"must be interpreted according to the intent of the Legislature ...
considered in connection with the cause of its enactment, the mischief or
imperfection to be remedied and the main object to be accomplished, to the end
that the purpose of its framers may be effectuated." Commonwealth v. Graham, 388
Mass. 115, 119, 445 N.E.2d 1043 (1983), quoting Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513, 333
N.E.2d 450 (1975).
We emphasize that we are not confronted
here with a deficiency as to the probable cause requirements of the statutes or
of art. 14. General Laws c. 276 sets out
more stringent requirements for a showing of probable cause than either the
State or Federal Constitutions.
Specifically, G.L. c. 276,§ 2B, requires that the grounds for probable
cause be set forth in an affidavit presented to a "court or justice,"
and, therefore, the statute precludes a "court or justice" from
giving any effect to sworn oral statements. Commonwealth v. Monosson, 351 Mass. 327,
330, 221 N.E.2d 220 (1966). Cf. United States v. Goyett, 699 F.2d 838
(6th Cir.1983) (Fourth Amendment permits magistrate to consider sworn oral
statement as supplement to affidavit in determining probable cause for issuance
of warrant); Frazier v. Roberts, 441 F.2d 1224, 1226
(8th Cir.1971) (same). One of the
purposes of § 2B is "to make sure that the Commonwealth could demonstrate by a writing that any given search and
seizure was reasonable and based upon probable cause" (emphasis added).
Commonwealth v. Monosson, supra, 351 Mass. at 330, 221 N.E.2d
220. Only if the statutorily prescribed
procedure is followed can the defendant be "given a full opportunity to
challenge the legality of the search." Id.
In Monosson, the defendant was
deprived of this opportunity because the affidavit in support of the warrant
failed to "contain all the information presented under oath to the
magistrate." Id. at 329, 221 N.E.2d 220. We therefore concluded that the statute had
been violated "in a manner tending to prejudice the defendant," id., and thus that exclusion was
appropriate.
[394
Mass. 389] In Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985) ( Upton II ), we were faced with the
Commonwealth's failure to set forth in the affidavit required by § 2B an
adequate showing of probable cause. This
violation of G.L. c. 276 thwarted the Legislature's evident intent to protect
the citizens of the Commonwealth from searches and seizures not supported by
probable cause. See Commonwealth v. Monosson, supra, 351 Mass. at 330, 221 N.E.2d
220. This violation, furthermore, was a
"direct cause of the seizure and the prejudice from the violation [was]
substantial." Upton II, supra at 368‑369, 476
N.E.2d 548. We thus held that exclusion
was required in circumstances where evidence was seized in violation of the
statutory requirement of a written, sworn statement establishing probable
cause.
Therefore, in both Commonwealth v. Monosson and
Upton II, we applied a rule of exclusion to prejudicial, and thus
substantial, violations of the statute.
In light of the Legislature's heightened solicitude for probable cause
requirements, both cases suggest that all violations of the statutory probable
cause requirements are substantial. This
is the case, either because of the prejudice caused by invasion of a
defendant's right to be free from unreasonable searches and seizures, Upton II, supra, or because of the
prejudice caused by the defendant's inability to challenge the search because
of the Commonwealth's failure to preserve the grounds for the search in an
affidavit. Commonwealth v. Monosson, supra, 351
Mass. at 330, 221 N.E.2d 220.
In the instant case we deal not with a
deficiency as to probable cause, but with a deficiency as to
particularity. We conclude that, unlike
the statute's probable cause provisions, the particularity requirements of G.L.
c. 276 essentially track the particularity requirements of art. 14 and the
Fourth Amendment. Therefore, we infer
that the Legislature intended, as did the framers of art. 14, to protect
"individuals from general searches, which [were] the vice of the pre‑Revolution
writs of assistance." Commonwealth v. Pope, 354 Mass. 625, 629,
241 N.E.2d 848 (1968). See generally Marron v. United States, 275 U.S. 192,
48 S.Ct. 74, 72 L.Ed. 231 (1927). We
also infer that the Legislature intended that the Commonwealth be able to
"demonstrate by a writing,"
Commonwealth v. Monosson, supra, that the scope of the officers' authority
to search was properly limited.
[394
Mass. 390] The record supports the
judge's finding that the defect in the warrant did not lead to a general search
of the premises at 42 Deckard Street. Sheppard I, supra, 387 Mass. at 503, 441
N.E.2d 725. Instead, the police
officers believed that their authority to search was limited in scope to those
items set forth in the affidavit. Id. at 502‑503, 441 N.E.2d
725. Moreover, "the search of 42
Deckard Street was carried out within the limits that Detective O'Malley
understood the warrant to permit." Id. at 497, 441 N.E.2d 725. As we noted in Sheppard I, supra, "[t]he search was conducted in the same
way and with the same results as it would have been conducted if the warrant
had not been defective." Id. at 503, 441 N.E.2d 725. Furthermore, the defendant was not deprived
of the opportunity to challenge the scope of the search, since there was a
"writing," in the form of an affidavit, which the officers had with
them throughout the search, id., and
which was available to the defendant at his trial. Id. at 496‑497, 441
N.E.2d 725. In short, "[t]he
defect in the warrant was not harmful to the defendant in the circumstances of
the actual search." Id. at 503, 441 N.E.2d 725. The officers in no way exploited, or
attempted to exploit, the illegality of the warrant. Thus, despite the technical violation of the
statute, the dual legislative aims were substantially satisfied. In these circumstances, we conclude that G.L.
c. 276 does not require exclusion.
2.
Article 14.
We turn to the defendant's second
argument, that application of an exclusionary remedy is required by art. 14 of
the Declaration of Rights of the Constitution of the Commonwealth.7 Article 14, like G.L. c. 276, §§ 2, 2A, and
2B, requires that there be a writing which specifies the objects of the
search. We read art. 14 as requiring
that the "special designation" of the "objects of search"
be included within the warrant, or that a
[394 Mass. 391] writing
containing the designation be attached to the warrant and incorporated therein
by reference. See Commonwealth v. Taylor,
383 Mass. 272, 276‑277, 418 N.E.2d 1226 (1981). Thus, in this case, the warrant failed to meet
the particularity requirements of art. 14.
See Sheppard I, supra at 387
Mass. 500‑501, 441 N.E.2d 725.
Nonetheless, we recognize that "this court has never accepted the
concept of an exclusionary rule under the State Constitution when a search
violated the requirements of art. 14 of the Declaration of Rights."
Upton II, supra, 394 Mass. at 365, 221 N.E.2d 220. The issue before us is whether, in the
circumstances presented here, the constitutional violation requires exclusion
from evidence of the objects seized in the search. Because art. 14 includes no specific
requirement of exclusion, we have before us a question, not of right, but of
remedy.
The particularity requirements of art.
14, like those of the statute, not only protect against the general search, see Commonwealth v. Pope, supra, but
provide the defendant with the opportunity at trial to demonstrate that the
officers' authority to search was impermissibly broad. We have already determined in our discussion
of G.L. c. 276, §§ 2, 2A, and 2B, that these twin aims were substantially
satisfied here. We now conclude that
art. 14 does not require the exclusion of the evidence seized from 42 Deckard
Street, because the search at issue was conducted as if the warrant had
complied with constitutional and statutory requirements. Despite the technical violation of art. 14,
the search was not "unreasonable" within the meaning of that
constitutional provision.
3.
Conclusion. Although there were
violations of both art. 14 and G.L. c. 276, exclusion of the evidence seized is
not required because there was no prejudice to the defendant, and thus the
violations were not substantial.
(FN8) Other circumstances in
other cases may well require the remedy of exclusion, and, in [394 Mass. 392] other cases, certain concepts argued extensively by the parties
in this case may well be relevant. (FN9)
Our reversal in Sheppard I was predicated on the trial judge's refusal to exclude
the material seized from 42 Deckard Street, and on our holding that exclusion
was required by opinions of the United States Supreme Court interpreting the
Fourth Amendment. Sheppard I, supra, 387 Mass. at 507‑508,
441 N.E.2d 725. The Supreme Court
reversed and remanded the case to this court. Massachusetts v. Sheppard,
468 U.S. 981, 104 S.Ct. 3424, 3430, 82 L.Ed.2d 737 (1984). We have now concluded that there was no error
in the judge's ruling under either the statutes or the Constitution of the
Commonwealth. Further, consistent with
our duties under G.L. c. 278, § 33E, we have reviewed the entire record on the
law and the evidence, and conclude that the defendant is entitled to no relief
under that statute.
Judgment
affirmed.
LIACOS, Justice (concurring).
I adhere to the views I expressed in Commonwealth v. Sheppard, 387 Mass.
488, 509, 441 N.E.2d 727 (1982) (Sheppard
I ) (Liacos and Abrams, JJ., concurring).
I am gratified that the court no longer attaches significance to the
supposed "good faith" of the magistrate and the police officers. Compare
Sheppard I, supra at 503‑505 & n. 19, 441 N.E.2d 727, with my
concurrence at 509‑521. The court
today takes the view that, where there has been essential compliance with the
requirements of G.L. c. 276 and of art. 14, suppression of the evidence seized
is not necessarily mandated. I agree
that "because the search at issue was conducted as if the warrant had
complied with constitutional and statutory requirements," Commonwealth v. Sheppard, ante, (1985)
(Sheppard II ), suppression of
evidence seized is not required under State law. Accordingly, I join the court in its opinion.
[394
Mass. 393] LYNCH, Justice
(concurring).
I concur in the result. In my dissent in Commonwealth v. Sheppard, 387 Mass. 488, 523, 441 N.E.2d 727
(1982) (Sheppard I ), I concluded
that the particularity requirement of the Fourth Amendment to the United States
Constitution did not mandate suppression of the evidence seized in this
case. The Supreme Court agreed, and held
that "the exclusionary rule should not be applied when the officer
conducting the search acted in objectively reasonable reliance on a warrant
issued by a detached and neutral magistrate that subsequently is determined to
be invalid." Massachusetts v. Sheppard, 468 U.S. 981,
104 S.Ct. 3424, 3428, 82 L.Ed.2d 737 (1984).
See United States v. Leon, 468
U.S. 897, 104 S.Ct. 3405, 3416, 82 L.Ed.2d 677 (1984). Even if an exclusionary rule, which has
escaped detection for 205 years, is now discovered in art. 14, I see no reason
to formulate a different rule for its application in this Commonwealth.
In my dissent in Commonwealth v. Upton, ante (1985), (Upton II ), I did not reach the issue whether G.L. c. 276 required
the exclusion of evidence seized in the absence of probable cause, because I
concluded that probable cause existed.
Since I agree that G.L. c. 276 does not require exclusion in the
circumstances of this case, I do not reach the issue of when, if ever, a
violation of G.L. c. 276 requires the exclusion of evidence.
(FN1.) We acknowledge the brief of the
Attorney General of the Commonwealth, as intervenor. We also acknowledge the brief filed by the
district attorneys for the Plymouth, Eastern, Suffolk, Bristol, Northwestern,
Middle, Hampden, and Cape and Islands districts, as amici curiae, and the
briefs of Stephen R. Kaplan and the Committee for Public Counsel Services, as
amici curiae.
(FN2.) For a more complete description of the
events preceding the search of 42 Deckard Street, see Sheppard I, supra, 387 Mass. at 492‑496, 441 N.E.2d 725, and Massachusetts v. Sheppard, supra, 104
S.Ct. at 3426‑3428.
(FN3.) See
Sheppard I, supra, 387 Mass. at 492‑493 n. 7, 441 N.E.2d 725.
(FN4.) It is apparent, as the defense
evidently conceded before the Supreme Court, that the warrant would have been
valid "if the judge had crossed out the reference to controlled
substances, written 'see attached affidavit' on the form, and attached the
affidavit to the warrant." Massachusetts v. Sheppard, supra, 104
S.Ct. at 3429 n. 7.
(FN5.) The police found, among other things,
boots which were stained by blood of the same type as the victim's, bloodstains
on the concrete floor of the cellar, a bloody earring which was identified as
looking like one the victim was wearing a week before her disappearance,
bloodstained leotards which were identified as a type known to have been
purchased by the victim, and a hairpiece which the victim was wearing on the
day of her disappearance. Sheppard I, supra, 387 Mass. at 494‑495,
441 N.E.2d 725.
(FN6.) General Laws c. 276, § 2, as appearing
in St.1964, c. 557,§ 2, provides:
"Search warrants shall designate and describe the building, house,
place, vessel or vehicle to be searched and shall particularly describe the
property or articles to be searched for.
They shall be substantially in the form prescribed in section two A of
this chapter and shall be directed to the sheriff or his deputy or to a
constable or police officer, commanding him to search in the daytime, or if the
warrant so directs, in the nighttime, the building, house, place, vessel or
vehicle where the property or articles for which he is required to search are
believed to be concealed, and to bring such property or articles when found,
and the persons in whose possession they are found, before a court having
jurisdiction."
General
Laws c. 276, § 2A, inserted by St.1964, c. 557, § 3, provides: "The warrant shall be in substantially
the following form:
General
Laws c. 276, § 2B, as amended by St.1965, c. 384, provides: "A person seeking a search warrant shall
appear personally before a court or justice authorized to issue search warrants
in criminal cases and shall give an affidavit in substantially the form
hereinafter prescribed. Such affidavit
shall contain the facts, information, and circumstances upon which such person
relies to establish sufficient grounds for the issuance of the warrant. The person issuing the warrant shall retain
the affidavit and shall deliver it within three days after the issuance of the
warrant to the court to which the warrant is returnable. Upon the return of said warrant, the
affidavit shall be attached to it and shall be filed therewith, and it shall
not be a public document until the warrant is returned.
FN7. Article 14 provides: "Every subject has a right to be secure
from all unreasonable searches, and seizures, of his person, his houses, his
papers, and all his possessions. All
warrants, therefore, are contrary to this right, if the cause or foundation of
them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer,
to make search in suspected places, or to arrest one or more suspected persons,
or to seize their property, be not accompanied with a special designation of
the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in
cases, and with the formalities prescribed by the laws."
(FN8.) Our analysis is similar to the approach
set forth in the Model Code of Pre‑Arraignment Procedure § SS 290.2(2)
(Official Draft 1975). The Model Code
provides that "[a] motion to suppress evidence ... shall be granted only if the court finds that the violation
upon which it is based was substantial, or if otherwise required by the
Constitution of the United States or of this State" (emphasis added). See
Sheppard I, supra, 387 Mass. at 507‑508 n. 20, 441 N.E.2d 725.
(FN9.) The parties have debated whether the
purposes of the exclusionary rule as a deterrent to illegal police conduct, and
as protective of the integrity of the judicial process, are served by excluding
evidence seized in a good faith and reasonable belief in the validity of a
warrant.