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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. Signorine,
404
Supreme Judicial Court of Massachusetts,
Argued
Decided
Constance L. Rudnick (Edward R. Gargiulo
and Paul Griffin,
Mary Ellen O'Sullivan, Asst. Dist. Atty., for Com.
Before [404
LYNCH, Justice.
On
The
defendant challenges his cocaine trafficking conviction on several
grounds. He argues that the judge erred
in (1) denying his motion to suppress physical evidence, (2) refusing to permit
an inquiry into an informant's identity, (3) curtailing the defendant's cross‑examination
of prosecution witnesses regarding the informant, (4) admitting the defendant's
inculpatory statement made during a telephone call at
the police station, and (5) instructing the jury on circumstantial
evidence. We affirm.
On
As the
officers assigned to execute the warrant were enroute
to the defendant's house, they observed the defendant driving an automobile
described in the warrant. Two officers
stopped the defendant, and the defendant agreed to return to his house with the
officers. The search of the house
disclosed a glassine bag of marihuana and a small plastic vial containing
"the butt ends of several marihuana cigarettes," a glassine bag
containing .4 grams of cocaine, three bottles of vitamin B complex, a known
cutting agent in the packaging of cocaine, a mirror with two line indentations,
a playing card, and two cut straws. A
search of the automobile the defendant was driving, which was registered in his
wife's name, revealed a hollowed‑out oil can in a grocery bag. The oil can contained a white rock substance
which, when analyzed, consisted of 112.2 grams of ninety‑eight per cent
pure cocaine.
The
defendant was arrested and taken to the police station. In the course of a telephone conversation, in
the presence of one of the detectives, the defendant stated, "Lou, I'm
under arrest at the police station for doing what Debbie told me I was going to
get caught doing."
[1] 1. Motion to suppress physical evidence. The defendant argues that the evidence
seized pursuant to the search warrant should be suppressed because the
affidavit lacked sufficient probable cause to support a search of both the
defendant's residence and the automobiles described in the warrant. In reference to the authorized search of the
automobiles the judge ruled: "[S]ince the magistrate had probable cause to believe the
defendant dealt with illegal drugs, it is not unreasonable to extend that connection
and infer that the contraband could be in defendant's automobile." On appeal, the defendant challenges the
denial of his motion only as it relates to the contraband seized from the
automobile arguing (1) that the affidavit
[404 Mass. 403] failed to set
forth facts upon which the magistrate could conclude there was probable cause
to believe the automobile would contain contraband, and (2) that, in these
circumstances, the search of the automobile was prohibited by art. 14 of the
Massachusetts Declaration of Rights because the warrant, to the extent it
included the automobiles, was not based on probable cause. We conclude that the scope of a warrant
authorizing the search of a particularly described residence includes any
automobiles, owned or controlled by the owner of such residence, which are
located within the curtilage of the premises at the
time the warrant is executed. (FN1)
[2] The
defendant concedes that the affidavit established sufficient probable cause
authorizing a search for controlled substances of the residence belonging to
the defendant and his wife. Once the
warrant authorizes the search, "[a] lawful search of [a] fixed premises
generally extends to the entire area in which the object of the search may be
found and is not limited by the possibility that separate acts of entry or
opening may be required to complete the search." United States v. Ross, 456
U.S. 798, 820‑821, 102 S.Ct. 2157, 2170‑2171,
72 L.Ed.2d 572 (1982). In Ross, the Supreme Court noted "a
warrant that authorizes an officer to search a home for illegal weapons also
provides authority to open closets, chests, drawers, and containers in which
the weapon might be found." Id. at 821, 102 S.Ct.
at 2171.
It is a
well‑settled principle under both Federal law and the law of other
jurisdictions that the scope of a warrant authorizing the search of a
particularly described premises, includes automobiles owned or controlled by
the owner thereof, which are found on the premises. See, e.g.,
United States v. Asselin, 775 F.2d 445, 447 (1st
Cir.1985) (search warrant for premises justified search of disabled automobile
parked adjacent to carport);[404
Mass. 404] United States v. Bulgatz, 693
F.2d 728, 730 n. 3 (8th Cir.1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1203, 75 L.Ed.2d 444 (1983) (warrant for premises
authorized search of automobile parked in attached garage); United States v. Freeman,
685 F.2d 942, 955 (5th Cir.1982) (warrant authorizing search of premises
justified search of automobile parked on premises); United States v. Cole, 628
F.2d 897, 899 (5th Cir.1980), cert. denied, 450 U.S. 1043, 101 S.Ct. 1763, 68 L.Ed.2d 241 (1981) (search of truck parked
in carport attached to rear apartment authorized by warrant);
United States v. Napoli, 530 F.2d 1198,
1200 (5th Cir.), cert. denied, 429 U.S. 920, 97 S.Ct.
316, 50 L.Ed.2d 287 (1976) (search of camper parked in driveway authorized by
warrant);
Brooks v. United States, 416 F.2d 1044, 1050 (5th Cir.), cert.
denied sub nom. Nipp
v. United States, 400 U.S. 840, 91 S.Ct. 81, 27
L.Ed.2d 75 (1970) (warrant authorizing search of cabin and lot included
automobile parked near cabin). See also United States v. Griffin, 827 F.2d
1108, 1113 n. 3 (7th Cir.1987), cert. denied, 485 U.S. 909, 108 S.Ct. 1085, 99 L.Ed.2d 243 (1988); United States v. Bonner,
808 F.2d 864, 868 (1st Cir.1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1632, 95 L.Ed.2d 205 (1987); In re One 1970 Ford Van,
111 Ariz. 522, 523, 533 P.2d 1157 (1975); People v. Elliott, 77 Cal.App.3d 673,
689, 144 Cal.Rptr. 137 (1978); Louis v. State, 188 Ga.App. 435, 437, 373 S.E.2d 231 (1988);
Massey v. Commonwealth, 305 S.W.2d 755, 756 (Ky.Ct.App.1957);
State v. Lewis, 270 N.W.2d 891, 897 (Minn.1978); State v. Reid, 286 N.C.
323, 326, 210 S.E.2d 422 (1974); Leslie v. State, 294 P.2d 854, 855‑856
(Okla.Crim.App.1956); Long v. State, 532 S.W.2d 591, 595‑596
(Tex.Crim.App.1975), cert. denied, 425 U.S. 937, 96 S.Ct.
1670, 48 L.Ed.2d 179 (1976).
Thus, the
issue before us is whether art. 14 affords the defendant any greater protection
in these circumstances. (FN2) In other contexts we have read the
description of the premises to be searched in a commonsense rather than hypertechnical fashion so as to include areas not
specifically mentioned in the warrant and areas where the police lacked
independent probable [404 Mass. 405] cause to suspect that the object of
the search would be found. See, e.g., Commonwealth v. Scala,
380 Mass. 500, 508‑509, 404 N.E.2d 83 (1980); Commonwealth v. Snow, 363
Mass. 778, 790, 298 N.E.2d 804 (1973).
See also Commonwealth v. Pacheco,
21 Mass.App.Ct. 565, 567‑568, 488 N.E.2d 42
(1986). Compare Commonwealth v. Hall, 366 Mass. 790, 799‑800 & n. 11,
323 N.E.2d 319 (1975). We note that
here, in searching the automobile at the residence, the police did not rely
solely on the description of the residence.
Rather, the warrant specifically described the automobile as one of the
places to be searched as recommended by the decisions authorizing the search of
an automobile found on the premises. See,
e.g., United States v. Percival, 756
F.2d 600, 612 (7th Cir.1985).
It is
clear that a valid search may include any area, place, or container reasonably
capable of containing the object of the search. Commonwealth v. Wills, 398
Mass. 768, 774, 500 N.E.2d 1341 (1986). Commonwealth v. Lett,
393 Mass. 141, 147‑148, 470 N.E.2d 110 (1984). There is nothing in art. 14 or the
particularity requirement of G.L. c. 276, § 2 (1986
ed.), that requires that automobiles found on the premises be treated
differently. "Although a car is
less fixed than a closet or cabinet ... it is no less fixed than a suitcase or
handbag found on the premises, both of which can be readily searched under [United States v. Ross, 456 U.S. 798, 102
S.Ct. 2157, 72 L.Ed.2d 572 (1982) ] if capable of
containing the object of the search." United States v. Percival, supra, at
612. Here, the object of the search was
moveable contraband that could be secreted in innumerable places, including the
defendant's automobile. (FN3) Requiring law
enforcement officers to establish independent probable cause before they may
search places within the curtilage (including
automobiles), but beyond the four walls of the residence, would be unduly
burdensome on police without providing defendants any significant additional
constitutional protection.
[3] 2. Motion for disclosure of informant's
identity. The defendant filed a
pretrial motion seeking an order compelling the [404 Mass. 406]
Commonwealth to disclose to defense counsel, or in the alternative to the judge
through an in camera interview, the identity of the confidential informant
referred to in the affidavit in support of the search warrant. The defendant sought the informant's identity
so he could challenge the truthfulness of the factual statements made in the
affidavit. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct.
2674, 57 L.Ed.2d 667 (1978). (FN4) The defendant claimed that the confidential
informant's "reckless" and "wilful"
misstatements of fact "indicate a reckless disregard for the truth by the
affiant." (FN5) The judge denied the defendant's motion,
concluding that the defendant failed to show "that there was an
intentional or reckless misstatement in any affidavit submitted in support of
the search warrant."
In Commonwealth v. Douzanis,
384 Mass. 434, 425 N.E.2d 326 (1981), we noted that, "[a]lthough the defendants did not make a sufficient showing to
require the holding of a Franks‑type
hearing as a matter of constitutional right, we have acknowledged the right of
a trial judge, in his discretion, 'to hold a hearing merely on a showing that
an affidavit contained misstatements of fact, particularly material
misstatements.' " Id. at 439, 425 N.E.2d 326, quoting Commonwealth[404 Mass. 407] v. Nine Hundred & Ninety‑two
Dollars, 383 Mass. 764, 775 n. 12, 422 N.E.2d 767 (1981).
The
defendant challenged as false the informant's statement included in the
affidavit (FN6) that, during the evening of August 29, an individual entered
the Signorine house with an attaché case and departed
empty‑handed after a short period of time. Affidavits submitted by the defendant
represented that none of the three people visiting the defendant's house
noticed any such delivery, but did not deny that such an event had occurred. The defendant's affidavits therefore failed
to demonstrate that either the affiant or the informer made any misstatement of
fact. See Commonwealth v. Nine Hundred & Ninety‑two Dollars, supra
at 775, 422 N.E.2d 767. While the
judge, in his discretion, could have held a preliminary hearing, it was not an
abuse of
discretion for him to refuse to do so. (FN7)
See Commonwealth v. Ramos, 402
Mass. 209, 215‑216, 521 N.E.2d 1002 (1988).
[4] 3. Cross‑examination. The defendant argues that the judge abused
his discretion in limiting cross‑examination of two prosecution witnesses
regarding the identity and role of the confidential informant. The defendant wished to explore the theory
that the informant had both the motive and opportunity to "plant" the
cocaine in the defendant's automobile, and thus the judge's limitation violated
his constitutionally protected right to confrontation. See
Commonwealth v. Graziano, 368 Mass. 325, 329‑330,
331 N.E.2d 808 (1975). The proposed line
of questioning would have tended to reveal information about the informant that
could lead to his identification by the defendant.
While
"[a] defendant may introduce evidence that tends to show that another
person committed the crime or had the motive, intent, and opportunity to commit
it ... '[t]he evidence [404 Mass.
408] should not be too remote in
time or too weak in probative quality, and it should be closely related to the
facts of the case against the defendant.' " Commonwealth v. Harris, 395
Mass. 296, 300, 479 N.E.2d 690 (1985), quoting Commonwealth v. Graziano, supra. The admissibility of such evidence rests in
the sound discretion of the trial judge, which although not absolute,
"will not ordinarily be disturbed by an appellate court."
Commonwealth v. Murphy, 282 Mass. 593, 598, 185 N.E. 486
(1933). See Commonwealth v. Harris, supra; Commonwealth v. Graziano,
supra 368 at 330, 331 N.E.2d 808.
Before
limiting the scope of cross‑examination, the judge allowed the defendant,
through a voir dire of the witnesses (FN8) to explore
fully the informant's role in the investigation as well as his or her criminal
background. This evidence warrants a
conclusion that the informant was on or near the defendant's premises the night
before the police executed the warrant.
However, presence alone does not support a claim that the informant
"planted" 112 grams of ninety‑eight per cent pure cocaine,
especially since there is no claim that the informant "planted" the
cocaine and marihuana found inside the defendant's house. Although there was evidence that the
informant had a prior criminal record, there was no evidence of any pending
charges against the informant or that the police paid the informant for the
information. It was not an abuse of
discretion to limit cross‑examination where the evidence sought had no
tendency to exculpate the defendant.
[5] 4. Motion to suppress statements. The defendant also argues that the judge
erred in admitting a statement the defendant made during a telephone
conversation with his brother‑in‑law which was overheard by a
police officer. In a pretrial order the
judge suppressed several inculpatory statements,
finding that the defendant did not knowingly, intelligently, and voluntarily
waive his constitutional rights. The
order regarding the inculpatory telephone conversation
overheard by the police was, as later admitted by the judge,
"ambiguous." (FN9) Just prior [404 Mass. 409] to
trial, the prosecutor requested that the judge clarify the portion of the order
relating to the telephone conversation.
After reviewing the order, the judge indicated that he intended to
suppress all of the defendant's statements to the police, but that the
defendant's statement during the telephone conversation was made
"voluntarily" and "without any attempt to have any privacy"
and therefore was admissible.
"In
reviewing a judge's determination that a defendant voluntarily made statements to the police, we will afford
substantial deference to a judge's ultimate findings and uphold a judge's
subsidiary findings if warranted by the evidence." Commonwealth v. McCauley,
391 Mass. 697, 700, 464 N.E.2d 50 (1984).
"When determining voluntariness, 'the
court must assess the totality of relevant circumstances to ensure that the
defendant's [statement] was a free and voluntary act and was not the product of
inquisitorial activity which had overborne his will.' " Id.
at 700‑701, 464 N.E.2d 50, quoting
Commonwealth v. Mahnke, 368 Mass. 662, 680, 335
N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct.
1740, 48 L.Ed.2d 204 (1976).
In regard
to the telephone conversation the judge found that the defendant, without any
request or desire for privacy, chose a telephone which was located about six
feet from the police officer who overheard the statement. See
Commonwealth v. Trigones, 397 Mass. 633, 643, 492
N.E.2d 1146 (1986). There was no error.
5. Jury instructions. Lastly, the defendant argues that the
judge's charge deprived the defendant of a fair trial and constitutes
reversible error because the instructions "trivialized" the jury's
decision‑making process.
[6] In
reviewing the judge's charge, "the adequacy of instructions must be
determined in light of their over‑all impact on the jury."
Commonwealth v. Callahan, 401 Mass. 627, 631, 519 N.E.2d 245 (1988),
quoting Commonwealth v. Sellon, 380 Mass. 220, 231‑232, 402 N.E.2d 1329
(1980). While the judge's charge
regarding circumstantial evidence may have been longer and contained more [404 Mass. 410] examples than was necessary to convey adequately the concept of
circumstantial and direct evidence, the charge did not trivialize the
defendant's presumption of innocence or the Commonwealth's burden of proof, so
as to constitute constitutional error.
See Commonwealth v. Ferreira,
373 Mass. 116, 128‑129, 364 N.E.2d 1264 (1977). There was no error.
JUDGMENT
AFFIRMED.
(FN1.) Although to justify the seizure neither
the Commonwealth nor the judge relied on this theory, the general rule is that,
if the evidence is admissible, "it is of no consequence whether the reason
assigned by the judge was accurate." Mathews v. Orlandella,
320 Mass. 386, 388, 69 N.E.2d 571 (1946).
Cf. Service Publications, Inc. v. Goverman, 396 Mass. 567, 572, 487 N.E.2d 520 (1986);
Commonwealth v. Mandeville, 386 Mass. 393, 397, 436 N.E.2d 912
(1982);
North Shore Corp. v. Selectmen of Topsfield, 322 Mass. 413, 416, 77
N.E.2d 774 (1948).
(FN2.)
Even though the police stopped the defendant while he was away from his house,
and he drove the automobile back to the house where it was subsequently
searched, there is no argument before us that the defendant returned
involuntarily. It appears that the
defendant willingly accompanied the police in order to facilitate entry into
the house.
(FN3.)
The police found the cocaine hidden within a hollowed‑out can of oil
which was inside a bag of groceries. The
police seized a similar, yet empty, oil can from a shelf in the defendant's
basement. It is unclear whether the
empty can in the cellar was discovered prior to the search of the automobile.
(FN4.)
In Franks, the United States Supreme
Court held that, "where the defendant makes a substantial preliminary
showing that a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant affidavit,
and if the allegedly false statement is necessary to the finding of probable
cause, the Fourth Amendment requires that a hearing be held at the defendant's
request. In the event that at that
hearing the allegation of perjury or reckless disregard is established by the
defendant by a preponderance of the evidence, and, with the affidavit's false
material set to one side, the affidavit's remaining content is insufficient to
establish probable cause, the search warrant must be voided and the fruits of
the search excluded to the same extent as if probable cause was lacking on the
face of the affidavit." Franks v. Delaware, supra 438 U.S. at 155‑156,
98 S.Ct. at 2676.
(FN5.)
The affidavit stated that during the evening of August 29, 1984, the informant
"observed a gray Lincoln containing a white male, drive up to the house
and exit the vehicle, carrying an attaché case.
A short period of time later, this individual got into the Lincoln,
empty‑handed." The defendant
submitted affidavits from three individuals who were at the Signorine
residence at various times during the evening hours of August 29. The three individuals stated that they did
not observe any person arrive in a gray Lincoln automobile and deliver an
attaché case.
(FN6.)
The affiant received the information of the confidential informant from another
police officer. However, "[t]he
fact that the affiant reported truthfully what another law enforcement officer
told him should not insulate that other officer's statements from scrutiny as
to their truthfulness or their recklessness." Commonwealth v. Nine Hundred
& Ninety‑two Dollars, supra 383 Mass. at 772‑773 n. 8, 422
N.E.2d 767.
(FN7.)
We note that during the trial, the judge allowed a voir
dire cross‑examination of both the affiant and the officer who dealt with
the informant.
(FN8.) See note 7, supra.
(FN9.) In the margin of his order, the judge
stated: "Assuming, without
deciding, that defendant had made a valid waiver, and his statements should be
admissible, I would not be inclined to offer further protection to the
statements he made during his phone call which were overheard by police. Defendant cannot claim an expectation of
privacy in a phone conversation initiated by him, and made without any request
for or intimation of desire for privacy."