|
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. Smith, 370
Supreme Judicial Court of Massachusetts,
Argued
Decided
Fern L. Nesson,
D. Lloyd MacDonald, Asst. Dist. Atty., for the
Commonwealth.
Before [370
HENNESSEY, Chief Justice.
The
defendant was indicted for possession of a class A controlled substance
(heroin), see G.L. c. 94C, s 31, with intent to
distribute. He was convicted of the
lesser included offense of possession of a class A controlled substance after a
jury‑waived trial in the Superior Court.
He received a sentence of imprisonment for one year in a house of
correction, the execution of which was stayed pending this appeal. We conclude that there was no error.
The basis
of the defendant's appeal is the denial of his motion to suppress the heroin
found on his person by a police officer executing a search warrant for heroin
at apartment number 549,
At the
hearing on the defendant's motion to suppress, the judge received in evidence
the warrant together with [370
In the
execution of the warrant, officers attached to the drug control unit obtained
entry into the apartment without incident.
The defendant was standing in an area of the apartment where the main
room and the kitchenette joined. One of
the officers approached the defendant, identified himself as a police officer
with a search warrant, and told the defendant to raise his hands. The officer 'patted down' the defendant but
found nothing. The officer then searched [370 Mass. 338] the defendant, and found twenty‑four decks of what proved
to be heroin, bound by an elastic band, in the defendant's pants pocket. The defendant was placed under arrest.
[1] The
judge found that the searching officer had no probable cause to arrest the
defendant until after the search of his person had been accomplished. ([FN1])
Nevertheless, reading the affidavit and search warrant
together, ([FN2]) and considering the reasonable inferences to be drawn therefrom, the judge found that, in all the circumstances,
it could reasonably be believed that any person found in the apartment was
involved in the trafficking of drugs and was present solely for that illicit
purpose. ([FN3]) The search of the defendant's person under
the warrant thus was upheld and the heroin was allowed in evidence at trial.
The
Commonwealth does not attempt to rely on any asserted privilege of the police
to search the defendant to protect themselves against the possibility that the
defendant possessed a concealed weapon.
It could be said that this would not be an unreasonable argument to make
in light of the nature of the place, people and circumstances involved. Such an argument loses strength here,
however, considering that a 'pat down' of the defendant disclosed no sign of a
weapon, and also did not disclose the contraband. More important, it is clear that the police
from the beginning relied on the terms of the warrant, apparently planned to
search anyone present for drugs, and apparently did not act with the motive of
self‑protection. See Gustafson v.
Florida, 414 U.S. 260, 263, 94 S.Ct. 488, 38 L.Ed.2d
456 (1973); United States v. Robinson, 414 U.S. 218, 234‑‑236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Adams v. Williams,[370 Mass. 339] 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Chimel
v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23
L.Ed.2d 685 (1969); Terry v. Ohio, 392 U.S. 1, 23‑‑24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
The
defendant contends that the search of his person pursuant to the 'any person
present' language of the warrant violated his rights under the Fourth and
Fourteenth Amendments to the United States Constitution and art. 14 of the
Declaration of Rights of the Constitution of this Commonwealth. He asserts that there was no showing to a
person authorized to issue the warrant of probable cause to believe that the
defendant would be present on the premises to be searched and that he would be
involved in illegal narcotic transactions.
Additionally, the defendant says that the warrant here lacked
specificity in that it did not particularly describe the person of the
defendant as an object of the search.
[2] We
conclude that, in the circumstances of this case, there was no error in the
judge's denial of the motion to suppress.
The affidavit and the warrant amply demonstrated that, in all the
circumstances, there was probable cause to believe that any person present on
the premises described in the search warrant was involved in illegal
trafficking in heroin. While we do not
mean to derogate in any way from the principle that the law requires a
particular description of the persons to be searched pursuant to a warrant, we
think that, on the facts of this case, the defendant was sufficiently
described. It is clear from our
discussion below that only in special circumstances such as those shown in the
affidavit here will a search warrant aimed principally at the premises also be
held to include validly the search of any person present.
There is
no general agreement in either holding or reasoning among the courts which have
considered whether the search of any person present pursuant to a valid
premises search warrant is a reasonable search under the Fourth Amendment. Most decisions evidence a disposition to
strike down such searches, ([FN4]) reflecting an adherence to the dicta [370 Mass. 340] of the United States Supreme Court in United States v. Di Re, 332 U.S. 581, 68 S.Ct.
222, 92 L.Ed. 210 (1948), where the court invalidated
the warrantless search of an automobile passenger
whose only connection with the offense of selling counterfeit ration coupons
was his presence in the automobile at the time a quantity of counterfeit
coupons was transferred to a government agent by the driver of the car. The government and the court assumed that the
police could not justify the search of a person found on premises where illegal
activity was taking place based solely on such presence. Id. at 587.
See United States v. Micheli, 487 F.2d 429,
433‑‑434 (1st Cir. 1973) (Campbell, J., concurring). On the other hand, some decisions have upheld
such searches. ([FN5]) Commentary from within the legal community is
sparse and, essentially, looks on searches of this nature as of dubious
constitutionality. See, e.g., Mascolo, Specificity Requirements for Warrants under the
Fourth Amendment: Defining the Zone of Privacy, 73 Dick.L.Rev.
1, 19‑‑20 (1968); Comment, [370
Mass. 341] The 'Search all Persons'
Power‑‑Does Presence Really Equal Probable Cause? 58 Cornell L.Rev.
614, 618‑‑619 (1973). But
see LaFave, Search and Seizure: 'The Course of True
Law . . . Has Not . . . Run Smooth,' 1966 U.Ill.L.F.
255, 271‑‑273 (discussing Ill.Rev.Stat.
c. 38, s 108‑‑9 (1965)).
In
Massachusetts this question has never been squarely presented for our
determination until now, although on one occasion we termed an 'any person
present' clause in a premises search warrant 'a reasonable extension of the
request to search the premises,' ([FN6]) and, more recently, we have twice cast
aspersions on the validity of these clauses in light of the constitutional
requirement for specificity. ([FN7])
The trial judge explicitly adopted the
reasoning of the New Jersey Supreme Court in State v. De Simone, 60 N.J. 319,
288 A.2d 849 (1972), in concluding that the search of the defendant in this
case was valid. In De Simone a unanimous
court upheld the search of a passenger in an automobile under a warrant
directing the search of the automobile and all persons found therein. Id. at 321, 288 A.2d 849. In disposing of the contention that the
warrant was invalid as it related to a passenger in the automobile authorized
to be searched, the De Simone court employed an approach which required a
showing of probable cause concerning the place to be searched and a reasonable
belief that all persons found there would be participants in the criminal
activity (an illegal lottery operation).
Id. 60 N.J. at 322‑‑323, 288 A.2d 849, 850. As the court said: 'So long as there is good
reason to suspect or believe that anyone present at the anticipated scene will
probably be a participant, presence becomes the descriptive fact satisfying the
aim of the Fourth Amendment.' Id. at
322, 288 A.2d at 850. The court stated
that 'there is none of the vice of a general warrant if the individual is . . .
identified by physical nexus to the on‑going criminal event itself.' Ibid. Di Re was distinguished because the New Jersey court viewed
that decision[370 Mass. 342]
as turning on peculiar facts, i.e., no secretive meeting was involved
and the substantive crime was one which did not necessarily involve any act
which was visibly criminal (see Di Re, supra 332 U.S.
at 593, 68 S.Ct. 222). De Simone, supra 60 N.J. at 326‑‑327,
288 A.2d 849.
A case
somewhat closer to the instant one was decided in People v. Nieves, 36 N.Y.2d
396, 369 N.Y.S.2d 50, 330 N.E.2d 26 (1975).
In Nieves the search warrant authorized the search of a certain
restaurant and cocktail lounge, the person of one Elizar
Vidal, and 'any other person occupying said premises (,) and of any other
person who may be found to have . . . (gambling paraphernalia) in his
possession or under his control or to whom such property may have been
delivered. . . .' Id. at 398, 369 N.Y.S.2d at 54, 330 N.E.2d at
29. The Court of Appeals of New York, in
a unanimous decision, set aside the defendant's conviction for, among other
crimes, possession of gambling records, because neither the affidavit nor the
warrant, nor the reasonable inferences which might be drawn from them by the
issuing judge gave the slightest indication that there was reason to believe
'that each and every occupant of . . . (the premises) at any time of day
possessed . . . gambling records . . ..'
Id. at 402, 369 N.Y.S.2d at 57, 330 N.E.2d at 32. However, the New York court said quite
clearly that the 'any person present' language could, in some circumstances,
survive constitutional attack.
([FN8]) The court pointed out
that '(w)hat will amount to forbidden generality, or, to put it another way,
insufficient particularity in a warrant necessarily depends upon the facts and
circumstances of each case.' Ibid.
[3][4] We
conclude that the search before us falls within that narrowly circumscribed
range of searches which, because of the peculiar facts which give rise to them,
are consistent with Fourth Amendment principles and with the reasoning of
precedents such as De Simone and Nieves.
We have repeatedly stated that affidavits in support of search warrants [370 Mass. 343] are to be approached, in hindsight, with a view toward common
sense. They 'should be read in their
entirety, not in a hypertechnical fashion, and . . .
considerable latitude should be allowed for the drawing of
reasonable inferences from their faces.'
Commonwealth v. Perada, 359 Mass. 147, 149,
268 N.E.2d 334, 335 (1971), and cases cited.
United States v. Ventresca, 380 U.S. 102, 108‑‑109,
85 S.Ct. 741, 13 L.Ed.2d 684 (1965). After a full scrutiny of the affidavit we
must be able to opine that 'the information contained in the affidavit and
'inferences which reasonably could be drawn from the information by a judicial
mind' establish probable cause to make the search.' Commonwealth v. Mele,
358 Mass. 225, 229, 263 N.E.2d 432, 434 (1970), quoting from Commonwealth v.
Brown, 354 Mass. 337, 345, 237 N.E.2d 53 (1968).
The
affidavit in support of the search warrant for apartment number 549 revealed to
the issuing clerk that the informant on whose information the affiant relied
had been inside the apartment on two occasions within only ten days prior to
the signing of the affidavit and had seen the occupant selling heroin in half
bundles (twelve decks), to other persons present in the apartment. The affidavit further showed that periodic
surveillances of the apartment by the affiant and other police officers within
only the prior seven days caused them to observe persons, known to the officers
as persons trafficking in heroin, enter and leave the apartment. The local clerk undoubtedly inferred that,
from the nature of the neighborhood and the project in which the apartment was
located, the apartment was of modest size.
All of these facts could properly be appraised by the clerk in light of
the fact that the application sought authorization to search for the kind of
contraband which, because of its nature and the type of packaging customarily
used in its transfer from one individual to another, could reasonably be
inferred would be discovered on the persons of those individuals present. ([FN9])
Further, the insidious nature of the
[370 Mass. 344] contraband
(heroin) was such as to render it more likely than not that the participants
would act in secret and to the exclusion of innocent persons and possible
informants.
From these
asserted facts and fair inferences drawn therefrom,
it was permissible to conclude that it was probable that any person in the
apartment was a participant in the trafficking in heroin there. Further the inference was permissible that it
was virtually impossible to predict who would be there at any given time. With the exception of 'Molly Bee,' this was a
situation in which the police information and knowledge 'develop(ed) around and
ultimately focus(ed) on a place rather than upon the person(s) occupying the
place.' Commonwealth v. Franklin, 358
Mass. 416, 422, 265 N.E.2d 366, 369 (1970).
See Commonwealth v. Dinnall, ‑‑‑
Mass. ‑‑‑, ‑‑‑, ([FNA])
314 N.E.2d 903 (1974); Commonwealth v. Pope, 354 Mass. 625, 628‑‑629,
241 N.E.2d 848 (1968). This observation
does not relax the particularity requirement as it applies to all identifiable
persons known to be on the premises to be searched, ([FN10]) but rather
recognizes that persons who might be incriminated as a result of a search
pursuant to a valid 'any person present' warrant 'are already well protected by
the stringent requirements for affidavits.'
Commonwealth v. Franklin, supra.
See G.L. c. 276, ss
1‑‑2B; Spinelli v. United States, 393
U.S. 410, 415‑‑419, 89 S.Ct. 584, 21
L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 114‑‑115, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
[5] Having
said this we nevertheless consider it important to stress that in the
overwhelming majority of cases a search based exclusively on the somewhat vague sanction
of the language in the 'any person present' clause is a clear violation of the
proscription against unreasonable searches.
An affidavit in support of a warrant which seeks to authorize a search
of 'any person present' is to be strictly scrutinized. It can only by valid where the underlying
circumstances presented to the issuing judge or clerk clearly demonstrate
probable cause to search the named premises and to believe that all persons
present are involved in the criminal activity afoot. On the latter point, several facts [370 Mass. 345] are of particular relevance: the premises or area to be searched
are small, confined and private; ([FN11]) the nature of the criminal activity
is such that the participants (in general) constantly shift or change so that
it is, practically, impossible for the police to predict that any specific
person or persons will be on the premises at any given time; and the items
specifically described in the warrant as the target of the search are of a size
or kind which renders them easily and likely to be concealed on the person.
The
guidelines of the Court of Appeals of New York as set forth in People v.
Nieves, 36 N.Y.2d at 404‑‑405, 369 N.Y.S.2d 50, 330 N.E.2d 26, are
useful. While it is appropriate for a
court to rely on the reasonable and common sense inferences to be drawn from
the affidavit, as indeed this court has relied in this case, the specificity
suggested in the guidelines will tend to insure the careful scrutiny of which
we have spoken above. The Nieves
guidelines are as follows: 'An application for this type of warrant must be
subjected to rigid scrutiny by the independent Magistrate. It must carefully delineate the character of
the premises, for example, its location, size, the particular area to be
searched, means of access, neighborhood, its public or private character and
any other relevant fact. It must specifically
describe the nature of the illegal activity believed to be conducted at the
location, the number and behavior of persons observed to have been present
during the times of day or night when the warrant is sought to be executed.
'The
application should also state whether any person apparently unconnected with
the illegal activity has been seen at the premises. ([FN12])
The warrant itself must limit the locus of the search to the area in
which the criminal activity[370
Mass. 346] is believed to be confined and, according to
the circumstances, may also specify the time for the search.
'In
determining the reasonableness of a particular warrant application, it is also
appropriate to consider the necessity for this type of search, that is, the
nature and importance of the crime suspected, the purpose of the search and the
difficulty of a more specific description of the persons to be searched. The risk that an innocent person may be swept
up in a dragnet and searched must be carefully weighed' (footnote omitted).
Exceptions
overruled.
KAPLAN,
Justice (dissenting).
A printed
clause at the end of the standard form of warrant purports to command the
search 'of any person present who may be found to have such property (i.e., a
narcotic drug or associated paraphernalia) in his possession or under his
control or to whom such property may have been delivered. . . .'
(See G.L. c. 276, s 2A, inserted by St.1964,
c. 557, s 3.) On two previous occasions the court has expressed doubt about
such language: read as ordinary prose, it is question‑begging or self‑fulfilling,
and in all events it is not specific or particular. Commonwealth v. Snow, 363 Mass. 778, 786 n.
5, 298 N.E.2d 804 (1973). Commonwealth
v. Pellier, 362 Mass. 621, 625 n. 3, 289 N.E.2d 892
(1972).
The court
now reads the language to mean any person present at the location at the time
of the execution of the warrant. This
glosses the first fault. The lack of
specificity or particularity remains.
I agree
with some of the cases cited that when the Fourth Amendment says 'particularly
describing,' it expects something fairly indicative of a person or
persons. (Article 14 of our Declaration
of Rights requires a 'special designation of the persons.') A person may be particularly described (or
specially designated) without mention of his name; but it goes to the verge, if
not beyond, merely to refer, as here, to indeterminate persons described only
by their contingent relationship to a location.
[370 Mass. 347] The court suggests that the difficulty may be overcome if it is
shown that there was probable cause for the belief that any person who might be
present at the location when the warrant was executed would possess the seizable property or at least be engaged in an unlawful
activity involving such property. I
doubt that this formula can supply the necessary particularity within the
tolerances of a constitutional provision directed historically against general
warrants.
But if the
formula is accepted, then I submit that the police officer's affidavit, relied
on as establishing the probable cause, is short of the mark. I agree with the court that the affidavit is
to be read with a certain common sense leniency; but even so it seems
inadequate. The affiant mentions two
illegal sales and says that officers of the drug control unit have conducted
'periodic surveillances' during the past week and observed persons, known by
the officers to traffic in heroin, entering and leaving the location. The kinds, times, and frequency of the
surveillances are not stated. We are not
told the number of persons entering and leaving the location who were
recognized by the police as heroin traffickers, and nothing is said about the
number of persons entering and leaving the location who were not thus
suspect. There is no account of how and
when persons, suspect or not, congregated at the location. A report fully comprehensive and exact in
every detail could not be expected; but without more complete information than
was provided in the affidavit, I believe probable cause in the sense of the court's
formula was not demonstrated. I suggest
that the court should have signalled its insistence
on a better demonstration by reversing the conviction, as did the New York
Court of Appeals in People v. Nieves, 36 N.Y.2d 396, 369 N.Y.S.2d 50, 330
N.E.2d 26 (1975). If not in the formula
itself, then in applying it to facts, the court sets a precedent that may lead
to a not inconsiderable erosion of the Fourth Amendment safeguard. I respectfully dissent.
(FN1.)
This finding may appear to be inconsistent with other findings which the
judge made in support of the search of the defendant's person, and therefore we
regard this finding, we think correctly, as a conclusion by the judge that
there were no facts supportive of probable cause, as to the defendant, except
his presence in the apartment.
(FN2.)
See Commonwealth v. Todisco, 363 Mass. 445,
449‑‑450, 294 N.E.2d 860 (1973).
(FN3.)
In determining the correctness of the judge's ruling, we consider, of
course, only the warrant, application and affidavit and the reasonable
inferences arising therefrom. See, e.g., Commonwealth v. Mele, 358 Mass. 225, 228‑‑229, 263 N.E.2d 432
(1970); Commonwealth v. Cuddy, 353 Mass. 305, 308, 231 N.E.2d 368 (1967);
Commonwealth v. Moran, 353 Mass. 166, 169‑‑171, 228 N.E.2d 827
(1967).
(FN4.)
United States v. Johnson, 154 U.S.App.D.C.
393, 475 F.2d 977, 979 n. 5 (1973).
United States v. Festa, 192 F.Supp. 160, 163 (D.Mass.1960). State v. Wise, 284 A.2d 292, 293‑‑294
(Del.Super.Ct.1971). Salmon v. State, 2 Md.App. 513, 520 n. 4, 235 A.2d 758 (1967). State v. Masco, 103 N.J.Super.
277, 282, 247 A.2d 136 (App.Div.1968).
People v. Nieves, 36 N.Y.2d 396, 398‑‑404, 369 N.Y.S.2d 50,
330 N.E.2d 26 (1975). Garrett v. State,
270 P.2d 1101, 1103 (Okl.Cr.App.1954). Crossland v. State, 266 P.2d 649, 652
(Okl.Cr.App.1954). State v. Massie, 95
W.Va. 233, 235, 120 S.E. 514 (1923). See
United States v. Micheli, 487 F.2d 429, 431 & n.
1, 433 (1st Cir. 1973); United States v. Haywood, 284 F.Supp.
245, 250 (E.D.La.1968); Fowler v. State, 128 Ga.App.
501, 502‑‑503, 197 S.E.2d 502, cert. denied, 414 U.S. 1000, 94 S.Ct. 354, 38 L.Ed.2d 236 (1973); State v. Nabarro, 55 Hawaii 583, 589 (1974); Purkey
v. Maby, 33 Idaho 281, 193 P. 79 (1920); People v.
States, 92 Ill.App.2d 156, 160, 163, 235 N.E.2d 882 (1968); De Angelo v. State,
199 Md. 48, 51, 85 A.2d 468 (1952); State v. Fox, 283 Minn. 176, 179, 168
N.W.2d 260 (1969); State v. Bradbury, 109 N.H. 105,
106‑‑107, 243 A.2d 302 (1968); State v. Carufel,
106 R.I. 739, 748‑‑749, 263 A.2d 686 (1970).
(FN5.) Samuel v. State, 222 So.2d 3, 5
(Fla.1969). Willis v. State, 122 Ga.App. 455, 458‑‑459, 177 S.E.2d 487
(1970). People v. Pugh, 69 Ill.App.2d
312, 316, 217 N.E.2d 557 (1966). State
v. De Simone, 60 N.J. 319 (1972). People
v. Easterbrook, 43 App.Div.2d 719, 720, 350 N.Y.S.2d 442 (1973), aff'd, 35 N.Y.2d 913, 364 N.Y.S.2d 899, 324 N.E.2d 367,
cert. denied, 421 U.S. 965, 95 S.Ct. 1954, 44 L.Ed.2d
452 (1974). People v. Nicoletti, 60 Misc.2d 108, 111‑‑112, 302
N.Y.S.2d 618 (Niagara County Ct.1969).
See United States v. Peep, 490 F.2d 903, 906 (8th Cir. 1974); Walker v.
United States, 117 U.S.App.D.C. 151, 327 F.2d 597,
599‑‑600 (1963), cert. denied, 377 U.S. 956, 84 S.Ct.
1635, 12 L.Ed.2d 500 (1964); Clay v. United States, 246 F.2d 298, 305 (5th Cir.),
cert. denied, 355 U.S. 863, 78 S.Ct. 96, 2 L.Ed.2d 69
(1957); Brown v. State, 498 S.W.2d 343, 346 (Tex.Cr.App.1973), and cases
cited. See also United States v.
Johnson, supra at 981 & n. 5, 982 (Bazelon, C.J., concurring in part and dissenting in part); People v.
Nieves, supra 36 N.Y.2d at 400‑‑406, 369 N.Y.S.2d 50, 330 N.E.2d
26.
(FN6.)
Commonwealth v. Franklin, 358 Mass. 416, 422 n. 3, 265 N.E.2d 366, 370
(1970).
(FN7.)
Commonwealth v. Snow, 363 Mass. 778, 786 n. 5, 298 N.E.2d 804
(1973). Commonwealth v. Pellier, 362 Mass. 621, 625 n. 3, 289 N.E.2d 892 (1972).
(FN8.)
Indeed, the decision expressly refused to overrule the New York statute
authorizing the use of this language in search warrants. Nieves, supra at 400, 404, 369 N.Y.S.2d 50, 330
N.E.2d 26. See N.Y.Crim.Proc.Law
s 690.15(2) (McKinney 1971). Compae People v. Green, 33 N.Y.2d 496, 499‑‑500
n. 2, 354 N.Y.S.2d 933, 310 N.E.2d 533 (1974), with Id. at 501‑‑502,
354 N.Y.S.2d 933, 310 N.E.2d 533 (Gabrielli, J.,
joined by Jasen and Stevens, JJ.,
dissenting).
(FN9.)
See Commonwealth v. Snow, 363 Mass. 778, 788, 298 N.E.2d 804, 811
(1973), where we observed: 'An illegal drug transaction is commonly described
by witnesses as including the passing of something between two persons, with a
small packet, usually called a deck, going in one direction and money going in
the other direction.'
(FNA.) Mass.Adv.Sh. (1974) 1351, 1354.
(FN10.)
See Commonwealth v. Perada, supra.
(FN11.)
As opposed to a public or quasi public place where casual presence of
persons for a myriad of noncriminal reasons is to be
expected. See Commonwealth v. Snow, 363
Mass. 778, 791, 298 N.E.2d 804 (1973) (Kaplan, J., dissenting in part).
(FN12.)
In the instant case, the frequency and nature of the observations of the
reliable informant and the police, considered together, all within a relatively
brief time, reasonably raise the probability called for by this factor.