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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. Soares, 384
Supreme Judicial Court of Massachusetts,
Argued
Decided
Frederick C. Mycock,
Gary A. Nickerson, Asst. Dist. Atty., for the
Commonwealth.
Before HENNESSEY, C. J., and WILKINS, ABRAMS, NOLAN
and LYNCH, JJ.
NOLAN, Justice.
On
The issues
raised are essentially two. The
defendant initially challenges the denial of his motion to suppress all
evidence seized on
On appeal,
he seeks reversal of his conviction and either the entry of a judgment of
acquittal or a new trial. We conclude
that there was no error requiring reversal in either the denial of the motion
to suppress or in the conduct of the trial, and we affirm the defendant's
conviction.
1. We
consider first the defendant's contention that the warrants authorizing the two
searches of the Ellis residence were invalid, and begin by recounting the
circumstances surrounding those searches.
On January 9, 1980, Trooper Paul F. Gregory, a Massachusetts State
police officer assigned to investigation of traffic in narcotics, received word
from Detective Louis Perry of the sheriff's office in San Bernardino,
California, that a package containing methamphetamine had been deposited at the
United Parcel Service (UPS) terminal in San Bernardino for delivery to one
Tracey Ellis, 317 Lakeside Drive, Marstons Mills, Massachusetts. The suspicions of the desk clerk who took the
package had been aroused by the nervous and evasive behavior of the customer
mailing it, and she had opened it for inspection as permitted by UPS
regulations. Upon discovering that it
contained a white powdery substance in a cellophane bag, she notified her supervisor,
who in turn called Detective Perry.
Perry secured the package, removed a sample of its contents for
analysis, and determined that it contained methamphetamine. Retaining the original outer wrapping, Perry
repackaged the drug, and initialed both the box and a new outer wrapping. He then copied the original address and
return address and mailed the package in care of the UPS supervisor at the
[384
Inside the
Ellis residence, Gregory observed a variety of paraphernalia associated with
the use of illicit drugs, as well as telephone billing records listing calls to
[384 Mass. 153] The defendant's motion to suppress all evidence seized in the
course of the searches described above was heard and denied on September 22,
1980, immediately prior to his trial.
The original motion alleged a variety of defects, both constitutional
and statutory, in the warrant authorizing the initial search of the Ellis
residence. On appeal, the attack is
narrowed to the "anticipatory" nature of that warrant. The defendant asserts that because it was
clear from the affidavit offered to establish probable cause that the object of
the search was not on the premises to be searched at the time the warrant
issued, the authorization to search was beyond the limits set by G.L. c. 276, s
1. In the alternative, the defendant
argues that the language of G.L. c. 276, s 1, requires that the issuing
magistrate condition the execution of an anticipatory warrant on the occurrence
of a future event here, the delivery of the contraband.
(1) We
have not previously addressed the permissibility of anticipatory warrants. The questions raised are not novel,
however. There is no constitutional
impediment to their use in the circumstances presented by this case. See 1 W. LaFave, Search and Seizure s 3.7(c),
at 698‑704 (1978). Neither logic
nor the policies underlying the Fourth Amendment warrant requirement support a
general prohibition against the use of anticipatory warrants. First, as to the probative quality of the
facts stated to support their issuance, LaFave observes that "as a general
proposition the facts put forward to justify issuance of an anticipatory
warrant[384 Mass. 154]
are more likely to establish that probable cause will exist at the time
of the search than the typical warrant based solely upon the known prior
location of the items to be seized at the place to be searched." LaFave, supra at 701, citing People v. Glen,
30 N.Y.2d 252, 258‑259, 331 N.Y.S.2d 656, 282 N.E.2d 614, cert. denied
sub nom. Baker v. New York, 409 U.S. 849, 93 S.Ct. 58, 34 L.Ed.2d 91
(1972). This point is demonstrated by
the facts of the instant case. The
affidavit indicated that the object of the search was subject to the control of
law enforcement personnel, and that delivery would occur immediately upon
obtaining the search warrant. Second,
the goal of encouraging the use of warrants is hardly fostered by requiring
that police officers await the actual delivery of known contraband to the
premises to be searched, thus putting them to a choice between undertaking an
immediate unwarranted search or taking the time to obtain a warrant and risking
the destruction or concealment of potential evidence. See Alvidres v. Superior Court, 12 Cal.App.3d
575, 581, 90 Cal.Rptr. 682 (1970).
Although the Supreme Court has not specifically passed on the
question, we note that these considerations have persuaded the great majority
of courts which have considered the issue to conclude that the use of
anticipatory warrants is constitutional.
See Johnson v. State, 617 P.2d 1117, 1124 (Alaska 1980); LaFave, supra
at 698‑699 nn. 77 & 78 (collecting earlier cases).
(2) On
appeal, the defendant has abandoned the argument that anticipatory warrants are
unconstitutional per se; he now argues that G.L. c. 276, s 1, either precludes
their use, or, at a minimum, requires that such a warrant explicitly state the
conditions under which it may be executed.
The first argument is based on a literal reading of the statute, which
provides that warrants may issue in criminal cases on a showing of probable
cause to believe that defined property or articles, including "property or
articles the possession or control of which is unlawful," "are
concealed" in the place to be searched.
The defendant suggests that this language requires evidence that the
object of the search is actually present at the premises to be searched before
a warrant may issue. We have already discussed
the policy [384 Mass. 155] grounds for rejecting such a rigid
interpretation of the statutory language.
We think that the essential question under G.L. c. 276, s 1, as under
the Fourth Amendment, is whether "the evidence (stated in the affidavit)
creates substantial probability that the seizable property will be on the
premises when searched." People v.
Glen, supra 30 N.Y.2d at 259, 331 N.Y.S.2d 656, 282 N.E.2d 614. In accordance with this standard of probable
cause, we read G.L. c. 276, s 1, to permit search warrants to issue on a
showing that concealment or possession is probable at the time a warrant is to
be executed, and not solely at the time of its issuance. See Johnson v. State, supra. Cf. People v. Glen, supra at 261, 331
N.Y.S.2d 656, 282 N.E.2d 614 (statutory requirement that warrants be executed
"forthwith" does not preclude issuance of anticipatory
warrants). Compare Gerardi v. State, 307
So.2d 853, 855 (Fla.App.1975). We are
reinforced in our conclusion by the Legislature's explicit disclaimer in G.L.
c. 276, s 1, of any intent to impair the powers of search and seizure existing
"under the common law."
(3)(4)
Finally, we reach the defendant's contention that the initial warrant in this
case was invalid for its failure to give the executing officers explicit
directions to search only after the package had been delivered. We agree that it is preferable for a
magistrate issuing an anticipatory warrant to define with reasonable precision
the circumstances which must be present prior to its execution. See Johnson v. State, supra at 1124 n. 11;
People v. Glen, supra 30 N.Y.2d at 261‑262, 331 N.Y.S.2d 656, 282 N.E.2d
614; Alvidres v. Superior Court, supra, 12 Cal.App.3d at 582, 90 Cal.Rptr. 682;
LaFave, supra at 703. In the instant case,
the clerk was informed by the affidavit that delivery of the contraband and the
search would follow without delay upon the issuance of the warrant. In these circumstances, the failure to alter
the printed direction to execute the warrant "immediately" was not
unreasonable, and does not make the search unlawful.
The
defendant concedes that the validity of the second warrant and the lawfulness
of the search pursuant to it rest entirely on the lawfulness of the first
search. We conclude that there was no
error in the denial of the motion to suppress as to either search.
[384 Mass. 156] 2. Before discussing the defendant's challenges to the judge's
evidentiary rulings, it is useful to review the substance and the structure of
the Commonwealth's case. We start by
summarizing the main components of that case, then analyze the evidence in
greater detail as required to meet the defendant's specific assignments of
error.
The
circumstances of the January 16 searches of the Ellis residence were described
at the trial by Trooper Paul Gregory.
The package in which the contraband was shipped, the white powder it
contained, and a laboratory analysis identifying the contents as being
methamphetamine were all admitted in evidence.
Gregory delineated the circumstances of the second search,
including the defendant's presence during it.
Two scales found in the Ellis residence capable of measuring weights
ranging from grams to pounds were admitted as exhibits. Gregory testified on the basis of his
experience and training in the field of narcotics law enforcement that these
were typical of scales used in the distribution of illicit drugs. Gregory also identified other items seized
during the second search, namely, two telegraphic money order receipts bearing
the name of Tracey Ellis as the sender and Russell Wathey as the recipient, and
customer copies of telephone bills listing the Watheys' California numbers, as
having been found during the second search.
He further testified that he had discovered approximately $12,000 in
cash in the Ellis residence. A
photograph of a part of this money was admitted. Finally, Gregory testified that during the
search he found airline tickets bearing the defendant's name, which were
admitted as an exhibit, as well as a variety of men's clothing.
Business
records of Western Union money order transactions were introduced from two
sources. The Western Union agent from
Buzzards Bay produced a money order form in the amount of $6,500. The sender was listed as "Leon Soarez,
Curtis St., Wareham, MA." The order
was payable to "Russel Wathey, 2176 Mallory, San Bernardino, CA." The
test question, to be answered by the recipient, was "Greaser." The two money order receipts found in the [384 Mass. 157] Ellis residence, which had been previously marked for
identification, were admitted as exhibits simultaneously with this form.
The
Commonwealth then called the Western Union district operations manager in
charge of the company's Cape Cod office.
He produced photostatic copies of company records of three money order
transactions. The first of these
corresponded to the transaction indicated by the form produced by the Buzzards
Bay agent. The second, dated August 8,
and in the amount of $4,100, named "Russel Wathui" as the
recipient. The sender was identified as
"L. Soarez, Box 12, Hyannis Port, MA." The third, dated August 27, for $500, was
payable to "Carol Wathey." It
identified the sender as "Leon Soares, 398 5 Ave., West Hyannisport,
MA." The test questions used in the
three transactions were, respectively, "Dog's name Greaser,"
"Greaser," and "Griser."
Wade
Richter, a named coconspirator, testified that he had been acquainted with
Russell and Carol Wathey for approximately five years, and that he had
associated with them on a daily basis during the period specified in the
indictment. In the latter part of
December, 1979, he had purchased the methamphetamine destined for delivery to
Marstons Mills and had mailed it according to instructions given to him by
Russell Wathey. The money for this
purchase had been obtained through a Western Union money order. He identified the Watheys' California address
as 2176 Mallory Street in Muscoy, a suburb of San Bernardino, and identified
two telephone numbers as having been in use by the Watheys during the relevant
time period. He further testified that
the Watheys' dog was named "Greaser."
On direct examination, he stated that he had pleaded guilty in California
to a charge of transporting narcotics in connection with his role in the case.
Detective
Perry, of the San Bernardino, California, sheriff's office, testified to the
circumstances of his initial search of the package in California, and to the
preparations he made for the subsequent Massachusetts search. He further [384 Mass. 158] testified
that on January 25, 1980, he executed a search warrant at the Wathey residence
in Muscoy, California. Four Western
Union money order receipts evidencing the payment to Russell Wathey of $6,500
on October 31, 1979, and seized during that search, were received in
evidence. A second similar group of four
receipts dated September 24, 1979, was also admitted. Finally, two handwritten notes seized at the
Wathey residence, the first bearing Ellis's name and Marstons Mills address,
the second bearing the notation "Marston Mills, Cape Cod," were
produced by Perry and admitted in evidence.
Following
Perry's testimony, the Commonwealth requested a bench conference. The prosecutor expressed his intention to
recall Wade Richter for the purpose of obtaining testimony relating to
conversations between Richter and Russell Wathey which implicated the defendant
in the conspiracy alleged. Over the
strenuous objections of defense counsel, the judge ruled that the Commonwealth
had established the necessary foundation for the admissibility of this
evidence, and Richter again took the stand.
Richter then testified that in mid‑December, 1979, he was told by
Wathey to obtain a pound of methamphetamine for resale to the defendant. Wathey told Richter that the drug would be
sent to the defendant's Massachusetts residence, but that Tracey Ellis's name
would be used as the addressee because of the defendant's concern that he was
under police surveillance, and because he believed that if the package were
intercepted, Ellis would be prosecuted in his stead. Later, Wathey notified Richter that the
defendant had changed his mind, and wanted to purchase the drug in two
installments of half a pound each. After
a brief cross‑examination by defense counsel, the Commonwealth rested its
case. The jury was excused and the
defendant moved for a required finding of not guilty, which motion the judge
denied.
At trial,
the defendant objected to the admission of virtually every exhibit offered by
the Commonwealth, on the ground that they were either hearsay or
irrelevant. In his brief, the defendant
renews his argument that thirteen separate[384
Mass. 159] exhibits were improperly admitted. In sum, the defendant argues that in
determining that a foundation had been established for the admission against
him of the extrajudicial statements of a coconspirator, the judge relied on
evidence that was itself inadmissible.
The ultimate contention is that the challenged evidence was essential to
the Commonwealth's case, and thus that the defendant's motion for a required
finding of not guilty was improperly denied.
We disagree. We discuss first the
application in this case of the exception to the hearsay rule for the
statements of coconspirators. We then
turn to the few evidentiary issues remaining.
(5) The
defendant concedes that upon establishing a proper foundation, the statement of
one coconspirator made during the course of the conspiracy and in furtherance
of it is admissible against other conspirators despite their absence at the time
of the statement. Commonwealth v.
Beckett, 373 Mass. 329, 338‑339, 366 N.E.2d 1252 (1977); Commonwealth v.
White, 370 Mass. 703, 708‑709, 352 N.E.2d 904 (1976). The contention here is that the necessary
foundation was lacking. The foundation
rule has both substantive and procedural dimensions. The ultimate question is whether the whole
evidence is sufficient to warrant an inference that a conspiracy existed, and
that both the defendant and the declarant had joined it. Commonwealth v. Beckett, supra, 373 Mass. at
337 n.3, 366 N.E.2d 1252. "In
making this determination, the conspiracy may be, and usually is, proved by
circumstantial evidence."
Commonwealth v. Stasiun, 349 Mass. 38, 50, 206 N.E.2d 672 (1965). See Toomey, Some Procedural Aspects of the
Prosecution of a Conspiracy in the Commonwealth of Massachusetts, 53 Mass.L.Q.
207, 240 (1968) ("The quantum of circumstantial evidence necessary to make
out a prima facie conspiracy is that amount of proof which, according to
Commonwealth v. Galvin, 310 Mass. 733, 745 ..., 39 N.E.2d 656 (1942) '...
(indicates) concerted action towards the accomplishment of a common purpose'
"). The threshold determination of
this question is for the trial judge; ultimately, however, the jury "must
make definite findings on the same questions which the judge must pass on
before he may permit the jury to consider whether that evidence[384 Mass. 160] may be used against
all." Commonwealth v. Beckett,
supra 373 Mass. at 340, 366 N.E.2d 1252.
(6)(7) In
the instant case, there was abundant nonhearsay evidence from which to infer
the defendant's participation in the conspiracy alleged. There was strong circumstantial evidence to
support the conclusion that the defendant and Ellis shared the Marstons
Mills residence. ([FN5]) The defendant's arrival at the house in the
interim between the two searches, coupled with the discovery of airline tickets
bearing his name and articles of men's clothing during the course of the
search, was sufficient to warrant the inference that he lived there. ([FN6]) While these facts taken cumulatively
did not compel the conclusion that the defendant lived in the Ellis residence,
proof of that order was not required.
"An inference, if not forbidden by some rule of law, need only be
reasonable and possible; it need not be necessary or inescapable." Commonwealth v. Beckett, supra at 341, 366
N.E.2d 1252; Commonwealth v. Nelson, 370 Mass. 192, 200‑201, 346 N.E.2d
839 (1976), and cases cited.
The
defendant's association with Ellis gave added significance to the initial
testimony of Wade Richter. Richter
testified that he had purchased the methamphetamine with money transferred by
Western Union money orders, and had prepared the package for mailing under the
direction of Russell Wathey. Particularly
significant was Richter's testimony that the address in Marstons Mills to which
the package was mailed had been provided by Russell Wathey.
(8) This
testimony was sufficient to link the Western Union business records received in
evidence to the other proof of conspiracy.
These records consisted of a money order form kept on file at the
Buzzards Bay Western Union office, and three reproductions of Western Union's
computerized records of substantial sums wired from Cape Cod to the Watheys in
California. The defendant concedes that
all four documents were properly qualified as business records under G.L. c.
233, s 78, but argues that they were inadmissible[384 Mass. 161] on grounds of relevance absent some positive
identification of the defendant as the sender.
This contention is meritless.
Each of the transactions recorded was addressed to either Carol or
Russell Wathey in San Bernardino. Each
used the code word "Greaser," or some variant thereof, as the test
question to be answered by the recipient.
In each, the sender's name was a slight variation on the defendant's
proper name. These factors went to the
weight, rather than to the admissibility, of the evidence. The test of relevance is whether the evidence
offered rationally tends to prove the proposition at issue. Commonwealth v. Richmond, 207 Mass. 240, 245,
93 N.E. 816 (1911). "Every piece of
evidence by itself does not have to be sufficient to prove the main point at
issue. Attorney Gen. v. Pelletier, 240
Mass. 264, 314, 134 N.E. 407 (1922).
'Evidence which would be colorless if it stood alone may get a new
complexion from other facts which are proved, and in turn may corroborate the
conclusion which would be drawn from the other facts.' Commonwealth v. Mulrey, 170 Mass. 103, 110,
49 N.E. 91 (1898); Commonwealth v. Coyne, 228 Mass. 269, 272, 117 N.E. 337
(1917)." Commonwealth v. Stasiun,
349 Mass. 38, 51, 206 N.E.2d 672 (1965).
The question whether the defendant was in fact the sender in these
transactions was properly for the jury.
(9) The
judge's conclusion that the Commonwealth had made a prima facie showing of
conspiracy was further supported by certain other evidence discovered in the
Ellis residence. In the search of
January 16, the police recovered two receipts for Western Union money orders
sent by Tracey Ellis to Russell Wathey in California. The two transactions took place on
consecutive days in late September, 1979; their total cash value was
$6,500. The police also recovered
telephone billing records listing long distance calls to numbers identified by
Richter as having been used by the Watheys during the course of the
conspiracy. The defendant objected to
the admission of these documents at trial on the grounds that they were hearsay
and irrelevant, and he renews these objections
here. While these documents were not
properly qualified as business records, and were thus inadmissible as evidence
of the transactions recorded,[384
Mass. 162] they were, nevertheless, admissible as
evidence of the relationship between the alleged conspirators. The relationship of the conspirators was
material to the Commonwealth's case, and the relevance of these exhibits to
that issue is beyond dispute. See Commonwealth
v. Borans, ‑‑‑ Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑, ([FNA]) 393 N.E.2d 911 (1979); Commonwealth v.
Ellis, 373 Mass. 1, 8, 364 N.E.2d 808 (1977); Commonwealth v. Cohen, 6
Mass.App. 653, 657, 382 N.E.2d 1105 (1978).
Compare Commonwealth v. Patterson, 4 Mass.App. 70, 75‑76, 341
N.E.2d 287 (1976). That these exhibits
were admissible for a single, limited purpose is enough. See W. B. Leach and P. J. Liacos,
Massachusetts Evidence 319 (4th ed. 1967).
While limiting instructions might have been requested, they were not,
and in the absence of a request, they were not required.
(10) We
conclude that sufficient nonhearsay evidence was adduced by the Commonwealth to
support a fair inference of the defendant's connection with the conspiracy
alleged. Commonwealth v. Kelley, 359
Mass. 77, 85‑86, 268 N.E.2d 132 (1971).
Once that showing had been made, Richter's testimony as to Russell
Wathey's statements describing the defendant's role in the unlawful scheme was
rendered admissible. The defendant does
not contend, nor could he, that the evidence including Richter's testimony was
insufficient to send the case to the jury.
It follows that his motion for a required finding of not guilty was
properly denied.
(11) Two
evidentiary points remain. Certain
Western Union receipts indicating the payment of monies to the Watheys in
California were discovered in the search of their home and admitted against the
defendant. No foundation was laid for
the admission of these documents as business records, nor do they on their face
have any relation to the conspiracy alleged.
They were, accordingly, inadmissible.
However, their effect was merely cumulative, and the error was
harmless. The same is true of the two
handwritten notes also recovered in the search of the Wathey home. See Commonwealth v. Meech, ‑‑‑
Mass. ‑‑‑, ‑‑‑, ([FNB]) 403 N.E.2d 1174
(1980). We therefore affirm the
defendant's conviction.
Judgment
affirmed.
(FN1.) The defendant was also indicted for
possession of methamphetamine with intent to distribute and possession of other
controlled substances in violation of G.L. c. 94C, ss 32 & 34. No issue relating to these charges is raised
on this appeal.
(FN2.)
In connection with the motion to suppress, the defendant filed an affidavit
admitting that this residence was his.
At trial, however, the question whether the defendant in fact lived with
Tracey Ellis appears to have been controverted.
Although the explanation for this disparity does not appear on the
record, it may be inferred that it was due to the suppression at trial of
certain admissions made by the defendant during the course of the search of the
residence. For the sake of clarity, we
refer to the premises searched as the "Ellis residence."
(FN3.)
This appeal raises no challenge to any aspect of this search.
(FN4.)
The following is the inventory of the property taken pursuant to the warrant:
"1.
$12,090.00 in cash U.S. currency
"2.
Brn Btl w/white powder, Clear Bottle white powder, 3 cutting razors white
powder, 2 straws 1 metal 1 plastic white powder, 21 blue pills, 5 red caps. 2
red/blue caps. 1 yellow pill, 1 red pill, 1 brass pipe, 1 knife
"3.
1 sock containing brn bottle containing white powder
"4.
3 razor blades residue, 1 brass straw residue, 2 roaches, 1 roach clip
"5.
1 plastic baggie containing frn veg mat., 2 packages of zig, zag papers
"6.
1 wooden cylinder containing grn veg. mat.
"7.
various recipts (sic ) and bills, address books etc.
"8.
1 sargent welch scale color silver
"9.
1 ohaus color tan, red, black, silver scale
"10.
5 photo graph albums."
(FN5.) As pointed out in note 2, supra, this
fact was in controversy at trial.
(FN6.) There is no basis for the defendant's
argument that the airline tickets were inadmissible hearsay; they were offered
to show the defendant's residence and for no other purpose.
(FNA.) Mass.Adv.Sh. (1979) 2349, 2387‑2388.
(FNB.) Mass.Adv.Sh. (1980) 1065, 1073.