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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. Souza, 42 Mass.App.Ct.
186 (1997)
Appeals Court of Massachusetts,
No. 96‑P‑329.
Argued
Decided
Further
Appellate Review Denied
Maxine Sushelsky,
Kathleen A. Adams, Assistant District Attorney, for
Commonwealth.
Before
LENK, Justice.
[1][2] The
defendant, Douglas Souza, was tried before a jury and convicted in the Wareham
District Court of carrying a dangerous weapon in violation of G.L. c. 269, § 10(b
), and illegal possession of a class D substance (marijuana) in [42 Mass.App.Ct.
187] violation of G.L. c. 94C, § 34.
He was sentenced to a minimum mandatory one year period in a house of
correction on the charge of carrying a dangerous weapon and the charge of
possession of a class D substance was filed.
(FN1) The defendant appeals both
his convictions.
This case
arises out of a search of an apartment at 53R
The
defendant was initially charged with carrying a dangerous weapon, to wit a
handgun, in violation of G.L. c. 269, § 10(b ), and illegal possession of a class D
substance in violation of G.L. c. 94C, § 34. Prior to trial, the trial judge allowed, over
the defendant's objection, the Commonwealth's motion to amend the complaint by
striking the phrase "§ 10(b
)" and inserting the phrase "§ 10(a
)," thereby altering the offense charged from "carrying a dangerous
weapon" to "knowingly possessing a firearm." In his final charge, the judge instructed
the jury that the defendant was charged with "knowingly possessing a
firearm unlawfully," the offense set forth in G.L.
c. 269, § 10(a ). The verdict slip, however, contained the
language "carrying a dangerous weapon," thereby describing the
offense set forth in G.L. c. 269,§ 10(b ).
In open court, the clerk read and the jury assented [42 Mass.App.Ct. 188] to a verdict of guilty of "carrying a dangerous
weapon." Nonetheless, the
defendant was sentenced to the house of correction for the mandatory one year
period required by G.L. c. 269, § 10(a ).
Section 10(b ) does not
provide for a mandatory sentence upon conviction.
The
defendant raises several arguments on appeal.
He claims that neither the "any person present" language of
the search warrant nor a self‑protective pat frisk by police justify the
search conducted of him and that it was consequently error to deny his motion
to suppress the fruits of that search.
The defendant also claims that the trial judge erred in amending the
complaint over his objection, in denying his motion for a required finding of
not guilty, and in failing to instruct the jurors that the Commonwealth had
to prove that the defendant possessed the firearm outside his residence or
place of business. The defendant further
claims that it was error for the judge to have sentenced him for a crime
neither reflected on the verdict slip nor in the jury verdict given and
assented to in open court.
The search warrant. 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, art. 14 of the Massachusetts Declaration of Rights,
and G.L. c. 276, § 1.
The defendant argues that the facts stated in the affidavit do not
provide a basis for the "any person present" language and that, as
applied to him, the search warrant was constitutionally defective as a general
warrant. The warrant, affidavit, and
circumstances fail to support the pat frisk and search of his person, the
defendant claims, because he entered the premises while the search was in
progress, did not fit the description of the alleged occupants or marijuana
purchasers described in the affidavit, and did nothing to suggest that he was
armed or engaged in criminal conduct. We
agree and reverse on this basis.
The
affidavit here describes information obtained from a confidential informant who
advised the affiant that he observed a man in his twenties selling marijuana on
a regular basis to Middleboro junior and senior high school students. The police conducted two controlled buys
through the informant who purchased marijuana at the subject premises. We note as an initial matter that the
affidavit in support of [42 Mass.App.Ct. 189]
the application for a search warrant did not request a search of all persons
present although the warrant issued permits such a search.
[3][4][5]
Appellate review of a search based exclusively upon the "any person
present" language of a search warrant demands strict scrutiny of the
warrant's supporting affidavit in order to determine whether the search was
valid.
Commonwealth v. Smith, 370 Mass. 335, 344, 348 N.E.2d 101, cert.
denied, 429 U.S. 944, 97 S.Ct. 364, 50 L.Ed.2d 314
(1976). Only in special circumstances
will a search warrant aimed principally at the premises also be held validly to
include the search of any person present. See
Commonwealth v. Baharoian, 25 Mass.App.Ct.
35, 38, 40, 514 N.E.2d 685 (1987) ("Any person present language" in
otherwise valid warrant did not empower the police to search persons in the
store not named or described in the warrant where there was no "reasonable
basis for anticipating that everyone present" was engaged in the illegal
gaming operations). Only a
"narrowly circumscribed range of searches," based upon "any
person present" language, are consistent with the Fourth Amendment.
Smith, 370 Mass. at 342, 348 N.E.2d 101. See also
Commonwealth v. Pellier, 362 Mass. 621, 625 n. 3,
289 N.E.2d 892 (1972) (any persons present clause "lacks specificity and
is of dubious meaning").
In Smith, the court upheld a search of the
defendant pursuant to "any person present" language where the
affidavit sufficiently established probable cause to believe that any person in
the apartment was a participant in the illegal transactions (trafficking in
heroin) occurring therein. 370 Mass. at
339, 348 N.E.2d 101. Using the
guidelines set forth in People v. Nieves,
36 N.Y.2d 396, 404‑405, 369 N.Y.S.2d 50, 330 N.E.2d 26 (1975), Smith concluded that an application for
this type of warrant must (a) "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"; and (b)
"specifically describe the nature of the illegal activity ... [alleged] at
the location, the number and behavior of persons observed ... during the times
of day or night [for which] the warrant is sought," and "whether any
person apparently unconnected with the illegal activity has been seen at the
premises." 370 Mass. at 345, 348
N.E.2d 101. Further, "the warrant
itself must limit the locus of the search to the area in which the criminal
activity is believed to [occur] and, according to the circumstances, may also
specify the time for the [42 Mass.App.Ct. 190]
search." Id. at 345‑346, 348 N.E.2d
101. It is also appropriate to consider
the need for and purpose of this type of search, taking into account both the
difficulty of providing a more specific description of the persons
to be searched as well as the risk that an innocent person may be swept up in a
dragnet and searched. Id. at 345, 348 N.E.2d 101. The affidavit supporting the search of the
defendant's person is of insufficient particularity to satisfy this standard.
The
sufficiency of a warrant to search persons identified only by their presence at
a specified place will depend upon the facts.
We are unaware of any Massachusetts appellate authority on the subject
of "any person present" searches which rests upon factual
circumstances comparable to those before us, i.e., the premises searched are a
private residence and the defendant is a nonoccupant
who arrives and enters the premises during the execution of the warrant. Looking to other jurisdictions is therefore
instructive.
In State v. Reid, 319 Or. 65, 71, 872 P.2d
416 (1994), there was no showing in the affidavit that access to a private
residence was limited exclusively to persons as to whom there was probable
cause to believe were engaged in criminal activity, and the warrant was deemed
unlawful insofar as it purported to authorize the search of "persons
present." In so holding, the
Oregon Supreme Court noted that "persons who might reasonably be expected
to be found approaching the front door of a residence include a uniformed mail
carrier or package delivery person, a volunteer soliciting donations for
charitable purposes, or a neighbor seeking to borrow a cup of sugar" and
thus, the search authorized by the warrant was overbroad. Ibid. Similarly, a search
warrant for a specified residence and all its occupants based only on an informant's
having seen and bought drugs there, was held invalid for lack of probable cause
as to a nonoccupant who was found in the residence at
the time of the warrant execution. State v. Ortega, 114 N.M. 193, 197, 836
P.2d 639 (1992), aff'd, 117 N.M. 160, 163, 870 P.2d
122 (1994). See also State v. Pecha, 225 Neb. 673, 676, 678,
407 N.W.2d 760 (1987) (warrant for a premises and "John and/or Jane Doe
who resides or is in control of the aforedescribed
premises," intended as a "catch‑all for anybody that might be
inside the residence," was invalid as not based on probable cause where
the premises to be searched was acknowledged to be a residence at which persons
engaging in both illegal activity and legal activity might be found).
[6] [42 Mass.App.Ct.
191] The affidavit in the matter
before us is silent as to any surveillance of the apartment by the police and
as to whether any person apparently unconnected with the illegal activity had
been seen at the premises. There is
nothing to suggest that the participants shifted or changed in such a way as to
render it practically impossible for the police to predict that any specific
person or persons will be on the premises at any given time. (FN3)
In light of this, the underlying circumstances failed to demonstrate
probable cause to believe that all persons present would have been involved in
the sale and distribution of marijuana.
The attendant risk of searching an innocent person was great and the
warrant is constitutionally defective as to the defendant.
[7][8] Protective pat frisk. The Commonwealth suggests that the search
was nonetheless justified by the need to protect the officer's safety. In order to justify a pat frisk for self‑protection,
there must not only be a prior determination that criminal activity may be
underway, but also a second determination that the persons with whom the police
are dealing may be armed and presently dangerous. (FN4)
See Commonwealth v. Fraser, 410
Mass. 541, 544‑545 n. 4, 573 N.E.2d 979 (1991). A protective search may also be justified by
a suspect's furtive reactions or belligerent behavior. See
Commonwealth v. Santiago, 30 Mass.App.Ct. 207,
210‑211, 567 N.E.2d 943 (1991) (when police approached vehicle, suspect
jumped abruptly from the car and ducked).
[9] The defendant
was cooperative and polite while on the premises, not presenting a risk of harm
to the officers in any way. There was
nothing of record to suggest that he was armed or dangerous. To the contrary, State Police Lieutenant Gordan testified at trial that the defendant acted like a
gentleman[42 Mass.App.Ct.
192]
at all times. If concerned for
their safety or to ensure the proper execution of the search warrant, the
officers could have secured the premises and prohibited persons from entering
to insure the proper execution of the search warrant. See
Commonwealth v. Snow, 363 Mass. 778, 789, 298 N.E.2d 804 (1973). It would appear that the police were present
in sufficient numbers to have secured the premises and prohibited entry during
execution of the search warrant had the officers chosen to do so. Since Lieutenant Gordan's
search of the defendant was not justified either by the search warrant or by
the officer's need to conduct a protective search, the items seized pursuant to
that search must be suppressed.
Amendment of complaint. Even if the search of the defendant were
justified by either the warrant or the police officer's safety concerns, the
defendant's conviction under G.L. c. 269, § 10(a ), would still require reversal. The defendant claims that the trial judge
erred in allowing the Commonwealth's motion to amend the complaint over his
objection, thereby denying him due process of law as guaranteed by the
Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts
Declaration of Rights. The complaint was
amended from one charging him with unlawful carrying of a dangerous weapon in
violation of G.L. c. 269, § 10(b ), to one charging him with unlawful possession of a firearm in
violation of G.L. c. 269, § 10(a ). It was error to allow
this amendment.
[10]
Massachusetts Rules of Criminal Procedure 4(d), 378 Mass. 849 (1979), permits a
complaint to be amended only with respect to matters of form if such amendment
would not prejudice the defendant (FN5) or the Commonwealth. The defendant is prejudiced where the
amendment materially alters the substantive offense charged and such amendments
are consequently barred. See Mass.R.Crim.P. 4(d);
Reporters' Notes to Mass.R.Crim.P. 4(d), Mass.
Ann. Laws, Rules of Criminal Procedure at 38 (Law.Co‑op.1979). The test to determine whether an amendment is
one of substance or one of form is whether an acquittal on the original charge
would [42 Mass.App.Ct.
193] not act as a bar on double
jeopardy grounds to a prosecution of the defendant on the amended charges.
Commonwealth v. Murphy, 415 Mass. 161, 165, 612 N.E.2d 1137
(1993). If so, the amendment would be
deemed one of substance rather than of form. Ibid.
[11]
General Laws c. 269, § 10(b ), is a
separate and distinct offense from G.L. c. 269, § 10(a ).
Section 10(b ) proscribes the
carrying of a dangerous weapon other than those mentioned in § 10(a ).
Section 10(a ) proscribes the
unlawful possession of a firearm, rifle, or shotgun. Thus, the defendant, who was found carrying a
firearm, could be acquitted of G.L. c. 269, § 10(b ), which does not cover firearms,
rifles, or shotguns, and still be prosecuted for a violation of § 10(a ).
For this reason, the amendment at issue is one of substance, not of
form, and it was error to amend the complaint in this regard. See
Commonwealth v. Morse, 12 Mass.App.Ct. 426, 427‑428,
425 N.E.2d 769 (1981) (decided under an earlier version of the statute).
In view of
our disposition of these claims, we need not address the defendant's remaining
claims of error. The defendant's
convictions of possession of a class D substance (marijuana) and of carrying a
dangerous weapon are accordingly reversed.
Judgments reversed.
Verdicts set aside.
(FN1.) "Ordinarily, we do not consider appeals
from charges placed on file. Commonwealth v. Delgado, 367 Mass. 432,
438, 326 N.E.2d 716 (1975), but in the interest of efficiency and in a suitable
case we may choose to do so." Commonwealth v. Chappee,
397 Mass. 508, 523, 492 N.E.2d 719 (1986).
Here, it is appropriate to consider the filed charge because the
defendant's claim that the judge erred in denying his motion to suppress
applies to both of the charges of which the defendant was convicted.
Commonwealth v. Stracuzzi, 30 Mass.App.Ct. 161, 162 n. 1, 566 N.E.2d 1151 (1991).
(FN2.)
Police presence during the search included a detective from the State police,
officers from the Plymouth County crime prevention and control unit, and
officers from the Middleboro police department.
(FN3.)
The police were specifically trying to uncover a drug sale operation targeted
at junior and senior high school students.
Nowhere in the police affidavit is there an allegation that the
suspected dealers are selling to other members of the community as well. If alleged, such information would be more
likely to support the search of an individual such as the defendant, clearly
not young enough to be in high school, who enters the premises during the
execution of the search warrant.
(FN4.)
In Ybarra v. Illinois, 444 U.S. 85,
100 S.Ct. 338, 62 L.Ed.2d 238 (1979), the majority
ruled that the " 'narrow scope' of the
Terry exception does not permit a frisk for weapons on less than reasonable
belief or suspicion directed at the person to be frisked" that weapons are
then in the possession of the person detained, "even though that person
happens to be on premises where an authorized narcotics search is taking
place."
(FN5.)
Prejudice to the defendant could result if, for example, a greater penalty
attached to the amended charge or if the amendment resulted in surprise to the
defendant at trial. Here, conviction
under § 10(a ) will result in a
mandatory minimum sentence of one year.
Conviction under § 10(b ) will
not result in a mandatory minimum prison sentence.