|
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.
Supreme Judicial Court of Massachusetts,
Argued
Decided
Howard J. Alperin,
Charles J. Hely, Asst. Dist. Atty., Peter S. Casey,
Asst. Dist. Atty., with him, for the Commonwealth.
Before HENNESSEY, C. J., and BRAUCHER, KAPLAN,
WILKINS and ABRAMS, JJ.
KAPLAN, Justice.
A judge of
the Superior Court denied a pretrial motion by the defendant George D. Taylor
to suppress [383 Mass. 273] evidence and the defendant was
thereafter tried by jury and convicted of the crime of knowingly buying,
receiving, and aiding in the concealment of stolen property with a value over
$100 (G.L. c. 266, s 60), consisting of assorted items of antique jewelry. ([FN1]) The
Background
facts were as follows. Sometime in the
late evening of
Some four
months later, on
1. Motion
to suppress. The defendant moved before
trial to suppress the items of jewelry seized on October 21. He called three witnesses. Edward R. Fahey, clerk of the Municipal Court
of Brookline, produced two documents which together, he said, constituted the
affidavit in support of the warrant: a stapled two‑page sworn statement
by Trahon setting out the circumstances of the burglary and the purchase by
Langerman from Taylor at Taylor's Jewelers in August; and a separate, stapled
six‑page document containing the list of missing items as compiled by
Lawrence Marsh. The two papers became
"Exhibit 1" at the hearing.
Fahey also produced a stapled two‑page document, the top page being
the warrant he had handed to Trahon on October 21, and the other page the
continuation of the return filed by Trahon a few days after the search (the
return began on the back of the warrant).
The two pages became "Exhibit 2." Trahon in his testimony confirmed
that Exhibit 1 comprised the affidavit, and that the warrant he received from
Clerk Fahey was the top paper of Exhibit 2. Brookline Detective John Trainor,
present at the search, was called as a witness but he added nothing material. The Commonwealth asked no questions at the
hearing and offered no witnesses.
A ground
of the defendant's motion was the insufficiency of the warrant. Turning to that single page, we find it
directs the seizure of "all the particularly described items [383 Mass. 275] of antique jewelry described on the attached six (6) pages
...." But in fact the paper had no attachment. According to both Fahey and Trahon and the
findings of the motion judge, the six‑page inventory list forming part of
Trahon's affidavit was not handed to Trahon as a part of the warrant, and,
indeed, under G.L. c. 276, s 2B, that list was required to be retained by the
clerk as being a part of the affidavit.
[1] Thus
we are left with a warrant that effectively described the property to be seized
as "antique jewelry," a description so broad and general as to
provide virtually no guidance to one searching the entire goods of a jewelry
store for a scattering of pieces claimed to be stolen. This warrant did not answer to the
requirements of particularity stemming from the constitutions and the statute
the Fourth Amendment ("particularly describing") as applied to the
States by the Fourteenth; Massachusetts Declaration of Rights, art. 14
("special designation"); G.L. c. 276, s 2 ("particularly
describe"). See Commonwealth v.
Pope, 354 Mass. 625, 628‑629, 241 N.E.2d 848 (1968); Lo‑Ji Sales,
Inc. v. New York, 442 U.S. 319, 325, 99 S.Ct. 2319, 2324, 60 L.Ed.2d 920
(1979); Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed.
231 (1927). There are, indeed, cases in
which a "generic" description has been held to suffice, but these are
usually confined to searches for contraband, or for stolen goods where there is
intrinsic difficulty about a particularized description and where the affidavit
establishes a probability that the items sought will constitute a large portion
of the inventory to be searched. We cite
some examples in the margin; ([FN3]) the points of distinction are discussed in
United States v. Abrams, 615 F.2d 541, 545 (1st Cir. 1980); Montilla Records of
P. R., Inc. v. Morales, 575 F.2d 324, 326 (1st Cir. 1978); United States v.
Klein, 565 F.2d 183, 187‑188 (1st Cir. 1977); 2 W.R. LaFave, Search and [383 Mass. 276] Seizure s 4.6, at 101‑104 (1978). From the present affidavit there was no
reason to believe that the stolen jewelry would be a significant portion of the
Taylor's Jewelers inventory (indeed trial testimony indicated it
was not), and the particularization was available but was not used in the
warrant. In Lockridge v. Superior Court
of Los Angeles County, 275 Cal.App.2d 612, 625‑626, 80 Cal.Rptr. 223
(1969), a warrant calling for the seizure of merchandise stolen from a certain
jewelry store was held invalid on its face; the State had advanced no reason
why an inventory list had not been obtained (more than two months had elapsed
since the robbery) and incorporated in or attached to the warrant. As in the Lockridge case, the present warrant
was invalid simply because it "did not particularly describe the property
and/or articles to be seized" (quoting from the present motion to
suppress).
[2]
Attempting to meet the proposition that "antique jewelry" will not do
as a description, the Commonwealth argues that the reference to the six pages,
even though these were not attached, indicated that the warrant authorized a
search only for a limited group of items and that officers executing the
warrant would so understand. The
Commonwealth, it seems, wants the warrant to be read as including a part of the
affidavit, and thus to avoid the chief vice of a general warrant, that the
decision what to search or seize remains in the discretion of the executing
officer without direction from the magistrate (see Marron v. United States, 275
U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927)). The contention ignores the words of the
constitutions and the statute which demand that the warrant describe
particularly what is to be seized. On
occasion we have allowed an extrinsic document such as an application for a
warrant or a supporting affidavit to supply the specification of place to be
searched or items to be seized, missing from the warrant proper, but in these
cases the document was attached to the warrant and the warrant referred to it
in terms. See Commonwealth v. Todisco,
363 Mass. 445, 449, 294 N.E.2d 860 (1973) (place); Commonwealth v. Mele, 358
Mass. 225, 229‑230, 263 N.E.2d 432 (1970) (same); Commonwealth v. Pope,
354 Mass. 625, 629, 241 N.E.2d 848 (1968) (same); Dwinnels v. Boynton, 3 [383 Mass. 277] Allen 310, 312 (1862) (place, items); Commonwealth v. Dana, 2
Met. 329, 336 (1841) (same); Commonwealth v. Gill, 2 Mass.App. 653, 655‑656,
318 N.E.2d 628 (1974) (place). Compare
Commonwealth v. Accaputo, ‑‑‑ Mass. ‑‑‑, ‑‑‑
([FNB]), 404 N.E.2d 1204 (1980) (administrative inspection warrant must itself
grant the "power to seize"; if mention in the application could ever
suffice, it must be where the application was physically attached to the
warrant). These cases accord with the
generally received rule that for an extrinsic document to be considered part of
the warrant it must be referred to therein and either be attached to the
warrant or accompany it when served. See
Accaputo, supra at ‑‑‑ [FNc], 404 N.E.2d 1204; 2 W.R. LaFave,
Search and Seizure s 4.5, at 74; s 4.6, at 100 & n.23 (1978). ([FN4])
A few
cases have permitted an unattached document referred to in the warrant but not
tendered with it to supply specificity, but it appears that in each instance
that document at least was carried to the search by the executing officer and
was available there for use by the officers and inspection by the subjects of
the search. See United States v.
Thompson, 495 F.2d 165, 170 n.4 (D.C.Cir. 1974); United States v. Averell, 296
F.Supp. 1004, 1014, 1016 (E.D.N.Y.1969); Nunes v. Superior Court, 100
Cal.App.3d 915, 937, 161 Cal.Rptr. 351 (1980). We need not decide whether we would go so
far. ([FN5]) [383 Mass. 278] For in
the present case the defendant at the suppression hearing had established that
the list was not attached to the warrant as handed to the executing officer,
and there was no evidence that the list was tendered with the warrant or was
present during the search at the store.
The
attachment requirement (or, at a possible bare minimum, presence of the
document during search) not only serves to control the executing officer but
also informs the person affected of the limits of the officer's authority. See Marshall v. Barlow's, Inc., 436 U.S. 307,
323, 98 S.Ct. 1816, 1825, 56 L.Ed.2d 305 (1978) (warrant both bridles the
discretion of the executing officer and "advise(s)" the subject of
the search of its "scope and objects"); Camara v. Municipal Court of
the City & County of San Francisco, 387 U.S. 523, 532, 87 S.Ct. 1727, 1732,
18 L.Ed.2d 930 (1967); Commonwealth v. Accaputo, supra, ‑‑‑
Mass. at ‑‑‑ ([FND]), 404 N.E.2d 1204. ([FN6]) The Commonwealth's proposition would
have the executing officer contain himself, at best, in accordance with his own
fallible memory, see United States v. Marti, 421 F.2d 1263, 1268‑1269 (2d
Cir. 1970), cert. denied, 404 U.S. 947, 92 S.Ct. 287, 30 L.Ed.2d 264 (1971),
and would defeat altogether the informing function of the warrant toward those
subjected to search. ([FN7]) In In re
Lafayette Academy, Inc., 610 F.2d 1, 3 (1st Cir. 1979), the warrant by its
terms allowed seizure from the school of almost any book or paper that was
evidence of a violation of broad Federal statutes. However the affidavit supporting the warrant
was much more specific about the documents to be seized. The officers had proceeded as though their
authority was limited by the specifications of the affidavit, and the
government argued that this should save the warrant and the search. The court disagreed. Without "words of incorporation and
stapling the affidavit to the warrant," said the court, the [383 Mass. 279] warrant did not inform the school of the officers' precise powers
and thereby of the bounds of the school's duty of submission; the "broadly
worded warrant" created a potentiality of abuse that should void it
despite the self‑restraint of the officers in the given case. Id. at 5.
On the same line, see United States v. Roche, 614 F.2d 6, 8 (1st Cir.
1980). ([FN8])
The Commonwealth shifts gears to argue on a
different basis. It chooses to assume
that possession of the list by the officers at the search could piece out the
inadequate warrant, and then says that the burden of demonstrating that the
officers did not have the list should be cast on the defendant,[383 Mass. 280] and on that matter the
defendant offered no proof. This
argument apparently attracted the trial judge.
([FN9])
We have
said that "the burden of establishing that evidence is illegally
obtained" is on the defendant when the search is under warrant. See Commonwealth v. Antobenedetto, 366 Mass.
51, 56‑57, 315 N.E.2d 530 (1974); Commonwealth v. Fancy, 349 Mass. 196,
202, 207 N.E.2d 276 (1965). This would
seem to assign to the defendant challenging a search warrant the burden of
persuasion and the "burden of going forward" as well. So it is when the claim is that the items
seized exceeded those named on the warrant, see Commonwealth v. Connolly, 356
Mass. 617, 625, 255 N.E.2d 191, cert. denied, 400 U.S. 843, 91 S.Ct. 87, 27
L.Ed.2d 79 (1970); that the warrant was applied for by an unauthorized person,
see Commonwealth v. Bond, 375 Mass. 201, 210, 375 N.E.2d 1214 (1978); that the
supporting affidavit contained material intentional misstatements, see
Commonwealth v. Reynolds, 374 Mass. 142, 150, 370 N.E.2d 1375 (1977); Franks v.
Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978). But in each of the cases last cited, the
warrant was sufficient, and the defendant's challenge was directed elsewhere.
We have
not dealt with the question of burden when the Commonwealth rests a search on a
warrant and the defendant claims the warrant is itself invalid. One would not expect the question to come up
often, since, as we said in Commonwealth v. Lepore, 349 Mass. 121, 123, 207
N.E.2d 26 (1965), a warrant usually "speaks for itself" regarding the
description of the place to be searched and the things to be seized, and there
are no relevant factual matters left in dispute. See [383
Mass. 281] Commonwealth v. Jacobs,
346 Mass. 300, 308, 191 N.E.2d 873 (1963) ("illegal generality (in description
of items) was apparent from the warrant itself").
The
Appeals Court seems to have taken the position that the Commonwealth bears the
burden of persuasion when a warrant is attacked as invalid. Thus that court said that "(t)he
Commonwealth has ... not met its burden of showing that seizure of the items on
the list was justified within the four corners of the warrant," ‑‑‑
Mass.App. at ‑‑‑,[FNe] 409 N.E.2d 212, and that the document
produced as the warrant at the suppression hearing only "purport(ed)"
to be one. ‑‑‑ Mass.App. at ‑‑‑,[FNf] 409
N.E.2d 212. This position has force: the
situation may reasonably be assimilated to one in which the Commonwealth
proceeds without a warrant, where it plainly bears the burden of persuasion to
establish legality. See Commonwealth v.
Antobenedetto, supra 366 Mass. at 56‑57, 315 N.E.2d 530 (1974). An alternative view would attach importance
to the fact that there has been an authorization of search by an official, and
it is fitting that the defendant should have to overcome its
"presumptive" validity. Cf. 3
W.R. LaFave, Search and Seizure s 11.2, at 499 (1978).
[3] For
present purposes we need not choose between the alternatives. For even on the assumption more generous to
the Commonwealth that a defendant has the burden of persuasion when he
challenges a warrant as intrinsically invalid we think the defendant here
sustained the burden provisionally when he established through the clerk and
the executing officer just what the latter received as the purported warrant;
the defendant had then gone as far as he need go to make his case; he need not
negate the possibility that the warrant was later made good in some way (a
matter, we may add, as to which the Commonwealth might be expected to be the
better informed). It was up to the
Commonwealth to go forward; failing which, the defendant was entitled to
succeed. ([FN10])
[383 Mass. 282] The Commonwealth seeks to characterize the present case as one
involving mere "execution" of a warrant, and thereby to suggest that
it might safely remain supine even after the defendant had proved an incomplete
warrant. ([FN11]) The Appeals Court
rightly rejected the characterization, ‑‑‑ Mass.App. at ‑‑‑,[FNg]
409 N.E.2d 212. It was for the
Commonwealth to go forward. In United
States v. Klein, 565 F.2d 183 (1st Cir. 1977), the court held that a warrant
which did not describe the objects to be seized with particularity could not be
rehabilitated by a more detailed affidavit when the warrant did not refer to
the affidavit, and when what is relevant to the immediate issue "(t)here
is ... no evidence on the record that the affidavit accompanied the
warrant" (emphasis added). Id. at
186 n.3. Again in State v. Christow, 147
N.J.Super. 258, 260 n.1, 371 A.2d 108 (1977), a "sufficiently
explicit" affidavit could not validate a warrant where there was "no
evidence that the affidavit was attached to or accompanied the warrant when
executed." ([FN12])
[383 Mass. 283] [4] 2. Further proceedings. ([FN13]) The defendant argues that we ought
to enter a judgment of acquittal, which would bar the possibility of retrial,
if we decide, as we do, that the evidence seized under the warrant must be
suppressed. This follows, he contends,
from Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978),
which held as a general proposition that the double jeopardy principle bars
retrial when an appellate court overturns a conviction for insufficient
proof. ([FN14]) We agree that with the
seized evidence eliminated there would not be proof enough left in the record
to sustain a conviction. But that does
not necessarily lead to acquittal. For
it may be open to the Commonwealth to point out that, had it thought the
suppression motion could succeed, it might have come at the case in another way
and established proof on a separate route sufficient to convict; and it may yet
do so, if allowed a retrial. The
Commonwealth can suggest that recognizing a right to acquittal by order of the
appellate court in such circumstances would mean that the prosecution must
cumulate its proofs at trial against the possibility that some trial ruling
would be held wrong a generally wasteful and frustrating procedure. ([FN15])
[383 Mass. 284] Whether the Commonwealth could properly take such a position was a
question raised and left open in Greene v. Massey, 437 U.S. 19, 26 & n.9,
98 S.Ct. 2151, 2155 & n.9, 57 L.Ed.2d 15 (1978), decided the same day as
Burks ; and we, too, noted and passed over the question in A Juvenile v.
Commonwealth, ‑‑‑ Mass. ‑‑‑, ‑‑‑
& n.5 ([FNH]), 409 N.E.2d 755, cert. denied, ‑‑‑ U.S. ‑‑‑,
101 S.Ct. 786, 66 L.Ed.2d 605 (1980), ([FNI]) but not without saying that the
cases after Greene were divided in their results, ([FN16]) and that several
"well reasoned" decisions did not automatically bar retrial where an
insufficiency of evidence appeared only when material held on appellate review
to have been erroneously admitted was notionally removed from the case. We agree with the view expressed in those
decisions, and as we cannot say, at the present stage and on [383 Mass. 285] the present record, that the Commonwealth will be unable to make
its proof without reference to the suppressed evidence, we simply reverse the
judgment and set aside the verdict, and do not exclude retrial. ([FN17])
So
ordered.
(FN1.) The defendant was sentenced to
imprisonment for three to five years in M.C.I. Walpole. Sentence has been stayed pending appeal.
FNa.
Mass.App.Ct.Adv.Sh. (1980) 1653.
(FN2.)
Although forty‑seven pieces of jewelry were identified at trial as seized
from Taylor's store and were admitted in evidence, the return on the warrant
listed only thirty‑three items as seized.
Trahon explained the discrepancy as "human error" in compiling
the return.
(FN3.)
Commonwealth v. Daly, 358 Mass. 818, 266 N.E.2d 870 (1971) ( "any lottery,
policy or pool tickets, slips, checks, manifold books or sheets, memoranda of
any bet"). United States v.
Cortellesso, 601 F.2d 28, 30 (1st Cir. 1979), cert. denied, 444 U.S. 1072, 100
S.Ct. 1016, 62 L.Ed.2d 753 (1980) ("men's suits, sports jackets, women's
boots, leather coats, fur coats, rain coats").
(FNB.)
Mass.Adv.Sh. (1980) 1009, 1018.
FNc.
Mass.Adv.Sh. (1980) at 1019.
(FN4.)
See United States v. Klein, 565 F.2d 183, 186 n.3 (1st Cir. 1977); United States
v. Johnson, 541 F.2d 1311, 1315 (8th Cir. 1976); United States v. Womack, 509
F.2d 368, 382 (D.C.Cir. 1974), cert. denied, 422 U.S. 1022, 95 S.Ct. 2644, 45
L.Ed.2d 681 (1975); United States v. Tranquillo, 330 F.Supp. 871, 873
(M.D.Fla.1971); United States v. Ortiz, 311 F.Supp. 880, 883 (D.Colo.1970),
aff'd, 445 F.2d 1100 (10th Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30
L.Ed.2d 545 (1971); State v. Dragos, 20 Ariz.App. 14, 15, 509 P.2d 1051 (1973);
Bloom v. State, 283 So.2d 134, 135‑136 (Fla.Dist.Ct.App.1973); State v.
Corbin, 419 A.2d 362, 363 (Me.1980); Frey v. State, 3 Md.App. 38, 46‑47,
237 A.2d 774 (1968); O'Brien v. State, 158 Tenn. 400, 402, 14 S.W.2d 51 (1929).
(FN5.)
Nor are we called on to decide whether we would allow a separate document to
supply the specificity if, though physically attached to the warrant, it was
not referred to therein. The court in
Castle News Co. v. Cahill, 461 F.Supp. 174, 181 (E.D.Wis.1978), sustained a
warrant on such a showing.
(FND.)
Mass.Adv.Sh. (1980) at 1019.
(FN6.)
See United States v. Roche, 614 F.2d 6, 8 (1st Cir. 1980); In re Lafayette
Academy, Inc., 610 F.2d 1, 5 (1st Cir. 1979); United States v. Johnson, 541
F.2d 1311, 1315 (8th Cir. 1976); United States v. Marti, 421 F.2d 1263, 1268
(2d Cir. 1970), cert. denied, 404 U.S. 947, 92 S.Ct. 287, 30 L.Ed.2d 264
(1971).
(FN7.)
It may be observed, incidentally, that some testimony at trial indicated that a
few items were seized which did not belong to the Marsh brothers and presumably
were not on the list.
(FN8.)
To be distinguished from requirements of internal reference, attachment, and so
forth, is the proposition that a facially sufficient but ambiguous description
in a warrant may sometimes be supplemented by information in an unattached affidavit
or personal knowledge of an executing officer.
Usually the information supplied is not extensive; and there has been at
least a good‑faith attempt to prepare a sufficient warrant. See 2 W. R. LaFave, Search and Seizure s 4.5,
at 74‑77 (1978). In Commonwealth
v. Rugaber, 369 Mass. 765, 767, 343 N.E.2d 865 (1976), the warrant had the
correct address but an erroneous physical description of the house to be
searched; any ambiguity was cured by directions by officers on the scene to the
executing officers. We noted that the
description was "not inadequate on its face," and that the address
alone was a "sufficient description."
Id. at 769, 343 N.E.2d 865.
Although we have cited Commonwealth v. Todisco, 363 Mass. 445, 294
N.E.2d 860 (1973), above in this opinion and elsewhere (Commonwealth v.
Accaputo, ‑‑‑Mass. ‑‑‑, ‑‑‑,
404 N.E.2d 1204 (1980) (Mass.Adv.Sh.
(1980) 1009, 1019)), as according with the general rule that an attached
and incorporated affidavit may supply specificity as to the place of search,
the case can be assimilated to Rugaber, supra.
To be
distinguished also is Commonwealth v. Vitello, 367 Mass. 224, 271‑273,
327 N.E.2d 819 (1975), where we allowed an application for a wiretap warrant to
supply the termination date for the tap, missing from the face of the warrant,
without mention of whether the two papers were physically attached or served
together. But a wiretap warrant usually
is not served on the subject until the tap is over, see G.L. c. 272, s 99 L
(1), (2), making its informational role less significant than is the case with
the ordinary search warrant. The case of
United States v. Tortorello, 480 F.2d 764, 780‑781 (2d Cir.), cert.
denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973), considers the wiretap
order together with the supporting papers in testing particularity, but United
States v. Marti, 421 F.2d 1263, 1268‑1269 (2d Cir. 1970), cert. denied,
404 U.S. 947, 92 S.Ct. 287, 30 L.Ed.2d 264 (1971), is opposed to such a
procedure in the case of a nonwiretap warrant.
(FN9.) This is suggested by the style of the
judge's finding at the conclusion of the suppression hearing that there was
"no positive evidence that ... the officers executing the warrant did not
have a copy of that list with them during the search."
The
Commonwealth mentions that there was some evidence at trial, through the
testimony of Philip Marsh, that a list was present during the search; Philip
did not say who had it. The matter was
not pursued further at trial. Philip's
testimony is irrelevant here because we must judge the motion to suppress
solely on the record made at the suppression hearing. See Commonwealth v. Rodriguez, ‑‑‑
Mass. ‑‑‑, ‑‑‑, 391 N.E.2d 1256 (1979)
(Mass.Adv.Sh. (1979) 1527, 1536);
Commonwealth v. Underwood, 3 Mass.App. 522, 532 n.9, 335 N.E.2d 915 (1975).
FNe. Mass.App.Ct.Adv.Sh. (1980) at 1656.
FNf. Mass.App.Ct.Adv.Sh. (1980) at 1655.
(FN10.) On the indicated assumption, the
burden of persuasion remains on the defendant throughout, but he has made out a
"prima facie" case when he shows the warrant was incomplete; now it
is up to the Commonwealth to present offsetting evidence if it can. As Shaw, C.J., put it in Powers v. Russell,
13 Pick. 69, 76 (1833): "Where the party having the burden of proof
establishes a prima facie case, and no proof to the contrary is offered, he
will prevail. Therefore the other party,
if he would avoid the effect of such prima facie case, must produce evidence,
of equal or greater weight, to balance and control it, or he will fail. Still the proof upon both sides applies to
the affirmative or negative of one and the same issue, or proposition of fact;
and the party whose case requires the proof of that fact, has all along the
burden of proof. It does not shift,
though the weight in either scale may at times preponderate." See also, Lawrence v. Commissioners of Pub.
Works, 318 Mass. 520, 526‑527, 62 N.E.2d 850 (1945); Smith v. Hill, 232
Mass. 188, 190‑191, 122 N.E. 310 (1919), aff'd, 260 U.S. 592, 43 S.Ct.
219, 67 L.Ed. 419(1923); Central Bridge Corp. v. Butler, 2 Gray 130, 131‑132
(1854); 9 J. Wigmore, Evidence s 2487, at 278‑284; s 2489, at 285‑286
(1940); W.B. Leach & P.J. Liacos, Massachusetts Evidence 50 (4th ed. 1967).
(FN11.) On the same ground, the Commonwealth
tries to fault the defendant on a procedural point. The defendant in his motion did not aver a
defect of "execution" and therefore the Commonwealth claims he is
barred under Rule 61 of the Superior Court (as it existed prior to amendment in
September, 1980) from making any contention about the absence of the list in
relation to the warrant.
FNg. Mass.App.Ct.Adv.Sh. (1980) at 1658.
(FN12.) Nunes v. Superior Court, 100
Cal.App.3d 915, 935‑937, 161 Cal.Rptr. 351 (1980), does characterize as a
question of "execution" whether a list, incorporated by reference in
the warrant, was present during a search, but there "the evidence (was)
clear" that the list was present, which the court accepted as curing any
deficiency. There was no quarrel about
burden of proof, and characterization was unimportant.
The
parties have commented on the question of the legality of civilian
participation in the search, assuming the warrant to be valid. As the warrant is held invalid, we do not
reach the question.
(FN13.)
We agree with the Appeals Court that on the whole trial record (including the
evidence that the judge declined to suppress) there was no such failure of
proof on the "receiving" charge as to entitle the defendant to a
directed verdict.
(FN14.) See also Greene v. Massey, 437 U.S.
19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) (applying principles of Burks to a
State criminal proceeding); Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67
L.Ed.2d 30 (1981) (49 U.S.L.W. 4159 (February 24, 1981)) (same).
(FN15.) The Appeals Court in the present case
passed over the Burks question because it had not been argued, as it now has
been. The question ultimately is
constitutional. See Commonwealth v.
Diaz, 383 Mass. 73, ‑‑‑ n.17, 417 N.E.2d 950 (1981)
(Mass.Adv.Sh. (1981) 605, 615 n.17), and
cases cited. See also Burks v. United
States, supra at 17, 98 S.Ct. at 2150; Hudson v. Louisiana, supra at (49
U.S.L.W. at 4160). The Appeals Court
referred also to the defendant's concession that there was evidence apart from
the results of the October 21 search to link him to receiving goods stolen from
the Marshes. But that related to a
transaction in August, 1976, whereas the indictment recites "on or about
October 21, 1976," and the evidence at trial was substantially restricted
to the property seized in October.
(FNH.) Mass.Adv.Sh. (1980) 1939, 1943 & n.5.
(FNI.) 49 U.S.L.W. 3443, December 16, 1980.
(FN16.) For decisions ordering acquittal in
these circumstances (all with little discussion of the issues), see In re
M.L.H., 399 A.2d 556, 558‑559 (D.C.1979); State v. Bannister, 60 Haw.
658, 660‑661, 594 P.2d 133 (1979); State v. Alexander, 281 N.W.2d 349,
354 (Minn.1979); Sloan v. State, 584 S.W.2d 461, 472 (Tenn.Cr.App.1979); State
v. Abel, 600 P.2d 994, 999 (Utah 1979).
For
cases holding retrial not barred (in general with discussion), see United
States v. Mandel, 591 F.2d 1347, 1373‑1374 (4th Cir.), rev'd in part on
other grounds, 602 F.2d 653 (4th Cir. 1979) (en banc), cert. denied, 445 U.S.
961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980); United States v. Block, 590 F.2d
535, 543 (4th Cir. 1978); People v. Sisneros, Colo.App., 606 P.2d 1317, 1319
(1980); Hall v. State, 244 Ga. 86, 93‑94, 259 S.E.2d 41 (1979); Irons v.
State, Ind., 397 N.E.2d 603, 605‑606 (1979); Mulry v. State, Ind.App.,
399 N.E.2d 413, 419 (1980); Phillips v. Commonwealth, 600 S.W.2d 485, 486‑487
(Ky.App.1980); State v. Boone, 284 Md. 1, 15‑17, 393 A.2d 1361 (1978);
DiPasquale v. State, 43 Md.App. 574, 579 n.*, 406 A.2d 665 (1979); State v.
Wood, 596 S.W.2d 394, 397‑399 (Mo.1980) (en banc); Ex Parte Duran, 581
S.W.2d 683, 684‑686 (Tex.Crim.1979); State v. Lamorie, 610 P.2d 342, 347
(Utah 1980) (cf. Abel case cited in preceding paragraph); State v. Frazier,
W.Va., 252 S.E.2d 39, 53 (1979).
The
approach of this second group of cases is advocated in Comment, Double
Jeopardy: A New Trial After Appellate Reversal for Insufficient Evidence, 31
U.Chi.L.Rev. 365, 371‑372 (1964) (cited in Burks v. United States, 437
U.S. 1, 15‑16, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978)).
(FN17.) In Commonwealth v. Silva, 366 Mass.
402, 410‑411, 318 N.E.2d 895 (1974), prior to Burks, we ordered the entry
of a judgment of not guilty to a charge of possession of heroin with intent to
sell after deciding that evidence of the heroin should have been
suppressed. After Burks, in Commonwealth
v. Funches, 379 Mass. 283, ‑‑‑ ‑ ‑‑‑,
397 N.E.2d 1097 (1979) (Mass.Adv.Sh.
(1979) 2559, 2570‑2572), we ordered judgments of not guilty after
holding that the only evidence linking the two defendants to the crimes charged
was inadmissible. Both cases are
distinguishable from the present because in both "it (was) clear that the
Commonwealth had no reasonable prospect of filling in the gap in its
proof" at retrial. See A Juvenile
v. Commonwealth, 381 Mass. 379, ‑‑‑ n.5, 409 N.E.2d 755
(Mass.Adv.Sh. (1980) 1939, 1944 n.5),
cert. denied, ‑‑‑ U.S. ‑‑‑‑, 101
S.Ct. 786, 66 L.Ed.2d 605 (1980) (explaining Silva and Funches ).