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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
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Commonwealth v. Treadwell, 402
Supreme Judicial Court of Massachusetts,
Middlesex.
Argued
Decided
Mark W. Bennett, Asst. Dist. Atty., for Com.
[402
James R. Rosencranz,
Before [402
ABRAMS, Justice.
A single
justice of this court allowed the Commonwealth's request for an interlocutory
appeal, see Mass.R.Crim.P. 15(b), 378 Mass. 882 (1978), from a determination
that evidence obtained during a search of the apartment of the defendant,
Patricia Treadwell, must be suppressed because the "warrant ...
particularly and specially and specifically describe[d] an apartment located
over No. 17 at 50C Memorial Road," which was not the apartment which was
searched. The defendants are charged
with possession of cocaine with intent to distribute. (FN2)
The defendants filed motions to suppress in the Superior Court. After hearing, the Superior Court judge
allowed the motions on the ground of misidentification of the place to be
searched. For the reasons stated, we
conclude that the judge correctly allowed the defendants' motions to suppress. (FN3)
We summarize the relevant facts from the
affidavit that accompanied the application for the search warrant. On
The police
followed the automobile, "observed it to be operating erratically,"
and pulled it over. The backseat
passenger, who had been seen entering 50C Memorial Road, was found in
possession of cocaine, and arrested.
After reciting the Miranda warnings, see Miranda v. Arizona, 384
U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Spinney asked the passenger
about 50C Memorial Road. Spinney
reported the answer in his affidavit as follows: "[The person arrested] stated that he
had just purchased cocaine on [sic ] the
2nd‑floor apartment at 50C Memorial Road. He stated that the apartment
was above No. 17. He also stated
that the apartment was the front apartment [and]his description of the location matched the description given to me by
the reliable informant. He stated
that on the front door was a yellow bumper sticker stating 'Make My Day.' He stated that there was no number on the
door." (Emphasis added.)
Based on
the foregoing information, Spinney concluded that he had probable cause to
search the second‑floor front apartment, "above No. 17," at 50C
Memorial Road in Somerville. A District
Court judge agreed and issued a warrant authorizing an immediate search of
"the front apartment on the 2nd floor above apartment # 17 located at 50C
Memorial Road ... having a yellow bumper sticker on it stating 'Make My Day.'
" Pursuant to this warrant, the
police searched Treadwell's apartment.
The
configuration of the apartments on the second floor at 50C Memorial Road,
Somerville, is as follows. There are
three apartments on the second floor, two of which are "front"
apartments facing the street. The
Commonwealth concedes that [402
Mass. 358] Treadwell's apartment,
which is a front apartment on the second floor, is not the apartment directly above apartment no. 17; Treadwell's apartment is above no. 16. Each apartment on the second floor has its
own door.
[1] The
judge found as a fact that the only door bearing a bumper sticker with the
words "Make My Day" is the door to Treadwell's apartment which, as
already noted, is not the apartment
"above number 17." The door
also has a nameplate bearing the name "Treadwell." (FN4)
The judge also found that the warrant specifically
described and authorized a search only of the apartment directly above number
17. Accordingly, the judge excluded the
evidence obtained during the search of Treadwell's apartment. (FN5)
The
Commonwealth does not contest the fact that a warrant must describe
particularly the place to be searched.
The particularity requirement is statutory, see G.L.c. 276, §§ 1, 2
(1986 ed.), as well as constitutional.
See Commonwealth v. Douglas, 399 Mass. 141,
143‑145, 503 N.E.2d 28 (1987).
"[T]he particularity requirements of G.L.c. 276 essentially track
the particularity requirements of art. 14 [of the Declaration of Rights of the
Constitution of the Commonwealth] and the Fourth Amendment [to the United
States Constitution]." Commonwealth v. Sheppard, 394 [402 Mass. 359] Mass. 381, 389, 476 N.E.2d 541 (1985). (FN6)
The issue here is "whether the description is sufficient to enable
the executing officer to locate and identify the premises with reasonable
effort, and whether there is any reasonable probability that another premises
might be mistakenly searched which is not the one intended to be searched under
the search warrant." Commonwealth v. Rugaber, 369 Mass. 765,
768, 343 N.E.2d 865 (1976), quoting United States v. Sklaroff, 323 F.Supp.
296, 321 (S.D.Fla.1971).
The
Commonwealth argues that the "above No. 17" language in the warrant
is a minor misdescription which does not render the warrant invalid as to
Treadwell's apartment. We do not
agree. The affidavit contains
information from two informants, both of whom specifically and unmistakably
locate the apartment to be searched "directly above No. 17." Significantly, the location of the apartment
is the only consistent information from both informants. (FN7)
We therefore cannot treat this information as irrelevant or inadvertent.
[2] The
Commonwealth seeks to salvage the warrant by arguing that "the knowledge
of officers on the scene eliminated any danger of a mistaken search of the
wrong apartment." Although the
Commonwealth correctly notes that the knowledge of the executing officers can
be a relevant consideration in resolving noncrucial ambiguities in a warrant,
see Commonwealth v. Rugaber, supra;
Commonwealth v. Petrone, 17 Mass.App.Ct. 914, 455 N.E.2d 1227 (1983);
Commonwealth v. Demogenes, 14 Mass.App.Ct. 577, 581, 441 N.E.2d 545
(1982), "police may not expand the warrant beyond those facts known to
them." Commonwealth v. Cefalo, 381 Mass. 319,
329, 409 N.E.2d 719 (1980).
[3] The
record in this case fails to reveal that the police had knowledge of facts
sufficient to overcome the ambiguity in the warrant. The affidavit does not indicate that the
police [402 Mass. 360] knew the name of the occupant of the
apartment to be searched. See note 4 supra.
In addition, neither the affidavit nor the testimony at the hearing
demonstrates that the police had familiarity with the floor plan of the
building. They did not know which
apartment was no. 17, and made no attempt to locate that apartment. Moreover, although the affidavit states that
Spinney saw the man in the white coat enter "the" front apartment,
that information does not contradict the informant's specific, corroborated
statement that he purchased cocaine in the front apartment "above No.
17." This is not a case in which
the police gained familiarity with the premises through direct observation and
then inadvertently misdescribed the premises in an affidavit. The police were given specific information,
recorded it accurately, and then searched a different apartment.
The
present case is distinguishable from those cited by the Commonwealth in which
searches conducted pursuant to arguably ambiguous warrants were upheld. In
Commonwealth v. Rugaber, supra, the warrant included the proper street
address of the house to be searched and a description of the exterior of the
building. The description, however,
matched the house next door. Because the
correct street address was used, we concluded that the warrant "was not
inadequate on its face." Id. 369 Mass. at 769, 343 N.E.2d
865. Further, in Rugaber, it was relevant that police officers on the scene had
staked‑out the correct house, knew its precise location, and could not
possibly mistake it for a separate, free‑standing structure. The danger of error was reduced even further
because the search occurred at night when the inadvertent misdescription never
became apparent. (FN8)
[402 Mass. 361] In the present case, by contrast, the independently corroborated
location of the apartment did not match the apartment searched; the police were unfamiliar with the interior
floor plan of the building; their
observations of the exterior of the building did not isolate with certainty
which apartment or apartments the man in the white coat entered; and neither the warrant nor the affidavit
indicated that the police knew the identity of the occupant of the apartment to
be searched. The specificity of the
apartment's location in the warrant and the location of the bumper sticker on a
different apartment door created an obvious ambiguity in the description of the
place to be searched. In effect, the
warrant left the police with discretion to choose between the apartment
directly above no. 17 and the apartment with the bumper sticker on the door,
even though probable cause existed to search only one apartment. In these circumstances, we conclude that the
warrant failed to describe adequately the premises to be searched, as required
by G.L.c. 276, §§ 1 and 2. Thus, the
judge properly allowed the motions to suppress.
Order affirmed.
[402 Mass. 362] NOLAN, Justice (dissenting).
I
dissent. The trial judge erroneously
allowed the defendants' motions to suppress. The warrant and accompanying affidavit
described the premises with sufficient details to meet the constitutional
muster. The fact that the apartment was
misdescribed should not be fatal because Treadwell's apartment was the only
apartment which sported a bumper sticker of any description. The officers acted in good faith. This is just another example of the court's
straining for gnats in applying a very dubious exclusionary rule. It flies in the face of good sense.
O'CONNOR,
Justice (dissenting, with whom LYNCH, J., joins).
I would
reverse the judge's allowance of the defendants' motion to suppress, and I
would remand for further findings with regard to the following questions: (1) Were the officers who executed the
warrant unaware, at that time, of the ambiguity of the description in the
warrant as it applied to the physical facts?
(2) Based on information in addition to the description in the warrant,
did the executing officers possess sufficient knowledge concerning the
apartment to which the warrant was intended to apply to eliminate any danger of
a mistaken search of the wrong apartment?
The teaching of Commonwealth v. Rugaber, 369 Mass. 765,
343 N.E.2d 865 (1976), is that affirmative answers to those questions would
require denial of the motion to suppress.
There is no significant distinction between Rugaber and this case, and
Rugaber was rightly decided.
In Rugaber, this court held that evidence
of the fruits of a search conducted pursuant to a facially adequate, but
ambiguous, warrant, by officers with first hand knowledge of what premises were
intended to be governed by the warrant, should not be suppressed. In that case, the warrant ordered a search of
"# 3, Fenwick St., Springfield, a two story wooden frame dwelling, color
red & grey." Number 3 Fenwick
Street was a brick house with a green porch.
The house next door was red, grey, and wooden. The officers, who obtained the warrant,
executed it. They searched No. 3 Fenwick
Street. They did so at night and were
unaware of the discrepancy in house [402
Mass. 363] descriptions. Id.
369 Mass. at 767, 343 N.E.2d 865. The
officers "were not reckless; at
most they were negligent in this respect." Id.
In
Rugaber, supra at 768, 343 N.E.2d 865, the motion judge
"concluded that an officer attempting to execute the warrant with no
information other than the description contained within it and the attached
affidavit would 'most assuredly' have invaded the wrong property." This court observed that "[p]erhaps it
would be more accurate to say that the warrant was ambiguous in its description
of the property to be searched." Id.
That is precisely the case here.
The court
reasoned in Rugaber, supra at 769, 343 N.E.2d 865, as
follows: "The description here was
not inadequate on its face. The
executing officers did not become aware of its ambiguity as applied to the
physical facts, and they were not reckless in this respect. They had probable cause to search No. 3
Fenwick Street, the address was a sufficient description if the erroneous
references to color and type of building material were disregarded, and the knowledge of the officers on the
scene eliminated any danger that there might be a mistaken search of the
premises next door. In these circumstances
we agree with the judge, who ruled that even if the warrant was defective, the
exclusionary rule should not be applied, since it could have no deterrent
effect." (Emphasis added.)
In the
present case, too, the warrant was adequate on its face, for it described with
particularity, although inaccurately, the place to be searched. However, as in Rugaber, the description in the warrant was ambiguous. It described the apartment to be searched as
being located over apartment no. 17 and displaying a "Make My Day"
sticker on its door, while only one apartment actually displayed such a sticker
and a different apartment was over apartment no. 17.
The judge
made no finding with respect to whether the officers were aware of the
ambiguity when they executed the warrant, but the evidence strongly suggests
they
were not. Nothing in the evidence suggests that the
officers acted recklessly in this respect.
Furthermore, the officers had probable cause to search the defendant's
apartment and, as in Rugaber, the
description in the warrant was sufficient if "the erroneous [402 Mass. 364] references to [location over apartment no. 17] were
disregarded."
Most
importantly, there was an abundance of evidence presented at the suppression
hearing in this case that "the knowledge of the officers on the scene
eliminated any danger that there might be a mistaken search of the [apartment
over apartment no. 17]." Two
officers, who applied for the warrant and executed it, testified. Their testimony would have warranted findings
that, on January 17, 1986, the officers were in a parked vehicle, engaged in
surveillance, when they observed another vehicle drive up to the building at
50C Memorial Road. They watched an
individual alight from the vehicle, take money from his pocket, and enter the
building. Because the window shades were
up, they could see into the apartment on "the second floor, upper
right." That is the apartment with
the "Make My Day" sticker on its door that they ultimately
searched. They watched the individual
enter and leave the apartment and return to the vehicle in which he had
come. The officers followed that vehicle
to another location and, when it stopped, they approached it and found the
individual, whom they had seen enter and leave the apartment, holding glassine
bags containing a white powdery substance.
They arrested and talked to him.
According
to the testimony, the individual described the defendant's apartment, including
its location on the second floor at the upper right of the building as one
faces the building from the street. In
addition, there was testimony that, before they approached the defendant's
apartment to search it, the officers had been told that the apartment they
wanted to search and to which the warrant was intended to apply belonged to
Patricia Treadwell. Then, when they
arrived at the apartment, they saw the name Treadwell on the door. There was also evidence that the officers
gained entry by saying, "Craig sent me." Upon the saying of those words, the door to
the apartment was immediately opened by Michael Treadwell. They did not know his name, but he fit a
description given to the officers by the individual whom they had seen in that
apartment and arrested.
[402 Mass. 365] Nothing in the record suggests that the judge rejected any of the
suppression hearing testimony as lacking credibility. Rather, it appears that he disregarded it as
irrelevant. However, the evidence as to
the officers' lack of awareness of the ambiguity in the description in the
warrant, as well as the evidence concerning the officers' knowledge concerning
the proper apartment to search, was highly relevant. If believed in substantial part, the evidence
demonstrates that, even if the warrant was defective, the exclusionary rule
should not be applied because it would not deter the type of police misconduct
the rule was designed to deter. That is
the teaching of Rugaber, and it is
sound. I would reverse the order below,
and remand for further findings.
(FN1.) Commonwealth vs. Michael A. Treadwell.
(FN2.)
Patricia Treadwell also is charged with illegal possession of two
firearms. G.L.c. 269, § 10(h ) (1986 ed.).
(FN3.)
On appeal, the Commonwealth also raises the argument that, even if the warrant
is invalid, the evidence should be admitted under the so‑called good
faith exception to the warrant requirement under the Fourth Amendment to the
United States Constitution. See
United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677
(1984). At the hearing on the motions to
suppress, the parties limited the issue to misidentification of the
premises. The judge specifically ruled
that the issue of good faith of the officers and probable cause would be
reserved by him. Thus, these issues were
not decided and are not properly before us.
We add that we have not adopted the
Leon good faith exception under art. 14 of the Constitution of the
Commonwealth. In some contexts, we
recognize that art. 14 affords more substantive protection to criminal
defendants than prevails under the Federal Constitution. See Commonwealth v. Upton, 394 Mass. 363,
373, 476 N.E.2d 548 (1985). Whether we
would adopt the good faith exception in a proper case is not determined in
today's decision.
(FN4.)
The Commonwealth offered testimony at the suppression hearing that the original
informant had given the name "Treadwell" to the police and that
Spinney and his partner believed at all times they were authorized to search
the Treadwell apartment. However, the
name "Treadwell" does not appear in the affidavit, and the space on
the warrant for the name of the occupant was left blank. Thus, the judge correctly concluded, "we
do not have a case in which the warrant authorized the search of an apartment
in the premises occupied by Treadwell."
Under G.L.
c. 276, we repeat that, on motions to suppress, "the judge may consider
only the affidavit or affidavits presented to the magistrate."
Commonwealth v. Germain, 396 Mass. 413, 415 n. 4, 486 N.E.2d 693
(1985).
Commonwealth v. Monosson, 351 Mass. 327, 330, 221 N.E.2d 220
(1966). Subsequent oral testimony cannot
be relied on to establish probable cause,
id., or to expand the officer's knowledge.
(FN5.)
The motions to suppress relied on the Fourth Amendment to the Constitution of
the United States, art. 14 of the Declaration of Rights of the Constitution of
the Commonwealth, and violation of G.L.c. 276, §§ 1‑3. The judge excluded the evidence "[i]n
accordance with [his] reading of the Constitutions, statute, and
cases...."
(FN6.) No argument was made below and none is
made in this court that art. 14 grants greater protection or requires greater
particularity than the Fourth Amendment.
We therefore do not discuss art. 14 separately. We leave that issue open.
(FN7.) The first informant stated that the
apartment was "directly above No. 17." The second informant's "description of
the location matched the description given to [Spinney] by the reliable
informant."
(FN8.) In
Commonwealth v. Petrone, supra, the Appeals Court never reached the issue
of misdescription of the location of the apartment as on the "left hand
side," when it actually was on the
right hand side. Id. 17 Mass.App.Ct. at 915, 455 N.E.2d
1227. The defendant, who was named and
described in the warrant, was arrested before the warrant was executed. After arrest, he led the police to the
correct apartment and admitted them. In
those circumstances, there was no possibility of searching the wrong apartment. In the present case, the police did not know
the identity of the occupant of the premises to be searched, and no one led
them to the correct apartment.
In Commonwealth v. Demogenes, supra, there
was no ambiguity on the face of the warrant.
The address was correct, and the location of the apartment was
specified. Id. 14 Mass.App.Ct. at 579, 441 N.E.2d
545. In addition, the executing
officers knew the identity of the defendant, as well as the occupant of the
correct apartment. Id. at 578, 441 N.E.2d 545. The fact that the police initially knocked
on the wrong, unmarked door in the building did not render the warrant
deficient. Based on the information
known to them at the time, the police were able to proceed quickly to the
premises designated in the warrant.
In
Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72
(1987), the police knew the identity of the occupant of the premises to be
searched, and were led by him to his third‑floor apartment. Id.
107 S.Ct. at 1015. See Petrone, supra. The police made prior inquiries to determine
whether "the third floor apartment" described in the warrant was
divided into multiple units, and received reliable‑‑albeit
incorrect‑‑information that it was not. Maryland v. Garrison, supra
at 1018 n. 10. In addition, only one
locked door opened onto the third floor.
The United States Supreme Court concluded that the police neither knew nor reasonably should have known that
there were two separate dwelling units on the third floor. Id. at 1017‑1020. As a result, the court held the search of
both units valid. In the present case, the
ambiguity of multiple front apartments‑‑one above no. 17, and the
other with a bumper sticker on the door‑‑was readily and
objectively apparent to the police.
Moreover, as the judge found, neither the police nor the assistant
district attorney accompanying them made any attempt to determine whether the
apartment searched was the apartment above no. 17.