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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. Truax, 97
Supreme Judicial Court of Massachusetts, Worcester.
No. W‑3877.
Argued
Decided
Claudia R. Sullivan, Asst. Dist. Atty., for Com.
Jeffrey M. Chasse (Robert E. George, Sturbridge,
with him) for defendant.
Before HENNESSEY, C.J.,
and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.
HENNESSEY, Chief Justice.
This
appeal raises two related issues: first,
whether the affidavit of a police officer was so defective in form and
construction that it failed to establish probable cause to support the issuance
of a search warrant; and, second,
whether certain asserted defects in the warrant itself rendered invalid the
warrant and the search conducted pursuant to the warrant. Following the execution of a search warrant
at his home, the defendant was arrested on complaints charging him with
possession of marihuana, possession of a controlled substance (marihuana) with
intent to distribute, and possession of fireworks. Subsequently, the defendant's motion to
suppress items seized pursuant to the search warrant was allowed by a District
Court judge. The Commonwealth appealed,
see G.L. c. 278, § 28E (1984 ed.); Mass.R.Crim.P. 15(a ), 378 Mass. 882 (1979), and we
transferred the matter here on our own motion.
We reverse.
We
summarize the facts relevant to this appeal from the affidavit in support of
the application for a search warrant. On
On the day
the letter was received, State Trooper Bruce P. Pinto verified that Scott Truax lived at 58 Shepard Road, Sturbridge, by checking
records in the town hall. The trooper
drove to that address and observed that the defendant's house was a "white
Tudor stucco with brown trim." In
addition, the trooper applied for a "mail cover" for all packages
received by the defendant at the Shepard Street address and requested, through
the district attorney's office, a list of toll calls made from the defendant's
address.
On
December 15, 1983, the trooper received a list of toll calls made from the
defendant's residence. The list included
six telephone calls to Olaa, Hawaii, during September,
October, and November, 1983.
On
December 19, 1983, the postal inspector informed the State police that a
package addressed to the defendant and his wife was being held at the
Sturbridge post office. Trooper Pinto,
accompanied by another trooper and a "K‑9" dog, Shadow, met the
postal inspector and the Sturbridge postmaster at the Sturbridge post
office. At the post office, the package
addressed to the defendant was placed with six other packages and three mail
baskets on the loading dock. K‑9
Shadow indicated that the defendant's package contained marihuana. K‑9 Shadow, a certified narcotic
detector dog, had found marihuana successfully on two previous occasions,
February 5, 1981, and June 4, 1982, resulting in a student's suspension from
school in one case and a criminal conviction in the other.
Shortly
after the package was delivered to the defendant's home on December 19, at
approximately 5:30 P.M., the police conducted a search of the defendant's home
pursuant to a warrant issued the same day. A quantity of marihuana in various forms was
seized, along with several types of fireworks (four rockets, four boxes of
sparklers, and thirty‑five packages of "M80's").
[397 Mass. 177] In his findings in support of the ruling allowing the defendant's
motion to suppress the items seized during the December 19 search of the
defendant's home, the judge cited various defects in the affidavit and warrant
as rendering the warrant and subsequent search invalid. On appeal the Commonwealth argues that the
judge improperly allowed the defendant's motion to suppress because the
affidavit and warrant, when each is viewed as a whole, contained adequate
descriptions of the location to be searched, and the items to be seized, to
satisfy constitutional and statutory requirements. While we agree with the judge that there were
defects in the affidavit and the warrant, we disagree with his conclusion that
the defects in the affidavit and warrant invalidated the warrant and search.
1. The affidavit.
[1][2][3]
Two issues are presented by the Commonwealth's challenge to the judge's rulings
concerning the validity of the affidavit.
First, we consider whether, disregarding the formal defects in the
affidavit upon which the judge centered in his rulings, the facts alleged in
the affidavit established probable cause.
In cases like this one where the affidavit in support of an application
for a search warrant is based on information from an unidentified informant,
the magistrate ordinarily must be informed of both the basis of the informant's
knowledge and the circumstances from which the affiant concluded that the
informant was credible or the information was reliable. Spinelli
v. United States, 393 U.S. 410, 415, 89 S.Ct.
584, 588, 21 L.Ed.2d 637 (1969). Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964).
Commonwealth v. Upton, 394 Mass. 363, 375‑376, 476 N.E.2d 548
(1985) (Upton II ). However, other facts alleged in the
affidavit corroborating the tip can be used to support a finding of probable
cause.
Spinelli, supra, 393 U.S. at 415, 89 S.Ct. at 588. Upton II, supra, 394 Mass. at 375, 476
N.E.2d 548. Commonwealth v. Stevens, 362 Mass. 24, 27‑28,
283 N.E.2d 673 (1972). Such
corroborating allegations were included in the affidavit at issue in the
instant case. The State trooper assigned
to investigate the allegations contained in the anonymous letter verified that
the defendant resided at the address provided in the letter, that the
defendant's residence conformed to the description given in the letter, and
that, as the letter had indicated, calls to Hawaii were made from the
defendant's [397 Mass. 178] home.
Finally, through a mail cover at the Sturbridge post office and the use
of a trained narcotic detector dog, the trooper was able to determine that a
package addressed to the Truaxes with a return
address of Hawaii contained marihuana.
These facts, corroborated by independent police investigation, served to
lend credibility to the information contained in the anonymous letter.
[4][5]
Considered together, the facts on which the affidavit was based were sufficient
to establish probable cause. Cf. Commonwealth v. Kaufman, 381 Mass. 301,
303‑304, 408 N.E.2d 871 (1980).
Proof beyond a reasonable doubt is not required to establish probable
cause.
Commonwealth v. Stewart, 358 Mass. 747, 749, 267 N.E.2d 213
(1971). See Commonwealth v. O'Dell, 392 Mass. 445, 451, 466 N.E.2d 828 (1984);
Commonwealth v. Haas, 373 Mass. 545, 555, 369 N.E.2d 692
(1977). To establish probable cause, an
affidavit must allege sufficient facts and circumstances "for an issuing
magistrate to determine that the items sought are related to the criminal
activity under investigation, and that they reasonably may be expected to be
located in the place to be searched." Commonwealth v. Cinelli,
389 Mass. 197, 213, 449 N.E.2d 1207, cert. denied, 464 U.S. 860, 104 S.Ct. 186, 78 L.Ed.2d 165 (1983); Upton II, supra, 394 Mass.
at 370‑371, 476 N.E.2d 548.
"In each case, the basic question for the magistrate is whether he
has a substantial basis for concluding that any of the articles described in
the warrant are probably in the place to be searched.... Strong reason to suspect is not
adequate" (citations omitted). Upton II, supra at 370, 476 N.E.2d 548.
Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223,
13 L.Ed.2d 142 (1964). Commonwealth v. Haas, supra, 373 Mass.
at 555, 369 N.E.2d 692. The
circumstances here clearly meet this standard for determining the existence of
probable cause.
Since the
factual circumstances of this case cumulatively established probable cause, the
second matter to be resolved regarding the affidavit is the Commonwealth's
objection to the judge's ruling that certain formal defects in the affidavit
would prevent a neutral and detached magistrate from making a determination
that probable cause existed to justify the issuance of a search warrant. See
Commonwealth v. Sheppard, 394 Mass. 381, 389, 476 N.E.2d 541 (1985) (Sheppard II ); Upton II, supra, 394 Mass.
at 377, 476 N.E.2d 548. Section 2B of G.L. c. 276 (1984 ed.), requires that an affidavit be
submitted to support an application for a search warrant which [397 Mass. 179] "shall contain the facts, information, and circumstances
upon which [the affiant] relies to establish sufficient grounds for the issuance of
the warrant." We have said that
the purpose of G.L. c. 276, § 2B, is to make sure
that the Commonwealth could demonstrate by a writing that a given search and
seizure is based on probable cause. Sheppard II, supra, 394 Mass. at 388, 476
N.E.2d 541. Upton II, supra, 394 Mass. at 370, 476
N.E.2d 548.
[6]
Despite the defects in the affidavit presented to support the warrant
application, the affidavit was sufficiently clear and detailed to allow a
magistrate to find that probable cause for issuing a search warrant
existed. Although we address each of the
defects identified by the judge individually, we conclude that the cumulative
effect of these defects did not render the affidavit insufficient.
[7][8] The
judge first noted that the two pages attached to the affidavit, containing
information that could not fit on the warrant form, were not signed. (FN1)
No statute or other authority requires the affiant to sign pages
attached to the warrant application. G.L. c. 276, § 1.
See Commonwealth v. DeCologero, 19 Mass.App.Ct.
956, 959, 473 N.E.2d 219 (1985) (court makes no comment on affiant's failure to
sign one of two pages attached to warrant application as affecting validity of
the warrant). The affiant's failure to
sign the pages attached to the warrant application did not affect the validity
of the warrant.
[9][10][11]
The judge also found that the persons and premises to be searched were not
identified sufficiently because the description of the premises to be searched
was transposed on the form with the description of the property to be
seized. The transposition of the
property sought with the description of the location to be searched did not
invalidate the affidavit. Even with this
error, when read as a whole, the affidavit provides sufficient detail
identifying the place to be searched and the items to be seized to satisfy the
requirements of the Fourth Amendment [397
Mass. 180] to the Constitution of
the United States, art. 14 of the Massachusetts Declaration of Rights, and G.L. c. 276, § 2B.
See Commonwealth v. Burt, 393
Mass. 703, 718, 473 N.E.2d 683 (1985); Commonwealth v. Pope, 354 Mass. 625, 628‑629,
241 N.E.2d 848 (1968). All the
information required by State and Federal constitutional provisions and the
statute was in the affidavit for the magistrate to use in making his probable
cause evaluation. To determine whether
the affidavit is sufficient, it should be read in a commonsense, not a hypertechnical, manner. Upton II, supra, 394 Mass. at 376, 476
N.E.2d 548. Commonwealth v. Cefalo,
381 Mass. 319, 330, 409 N.E.2d 719 (1980).
The affidavit should be evaluated as a whole, not broken down into
fragments with each fragment subjected to independent scrutiny.
Commonwealth v. Stewart, supra, 358 Mass. at 751, 267 N.E.2d 213.
[12][13]
The judge also erred in concluding that the inclusion of the phrase requesting
that the warrant permit a search of "the bodies of any parties other than
the owners located at the above premises at time of service of warrant"
and the failure to include in the affidavit a showing that the Truaxes were the owners of the premises to be searched
rendered the affidavit insufficient to support a valid warrant. Even though there was no showing that a
search of any other persons present was justified by probable cause, the
inclusion of this phrase did not invalidate the warrant because no other
persons were searched. See Sheppard II, supra, 394 Mass. at 390,
476 N.E.2d 541. The defendant would not
have standing to raise the claims of third persons if such persons had been
searched pursuant to a warrant issued on the basis of this affidavit. 3 W. LaFave, Search
and Seizure § 11.3 at 543 (1978). See Jones v. United States, 362 U.S. 257,
261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960). The omission of an allegation that the
defendant was the owner of the premises to be searched is inconsequential
because there was sufficient information in the affidavit to show that the
defendant resided in the premises to be searched.
[14] The
failure to omit the inapplicable words, "has been stolen," from the
third paragraph of the affidavit similarly did not invalidate the warrant. It was clear, from the affidavit as a whole,
that the search was requested for illegal property, not stolen property. The failure to strike the inapplicable words
created little danger of confusion or prejudice to the defendant.
Commonwealth[397 Mass. 181]
v. Burt, supra, 393 Mass. at 718‑719, 473 N.E.2d 683. See
Commonwealth v. Von Utter, 355 Mass. 597, 600, 246 N.E.2d 806 (1969).
2. The warrant.
[15][16]
We next consider the Commonwealth's challenge to the judge's ruling that the
form of the warrant, like the form of an affidavit, was so defective as to
invalidate it. Here we apply the same
general principles applicable to the construction and interpretation of
affidavits. Upton II, supra, 394 Mass. at 376, 476
N.E.2d 548. Commonwealth v. Cefalo,
supra, 381 Mass. at 330, 409 N.E.2d 719.
The warrant should be evaluated as a whole and as it relates to the
affidavit filed to support the issuance of the warrant. Commonwealth v. Stewart,
supra, 358 Mass. at 751, 267 N.E.2d 213.
As was the case with the affidavit, we conclude that the defects,
whether viewed individually or cumulatively, did not render the warrant and
resulting search invalid.
[17][18]
The judge's conclusion that the inclusion of the language "Also the bodies
of any parties other than the owners located at the above premises at time of
service of warrant" in the paragraph of the warrant calling for a description
of property sought invalidated the warrant was error for the reasons we
identified in addressing his objection to the inclusion of the same language in
the affidavit. See supra at 431. The judge's
finding that certain portions of the warrant were badly jumbled and that the
collection of detailed facts contained in the attached pages did not cure this
problem was also not a sufficient reason for invalidating the warrant. With some, but not great, difficulty it is
possible to determine what premises are to be searched and what items are
sought. While we agree with the judge
that the form could have been prepared to permit easier reading, the insertions
on the warrant form in this case are legible and the presentation of the
information essential to a valid warrant falls far short of being so difficult
to read that the warrant is invalid.
Further, the target and scope of the warrant were apparent from the
affidavit, which satisfied the requirement that there be a writing for the
defendant to challenge. Sheppard II, supra, 394 Mass. at 390, 476
N.E.2d 541. See G.L.
c. 276, § 2B.
[19] We
address the Commonwealth's final challenge to the judge's ruling that the
warrant was invalid because the words "there is probable cause" were
struck from the warrant. The [397 Mass. 182] judge determined that, because these words were struck from the
warrant, the clerk‑magistrate had not made a finding that probable cause
existed to support the issuance of the warrant.
This error in deleting printed language on the form located adjacent to
language that should have been deleted is no more than a clerical error, and
does not affect the validity of the warrant.
We can infer that the clerk‑magistrate found probable cause from
his signing and issuing the warrant, two actions he could not properly have
taken in the absence of a finding of probable cause.
3. The fireworks.
[20]
Because the defendant does not appear to have raised a distinct challenge to
the seizure of the fireworks, we deem that he has waived any objection relating
to the seizure of those items. See Commonwealth v. Pisa, 384 Mass. 362,
366 & n. 5, 425 N.E.2d 290 (1981); Commonwealth v. Hopkins, 18 Mass.App.Ct.
982, 983‑984, 469 N.E.2d 1318 (1984).
Suppression of these items was also error.
4. Conclusion.
[21]
Although we conclude that the judge was in error, we comment on the number and
nature of the formal defects in the work product of both the police and the
magistrate. Careless and unnecessary
defects in form and construction of the affidavit or warrant may constitute a
violation of G.L. c. 276, art. 14 of the Declaration
of Rights of the Constitution of the Commonwealth, or the Fourth Amendment of
the United States Constitution, so as to render a search invalid.
Sheppard II, supra, 394 Mass. at 389, 476 N.E.2d 541.
The order
allowing the defendant's motion to suppress evidence seized at his residence is
vacated. An order shall be entered
denying the motion to suppress. (FN2) The case is remanded for trial.
So ordered.
(FN1.) We observe with approval that the two
supplemental pages were referred to by the language "see attached
page" which appeared in appropriate places in the affidavit form. Cf.
Commonwealth v. Sheppard, 387 Mass. 488, 500 & n. 12, 441 N.E.2d 725
(1982), rev'd, 468 U.S. 981, 104 S.Ct.
3424, 82 L.Ed.2d 737 (1984), on remand,
Commonwealth v. Sheppard, 394 Mass. 381, 476 N.E.2d 541 (1985).
(FN2.)
Pursuant to Mass.R.Crim.P. 15 (d ), 378 Mass. 884 (1979), the defendant filed a motion for
assessment of costs and attorney's fees in the amount of $2,858.86 for expenses
incurred in the prosecution of this interlocutory appeal. We refer this matter to a single justice of
this court for appropriate disposition.