|
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
Nancy Gertner,
Philip A. Rollins, Dist. Atty. (W. James O'Neill and Michael D. O'Keefe,
Asst. Dist. Attys., with him) for the Com.
[394
William C. O'Malley, Dist. Atty., for the Plymouth
Dist., and others, amici curiae, submitted a brief.
Maureen B. Brodoff,
Stephen R. Kaplan,
Before [394
WILKINS, Justice.
We
consider the defendant's State law challenges to the denial of his motions to
suppress evidence seized pursuant to a search warrant. When this case was before us for the first
time, we concluded that the search was unreasonable in violation of the Fourth
Amendment to the Constitution of the
The State
law issues presented to us include the questions whether probable cause to
issue a search warrant should be determined by a stricter standard in this
Commonwealth than under the Fourth Amendment and whether evidence seized
without probable cause may nevertheless be admitted against a defendant. The defendant argues both these questions on
statutory and constitutional grounds. We
conclude that (1) there is a statutory exclusionary rule requiring the exclusion
of evidence seized without a showing of probable cause (unless there is some
other basis for justifying the search), (2) the test for determining probable
cause is stricter under art. 14 of the Declaration of Rights of the
Massachusetts Constitution than under the Fourth Amendment, and (3) the
application for the search warrant in this case did not demonstrate probable
cause.
1. The legal consequences of a lack of
probable cause. The Commonwealth
argues that evidence seized pursuant to a search [394 Mass. 365] warrant
should be admissible, regardless of whether there was probable cause, because
this court has never accepted the concept of an exclusionary rule under the
State Constitution when a search violated the requirements of art. 14 of the
Declaration of Rights. Although our decision
in this case does not turn on the existence or nonexistence of a constitutional
exclusionary rule, the Commonwealth has correctly characterized this court's
historical position.
During the nineteenth century, as a matter of
common law and at least implicitly as a matter of State constitutional law,
relevant evidence unlawfully obtained was admissible in evidence in this
Commonwealth. See Commonwealth v. Dana, 2 Met. 329, 337 (1841); Commonwealth v. Certain Lottery
Tickets, 5 Cush. 369, 374 (1850); Commonwealth v. Certain Intoxicating Liquors,
4 Allen 593, 600 (1862); Commonwealth v. Tibbetts, 157 Mass. 519,
521, 32 N.E. 910 (1893); Commonwealth v. Acton, 165 Mass. 11, 13,
42 N.E. 329 (1895); Commonwealth v. Smith, 166 Mass. 370,
376, 44 N.E. 503 (1896). The
constitutional question was thought to have been settled by these and other
authorities when the question was reconsidered in Commonwealth v. Wilkins, 243 Mass. 356, 359, 138 N.E. 11 (1923),
subsequent to decisions of the Supreme Court of the United States (Weeks v. United States, 232 U.S. 383,
393‑394, 34 S.Ct. 341, 344‑345, 58 L.Ed. 652 [1914]; Boyd
v. United States, 116 U.S. 616, 638, 6 S.Ct. 524, 536, 29 L.Ed. 746 [1886]
), holding inadmissible in the Federal courts property seized in violation of a
defendant's Fourth Amendment rights.
This court noted that the Fourth Amendment did not apply to State court
proceedings and, viewing the fact of an unlawful seizure of evidence as
disconnected from the trial, declined to follow the decisions under the Fourth
Amendment. Commonwealth v. Wilkins, supra, 243 Mass.
at 360‑362, 138 N.E. 11. "We
prefer to adhere to our rule, which makes the competency of evidence depend
upon its inherent probative value rather than upon outside circumstances, and
which leaves the redress of grievances for invasion of constitutional rights to
the usual and adequate provisions of the civil and criminal law." Id.
at 362‑363, 138 N.E. 11.
We need
not decide in this case whether, as a matter of State constitutional or common
law, we should now take a different[394
Mass. 366] position on the exclusion of evidence seized
pursuant to a search warrant issued without probable cause. (FN1)
We conclude instead that G.L. c. 276, § 2B, provides a statutory
prohibition against the admission of such evidence.
[1]
General Laws c. 276, § 2B, (FN2) governing the content of affidavits submitted
in support of applications for search warrants,[394 Mass. 367] was enacted in 1964. St.1964, c. 557, § 3.
Two years later a case reached this court involving the question whether
evidence seized pursuant to a search warrant would be admissible if the
application for the warrant did not meet the requirements of G.L. c. 276, §§
2A, 2B, and 2C, but sworn testimony before the magistrate, supplementing the
application, provided probable cause to issue the warrant. Commonwealth v. Monosson,
351 Mass. 327, 221 N.E.2d 220 (1966).
Recognizing that "[t]he principal issue for decision is whether,
notwithstanding violation of the statute, the evidence is admissible," id. at 329, 221 N.E.2d 220, the court
concluded that, if the application itself failed to demonstrate probable cause,
(FN3) the evidence was inadmissible. Id.
See Commonwealth v. Reynolds,
374 Mass. 142, 148‑149, 370 N.E.2d 1375 (1977); Commonwealth v. Causey, 356
Mass. 125, 127‑128, 248 N.E.2d 249 (1969); Commonwealth v. Brown, 354
Mass. 337, 345, 237 N.E.2d 53 (1968).
(FN4)
[394 Mass. 368] [2] This court's determination in the Monosson case was to exclude evidence seized pursuant to a search warrant issued under
circumstances in which the statutorily prescribed form for establishing
probable cause was not met but probable cause may have existed. We think that this same reasoning should also
apply when probable cause itself, as required by the State Constitution, is
lacking. An absence of probable cause is
a particularly significant defect in the warrant process because, if there was
no probable cause, a search warrant should not have been issued and (barring
any other justification for the search) the search should not have been
conducted. Such a violation of a
defendant's rights is, therefore, a direct cause of the seizure and the
prejudice from the violation is substantial, [394 Mass. 369]
particularly where the seized evidence is relevant in proving charges against a
defendant.
2. The standard for the determination of
probable cause. The defendant
argues that G.L. c. 276, § 2B, mandates a determination of probable cause
according to the standard established by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84
S.Ct. 1509, 12 L.Ed.2d 723 (1964), and
Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637
(1969). Section 2B, as well as §§ 1, 2,
2A, and 2C, were added to G.L. c. 276 in substantially their current form by
St.1964, c. 557, which was signed by the Governor on June 16, 1964, the day
after the opinion in the Aguilar case
was released. It is, therefore, not
surprising that, in a series of opinions issued shortly thereafter, this court
treated the requirements of § 2B as synonymous with those established in the Aguilar case. See
Commonwealth v. Dias, 349 Mass. 583, 584, 211 N.E.2d 224 (1965);
Commonwealth v. Rossetti, 349 Mass. 626, 633 & n. 6, 211 N.E.2d
658 (1965); Commonwealth v. Mitchell, 350 Mass. 459,
462‑464 & n. 5, 215 N.E.2d 324 (1966); Commonwealth v. Cuddy, 353
Mass. 305, 308‑309, 231 N.E.2d 368 (1967); Commonwealth v. Brown, 354
Mass. 337, 344, 237 N.E.2d 53 (1968).
This court even stated in one opinion that "[t]he purpose of the
Legislature [in enacting G.L. c. 276, §§ 1, 2, 2A, 2B, and 2C] was to
incorporate as statutory requirements for affidavits those features which the
court held in the Aguilar case to be
constitutional requirements." Commonwealth v. Franklin, 358 Mass. 416,
421, 265 N.E.2d 366 (1970).
[3][4] The
timing of the bill's enactment forecloses such a view. The Legislature could not have known of the Aguilar opinion because it sent to the
Governor the bill that became St.1964, c. 557, five days before the Supreme
Court issued its Aguilar opinion. 1964 Bulletin of Committee Work 582. Moreover, the language of § 2B does not
support the view that it incorporates the two‑prong test that came to be
expressed in the Aguilar and Spinelli opinions. See
Commonwealth v. Upton, 390 Mass. 562, 581, 458 N.E.2d 717 (1983) (Lynch,
J., dissenting). It would be an
unacceptable statutory construction to find incorporated in the meaning of a
statute, general in its terms, specific constitutional requirements not articulated
until after enactment of the statute.
[394 Mass. 370] [5][6] We thus conclude that § 2B does not establish any standard
for the determination of probable cause, although it does prescribe in general
terms the form and content of applications for search warrants. Sections 1, 2A, and 2B of G.L. c. 276 do
require that warrants be issued only if there is a showing of probable cause,
and, as we noted earlier, § 2B requires the suppression of evidence seized
pursuant to a warrant not based on probable cause. (FN5)
[7] We
must now consider what standard art. 14 of the Declaration of Rights of the
Constitution of the Commonwealth prescribes for determining the existence of
probable cause. (FN6) We have equated the word "cause" in
art. 14 with the words "probable cause." Commonwealth v. Dana, 2
Met. 329, 336 (1841). 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. See Commonwealth v. Stewart, 358 Mass. 747,
749, 267 N.E.2d 213 (1971); Brinegar v. United States, 338 U.S. 160,
175‑176, 69 S.Ct. 1302, 1310‑1311, 93 L.Ed. 1879 (1949). Strong reason to suspect is not
adequate. See Henry v. United States, 361 U.S. 98, 101, 80 S.Ct. 168, 170, 4 L.Ed.2d
134 (1959). (FN7) Concerning search warrants for allegedly
stolen property, we have said that the affidavit must "contain enough
information for an [394 Mass. 371] 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). See Commonwealth v. Cefalo, 381 Mass. 319, 328, 409 N.E.2d 719 (1980).
The
Commonwealth argues that art. 14 requires no more than is required by the
Fourth Amendment as construed and implemented by the Supreme Court of the
United States in Illinois v. Gates,
462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d
721 (1984). By this view, the question
whether probable cause exists is to be determined according to the
"totality of the circumstances."
See Illinois v. Gates, supra, 462 U.S. at 238, 103 S.Ct. at 2332. The defendant, on the other hand, urges us
to express a stricter standard for the determination of probable cause,
specifically arguing that under art. 14 we should require a showing similar to
that required by the Supreme Court of the United States before its adoption of
the "flexible" standard of the
Gates case.
This court
has understandably had little occasion to determine what art. 14 requires be
shown to a magistrate in order to constitute probable cause. As our earlier discussion shows,
Massachusetts has not had an exclusionary rule as part of its common law or
under art. 14, and, consequently, there has been little incentive for
defendants to challenge the existence of probable cause on State common law or
constitutional grounds. When the Fourth
Amendment became applicable to the States through the Fourteenth Amendment (Mapp v. Ohio, 367 U.S. 643, 655, 81
S.Ct. 1684, 1691, 6 L.Ed.2d 1081 [1961] ), the battle over the existence of probable
cause to issue a warrant came to be fought on Federal constitutional
turf. Defendants simply raised the
Federal issues to the substantial exclusion of arguments based on the State
law.
As a
practical matter, therefore, cases involving probable cause questions did not
call for consideration of any State constitutional question. Nor did our earlier opinion in this case
appear to call for such a consideration.
There we erroneously concluded that the Federal constitutional
principles expressed in Illinois v.
Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), required the
exclusion [394 Mass. 372] of the seized evidence. We simply failed to perceive, unlike the
dissenting Justices (see Commonwealth v.
Upton, 390 Mass. 562, 578, 458 N.E.2d 717 [1983] [Lynch, J., dissenting] ),
that the Supreme Court could permit a test for probable cause as "
'flexible' and 'easily applied,' "
Upton, 390 Mass. at 567, 458 N.E.2d 717, as the fluid Gates standard has turned out to be. (FN8)
[8] The
Constitution of the Commonwealth preceded and is independent of the
Constitution of the United States. In
fact, portions of the Constitution of the United States are based on provisions
in the Constitution of the Commonwealth, and this has been thought to be particularly
true of the relationship between the Fourth Amendment and art. 14. See
Harris v. United States, 331 U.S. 145, 158, 67 S.Ct. 1098, 1105, 91 L.Ed.
1399 (1947) (Frankfurter, J., dissenting); Commonwealth v. Cundriff, 382 Mass. 137,
144 n. 11, 415 N.E.2d 172 (1980), cert. denied, 451 U.S. 973, 101 S.Ct. 2054,
68 L.Ed.2d 353 (1981). In particular
situations, on similar facts, we have reached different results under the State
Constitution from those that were reached by the Supreme Court of the United
States under the Federal Constitution.
On occasion, the differences can be explained because of different
language in the two Constitutions.
Compare Commonwealth v. Sees,
374 Mass. 532, 536‑538, 373 N.E.2d 1151 (1978), with Doran v. Salem Inn, Inc., 422 U.S. 922, 932‑933, 95 S.Ct.
2561, 2568‑2569, 45 L.Ed.2d 648 (1975) (right to restrict free speech in
places dispensing alcoholic beverages), and
Batchelder v. Allied Stores Int'l, Inc., 388 Mass. 83, 88‑89, 445
N.E.2d 590 (1983) (right under art. 9 of the Declaration of Rights to seek
signatures on private property in connection with ballot access), with Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct.
1029, 47 L.Ed.2d 196 (1976) (no First Amendment right to picket in a privately
owned shopping center). On the other
hand, in deciding similar constitutional questions, the two courts have reached
contrary results based on differences of opinion concerning the application of
similar constitutional principles.
Compare Moe v. Secretary of Admin.
& Fin., 382 Mass. 629, 645‑650, 417 N.E.2d 387 (1981), with Harris v. McRae, 448 U.S. 297, 317‑318,
100 S.Ct. 2671, 2688‑2689, 65 L.Ed.2d 784 (1980) (funding [394 Mass. 373] of medically necessary abortions); District Attorney for the
Suffolk Dist. v. Watson, 381 Mass. 648, 660‑671, 411 N.E.2d 1274
(1980), with Furman v. Georgia, 408
U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (constitutionality of the death
penalty);
Commonwealth v. Soares, 377 Mass. 461, 486, 387 N.E.2d 499, cert.
denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979), with Swain v. Alabama, 380 U.S. 202, 222, 85
S.Ct. 824, 837, 13 L.Ed.2d 759 (1965) (use of peremptory challenges to exclude
prospective jurors on the basis of race).
Although
we have never afforded more substantive protection to criminal defendants under
art. 14 of the Declaration of Rights than prevails under the Constitution of
the United States, on several occasions we have recognized the possibility of
doing so. See Commonwealth v. Sheppard, 387 Mass. 488, 508 n. 22, 441 N.E.2d 725
(1982), rev'd, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984);
Commonwealth v. Podgurski, 386 Mass. 385, 391 n. 11, 436 N.E.2d 150
(1982), cert. denied, 459 U.S. 1222, 103 S.Ct. 1167, 75 L.Ed.2d 464 (1983);
Commonwealth v. Nine Hundred and Ninety‑two Dollars, 383 Mass. 764,
768, 422 N.E.2d 767 (1981); District Attorney for the Plymouth Dist. v.
New England Tel. & Tel. Co., 379 Mass. 586, 589, 399 N.E.2d 866 (1980); id.
at 597 & n. 1, 399 N.E.2d 866 (Liacos, J., dissenting); Commonwealth v. Ortiz, 376
Mass. 349, 358, 380 N.E.2d 669 (1978).
As we noted earlier, we have had no appropriate occasion to consider
what standard of probable cause is required by art. 14.
[9] We
conclude that art. 14 provides more substantive protection to criminal defendants
than does the Fourth Amendment in the determination of probable cause. We reject the "totality of the
circumstances" test now espoused by a majority of the United States
Supreme Court. That standard is
flexible, but is also "unacceptably shapeless and permissive."
Commonwealth v. Upton, 390 Mass. at 574, 458 N.E.2d 717. The Federal test lacks the precision that we
believe can and should be articulated in stating a test for determining
probable cause. The "totality of
the circumstances" test is used in deciding several constitutional
questions, but it has been applied where no more definite, universal standard
could reasonably be developed. (FN9)
[394 Mass. 374] In the area of probable cause to issue a search warrant, specific
and worthwhile standards can be articulated, as opinions of the Supreme Court
prior to Illinois v. Gates, 462 U.S.
213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), have demonstrated. "Clear lines defining constitutionally
permissible conduct are most desirable to guide the police, magistrates,
prosecutors, defense counsel, and judges." Commonwealth v. Upton, 390
Mass. at 573, 458 N.E.2d 717. We thus
reject the "totality of the circumstances" test as the appropriate
standard for determining that probable cause which must be shown under art. 14.
[10] We
conclude instead that the principles developed under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723
(1964), and Spinelli v. United States,
393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), if not applied hypertechnically,
provide a more appropriate structure for probable cause inquiries under art.
14. (FN10) Under the
Aguilar‑Spinelli standard, if an
[394 Mass. 375] affidavit is
based on information from an unknown informant, the magistrate must "be
informed of (1) some of the underlying circumstances from which the informant
concluded that the contraband was where he claimed it was (the basis of
knowledge test), and (2) some of the underlying circumstances from which the
affiant concluded that the informant was 'credible' or his information
'reliable' (the veracity test). Aguilar v. Texas, supra [378 U.S.] at 114
[84 S.Ct. at 1514]. If the informant's
tip does not satisfy each aspect of the
Aguilar test, other allegations in the affidavit that corroborate the
information could support a finding of probable cause. Spinelli v. United States,
supra [393 U.S.] at 415 [89 S.Ct. at 588]." Commonwealth v. Upton, 390
Mass. at 566, 458 N.E.2d 717.
Each prong
of the Aguilar‑Spinelli test‑‑the
basis of knowledge and the veracity of the informant‑‑presents an
independently[394 Mass. 376]
important consideration. We have
said that independent police corroboration can make up for deficiencies in
either or both prongs of the Aguilar‑Spinelli
test.
Commonwealth v. Upton, 390 Mass. at 568, 458 N.E.2d 717. We reiterate today, however, that each
element of the test must be separately considered and satisfied or supplemented
in some way.
The test
we adopt has been followed successfully by the police in this Commonwealth for
approximately twenty years. It is a test
that aids lay people, such as the police and certain magistrates, in a way that
the "totality of the circumstances" test never could. We believe it has encouraged and will
continue to encourage more careful police work and thus will tend to reduce the
number of unreasonable searches conducted in violation of art. 14. We reject the argument that the higher
standard will cause police to avoid seeking search warrants. We have no sense, and certainly we have no
factual support for the proposition, that in recent years police in this
Commonwealth have risked conducting warrantless searches because of the
unreasonable strictures of the Aguilar‑Spinelli
test.
We also do
not believe that the Aguilar‑Spinelli
test has interfered or will interfere with the deference that a reviewing court
should show to the issuing magistrate's determination. "Once a magistrate has determined that
he has information before him that he can reasonably say has been obtained in a
reliable way by a credible person, he has ample room to use his common sense
and to apply a practical, nontechnical conception of probable cause."
Illinois v. Gates, 462 U.S. at 287, 103 S.Ct. at 2357‑2358
(Brennan, J., dissenting). In this
Commonwealth, we have always urged reviewing courts to "be slow to
jettison" warrants which exhibit such a commonsense approach. See
Commonwealth v. Von Utter, 355 Mass. 597, 600, 246 N.E.2d 806 (1969).
Finally,
we note that the number of cases in which evidence has been suppressed because
of a failure to follow the requirements of the Aguilar‑Spinelli test has not been substantial in relation
to the number of challenges made to the adequacy of applications for search
warrants. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 3441‑3442
n. 11, 82 L.Ed.2d 677 (1984) (Brennan, J., dissenting); Davies, A Hard Look at What We Know (and
Still Need to [394 Mass. 377] Learn) About the "Costs" of
the Exclusionary Rule: The NIJ Study and
Other Studies of "Lost" Arrests, 1983 Am.Bar Found.Research J. 611,
619. And, of course, there is no way to
document the salutary circumstance that numerous unreasonable searches were
never made because of the application of the
Aguilar‑Spinelli test. We
conclude, therefore, that theAguilar‑Spinelli
test, as modified by our earlier decision in this case, is the standard for
determining probable cause under art. 14.
(FN11)
[11] 3. Probable cause in this case. Pursuant to the appropriate standard, we
must undertake an analysis of the affidavit presented in support of the warrant
to search the motor home. The
significant portions of that affidavit are set forth in our earlier opinion.
Commonwealth v. Upton, 390 Mass. at 564 n. 2, 458 N.E.2d 717. We apply the Aguilar‑Spinelli standard, with the modification we thought
had been made in the Gates opinion.
Upton, 390 Mass. at 568, 458 N.E.2d 717. We also acknowledge that our attitude is not
and should not be a grudging or negative one and that we should give great
deference to the magistrate's determination of probable cause. Id.
at 568‑569, 458 N.E.2d 717. We
grant that the question is a close one.
[12]
Probable cause was not shown on the affidavit in this case. In our earlier opinion we concluded that the
basis of the informant's knowledge was narrowly established, even though the
reason why she believed the stolen property to be in the motor home was not
presented. The veracity of the
informant, however, was not shown.
Anyone who might conclude that the veracity of the informant was
demonstrated would have to place substantial credence in the unknown
informant's uncorroborated statements as self‑verifying. Id.
at 572‑573, 458 N.E.2d 717. To
paraphrase[394 Mass. 378]
our earlier opinion, "[i]f the affidavit in the case before us were
to be upheld, [art. 14 of the Declaration of Rights] would be weakened to the
level of permitting the search of any person's premises based on a telephone
tip from an anonymous informer who told a story connecting those premises with
the fact of a recent police search of a third person's room on premises to
which the public had access." Id. at 573, 458 N.E.2d 717. The probability of a link between the search
of the motel room and the motor home was not shown, as it could have been if
other information known to the police had been set forth in the affidavit
(particularly the fact that a wallet containing identification of Upton's wife
had been found in the motel room). Id. at 572 n. 8, 458 N.E.2d 717.
4. Motor vehicle exception. The Commonwealth argues that, even if the
warrant was invalid, the search was justified as a warrantless search under an
automobile exception to the requirement of a search warrant. (FN12)
The motor home had wheels and could be moved. It was parked about one foot away from the
Upton house and was enclosed by a stockade fence, two sections of which could
be opened by swinging them apart. There
was evidence that the fence was six feet high and that the defendant told a police
officer that he had lived in the motor home for the previous two weeks but did
not own it. Two [394 Mass. 379]
officers who conducted the search said they did not notice if the vehicle was
registered, and one said he did not notice if the motor home was connected to
running water.
In the
present posture of this case, the issue is whether under the law of the
Commonwealth an exception to the warrant requirement applies to the motor
home. (FN13) The applicability to motor homes of the
Federal automobile exception has been considered by United States Courts of
Appeals with differing results. Compare United States v. Holland, 740 F.2d 878,
880 (11th Cir.1984) (exception applies to motor home used only for
transportation), with United States v.
Wiga, 662 F.2d 1325, 1329 (9th Cir.1981) (exception inapplicable even to
motor home traveling on city street).
The question in one aspect is now before the Supreme Court of the United
States on review of a decision of the Supreme Court of California that a motor
home parked in a public parking lot was not subject to the automobile exception
to the warrant requirement. People v. Carney, 34 Cal.3d 597, 194
Cal.Rptr. 500, 668 P.2d 807 (1983), cert. granted, 465 U.S. 1098, 104 S.Ct.
1589, 80 L.Ed.2d 122 (1984).
[13] We
are aware of no court that has applied the Federal automobile exception to a
warrantless search of the interior of a motor home used as a residence and
parked on the private property of the occupant's family. In this case, the defendant's expectation of
privacy was increased by the fact that the motor home was parked within a foot
of the Upton house and was enclosed by a six‑foot‑high stockade
fence. Further, in this case, to the
extent that we would require some showing of exigency to justify such a
warrantless search, there is no showing of any exigency, as we noted in our
previous opinion. Commonwealth v. Upton, 390 Mass. at 574‑575,
458 N.E.2d 717. As a matter of
Massachusetts constitutional law, we decline to admit the evidence seized from
the defendant's motor home under an [394
Mass. 380] exception to the warrant
requirement of art. 14. We suspect the
result would be the same under the Fourth Amendment but do not rest our
decision on that ground.
5. Conclusion. In our earlier opinion, we noted that, apart
from the evidence seized from the motor home, "there was other evidence to
support the defendant's conviction on at least some of the charges against
him." Commonwealth v. Upton, 390 Mass. at 575,
458 N.E.2d 717. The case is, therefore,
remanded to the Superior Court subject to the same orders that we previously
entered.
Id. at 577, 458 N.E.2d 717.
So ordered.
LYNCH,
Justice (dissenting, with whom NOLAN, Justice, joins).
For the
reasons stated in my earlier dissent,
Commonwealth v. Upton, 390 Mass. 562, 578, 458 N.E.2d 717 (1983), I believe
probable cause existed here under the test of Illinois v. Gates.
Furthermore, I find nothing in the Massachusetts Declaration of Rights
or G.L. c. 276, § 2B, that mandates a stricter standard for determining whether
probable cause exists than is found in the United States Constitution. Because I believe probable cause exists, I
would not reach the issue whether G.L. c. 276, § 2B, provides a statutory
prohibition against the admission of evidence seized under a warrant issued without
probable cause. I therefore respectfully
dissent.
(FN1.) Were we to reach this question, we
would have to consider this court's opinion in Selectmen of Framingham v. Municipal Court of the City of Boston,
373 Mass. 783, 369 N.E.2d 1145 (1977).
There, solely "as matter of Massachusetts law," we held
evidence seized in an unconstitutional, warrantless search to be inadmissible
in a civil proceeding brought by the government to discharge an employee whose
constitutional rights had been violated. Id. at 787‑788, 369 N.E.2d 1145.
(FN2.)
Section 2B, as amended by St.1965, c. 384, provides:
"A
person seeking a search warrant shall appear personally before a court or
justice authorized to issue search warrants in criminal cases and shall give an
affidavit in substantially the form hereinafter prescribed. Such affidavit shall contain the facts,
information, and circumstances upon which such person relies to establish
sufficient grounds for the issuance of the warrant. The person issuing the warrant shall retain
the affidavit and shall deliver it within three days after the issuance of the
warrant to the court to which the warrant is returnable. Upon the return of said warrant, the
affidavit shall be attached to it and shall be filed therewith, and it shall
not be a public document until the warrant is returned.
"The affidavit in support of the
application for a search warrant shall be in
substantially the following
form:
"THE COMMONWEALTH OF
MASSACHUSETTS.
"(COUNTY), ss. (NAME) COURT
........................ 19
"I, (name of applicant) being duly
sworn, depose and say:
"1. I am (describe position, assignment,
office, etc.).
"2. I have information, based upon
(describe source, facts indicating
reliability of source and
nature of information; if based on personal knowledge
and belief, so state).
"3. Based upon the foregoing reliable
information (and upon my personal
knowledge) there is
probable cause to believe that the property hereinafter
described (has been stolen,
or is being concealed, etc.) and may be found (in
the possession of A.B. or
any other person) at premises (identify).
"4. The property for which I seek the
issuance of a search warrant is the
following: (here describe
the property as particularly as possible).
"Wherefore, I respectfully request that
the court issue a warrant and order
of seizure, authorizing the
search of (identify premises and the persons to be
searched) and directing
that if such property or evidence or any part thereof
be found that it be seized
and brought before the court; together with such
other and further relief
that the court may deem proper.
............................
Name.
"Then personally appeared the above
named ........................ and made
oath that the foregoing
affidavit by him subscribed is true.
"Before me this ........................
day of .................., 19 .
Justice
or Special Justice,
Clerk
or Assistant Clerk
of the
.......... Court."
(FN3.) The court said: "We, however, do not decide any
constitutional issue because we are satisfied that the Legislature in enacting
§§ 2A, 2B, and 2C, had no intent that, after its mandate has been ignored in a
manner tending to prejudice the defendant, the effect of such illegality can
nevertheless be avoided by evidence presented to the magistrate." 351 Mass. at 329, 221 N.E.2d 220.
(FN4.)
The development of exclusionary rules in light of statutory provisions is not
uncommon in this Commonwealth. In Commonwealth v. Jones, 362 Mass. 497,
287 N.E.2d 599 (1972), we dealt with G.L. c. 276,§ 33A, which grants to a
person in custody in a place of detention the right to use a telephone to seek
assistance of family, friends, or counsel.
This court suppressed evidence of an identification made at a police
station after an intentional refusal to grant the defendant his statutory
right, even though the defendant did not show that earlier use of a telephone
would have prevented the identification. Id. at 503, 287 N.E.2d 599. Cf.
Commonwealth v. Cote, 386 Mass. 354, 361, 435 N.E.2d 1047 (1982)
(discussion of possible suppression of evidence allegedly obtained in violation
of the defendant's right to prompt arraignment pursuant to Mass.R.Crim.P.
7[a][1], 378 Mass. 855 [1979] ). Similarly,
where an administrative inspection warrant (G.L. c. 94C, § 30) was issued in
violation of requirements of the Controlled Substances Act (G.L. c. 94C), this
court has suppressed evidence where the Fourth Amendment may not have required
suppression. Commonwealth v. Accaputo, 380 Mass. 435,
439, 404 N.E.2d 1204 (1980). See Commonwealth v. Lipomi, 385 Mass. 370,
372‑374, 432 N.E.2d 86 (1982).
Recently, we indicated that a complaint against a defendant charged with
operating a motor vehicle while under the influence of intoxicating liquor
might appropriately be dismissed where police officers failed to inform the
defendant of his statutory right (G.L. c. 263, § 5A) to request and receive an
immediate physical examination. Commonwealth v. Andrade, 389 Mass. 874,
878, 453 N.E.2d 415 (1983).
Cases
cited in the previous paragraph and
Commonwealth v. Monosson, 351 Mass. 327, 221 N.E.2d 220 (1966), involved
statutory violations for which the Legislature provided no explicit
remedy. This court construed the
statutory mandate as requiring effective relief to a defendant whose rights had
been violated‑‑suppression of evidence or, in one case, possible
dismissal of the charges.
There
are instances in which a statute itself expressly requires suppression of evidence. See G.L. c. 272, §§ 99O and 99P, concerning
wiretaps (cf. Commonwealth v. Vitello,
367 Mass. 224, 278, 327 N.E.2d 819 [1975]; District Attorney for the Plymouth Dist. v.
New England Tel. & Tel. Co., 379 Mass. 586, 593, 399 N.E.2d 866 [1980]; Commonwealth
v. Assad, 393 Mass. 418, 422, 471 N.E.2d 1290 [1984] ), and G.L. c. 276, §
1, which requires, unlike the Fourth Amendment, the exclusion of certain
evidence seized during a search conducted incident to an arrest (see Commonwealth v. Wilson, 389 Mass. 115,
118‑119, 448 N.E.2d 1130 [1983], and
Commonwealth v. Toole, 389 Mass. 159, 161‑162, 448 N.E.2d 1264 [1983]
).
There
is also a common law exclusionary rule requiring suppression of evidence seized
pursuant to a search warrant where the police, in the circumstances, should
have knocked and identified themselves before they entered the premises to be
searched. See Commonwealth v. Scalise, 387 Mass. 413, 417, 439 N.E.2d 818
(1982);
Commonwealth v. Cundriff, 382 Mass. 137, 146, 415 N.E.2d 172 (1980),
cert. denied, 451 U.S. 973, 101 S.Ct. 2054, 68 L.Ed.2d 353 (1981).
(FN5.) Consequently, these statutes bar any
judicial consideration of admitting evidence seized pursuant to a search
warrant issued without a showing of probable cause, even if the officer
executing the warrant was proceeding in objectively reasonable reliance on the
warrant, as in United States v. Leon,
468 U.S. 897, 104 S.Ct. 3405, 3421, 82 L.Ed.2d 677 (1984).
(FN6.) Article 14 provides: "Every subject has a right to be secure
from all unreasonable searches, and seizures, of his person, his houses, his
papers, and all his possessions. All
warrants, therefore, are contrary to this right, if the cause or foundation of
them be not previously supported by oath or affirmation; and if the order in the warrant to a civil
officer, to make search in suspected places, or to arrest one or more suspected
persons, or to seize their property, be not accompanied with a special
designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in
cases, and with the formalities prescribed by the laws."
(FN7.)
We do not know whether the Supreme Court of the United States intended a lower
definition of probable cause when, in
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), it
used words such as "fair probability" (id. at 238, 103 S.Ct. at 2332) and "substantial chance" (id. at 244 n. 13, 103 S.Ct. at 2335 n.
13).
(FN8.) The Supreme Court of Rhode Island also
did not recognize the Gates case as
announcing a sweeping new standard. See State v. Ricci, 472 A.2d 291, 296
(R.I.1984).
(FN9.) See, e.g., Commonwealth v. Jackson, 391 Mass. 749, 756, 464 N.E.2d 946 (1984)
(fair trial and pretrial publicity); Commonwealth v. Paszko, 391 Mass. 164,
170, 461 N.E.2d 222 (1984) (reasonableness of identification procedures);
Commonwealth v. Maldonado, 389 Mass. 626, 630, 451 N.E.2d 1146
(1983) (voluntariness of a waiver of constitutional rights, admission in
evidence of defendant's statements to the police); Commonwealth v. Scalise,
387 Mass. 413, 422 n. 8, 439 N.E.2d 818 (1982) (determination of exigent
circumstances); Commonwealth v. Buchanan, 384 Mass. 103,
108, 423 N.E.2d 1005 (1981) (consent to search).
(FN10.) The Supreme Court of Washington
recently rejected application of the
Gates standard under that State's Constitution, characterizing the Gates standard as "nebulous."
State v. Jackson, 102 Wash.2d 432, 435, 688 P.2d 136 (1984). That court rejected seriatim the various
reasons the Supreme Court advanced in support of the "totality of the
circumstances" test and concluded that the Aguilar‑Spinelli standard was appropriate under the
Washington Constitution. Id. at 443, 688 P.2d 136. The Washington court concluded that the
affidavit in the case before it satisfied the Aguilar‑Spinelli test. Id. at 446, 688 P.2d 136.
Recognized
experts in the field have not been favorably disposed toward the Supreme
Court's new approach. See Kamisar, Gates, "Probable Cause,"
"Good Faith," and Beyond, 69 Iowa L.Rev. 551, 569‑584
(1984); LaFave, Fourth Amendment
Vagaries (Of Improbable Cause, Imperceptible Plain View, Notorious Privacy, and
Balancing Askew), 74 J. of Crim.L. & Criminology 1171, 1186‑1197
(1983), and 1 W. LaFave, Search & Seizure § 3.3, at 134‑141, 143‑145
(Supp.1984). Professor Kamisar notes
that under Illinois v. Gates
"the warrant is to be upheld as long as there is a 'substantial basis' for
a 'fair probability' that evidence will be found in a particular case. Not much, is it?" Kamisar,
supra at 570. Professor LaFave in
his article cited above (at 1189‑1194) challenges the correctness of each
proposition on which the Gates
majority relied in announcing the new standard and expresses the hope
"that courts will continue to place considerable reliance upon the
elaboration of ... factors in earlier cases [veracity, reliability, and basis
of knowledge] decided under the now‑discarded Aguilar formula."
LaFave, supra at 1195.
The
Supreme Court of Connecticut has recently concluded that the Aguilar‑Spinelli test was
incorporated in the Connecticut wiretap statute and that it did not have to
consider the application of the Gates
standard to the case before it. State v. Ross, 194 Conn. 447, 463, 481
A.2d 730 (1984). The Supreme Court of
California has held that the Aguilar‑Spinelli
standard was the appropriate one to test probable cause under the State
Constitution (prior to its amendment).
See discussion in People v.
Kershaw, 147 Cal.App.3d 750, 754 n. 2, 195 Cal.Rptr. 311 (1983).
Several
States, after the Supreme Court's opinion in
Illinois v. Gates, have embraced the
Gates standard explicitly or implicitly as a matter of State constitutional
or common law. See Thompson v. State, 280 Ark. 265, 271, 658 S.W.2d 350 (1983);
State v. Lang, 105 Idaho 683, 672 P.2d 561 (1983) (4‑1
decision); People v. Tisler, 103 Ill.2d 226, 82
Ill.Dec. 613, 469 N.E.2d 147 (1984) (5‑2 decision); State v. Rose, 8 Kan.App.2d
659, 663, 665 P.2d 1111 (1983), approved in
State v. Walter, 234 Kan. 78, 81‑82, 670 P.2d 1354 (1983);
Beemer v. Commonwealth, 665 S.W.2d 912, 915 (Ky.1984);
Potts v. State, 300 Md. 567, 575‑576, 479 A.2d 1335 (1984);
State v. Arrington, 311 N.C. 633, 643, 319 S.E.2d 254 (1984);
Bonsness v. State, 672 P.2d 1291, 1293 (Wyo.1983). None of these opinions pays particular
attention to the independent role State courts should play in interpreting
State constitutional provisions. Other
opinions have done so (State v. Lang,
supra, 105 Idaho at 685, 672 P.2d 561 [Bistline, J., dissenting];
State v. Hunt, 91 N.J. 338, 345‑347, 450 A.2d 952 [1982]; id.
at 351‑358, 450 A.2d 952 [Pashman, J., concurring]; and id.
at 359‑368, 450 A.2d 952 [Handler, J., concurring] ), or have urged that
the effort be made (State v. Arnold,
214 Neb. 769, 774‑776, 336 N.W.2d 97 [1983] [White, J., concurring] ).
Some
State courts have left open the question whether they would adopt theAguilar‑Spinelli or the Gates standard under their State
Constitutions. See People v. Stark, 691 P.2d 334, 338 n. 3 (Colo.1984); State v. Ronngren, 361 N.W.2d 224, 230 n.
1 (N.D.1985); Commonwealth v. Jones, ‑‑‑
Pa. ‑‑‑, 484 A.2d 1383, 1388‑1389 (1984).
(FN11.)
We acknowledge that evidence seized in violation of Massachusetts law, but not
in violation of Federal law, may nevertheless be admissible in a prosecution in
a Federal court (and perhaps in another State).
See 1 W. LaFave, Search and Seizure § 1.3, at 52 (1978). That fact cannot justify our adoption of a
lesser standard of probable cause to be applied in this Commonwealth. The possibility of Federal prosecutors using
evidence inadmissible in the courts of Massachusetts already exists under
common law and other statutory exclusionary rules.
(FN12.) When this case was before us for the
first time, we regarded an argument made in a footnote in the Commonwealth's
brief as contending that there were exigent circumstances justifying a
warrantless search, and we concluded that the question of exigency was not
presented to the motion judges. Upton, 390 Mass. at 574‑575, 458 N.E.2d
717. The matter of a justified
automobile search was argued in memoranda presented to both motion judges and
was referred to in the footnote in the Commonwealth's original brief filed
here. The argument in that footnote,
however, did not present the automobile exception as an appellate issue apart
from the general exigency argument. The
Commonwealth's argument in its original brief did not discuss the application
of such an exception to an occupied motor home nor, most significantly, did the
Commonwealth point to any evidence that would have warranted a finding that the
area where the motor home was parked was not one as to which the defendant had
a reasonable expectation of privacy. See United States v. Chadwick, 433 U.S. 1,
12‑13, 97 S.Ct. 2476, 2484‑2485, 53 L.Ed.2d 538 (1977);
Commonwealth v. Simmons, 383 Mass. 46, 54‑55, 417 N.E.2d 1193
(1981). We did not regard the automobile
exception standing alone as properly raised and argued by the Commonwealth's
brief. We do, however, discuss it now.
(FN13.) Under the Fourth Amendment, it is
clear that the warrant was properly issued, and, for the purposes of Federal
law, there is no reason to consider whether a Federal automobile exception to
the warrant requirement would be applicable if the search had been
unreasonable. Our concern is whether in
these circumstances a warrantless search was justified as a matter of State
law.