425 Mass. 37 | Mass. | 1997
After the denial of a motion to suppress evidence seized in a search pursuant to a warrant, the defendant was convicted of narcotics trafficking and possession, and illegal possession of a firearm. The defendant appealed and the Appeals Court reversed, applying its decision in Commonwealth
I
In late 1992, an officer of the State police had informed a narcotics officer with the Lynn police that Glenn Janice was selling marihuana from his automotive supply business in that city and described the vehicles in which Janice picked up the marihuana from his supplier prior to deals with his customers. The Lynn officer began a surveillance of Janice’s activities, home, and business. As result of this surveillance, he was led to the defendant’s residence as the possible place where Janice received his supplies. The officer recognized the address as he had arrested the defendant on narcotics charges at that address almost one decade earlier. According to the motion judge, “the matter was disposed of on motions.” The officer then arranged with a confidential informant to make a series of controlled purchases of narcotics from Janice, which the officer hoped would eventually allow him to make a case against both Janice and his supplier. In a controlled purchase, the informant is searched prior to entering a location, given money to make the purchase, and then relieved of the contraband after he makes the purchase. The first relatively
“This officer requests [an] Anticipatory Search Warrant. The event activating the warrant will be Janice arriving at [the defendant’s residence] after the order is placed. As Janice exits [the residence] a search of his person and/or any packages he is in possession of will be searched. Upon finding him in possession of marijuana, all three warrants would be immediately activated.”2
As instructed by the police, the informant called Janice at his automotive supply shop in the afternoon and ordered a quantity of narcotics. After closing time, the informant telephoned Janice again to say that he would pick up his order in about one and one-half hours. As expected, Janice left his business at closing time, went by his residence, and then drove to the defendant’s residence. He entered carrying nothing. The officer testified at the motion hearing that he observed Janice “place something . . . [o]n the back floor, behind the driver’s seat” of his vehicle and drive off before the police could reach him. He was stopped one and one-half
II
A
The motion judge found that there was probable cause to authorize the search of the defendant’s residence pursuant to a warrant without specifying whether this depended on the occurrence of the triggering event. A concurring opinion of the Appeals Court concluded that there was no probable cause to search the residence in the absence of the triggering event. Gauthier, supra at 769-770 n.l (Greenberg, J., concurring). We reach the same conclusion. Although the reliability of the informant as to the information which he had supplied was amply demonstrated, nothing that he had said sufficiently pointed to the defendant as Janice’s supplier or to the defendant’s residence as the place from which he supplied Janice. Neither the officer’s previous search one decade before at that residence nor the single previous observation of an empty-handed Janice’s entering and leaving it with a brown paper bag were sufficient to make up that deficiency. Of course that is why the officer had devised the scheme set out in the anticipatory warrant, and, had events unfolded as anticipated, there would have been ample basis for the search of Gauthier’s residence. But they did not.
Although the words in the affidavit “[a]s Janice exits” the defendant’s residence, in some contexts, may bear a construction that would include apprehension and a search of Janice one and one-half miles distant from the' residence and after an automobile chase, in this context they will not. The point of structuring the events as the police did was to. apprehend Janice, who had entered the premises empty-handed, carrying the contraband as he left.'This would be more than enough to warrant the inference that Janice had obtained the contraband there. But the officer did not even testify that he had observed what Janice was carrying as he left the premises, only that they observed him “place something . . . [o]n the back floor, behind the driver’s seat.” Because it had been established that Janice was himself an active dealer in narcotics, this is not enough to make out that whatever Janice had been observed
B
The Appeals Court reversed, not on this basis, but because the description of the triggering event did not accompany the warrant that was shown to the defendant on execution. A description of the triggering event was not included on the face of the warrant, and the affidavit in which it was set out did not accompany the warrant.
The warrant clauses of the Fourth Amendment to the United States Constitution and in art. 14 of our Declaration of Rights, in addition to requiring a prior showing of probable cause before a judicial officer, both require that the warrants describe the place to be searched and the things to be seized. The Fourth Amendment states that this must be done “particularly,” while art. 14 requires a “special designation” of these matters. “It is well known that art. 14 was adopted to prohibit the abuse of official power brought about by two devices which the British Crown used in the colonies: the general warrants and the writs of assistance. . . . The general warrants empowered their holder to seize and bum books or other printed matter deemed ‘offensive to the state.’ . . . The writs of assistance were a special kind of general warrant which permitted their bearer, usually a customs official, to search with unlimited discretion for smuggled goods without special application to a court. See 2 Legal Papers of John Adams 108 (L. Wroth & H. Zobel eds. 1965).” Jenkins v. Chief Justice of the Dist. Court Dep’t, 416 Mass. 221, 229 (1993). Accord People v. Glen, 30 N.Y.2d 252, 259, cert. denied sub nom. Baker v. New York, 409 U.S. 849 (1972) (warrant clause intended to preclude use of the “hated general writs of assistance of pre-Revolutionary times”). See Stanford v. Texas, 379 U.S. 476, 481-484 (1965); Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 771-782 (1994). No official is to be armed with unfettered authority to enter on private property, search there, and seize what he pleases. By including the designation of the places to be searched and the items to be seized in the warrant, there is particular assurance that the magistrate has not granted such a general power. It is a recognition of the right of the citizen to be free of such official intrusion except by specific judicial authorization that these specifications must be set out in the warrant itself. That is what the warrant does: it warrants the search of a particular place and the seizure of particular items, and the subject of the search is informed by it that the search is proceeding according to such authorization.
The Callahan decision relies principally on the decision in United States v. Ricciardelli, 998 F.2d 8 (1st Cir. 1993), in reaching its conclusion. Ricciardelli was principally concerned with whether the triggering event was defined with sufficient definiteness.
The judgments are reversed, and the verdicts are set aside. An order shall be entered allowing the defendant’s motion to suppress.
So ordered.
The Appeals Court concluded that, without the evidence that should have been suppressed, there was insufficient evidence to go forward, Commonwealth v. Gauthier, 41 Mass. App. Ct. 765, 767 (1996), and the Commonwealth does not quarrel with that conclusion. Accordingly, there is no occasion for us to deal with a number of other issues raised by the defendant on appeal. Because we conclude that the affidavit does not establish probable cause in the absence of the triggering event, we need not consider whether an anticipatory warrant may be executed in the absence of the triggering event if on its face no triggering event was necessary to establish probable cause.
The other two warrants related to Janice’s business and residence and are not in issue.
General Laws c. 276, § 2B, provides in part that “[t]he 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 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.” Neither the Appeals Court nor the parties address this provision and its possible bearing on the contention that the affidavit should have been attached to the warrant when executed. Because the consideration of this question is not necessary to our decision, we also do not address it.
A second condition imposed by that Federal court which is related to definiteness requires that, if the contraband is not on the premises to be searched at the time of the issuance of the warrant, it “must be on a sure and irreversible course to its destination, and a future search of the destina
In reaching its conclusion, the court in United States v. Moetamedi, 46 F.3d 225, 229 (2d Cir. 1995), cited United States v. Tagbering, 985 F.2d 946, 950 (8th Cir. 1993) (“[E]ven if [the soliciting] affidavit was not incorporated into the warrant, it contained a representation to the issuing judge that the warrant would not be executed untU the package was delivered and accepted. In such circumstances, we do not believe the Constitution requires that this limitation be written into the warrant itself”), a case which was cited by Ricciardelli, supra at 11, as well with apparent approval. This only heightens our doubts that the United States Court of Appeals for the First Circuit was focusing on the issue presented here at all.