10 Mass. App. Ct. 452 | Mass. App. Ct. | 1980
The defendant appeals from a judgment of conviction of receiving stolen property valued at more than one hundred dollars. The property consisted of certain antique items, mostly hand crafted jewelry, which were stolen from an antique shop in Harwichport and found in the defendant’s jewelry store in Brookline, where they were seized pursuant to a search warrant. The defendant contends that the trial judge erred in denying his motion to suppress the items seized in the store and in denying his motion for a directed verdict. The defendant also alleges and argues various other errors which we need not consider since we hold that the defendant’s motion to suppress should have been granted.
1. The search and seizure. The circumstances set out above were included in an affidavit by Lieutenant Trahon in support of an application for a search warrant.
The burden of justifying the intrusion of a search is on the Commonwealth. Where the defendant, at a hearing on a motion to suppress, shows that a search was made without a warrant (Commonwealth v. Franklin, 358 Mass. 416, 420 [1970]), the burden is on the Commonwealth to justify the search. Commonwealth v. Antobenedetto, 366 Mass. 51 (1974). Where it appears at such a hearing that the search was effected by a warrant valid on its face the Commonwealth has thereby justified the intrusion, and it becomes the defendant’s burden to show illegality. Commonwealth v. Bond, 375 Mass. 201, 210 (1978). In the case at bar the document by which the Commonwealth justifies the search purports to be a warrant: but whether the document does indeed justify the search depends on whether on its face it is capable of valid execution — whether the document, without more, sufficiently limits the discretion of the executing officers so that reference by them to that document makes a “general search[ ] under [it] impossible and prevents the seizure of one thing under a warrant describing another.” Marron v. United States, 275 U.S. 192, 196 (1927). Commonwealth v. Cefalo, 381 Mass. 319, 327-328 (1980). United States v. Marti, 421 F.2d 1263, 1268 (2d Cir. 1970), cert. denied, 404 U.S. 947 (1971). United States v. Johnson, 541 F.2d 1311, 1313 (8th Cir. 1976). United States v. Klein, 565 F.2d 183, 189 (1st Cir. 1977). In terms of art. 14 of our Declaration of Rights, the validity of the warrant requires a “special designation of the . . . objects of search ... or seizure” which “both defines and limits the scope of the search and seizure, thereby protecting individuals from general searches . ...” Commonwealth v. Pope,
In Commonwealth v. Accaputo, 380 Mass. 435, 446 (1980), the court points out that “[tjhere is substantial authority indicating that an affidavit may be referred to for purposes of providing particularity only where the affidavit accompanies the warrant and the warrant uses suitable words of reference which incorporate the affidavit” (citing cases) and that “[tjhese requirements serve not only to circumscribe the discretion of the executing officers but also to
Nor did the prosecution at the hearing on the motion to suppress (see Commonwealth v. Underwood, 3 Mass. App. Ct. 522, 532 n.9 [1975]) attempt to remedy the omission of the list. See In re Lafayette Academy, Inc., 610 F.2d at 5; Bloom v. Florida, 283 So.2d 134, 135, 136 (Fla. App. 1973); Lockridge v. Superior Court, 275 Cal. App. 2d 612, 625-626 (1969). Thus, when the defendant elicited from the clerk that he had not issued the list with the warrant the prosecuting attorney made no attempt to elicit an explanation by cross-examination. Further, when the defendant elicited from Lieutenant Trahon evidence which suggested that he did not have the six-page list with him when he received the warrant or served the defendant,
2. Motion for directed verdict. The defendant argues that, even with the admission of the items which we now hold should have been suppressed, the defendant was entitled to a directed verdict.
The jury could have found beyond a reasonable doubt that the defendant knew that the large lot of items seized by the police on October 21, 1976, had been stolen. Some of
Judgment reversed.
Verdict set aside.
No question is raised as to the sufficiency of the affidavit.
Generally, the burden of producing such a document is easily met. The four corners of the warrant will generally contain a designation of a place to be searched and objects to be seized, which, for aught that appears on the face of the warrant, reasonably limits the discretion of the executing officers. It then becomes the defendant’s burden to prove that a plausible designation in the warrant is in fact ambiguous and that its execution has resulted in a search and seizure beyond the confines of the warrant. See Commonwealth v. Rugaber, 369 Mass. 765, 769 (1976), where “[t]he description . . . was not inadequate on its face.” See Commonwealth v. Gill, 2 Mass. App. Ct. 653, 654-656 (1974).
See G. L. c. 276, § 2B, inserted by St. 1964, c. 557, § 3, which provides that “[t]he person issuing the warrant shall retain the affidavit and . . . [ujpon the return of said warrant, the affidavit shall be attached to it and shall be filed therewith . . . .”
We proceed on the basis, more favorable to the Commonwealth, that accompaniment without the physical attachment recited in the warrant is sufficient to fulfil the essential requirement of “attachment”. Cf. Commonwealth v. Accaputo, 380 Mass. 435, 446 (1980). In this case the result is not affected.
The warrant was introduced in evidence without the six-page list. The defense counsel referring only to the warrant elicited the following testimony:
Q. “What you received was the white page that is before you?” A. “That is right, sir.”
Q. “Is that correct?”
A. “Yes sir.”
*457 Q. “And you took that white page, which is the search warrant?”
A. “Yes, sir.” «4
Q. “And when you arrived at the jewelry store, did you physically have the warrant with you?”
A. “Yes, sir, I did.”
Q. “And when we talk about physically havfing] the warrant, that is, the exact piece of paper you had right here?”
A. “Yes, sir.”
The lack of care in the issuance of the warrant in this case points a lesson which should impress clerks and prosecuting officials.
The defendant concedes that there was evidence tending to implicate him in the receipt of goods stolen from the Harwichport antique shop apart from the evidence connected with the entry into and search of the defendant’s store on October 21,1976. No question as to whether the defendant may be retried has been argued to us, and we intimate no views on this matter. See A Juvenile v. Commonwealth (No. 2), 381 Mass. 379, 383 n.5 (1980), and Lydon v. Commonwealth, 381 Mass. 356, 361 n.9 (1980). The defendant’s brief asks us merely to reverse the judgment if we rule against him on his motion for a directed verdict.
See Ulster County Court v. Allen, 442 U.S. 140, 172 (1979) (dealing with a different “presumption”), in which Mr. Justice Powell, who wrote the majority opinion in the Barnes case, said of the inference in Barnes that “it was well founded in history, common sense, and experience, and therefore it was upheld as being ‘clearly sufficient to enable a jury to find beyond a reasonable doubt’ [Barnes at 845] that those in the unexplained possession of recently stolen property know it to have been stolen.”
In the Ulster County Court case, the Court held (at 167), that the prosecution “may not rest its case entirely on a presumption unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.”