Commonwealth v. Smith
Commonwealth v. Smith
Opinion of the Court
The defendant was indicted for possession of a class A controlled substance (heroin), see G. L. c. 94C, § 31, with intent to distribute. He was convicted of the lesser included ofíense of possession of a class A controlled substance after a jury waived trial in the Superior Court. He received a sentence of imprisonment for one year in a house of correction, the execution of which was stayed pending this appeal. We conclude that there was no error.
The basis of the defendant’s appeal is the denial of his motion to suppress the heroin found on his person by a police officer executing a search warrant for heroin at apartment number 549, 19 Corregidor Court, Roxbury. The warrant was issued on the printed form prescribed by G. L. c. 276, § 2A, and commanded the police to search the apartment, to search one “Jane Doe, alias Molly Bee” (a known occupant of the apartment), and “any person present who may be found to have... [heroin] in his possession or under his control or to whom such property may have been delivered____”
At the hearing on the defendant’s motion to suppress, the judge received in evidence the warrant together with
In the execution of the warrant, officers attached to the drug control unit obtained entry into the apartment without incident. The defendant was standing in an area of the apartment where the main room and the kitchenette joined. One of the officers approached the defendant, identified himself as a police officer with a search warrant, and told the defendant to raise his hands. The officer “patted down” the defendant but found nothing. The officer then searched
The judge found that the searching officer had no probable cause to arrest the defendant until after the search of his person had been accomplished.
The Commonwealth does not attempt to rely on any asserted privilege of the police to search the defendant to protect themselves against the possibility that the defendant possessed a concealed weapon. It could be said that this would not be an unreasonable argument to make in light of the nature of the place, people and circumstances involved. Such an argument loses strength here, however, considering that a “pat down” of the defendant disclosed no sign of a weapon, and also did not disclose the contraband. More important, it is clear that the police from the beginning relied on the terms of the warrant, apparently planned to search anyone present for drugs, and apparently did not act with the motive of self-protection. See Gustafson v. Florida, 414 U.S. 260, 263 (1973); United States v. Robinson, 414 U.S. 218, 234-236 (1973); Adams v. Wil
The defendant contends that the search of his person pursuant to the “any person present” language of the warrant violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution and art. 14 of the Declaration of Rights of the Constitution of this Commonwealth. He asserts that there was no showing to a person authorized to issue the warrant of probable cause to believe that the defendant would be present on the premises to be searched and that he would be involved in illegal narcotic transactions. Additionally, the defendant says that the warrant here lacked specificity in that it did not particularly describe the person of the defendant as an object of the search.
We conclude that, in the circumstances of this case, there was no error in the judge’s denial of the motion to suppress. The affidavit and the warrant amply demonstrated that, in all the circumstances, there was probable cause to believe that any person present on the premises described in the search warrant was involved in illegal trafficking in heroin. While we do not mean to derogate in any way from the principle that the law requires a particular description of the persons to be searched pursuant to a warrant, we think that, on the facts of this case, the defendant was sufficiently described. It is clear from our discussion below that only in special circumstances such as those shown in the affidavit here will a search warrant aimed principally at the premises also be held to include validly the search of any person present.
There is no general agreement in either holding or reasoning among the courts which have considered whether the search of any person present pursuant to a valid premises search warrant is a reasonable search under the Fourth Amendment. Most decisions evidence a disposition to strike down such searches,
In Massachusetts this question has never been squarely presented for our determination until now, although on one occasion we termed an “any person present” clause in a premises search warrant “a reasonable extension of the request to search the premises,”
The trial judge explicitly adopted the reasoning of the New Jersey Supreme Court in State v. DeSimone, 60 N.J. 319 (1972), in concluding that the search of the defendant in this case was valid. In DeSimone a unanimous court upheld the search of a passenger in an automobile under a warrant directing the search of the automobile and all persons found therein. Id. at 321. In disposing of the contention that the warrant was invalid as it related to a passenger in the automobile authorized to be searched, the DeSimone court employed an approach which required a showing of probable cause concerning the place to be searched and a reasonable belief that all persons found there would be participants in the criminal activity (an illegal lottery operation). Id. at 322-323. As the court said: “So long as there is good reason to suspect or believe that anyone present at the anticipated scene will probably be a participant, presence becomes the descriptive fact satisfying the aim of the Fourth Amendment.” Id. at 322. The court stated that “there is none of the vice of a general warrant if the individual is... identified by physical nexus to the on-going criminal event itself.” Ibid. DiRe was distinguished because the New Jersey court viewed that deci
A case somewhat closer to the instant one was decided in People v. Nieves, 36 N.Y.2d 396 (1975). In Nieves the search warrant authorized the search of a certain restaurant and cocktail lounge, the person of one Elizar Vidal, and “any other person occupying said premises [,] and of any other person who may be found to have... [gambling paraphernalia] in his possession or under his control or to whom such property may have been delivered____” Id. at 398. The Court of Appeals of New York, in a unanimous decision, set aside the defendant’s conviction for, among other crimes, possession of gambling records, because neither the affidavit nor the warrant, nor the reasonable inferences which might be drawn from them by the issuing judge gave the slightest indication that there was reason to believe “that each and every occupant of... [the premises] at any time of day possessed ... gambling records____” Id. at 402. However, the New York court said quite clearly that the “any person present” language could, in some circumstances, survive constitutional attack.
We conclude that the search before us falls within that narrowly circumscribed range of searches which, because of the peculiar facts which give rise to them, are consistent with Fourth Amendment principles and with the reasoning of precedents such as DeSimone and Nieves. We have repeatedly stated that affidavits in support of search warrants
The affidavit in support of the search warrant for apartment number 549 revealed to the issuing clerk that the informant on whose information the affiant relied had been inside the apartment on two occasions within only ten days prior to the signing of the affidavit and had seen the occupant selling heroin in half bundles (twelve decks) to other persons present in the apartment. The affidavit further showed that periodic surveillances of the apartment by the affiant and other police officers within only the prior seven days caused them to observe persons, known to the officers as persons trafficking in heroin, enter and leave the apartment. The local clerk undoubtedly inferred that, from the nature of the neighborhood and the project in which the apartment was located, the apartment was of modest size. All of these facts could properly be appraised by the clerk in light of the fact that the application sought authorization to search for the kind of contraband which, because of its nature and the type of packaging customarily used in its transfer from one individual to another, could reasonably be inferred would be discovered on the persons of those individuals present.
From these asserted facts and fair inferences drawn therefrom, it was permissible to conclude that it was probable that any person in the apartment was a participant in the trafficking in heroin there. Further the inference was permissible that it was virtually impossible to predict who would be there at any given time. With the exception of “Molly Bee,” this was a situation in which the police information and knowledge “develop [ed] around and ultimately focus [ed] on a place rather than upon the person [s] occupying the place.” Commonwealth v. Franklin, 358 Mass. 416, 422 (1970). See Commonwealth v. Dinnall, 366 Mass. 165, 168 (1974); Commonwealth v. Pope, 354 Mass. 625, 628-629 (1968). This observation does not relax the particularity requirement as it applies to all identifiable persons known to be on the premises to be searched,
Having said this we nevertheless consider it important to stress that in the overwhelming majority of cases a search based exclusively on the somewhat vague sanction of the language in the “any person present” clause is a clear violation of the proscription against unreasonable searches. An affidavit in support of a warrant which seeks to authorize a search of “any person present” is to be strictly scrutinized. It can only be valid where the underlying circumstances presented to the issuing judge or clerk clearly demonstrate probable cause to search the named premises and to believe that all persons present are involved in the criminal activity afoot. On the latter point, several facts
The guidelines of the Court of Appeals of New York as set forth in People v. Nieves, 36 N.Y.2d at 404-405, are useful. While it is appropriate for a court to rely on the reasonable and common sense inferences to be drawn from the affidavit, as indeed this court has relied in this case, the specificity suggested in the guidelines will tend to insure the careful scrutiny of which we have spoken above. The Nieves guidelines are as follows: “An application for this type of warrant must be subjected to rigid scrutiny by the independent Magistrate. It must carefully delineate the character of the premises, for example, its location, size, the particular area to be searched, means of access, neighborhood, its public or private character and any other relevant fact. It must specifically describe the nature of the illegal activity believed to be conducted at the location, the number and behavior of persons observed to have been present during the times of day or night when the warrant is sought to be executed.
“The application should also state whether any person apparently unconnected with the illegal activity has been seen at the premises.
“In determining the reasonableness of a particular warrant application, it is also appropriate to consider the necessity for this type of search, that is, the nature and importance of the crime suspected, the purpose of the search and the difficulty of a more specific description of the persons to be searched. The risk that an innocent person may be swept up in a dragnet and searched must be carefully weighed” (footnote omitted).
Exceptions overruled.
This finding may appear to be inconsistent with other findings which the judge made in support of the search of the defendant’s person, and therefore we regard this finding, we think correctly, as a conclusion by the judge that there were no facts supportive of probable cause, as to the defendant, except his presence in the apartment.
See Commonwealth v. Todisco, 363 Mass. 445, 449-450 (1973).
In determining the correctness of the judge’s ruling, we consider, of course, only the warrant, application and affidavit and the reasonable inferences arising therefrom. See, e.g., Commonwealth v. Mele, 358 Mass. 225, 228-229 (1970); Commonwealth v. Cuddy, 353 Mass. 305, 308 (1967); Commonwealth v. Moran, 353 Mass. 166, 169-171 (1967).
United States v. Johnson, 475 F.2d 977, 979 n.5 (D.C. Cir. 1973). United States v. Festa, 192 F. Supp. 160, 163 (D. Mass. 1960). State v.
Samuel v. State, 222 So.2d 3, 5 (Fla. 1969). Willis v. State, 122 Ga. App. 455, 458-459 (1970). People v. Pugh, 69 Ill. App. 2d 312, 316 (1966). State v. DeSimone, 60 N.J. 319 (1972). People v. Easterbrook, 43 App. Div. 2d 719, 720 (1973), aff’d, 35 N.Y.2d 913, cert. denied, 421 U.S. 965 (1974). People v. Nicoletti, 60 Misc. 2d 108, 111-112 (N.Y. Niagara County Ct. 1969). See United States v. Peep, 490 F.2d 903, 906 (8th Cir. 1974); Walker v. United States, 327 F.2d 597, 599-600 (D.C. Cir. 1963), cert. denied, 377 U.S. 956 (1964); Clay v. United States, 246 F.2d 298, 305 (5th Cir.), cert. denied, 355 U.S. 863 (1957); Brown v. State, 498 S.W.2d 343, 346 (Tex. Crim. App. 1973), and cases cited. See also United States v. Johnson, supra at 981 & n.5, 982 (Bazelon, C.J., concurring in part and dissenting in part); People v. Nieves, supra at 400-406.
Commonwealth v. Franklin, 358 Mass. 416, 422 n.3 (1970).
Commonwealth v. Snow, 363 Mass. 778, 786 n.5 (1973). Commonwealth v. Pellier, 362 Mass. 621, 625 n.3 (1972).
Indeed, the decision expressly refused to overrule the New York statute authorizing the use of this language in search warrants. Nieves, supra at 400, 404. See N.Y. Crim. Proc. Law § 690.15(2) (McKinney 1971). Compare People v. Green, 33 N.Y.2d 496, 499-500 n.2 (1974), with id. at 501-502 (Gabrielli, J., joined by Jasen and Stevens, JJ., dissenting) .
See Commonwealth v. Snow, 363 Mass. 778, 788 (1973), where we observed: “An illegal drug transaction is commonly described by witnesses as including the passing of something between two persons, with a small packet, usually called a deck, going in one direction and money going in the other direction.”
See Commonwealth v. Perada, supra.
As opposed to a public or quasi public place where casual presence of persons for a myriad of noncriminal reasons is to be expected. See Commonwealth v. Snow, 363 Mass. 778, 791 (1973) (Kaplan, J., dissenting in part).
In the instant case, the frequency and nature of the observations of the reliable informant and the police, considered together, all within a relatively brief time, reasonably raise the probability called for by this factor.
Dissenting Opinion
(dissenting). A printed clause at the end of the standard form of warrant purports to command the search “of any person present who may be found to have such property [i.e., a narcotic drug or associated paraphernalia] in his possession or under his control or to whom such property may have been delivered____” (See G. L. c. 276, § 2A, inserted by St. 1964, c. 557, § 3.) On two previous occasions the court has expressed doubt about such language: read as ordinary prose, it is question-begging or self-fulfilling, and in all events it is not specific or particular. Commonwealth v. Snow, 363 Mass. 778, 786 n.5 (1973). Commonwealth v. Pellier, 362 Mass. 621, 625 n.3 (1972).
The court now reads the language to mean any person present at the location at the time of the execution of the warrant. This glosses the first fault. The lack of specificity or particularity remains.
I agree with some of the cases cited that when the Fourth Amendment says “particularly describing,” it expects something fairly indicative of a person or persons. (Article 14 of our Declaration of Rights requires a “special designation of the persons.”) A person may be particularly described (or specially designated) without mention of his name; but it goes to the verge, if not beyond, merely to refer, as here, to indeterminate persons described only by their contingent relationship to a location.
But if the formula is accepted, then I submit that the police officer’s affidavit, relied on as establishing the probable cause, is short of the mark. I agree with the court that the affidavit is to be read with a certain common sense leniency; but even so it seems inadequate. The affiant mentions two illegal sales and says that officers of the drug control unit have conducted “periodic surveillances” during the past week and observed persons, known by the officers to traffic in heroin, entering and leaving the location. The kinds, times, and frequency of the surveillances are not stated. We are not told the number of persons entering and leaving the location who were recognized by the police as heroin traffickers, and nothing is said about the number of persons entering and leaving the location who were not thus suspect. There is no account of how and when persons, suspect or not, congregated at the location. A report fully comprehensive and exact in every detail could not be expected; but without more complete information thán was provided in the affidavit, I believe probable cause in the sense of the court’s formula was not demonstrated. I suggest that the court should have signalled its insistence on a better demonstration by reversing the conviction, as did the New York Court of Appeals in People v. Nieves, 36 N.Y.2d 396 (1975). If not in the formula itself, then in applying it to facts, the court sets a precedent that may lead to a not inconsiderable erosion of the Fourth Amendment safeguard. I respectfully dissent.
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