Com. v. Valerio

870 N.E.2d 46

449 Mass. 562

COMMONWEALTH v. Carlos VALERIO.

SJC-09872.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 8, 2007.

Decided July 20, 2007.

Vincent F. Ricciardi for the defendant.

Joseph Gentile, Jr., Assistant District Attorney, for the Commonwealth.

Nona E. Walker, Committee for Public Counsel Services, Boston, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

GREANEY, J.

Officers of the Hudson police department seized cocaine, suspected drug packaging materials, various papers, and United States currency during a search of the defendant's apartment conducted on September 16, 2003. The warrant authorizing the search correctly described the place to be searched, but because of an error in the warrant application, the warrant did not describe the particular items intended to be seized (and that were in fact seized). After the defendant was indicted on charges of trafficking in cocaine, he filed a motion to suppress the fruits of the search. Without deciding the motion, a judge in the Superior Court reported two questions to the Appeals Court, pursuant to Mass. R.Crim. P. 34, 378 Mass. 905 (1979). We transferred the case here on our own motion.

The reported questions, which we phrase slightly differently than did the judge, ask whether the evidence seized during the search must be suppressed (1) because the lack of particularity in the search warrant rendered it fatally defective; or (2) because the defendant, who was present and had been arrested at the commencement of the search, was shown a copy of the warrant but was not shown attachments to the warrant which described the items for which the search was authorized. We conclude that the evidence should not be suppressed. Our conclusion follows from established principles concerning a search warrant's requisite particularity, as set forth in the Fourth Amendment to the United States Constitution, art. 14 of the Massachusetts Declaration of Rights, and G.L. c. 276, § 2. These principles shall be discussed in part 2 of this opinion. Because our discussion resolves the basic issues presented by the defendant's motion to suppress, we need not answer directly the reported questions. See Spellman v. Shawmut Woodworking & Supply, Inc., 445 Mass. 675, 679, 840 N.E.2d 47 (2006); Commonwealth v. Markvart, 437 Mass. 331, 333, 771 N.E.2d 778 (2002); McStowe v. Bornstein, 377 Mass. 804, 805 n. 2, 388 N.E.2d 674 (1979).

1. The following facts are drawn from the judge's recitation of undisputed relevant facts contained in the report to the Appeals Court. On September 15, 2003, Detective Scott M. Chaulk of the Hudson police department sought and obtained a search warrant in the Marlborough Division of the District Court Department for a search of the defendant's apartment at 165 Main Street. In the portion of the standard search warrant application calling for a description of the property to be seized, Detective Chaulk erroneously entered a description of the place to be searched. This error was transcribed onto the face of the search warrant itself (as the form is formatted to do) by means of a carbon backing. The warrant was issued, without correction, by an assistant clerk-magistrate, who stamped each page of the nearly eight-page affidavit, as well as each page of the extensive supporting documentation that accompanied the affidavit.¹ Within the supporting affidavit, Detective Chaulk requested permission to search for cocaine, drug paraphernalia, money, and documents relating to the sale and trafficking of narcotics.² The warrant incorporated by reference the information contained in the affidavit.³ The warrant specifically authorized the search to be conducted at nighttime and commanded the search team to search any person present who might have, in his or her possession, any of the designated items to be seized. The warrant also authorized the search team to enter the defendant's apartment without announcing their presence. At the time of submission and issuance in the District Court, the affidavit and supporting documents were attached by paperclip to the application and search warrant.

On September 16, 2003, police officers, led by Detective Chaulk, executed the search warrant. Prior to the warrant's execution, Detective Chaulk conducted an operational plan briefing for officers participating in the search. He outlined the building's exits and floor plan and explained exactly what the search team was looking for, as specified in the affidavit. In preparation for the search, Detective Chaulk had prepared a plastic Rubbermaid container, in which he had placed a tote bag containing a copy of the warrant to which the affidavit, and its supporting documents, remained attached by paperclip. The Rubbermaid container also held evidence containers, gloves, a Polaroid camera, and a copy of the operational plan for the search.

While sitting in an unmarked police vehicle in the parking lot of 165 Main Street, police officers observed the defendant and his brother, Juan Valerio, exiting a vehicle in the parking lot. The two men separated. The defendant entered the main door of his apartment house, and Juan walked in the direction of his residence, a short distance away, at 10 Summer Street.⁴ Juan appeared to notice the police officers and began placing a call on his cellular telephone. Fearing that Juan was attempting to warn the defendant of their presence, the police quickly entered the back entrance of 165 Main Street. They encountered the defendant in the common hallway outside his apartment and, with weapons drawn, ordered him to the floor and searched him. Using a battering ram, the police forcibly entered the defendant's apartment and secured the scene.

The defendant was instructed to sit in a chair in the kitchen. He was handcuffed and given Miranda warnings. Detective Chaulk informed the defendant that the police were there to execute a search for drugs and asked the defendant whether there were any drugs in the apartment. The defendant responded affirmatively and nodded in the direction of the bedroom. Before the search commenced, an officer retrieved the Rubbermaid container from the police vehicle and carried it into the apartment. Detective Chaulk held up a copy of the one-page document that was the search warrant for the defendant to see. The affidavit and other supporting documents were not attached to the copy of the warrant that was shown to the defendant. There is no evidence that the defendant requested a closer look at the warrant, or that he requested an opportunity to review the affidavit or any of the supporting documents.

2. The Fourth Amendment to the United States Constitution provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Article 14 of the Massachusetts Declaration of Rights requires all warrants be "previously supported by oath or affirmation" and "accompanied with a special designation of the persons or objects of search, arrest, or seizure."⁵ In addition, G.L. c. 276, § 2, requires that "[s]earch warrants shall designate and describe the building, house, place, vessel or vehicle to be searched and shall particularly describe the property or articles to be searched for." Our cases do not distinguish between the statutory requirement of particularity, as set forth in G.L. c. 276, § 2, and the requirements of particularity under the Constitutions of the Commonwealth and of the United States. See Commonwealth v. Walsh, 409 Mass. 642, 644-645, 568 N.E.2d 1136 (1991); Commonwealth v. Treadwell, 402 Mass. 355, 359 n. 6, 522 N.E.2d 943 (1988); Commonwealth v. Sheppard, 394 Mass. 381, 389, 476 N.E.2d 541 (1985).

We have stated that the dual purposes of the particularity requirements of G.L. c. 276, § 2, and art. 14 are (1) to protect individuals from general searches and (2) to provide the Commonwealth the opportunity to demonstrate, to a reviewing court, that the scope of the officers' authority to search was properly limited. See Commonwealth v. Sheppard, supra; Commonwealth v. Pope, 354 Mass. 625, 629, 241 N.E.2d 848 (1968); Commonwealth v. Monosson, 351 Mass. 327, 330, 221 N.E.2d 220 (1966). In Commonwealth v. Sheppard, supra, we also suggested that a warrant's requisite particularity under art. 14 serves to "provide the defendant with the opportunity at trial to demonstrate that the officers' authority to search was impermissibly broad." Id. at 391, 476 N.E.2d 541. A related purpose of the particularity requirement of the Fourth Amendment, stated by the United States Supreme Court in Katz v. United States, 389 U.S. 347, 356, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and more recently repeated in Groh v. Ramirez, 540 U.S. 551, 559-561, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004), is to provide necessary information to an individual whose property is being searched or seized. See Commonwealth v. Balicki, 436 Mass. 1, 7, 762 N.E.2d 290 (2002) ("particularity requirement [of art. 14] serves as a safeguard against general exploratory rummaging by the police through a person's belongings"); Commonwealth v. Guaba, 417 Mass. 746, 753-755, 632 N.E.2d 1217 (1994) (art. 14's implicit requirement that warrant be present at search scene serves to guide police to permissible scope of search and to put occupant of premises on notice of authority to search and reasons for search).

We emphasize that every effort should be made to draft applications for search warrants, and for warrants to issue, in accordance with constitutional and statutory requirements. Some measure of "leeway or leniency in the after-the-fact review" of the sufficiency of an application for a warrant that has been properly authorized by a magistrate, however, is necessary as a practical matter. Commonwealth v. Corradino,...