Commonwealth v. Balicki
| Decision Date | 02 October 2001 |
| Citation | 436 Mass. 1,762 NE 2d 290 |
| Parties | COMMONWEALTH v. RAMONA M. BALICKI (and seventeen companion cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present (Sitting at Salem): MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ. Steven Greenbaum, Assistant District Attorney, for the Commonwealth.
Joseph A. Hanofee for David P. Dec.
Michael Malkovich for Ramona M. Balicki.
David P. Dec and Ramona M. Balicki were indicted for forging invoices from their employer, a vocational high school, in furtherance of a scheme to purchase with public funds household items for their personal use.2 After their indictments, they each filed motions to suppress evidence seized by the police during two searches of their home. Both searches were conducted pursuant to search warrants. The first search occurred in 1996, and resulted in the seizure of a number of household items, some of which were not listed in the warrant. During this search, the police videotaped and photographed the inside of the home. The second search occurred in 1997, pursuant to a warrant that authorized the seizure of a number of household items, some of which had been photographed or videotaped, but not seized, during the first search.3
Following an evidentiary hearing, the motion judge concluded that the videotaping and photographing of the home constituted a seizure beyond the scope of the 1996 warrant. Consequently, she suppressed the videotape and photographs, the testimony of the officers about the items depicted in the videotape and photographs, and all of the evidence obtained during the execution of the 1997 warrant that had been depicted in the videotape and photographs taken during the 1996 search. She also suppressed items seized during the 1996 search that were found in plain view, but were not listed in the warrant, finding that their discovery was not inadvertent. The Commonwealth appealed and we transferred the cases to this court on our own motion.
For reasons different from those of the motion judge, we affirm the suppression of the 1996 videotape and photographs, the suppression of evidence seized during the 1997 search that had been depicted in the videotape and photographs, and the testimony of the officers about their observations of the items that were filmed at the home but not seized during the 1996 search. We reverse the judge's order suppressing the items seized during the 1996 search that were not listed on the warrant, concluding that they were properly seized under the plain view exception to the warrant requirement.
Facts. We take the facts from the judge's findings, supplemented by the undisputed testimony and exhibits in the record.4 Commonwealth v. Contos, 435 Mass. 19, 32 (2001).
Dec and Balicki are married. Dec was employed as the business manager of the Smith Vocational Agricultural High School in Northampton (school). As the business manager, he was responsible for submitting invoices to the city treasurer for payment and for maintaining a record of the school's purchases. Balicki was employed by the school as a senior accounts clerk until her employment was terminated on March 27, 1996. She was Dec's assistant.
On March 13, 1996, Detective Robert H. Dunn, Jr., of the Northampton police department and his supervisor, Detective Lieutenant Kenneth Patenaude, attended a meeting at the mayor's office, during which city auditors told them that, based on an examination of a number of school invoices, they suspected someone was using school funds to purchase household items for personal use.5 Dunn began to review thousands of invoices and to interview school employees. He found a number of questionable invoices that had either Dec's or Balicki's signature, or had signatures of other school employees who denied having purchased the items listed. The investigation quickly led Dunn to suspect that Dec and Balicki had forged school invoices to purchase items that they kept for their own use.
On March 20, 1996, after conferring with the district attorney's office, Dunn obtained a search warrant for the defendants' home. The warrant authorized the seizure of seventeen specific items.6 Dunn did not seek, nor did the warrant grant, authorization to photograph or videotape the home or the items to be seized.
The warrant was executed during the evening of March 20, 1996. Patenaude asked a police photographer to accompany the officers during the search. It was not unusual for officers to bring a photographer to record the execution of a search warrant, because police sometimes photographed and videotaped the scene of a search to protect themselves from accusations of damaged or missing property. These were not, however, the primary reasons for the use of that equipment in this case. Rather, Patenaude directed the photographer to photograph and videotape each room in the home and anything he identified to the photographer as having potential evidentiary value. The videotape and photographs were also used to document each room in the home as it appeared when the officers arrived to execute the warrant, and to serve as a "backup" for the officers to refresh their memories.
During the search, Dunn saw items in the house for which he remembered seeing specific invoices, but about which he had not completed his investigation. He directed officers to seize those items even though they were not listed in the warrant.7 There were other items that he thought were interesting or suspicious, and he directed the photographer either to photograph or videotape them. In some instances, the items were moved for the purpose of videotaping or photographing.
The videotape. The videotape begins by showing various items on the floor and walls of a hallway in the home. The camera then moves slowly into and around the livingroom, showing a lamp, plants, a rocking chair, living room furniture, and tables. The camera next focuses on the dining room, and then a bathroom. It returns to the living room and scans the walls around the room, shelves in the corner of the room, framed photographs on a table, and an electric typewriter.
The camera then focuses on the kitchen, moving from the stove, to the dishes in the sink, the refrigerator, a bulletin board, and the food on the kitchen counters. After returning to the living room, it focuses on and behind a wood stove, a reclining chair, an answering machine, a couch, a television set, and a videocassette recorder. The camera then returns to the kitchen to capture a kitchen counter that is cluttered with appliances, including a clock radio, camera, two "Dustbusters," a telephone, an electric pencil sharpener, pocketbooks, plant food, a pile of papers, and the bulletin board next to the refrigerator, on which there are a dozen unframed photographs.
After moving through the laundry room, the camera next captures a wide range of items in what appears be an attic, basement, or garage. The videotape shows one of the officers lifting a sheet to reveal lawn chairs, and the camera then scans stacks of plastic foot stools, outdoor lounge chairs, bicycles, numerous cardboard boxes, a baby crib, a wheelbarrow, a hose, and a workbench covered with rags, plastic bottles, rolls of tape, old telephones, and cans of paint. The camera then focuses on a boiler and on the uncovered insulation in the walls.
The videotape next shows a bedroom where the camera focuses on a bedside table with a telephone and answering machine, and the shelf behind the bed on which a book and empty glass rest. It scans over the unmade bed to a television set on a chest of drawers, and then to the floor where there is a pile of clothing. It slowly scans through a closet full of clothing and finally concludes in a bathroom capturing the contents of the linen closet and the cabinet under the sink.
The photographs. Several of the photographs show wide views of rooms in the home. Others focus on specific items including: a typewriter on the dining room table; vacuum cleaners in the hall near the washing machine; a television set in the living room; an adding machine; boxes for a cordless telephone, sprinkler, and fire extinguisher; and office supplies on top of a file drawer. One photograph focuses on an envelope on the dining room table, and another shows an application for a tax abatement for a motor vehicle.
After the search was completed, Patenaude, Dunn, the photographer, and representatives of the district attorney's office reviewed the videotape and photographs. Items recorded on the film or videotape that were not seized were the subject of further investigation.
On August 25, 1997, Dunn applied for a second search warrant. In the application, Dunn requested permission to seize many items that had been videotaped or photographed during the 1996 search.8 He also sought and received authorization to photograph the items listed in the warrant. When the warrant was executed, many of the items listed on the warrant were found and seized, and the home was again photographed and videotaped.9
Analysis. In reviewing motions to suppress, "we give substantial deference to the judge's ultimate findings and conclusions of law, `but independently review[] the correctness of the judge's application of constitutional principles to the facts found.'" Commonwealth v. Eckert, 431 Mass. 591, 593 (2000), quoting Commonwealth v. Magee, 423 Mass. 381, 384 (1996).
The Fourth Amendment to the United States Constitution requires that warrants "particularly describ[e] the place to be searched, and the persons or things to be seized." Similarly, art. 14 of the Massachusetts Declaration of Rights requires warrants to be "accompanied with a special designation of the persons or objects of search, arrest, or seizure." The particularity requirement serves as a safeguard against general exploratory rummaging by the police through a person's belongings. See Coolidge v. New Hampshire, 403 U.S. 443, 466...
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