Com. v. Callahan, 95-P-1376

• Decision Date: 03 October 1996
• Docket Number: No. 95-P-1376,95-P-1376
• Parties: COMMONWEALTH v. Nannette A. CALLAHAN.
• Court: Appeals Court of Massachusetts

Page 958

671 N.E.2d 958

41 Mass.App.Ct. 420

COMMONWEALTH v. Nannette A. CALLAHAN.

No. 95-P-1376.

Appeals Court of Massachusetts,

Norfolk.

Argued April 16, 1996.

Decided Oct. 3, 1996.

Robert C. Cosgrove, Assistant District Attorney, for the Commonwealth.

Robert S. Cohen, Boston, for defendant.

Before WARNER, C.J., ARMSTRONG and KASS, JJ.

WARNER, Chief Justice.

The defendant was charged with conspiracy to violate the controlled substance law, G.L. c. 94C, § 40, and possession of a class B substance with intent to distribute, G.L. c. 94C, § 32A. The defendant moved under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights to suppress evidence seized pursuant to an anticipatory warrant. A District Court judge granted the motion, and the Commonwealth appealed. By an unpublished memorandum and order of June 6, 1996, we remanded the case for additional findings on the issue of the execution of the warrant and retained jurisdiction. An evidentiary hearing was held on June 13, 1996, and the judge thereafter filed amended findings. The parties have filed memoranda of law addressing those findings. We now affirm the order granting the motion to suppress.

Following both the original and supplementary evidentiary hearing, the following facts were found. The affidavit in support of the warrant revealed that the Quincy police department's narcotics unit received information through United States Customs officers assigned to the United Parcel Service (UPS) facility in Louisville, Kentucky, that the customs agents had intercepted a package shipped from Poland containing controlled substances in the form of 1,950 white tablets. ¹ A sample of those tablets tested positive for amphetamines. The affidavit also disclosed that there would be a "controlled delivery" of the package to Aneta Allen ² at Freddy's Cycle Center located at 92-94 Franklin Street, Quincy, at a specific time, according to UPS delivery schedule. The affidavit further indicated that "said search warrant shall not be executed until such time [as] the controlled delivery and voluntary acceptance of the package is completed."

In addition, the affidavit explained that the affiant learned, while personally observing the package and contents, that the tablets violated several Federal laws, "18 U.S.C. 545, 21 U.S.C. 952, 319 C.F.R. 162, § 45(A)," and Massachusetts law, G.L. c. 94C. The affiant also stated that he would observe the re-wrapping of the package prior to its controlled delivery in order to confirm what the package contained.

Based on the above information, a warrant was issued. The warrant was in a standard form and did not include what triggering event had to occur before the search would be done. ³ It recited that it was to be executed "within a reasonable time and in no event later than seven days from ... issuance." The day after the warrant's issuance, an employee of UPS delivered the package to Freddy's Cycle Center. The search warrant was executed shortly thereafter.

The affiant brought the affidavit in support of the warrant to the search warrant team (team) ⁴ on the day of the warrant's execution. The affidavit was read during the briefing by two Quincy police detectives, and the U.S. Customs agents, and reviewed by the affiant at that time. The team was specifically instructed that after the controlled delivery of the package and after the UPS agent left the premises and indicated who had accepted the package, the warrant would be immediately executed.

The execution of the search went as follows. The team proceeded to the locus of the search, and surveillance was set up. A UPS agent brought the package to the store, and the defendant offered to accept it. After receiving the $68 delivery charge and after observing the defendant place the package on an office desk, the UPS agent left the property and spoke to the affiant.

The affiant obtained a description of both the defendant and the location of the package and procured the delivery acknowledgment receipt. The affiant then informed the other members of the team, and the warrant was executed within three to five minutes of the delivery. Upon entering the premises, the team declared their purpose and found the defendant and the package. A copy of the search warrant was given to the defendant and she was shown the delivery receipt. A copy of the affidavit was not attached to the warrant, although the affiant did have a copy of the affidavit in his back pocket. The affidavit was not shown to the defendant.

The Commonwealth now argues that the judge erred in allowing the motion to suppress because the warrant's lack of a triggering event was, in the circumstances, cured. For her part, the defendant initially offered three grounds to sustain the judge's ruling, two of which, lack of a signed authorization for the appeal and lack of probable cause for the search, we disposed of in our memorandum and order of June 6. ⁵ The defendant meets the Commonwealth's argument by contending that there was no cure; that the anticipatory warrant was fatally defective because it failed to forge a sufficient link between the arrival of the contraband and the proposed search of the defendant's store. We agree.

In United States v. Ricciardelli, 998 F.2d 8 (1st Cir.1993), ⁶ the court addressed issues surrounding the use of anticipatory warrants, focusing on the potential for abuse in the execution of such warrants, as they are conditioned on future events. The court remarked that agents executing anticipatory warrants, unlike traditional warrants, are called upon "to determine when and whether the triggering event specified in the warrant has actually occurred." Ricciardelli, 998 F.2d at 12. Consequently, the court noted that magistrates issuing such warrants must be "particularly vigilant in ensuring that the opportunities for exercising unfettered discretion are eliminated" (emphasis added). Ibid. The magistrates issuing such warrants must, therefore, set conditions governing the warrants that are "explicit, clear, and narrowly drawn so as to avoid misunderstanding or manipulation by government agents." Ibid, quoting from United States v. Garcia, 882 F.2d 699, 703-704 (2d Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989).

The Ricciardelli court found that the warrant there did not include "explicit, clear and narrowly drawn" conditions governing the execution of the search. Instead, the warrant merely stated that it would not be effective "until after delivery by mail to and receipt by [the defendant] of the package containing the videotape." Ricciardelli, 998 F.2d at 9. The court considered that this language left far too much discretion to the executing agent. For example, the court observed, if Ricciardelli obtained the package from the post office, instead of at the search locus--his home--the executing agent could have searched his abode whether or not he brought the contraband there. Id. at 13.

To aid in eliminating the potential for abuse of discretion by executing agents, the Ricciardelli court held that specific conditions must be inserted into anticipatory warrants. The court mandated the inclusion of language that (1) "restrict[s] the officers' discretion in detecting the occurrence of the [triggering] event to almost ministerial proportions"; and (2) makes the search of the destination expressly contingent upon the contraband's "sure" arrival there. Id. at 12.

The Commonwealth argues that, notwithstanding the infirm warrant, the executing officer ensured that there was no abuse of discretion in this case, and thus, the fruits of the search were properly seized without Fourth Amendment violations. ⁷ The Commonwealth points to the following "compelling" facts, which the judge found: (1) the affiant was the executing officer and thus defined the triggering event himself; (2) the affiant brought the affidavit to the locus on the day of the warrant's execution; (3) the affiant reviewed the affidavit, and had it read out loud to the search team; (4) the affiant verbally instructed the team as to the triggering event; and (5) the affiant was the person who determined that the triggering event specified in the affidavit had actually occurred before initiating the search.

However, self restraint on the part of the executing officer does not erase the fact that under the defective warrant, "[the searched persons] were subject to a greater exercise of power than that which may have actually transpired and for which probable cause had been established." In re Application of Lafayette Academy, 610 F.2d 1, 5-6 (1st Cir.1979) (held where warrant omitted specific items to be seized, and executing agents only searched and seized appropriate items, items should still be suppressed because warrant allowed undue discretion to agents). See also United States v. Roche, 614 F.2d 6, 7-8 (1st Cir.1980) (same). It is this potential for abuse by agents which the triggering event requirements help deter.

Here, as in Ricciardelli, it is easy to imagine how a warrant lacking in sufficient triggering event language could have enabled the agents to search the locus regardless of whether the contraband was brought there upon its acceptance. The warrant in this case, lacking in any triggering event language, affords even greater discretion to the executing officers, allowing the agent to search well before or after the contraband was intended to have arrived at the locus. An anticipatory warrant that "cedes such great discretion to the executing agents cannot withstand constitutional scrutiny." Ricciardelli, 998 F.2d at 13.

Further, this case is not like United States v. Gendron, 18 F.3d 955 (1st Cir.1994), in which the court determined on similar facts to Ricciardelli ⁸ that an anticipatory warrant, omitting an explicit triggering event, led to a legal search. There, the court grappled with whether ambiguous triggering event...