Com. v. Erickson

• Decision Date: 15 October 1982
• Parties: COMMONWEALTH v. Melvin H. ERICKSON.
• Court: Appeals Court of Massachusetts

Page 1190

440 N.E.2d 1190

14 Mass.App.Ct. 501

COMMONWEALTH v. Melvin H. ERICKSON.

Appeals Court of Massachusetts Worcester.

Argued Sept. 13, 1982.

Decided Oct. 15, 1982.

Maurice J. McCarthy, Auburn, for defendant.

Lynn Morrill Turcotte, Asst. Dist. Atty., for the Commonwealth.

Before GREANEY, CUTTER and PERRETTA, JJ.

GREANEY, Justice.

The defendant has been convicted on complaints charging him under G.L. c. 94C, § 34, with unlawful possession of controlled substances (marijuana and amyl nitrite), and under G.L. c. 148, § 39, with unlawful possession of fireworks. He claims error in the denial of his pretrial motion to suppress evidence seized pursuant to a search warrant. We hold that the motion to suppress should have been allowed.

The principal contention raised by the motion to suppress is that the search warrant did not particularly describe the place to be searched as required by the Fourth Amendment to the United States Constitution, art. 14 of the Massachusetts Declaration of Rights, and G.L. c. 276, § 2. See Commonwealth v. Pope, 354 Mass. 625, 628-629, 241 N.E.2d 848 (1968). The warrant, issued on March 19, 1981, by a United States magistrate, described the place to be searched as "11 and 13 Benefit St., Worcester, Massachusetts, a brick three story duplex dwelling along with the cellar of said structure and the garage on said property located on the east side of Benefit St., Worcester." The issuance of the warrant was supported by the affidavit of a special agent of the United States Bureau of Alcohol, Tobacco and Firearms, based upon information supplied by two informants ¹ (one of whom had been inside the building), and surveillance by the bureau's agents. The affidavit indicated the agent's belief that illegal firearms were being concealed on the premises. This belief was predicated upon the informants' disclosure that they had observed three named individuals in possession of numerous firearms in specifically identified areas of the building. The informants had also seen shell casings on the stairs of 11 Benefit Street and a sawed-off shotgun in the building's cellar. The affidavit listed the occupants of the building from information in the telephone and city directories, identified the registered owners of vehicles observed in front of the building, stated the criminal records of the occupants, and asserted that none of the occupants had Federal permits to possess or sell firearms. The defendant was not named as one of the persons seen with a firearm; nor was any suspicious activity reported in or near his apartment on the second floor of 13 Benefit Street. There were other areas of the building where no traffic in weapons had been seen. The affidavit reported that the defendant had been convicted of "two counts of possession of a narcotic drug and three counts of possession of a harmful drug" in a local District Court.

There was evidence at the hearing on the motion to suppress that 11-13 Benefit Street is a large three story brick duplex building located in an area where multiple-occupancy dwellings are common. The building is divided vertically. A person cannot go between 11 and 13 Benefit Street without going out the first floor entrance of one and entering the first floor entrance of the other. The lack of interior access cannot be ascertained from the exterior appearance of the building. The defendant lived on the second floor of 13 Benefit Street in a five-room apartment bearing the number "2" on its door. This side of the building contains a separate apartment (numbered "1") and a room (numbered "1A") on the first floor, the defendant's apartment on the second floor, and an unnumbered apartment on the third floor. Entrance is gained to 13 Benefit Street through a door from the porch which leads into the main hallway. A common passageway connects all three floors. On the second floor there is a landing and a door leading to the defendant's apartment. Access from the second floor to the third floor is gained by turning right at the landing and continuing up the stairs to the next landing.

There is a separate entrance for 11 Benefit Street. The first floor of this side of the duplex contains an unnumbered door leading to rooms belonging to an individual. To the left of that door is another door with no number on it. The second and third floors contain doors leading to rooms or apartments.

The separate entrances to each side of the building are visible from the street. The entrance to number 13 is set farther back than the entrance to number 11. The agent executing the affidavit testified that the building looked to him "like a three-family house; if you were to look at it from the front, it would not be distinct in any way from one side or the other, other than the entryway." The agent had observed at least two or three separate mailboxes outside the entrances to each side of the building. The defendant testified that he received separate utility and telephone bills for his apartment.

A warrant which directs the search of an entire multiple-occupancy building, when probable cause exists to search only one or more separate dwelling units within the building, is void because of the likelihood that all units within the dwelling will be subjected to unjustified and indiscriminate search. United States v. Hinton, 219 F.2d 324, 326 (7th Cir. 1955); United States v. Votteller, 544 F.2d 1355, 1363 (6th Cir. 1976); United States v. Whitney, 633 F.2d 902, 907 (9th Cir. 1980), cert. denied, 450 U.S. 1004, 101 S.Ct. 1717, 68 L.Ed.2d 208 (1981); United States v. Diange, 32 F.Supp. 994 (W.D.Pa.1940). 2 LaFave, Search and Seizure § 4.5(b) (1978). Annot., Search Warrant: Sufficiency of Description of Apartment or Room to be Searched in Multiple-Occupancy Structure, 11 A.L.R.3d 1330, 1333-1339 (1967). This rule is inapplicable to cases where probable cause exists to search the whole building, see United States v. Olt, 492 F.2d 910, 911-912 (6th Cir. 1974); United States v. Gill, 623 F.2d 540, 543-544 (8th Cir.), cert. denied, 449 U.S. 873, 101 S.Ct. 214, 66 L.Ed.2d 94 (1980); 2 LaFave, Search and Seizure § 4.5(b), at 81; or, in certain situations, where it is shown that general access to, and control over, all the building's sub-units are available to building occupants, see United States v. Gusan, 549 F.2d 15, 18-19 (7th Cir.), cert. denied, 430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977); United States v. Whitney, 633 F.2d at 907-908. Such warrants may also be upheld where the officers who applied for, and executed, the warrant did not know or have reason to know prior to the actual search that the building was not a one-family dwelling. See United States v. Santore, 290 F.2d 51, 58-59, 67, aff'd in relevant part on rehearing en banc, 290 F.2d 74 (2d Cir. 1960), cert. denied, 365 U.S. 834, 81 S.Ct. 745, 5 L.Ed.2d 743 (1961); United States v. Dorsey, 591 F.2d 922, 925-926, 930-931 (D.C.Cir. 1978); United States v. Rios, 611 F.2d 1335, 1347 (10th Cir. 1979), cert. denied, 452 U.S. 918, 101 S.Ct. 3054, 69 L.Ed.2d 422 (1981); Owens v. Scafati, 273 F.Supp. 428, 429 (D.Mass.1967), cert. denied, 391 U.S. 969, 88 S.Ct. 2043, 20 L.Ed.2d 883 (1968). ²

The Commonwealth contends that probable cause existed to search the entire structure because the agents reasonably could have concluded that the entire building was a facility for the storage and sale of illegal weapons and, consequently, that firearms and ammunition would be found in every room and apartment. There is no mention in the affidavit of anything suspicious occurring in rooms on the second floor of 11 Benefit Street or on the second and third floors of 13 Benefit Street. The activities detailed in the affidavit involved named individuals other than the defendant and took place in rooms where these individuals lived on the third floor of 11 Benefit Street, a first floor room at 13 Benefit Street, and in a first floor room at 11 Benefit Street. The observation of shell casings and suspicious activities in certain common areas would not support a conclusion that every dwelling unit in the building contained a cache of contraband weapons. There was no showing that the defendant had knowledge of his neighbors' conduct or anything to warrant an inference that he was engaged in a joint criminal venture or was independently dealing in illicit firearms. Moreover, there was no showing in the affidavit that the defendant had "the run of the whole structure." See United States v. Dorsey, 591 F.2d at 931. Nor was it demonstrated that he was the owner or landlord or otherwise in a position to exercise control over the entire building. Cf. Restatement (Second) Property §§ 12.4-12.5 (1977), or that the persons suspected as illegal weapons dealers had access to the defendant's apartment. In the circumstances, the defendant's prior criminal record of narcotics offenses (as contrasted with firearms violations) is not sufficient, even in conjunction with the criminal records of the other occupants, to authorize a search of the entire building. Contrast Commonwealth v. Anderson, 362 Mass. 74, 75 n.1, 77, 284 N.E.2d 219 (1972); Commonwealth v. Snow, 363 Mass. 778, 784, 298 N.E.2d 804 (1973). We conclude that probable cause was not established for a search of the whole building or the defendant's apartment on the second floor of 13 Benefit Street.

The Commonwealth argues that, in the absence of any specific information that the structure had been separated into halves and partitioned into separate apartments, the agents could not have known that the building was a multiple-occupancy structure until after their search was underway. Relying on United States v. Dorsey, supra, and the exceptions enumerated above, the Commonwealth urges that the warrant be upheld. The warrant's validity is not determined by what the agents knew, but by what they should have known, about the building's nature prior to their search. See United...