Com. v. Gauthier

• Citation: 679 N.E.2d 211,425 Mass. 37
• Parties: , 65 USLW 2798 COMMONWEALTH v. John GAUTHIER.
• Decision Date: 16 May 1997
• Court: United States State Supreme Judicial Court of Massachusetts

Page 211

679 N.E.2d 211

425 Mass. 37, 65 USLW 2798

COMMONWEALTH v. John GAUTHIER.

Supreme Judicial Court of Massachusetts,

Essex.

Argued March 5, 1997.

Decided May 16, 1997.

Elin H. Graydon, Assistant District Attorney (Cathleen E. Campbell and Brian T. O'Keefe, Assistant District Attorneys, with her), for the Commonwealth.

Emmanuel N. Papanickolas (James C. Spanos, with him), Peabody, for defendant.

Before WILKINS, C.J., and ABRAMS, LYNCH, FRIED and MARSHALL, JJ.

FRIED, Justice.

After the denial of a motion to suppress evidence seized in a search pursuant to a warrant, the defendant was convicted of narcotics trafficking and possession, and illegal possession of a firearm. The defendant appealed and the Appeals Court reversed, applying its decision in Commonwealth v. Callahan, 41 Mass.App.Ct. 420, 671 N.E.2d 958 (1996), which held that an anticipatory warrant could not support a search unless the triggering event appeared on the face of the warrant or the affidavit setting out the triggering event were attached to the warrant. Commonwealth v. Gauthier, 41 Mass.App.Ct. 765, 673 N.E.2d 580 (1996). We granted the Commonwealth's application for further appellate review. Although we disapprove of that doctrine and adhere to our decision in Commonwealth v. Soares, 384 Mass. 149, 424 N.E.2d 221 (1981), we conclude that the defendant's motion should have been allowed, because the triggering event set out in the affidavit had not occurred. ¹ Gauthier, supra at 773-774, 673 N.E.2d 580 (Greenberg, J., concurring).

I

In late 1992, an officer of the State police had informed a narcotics officer with the Lynn police that Glenn Janice was selling marihuana from his automotive supply business in that city and described the vehicles in which Janice picked up the marihuana from his supplier prior to deals with his customers. The Lynn officer began a surveillance of Janice's activities, home, and business. As result of this surveillance, he was led to the defendant's residence as the possible place where Janice received his supplies. The officer recognized the address as he had arrested the defendant on narcotics charges at that address almost one decade earlier. According to the motion judge, "the matter was disposed of on motions." The officer then arranged with a confidential informant to make a series of controlled purchases of narcotics from Janice, which the officer hoped would eventually allow him to make a case against both Janice and his supplier. In a controlled purchase, the informant is searched prior to entering a location, given money to make the purchase, and then relieved of the contraband after he makes the purchase. The first relatively small purchase confirmed that Janice was indeed supplying narcotics from his office. After a second, larger purchase, the informant told the police that Janice had told him that, after he closed his shop at 6 P.M., he would have to bring money to his supplier to replenish his supply. Accordingly, Janice was followed as he left his business that evening. He drove to the defendant's residence and was seen leaving it a short time later carrying a brown paper bag. Finally a purchase, large enough that Janice would be unlikely to be able to supply it from his own stock and thus would be forced to turn to his source, was arranged. A search warrant was obtained. The warrant, as required by and in the form prescribed by G.L. c. 276, § 2A, set out the property for which the search was to be made, the time period during which the search could be made, and a description of the premises--the defendant's residence--to be searched. The warrant authorized a nighttime search but did not authorize entry without prior announcement. The affidavit on which the warrant was obtained set out the facts stated above and went on to state:

"This officer requests [an] Anticipatory Search Warrant. The event activating the warrant will be Janice arriving at [the defendant's residence] after the order is placed. As Janice exits [the residence] a search of his person and/or any packages he is in possession of will be searched. Upon finding him in possession of marijuana, all three warrants would be immediately activated." ²

As instructed by the police, the informant called Janice at his automotive supply shop in the afternoon and ordered a quantity of narcotics. After closing time, the informant telephoned Janice again to say that he would pick up his order in about one and one-half hours. As expected, Janice left his business at closing time, went by his residence, and then drove to the defendant's residence. He entered carrying nothing. The officer testified at the motion hearing that he observed Janice "place something ... [o]n the back floor, behind the driver's seat" of his vehicle and drive off before the police could reach him. He was stopped one and one-half miles away, following an attempted escape. A search behind the driver's seat discovered a bag containing marihuana. Janice was arrested, and the warrants were executed.

II

A

The motion judge found that there was probable cause to authorize the search of the defendant's residence pursuant to a warrant without specifying whether this depended on the occurrence of the triggering event. A concurring opinion of the Appeals Court concluded that there was no probable cause to search the residence in the absence of the triggering event. Gauthier, supra at 769-770 n. 1, 673 N.E.2d 580 (Greenberg, J., concurring). We reach the same conclusion. Although the reliability of the informant as to the information which he had supplied was amply demonstrated, nothing that he had said sufficiently pointed to the defendant as Janice's supplier or to the defendant's residence as the place from which he supplied Janice. Neither the officer's previous search one decade before at that residence nor the single previous observation of an empty-handed Janice's entering and leaving it with a brown paper bag were sufficient to make up that deficiency. Of course that is why the officer had devised the scheme set out in the anticipatory warrant, and, had events unfolded as anticipated, there would have been ample basis for the search of Gauthier's residence. But they did not.

Although the words in the affidavit "[a]s Janice exits" the defendant's residence, in some contexts, may bear a construction that would include apprehension and a search of Janice one and one-half miles distant from the residence and after an automobile chase, in this context they will not. The point of structuring the events as the police did was to apprehend Janice, who had entered the premises empty-handed, carrying the contraband as he left. This would be more than enough to warrant the inference that Janice had obtained the contraband there. But the officer did not even testify that he had observed what Janice was carrying as he left the premises, only that they observed him "place something ... [o]n the back floor, behind the driver's seat." Because it had been established that Janice was himself an active dealer in narcotics, this is not enough to make out that whatever Janice had been observed placing in the car was the contraband later discovered there. It is entirely possible that he had that particular bag of narcotics in the car all along. The triggering event language in warrants such as this one should be read sensibly and in context, and, when that is done, we must conclude that the triggering event failed to materialize here.

B

The Appeals Court reversed, not on this basis, but because the description of the triggering event did not accompany the warrant that was shown to the defendant on execution. A description of the triggering event was not included on the face of the warrant, and the affidavit in which it was set out did not accompany the warrant. ³ The Appeals Court noted that its decision in Commonwealth v. Callahan, 41 Mass.App.Ct. 420, 671 N.E.2d 958 (1996), decided after the argument to the Appeals Court in this case, was controlling. That case affirmed the order allowing a motion to suppress because the triggering event was not set out in the warrant or in an attached affidavit, even though the executing officer had the affidavit with the triggering event set out in it in his possession, id. at 422, 671 N.E.2d 958, and even though the affidavit set out the triggering event with sufficient specificity. Id. at 426, 671 N.E.2d 958. Accordingly, the Appeals Court rightly held that its very recent decision, if applied to Gauthier, would require that his motion to suppress should have been allowed. The Appeals Court did not consider, nor did the motion judge, whether the triggering event set out in the affidavit had actually occurred. In Commonwealth v. Soares, 384 Mass. 149, 154-155, 424 N.E.2d 221 (1981), we concluded that anticipatory warrants were not per se unconstitutional under the Fourth Amendment to the United States Constitution and rejected the contention that the authorizing statute, G.L. c. 276, § 1, requires that explicit directions concerning the triggering event appear on the warrant. We reaffirm our holding in Soares, and, to the extent that Callahan states a constitutional compulsion, we extend our holding in Soares to conclude that we discern no such compulsion under either the Federal or State Constitution.

The warrant clauses of the Fourth Amendment to the United States Constitution and in art. 14 of our Declaration of Rights, in addition to requiring a prior showing of probable cause before a judicial officer, both require that the warrants describe the place to be searched and the things to be seized. The Fourth Amendment states that this must be done "particularly," while art. 14 requires a "special designation" of these matters. "It is well known that art. 14 was adopted to prohibit the abuse of official power brought about by two devices which the British Crown used in the colonies: the general warrants and the writs of...