Com. v. Gauthier
| Decision Date | 10 December 1996 |
| Docket Number | No. 95-P-790,95-P-790 |
| Citation | 41 Mass.App.Ct. 765,673 N.E.2d 580 |
| Parties | COMMONWEALTH v. John GAUTHIER. |
| Court | Appeals Court of Massachusetts |
Emmanuel N. Papanickolas, Peabody, for defendant.
Susanne Levsen, Assistant District Attorney, for Commonwealth.
Before DREBEN, GILLERMAN and GREENBERG, JJ.
Because the underlying facts in this case regarding an anticipatory warrant 1 appeared to be the same as, or substantially similar to, the facts in Commonwealth v. Callahan, 41 Mass.App.Ct. 420, 671 N.E.2d 958 (1996), which was decided after the argument in this case, we invited an additional submission by counsel regarding the effect of the decision in Callahan upon this appeal by the defendant.
The panel concludes that the warrant in this case was an anticipatory warrant and that, under the authority of Callahan, the evidence seized under the warrant must be suppressed.
In Commonwealth v. Callahan, supra, this court held that where the description of the triggering event 2 appears in the supporting affidavit for the warrant, but does not appear in the warrant itself (other than the printed form language appearing in the warrant 3), and where the affidavit is neither attached to nor served with the warrant, and no mention of the affidavit is made to the defendant when the warrant is executed, the warrant is void and evidence seized in the ensuing search must be suppressed.
In this case, as in Callahan, the warrant neither states the triggering event language 4 nor makes reference to the affidavit (other than the printed form language), the supporting affidavit was not attached to the warrant or served on the defendant, and no mention of the affidavit was made to the defendant before the search began. 5 The warrant on its face was presumptively invalid, see Callahan, supra, and the Commonwealth had the burden to show the validity of the warrant, or that the search was valid without the warrant. Compare Commonwealth v. Rodriguez, 378 Mass. 296, 303, 391 N.E.2d 889 (1979) . See also Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). The Commonwealth has failed to carry that burden. 6
The motion to suppress should have been allowed. Accordingly, because the evidence remaining was insufficient to warrant the submission of the case to the jury, the judgments are reversed, the verdicts are set aside, and judgments shall enter for the defendant.
So ordered.
I agree that, under Commonwealth v. Callahan, supra, the warrant in this case was defective because it did not indicate on its face that it was an anticipatory warrant. However, I think the larger issue, briefed and argued by the parties, should be addressed because it raises a serious constitutional question. For that reason, a summary of the relevant facts, as found by the motion judge and amplified by the record, together with my separate analysis of additional issues follow.
Facts. During the week of October 25, 1992, Lieutenant John LeBrasseur, an experienced narcotics investigator, received information from a Massachusetts State police sergeant that Glen Janice was "dealing marijuana ... from his business, AC Auto Supply" and that Janice would often "leave his business to pick up his product prior to deals being made with his customers." He used a white Chevrolet Camaro or Pontiac Trans Am automobile to transport the contraband.
Four days later, at 5 P.M., surveillance was established at AC Auto Supply. At 6:30 P.M., Janice was seen driving a white Trans Am to the defendant's residence at 21 Range Avenue in Lynn, enter the building, come out fifteen minutes later, and then drive to his own home. The defendant was known to Lieutenant LeBrasseur, and his home had been searched in 1983, at which time marihuana, cocaine, articles for packaging cocaine, a handgun, and $28,659 in United States currency were found. The evidence from that 1983 search was, however, ultimately suppressed based on a finding that the search was unlawful.
On November 2, 1992, a confidential informant also told Lieutenant LeBrasseur of Janice's marihuana dealings and was sent to AC Auto Supply to make a controlled purchase of one-quarter pound of marihuana. Upon completion of the transaction, the informant reported to Lieutenant LeBrasseur that Janice had shown him a desk that contained baggies and marihuana seeds, indicating that Janice had been packaging marihuana there. The motion judge found that the informant had left Janice's shop carrying a "brown paper bag."
Two days later, the same informant was sent to make a second controlled purchase from Janice at AC Auto Supply. This time the informant was instructed to buy one and one-quarter pounds of marihuana. The informant indicated this "would be no problem, but Janice would probably have to leave to get the marijuana." On the contrary, it turned out that Janice had more than enough to fill the order, and all of it was placed in a brown paper bag. Janice, however, did tell the informant that he intended to replenish his supply when he closed shop that day at 6 P.M. Just before 6 P.M., a woman driving the same white Trans Am that Janice had driven on the previous occasion appeared on the scene. Janice got in the car, and both of them drove to Janice's residence. The woman got out of the car, and Janice then drove alone to the defendant's place at 21 Range Avenue, Lynn, where he entered through the side door of the house. At 6:15 P.M., Janice came out with a brown paper bag and drove home.
Based on his observations and experience, Lieutenant LeBrasseur thought that the defendant's home was being used as a "source house," where large quantities of cash and drugs are stored for use by individual dealers. According to him, source houses are commonly maintained to ensure that individual dealers do not tie up large sums of currency or risk arrest while in possession of large quantities of drugs.
As a result of the information and intelligence gathered, and in anticipation of events that the police had already planned, Lieutenant LeBrasseur requested search warrants for three locations: the defendant's home, Janice's home, and Janice's place of business. While the affidavit in support of the application for the search warrant indicated the "officer requests an[ ] Anticipatory Search Warrant," the warrant issued for the search of the defendant's residence did not indicate on the form or in the typed-in information that it was an anticipatory warrant. Further, the event that was supposed to trigger the execution of the warrants is apparent only from Lieutenant LeBrasseur's affidavit:
To sum up, as of November 6, 1992, the police had secured a warrant and were ready to put the final parts of their plan into action. This plan involved having the confidential informant place a third order of marihuana with Janice. Janice, in turn, would be prompted to go to the defendant's residence to obtain a sufficient quantity of contraband to meet the order. As Janice exited the defendant's residence with the contraband, he would be intercepted, thus tying the defendant to the distribution scheme. 1
Unfortunately for the police, and according to Lieutenant LeBrasseur's testimony at the motion hearing, not everything went according to plan. There was no problem arranging the purchase: at 6:15 P.M., on November 6, 1992, Janice agreed to sell five pounds of marihuana to the same informant, with the sale to be made at Janice's residence about an hour later. Lieutenant LeBrasseur and other officers set up surveillance at AC Auto Supply. At 6:30 P.M., with LeBrasseur following, Janice and a woman left AC Auto Supply with Janice carrying a white plastic bag. The woman drove the white Trans Am to Janice's residence where she left the car and went into the house. Janice then drove to the defendant's home and entered the house. He was not carrying anything when he went inside.
When Janice reemerged from the house, events began to stray from the course anticipated by Lieutenant LeBrasseur's affidavit. Janice did not come out of the side door of the house as expected, but from somewhere in the rear of the house. That change had two consequences. First, Janice did not pass beneath the light on the side of the house, and so Lieutenant LeBrasseur was afforded little opportunity to observe, in the dark, whether he was carrying anything. Second, and more importantly, by the time Janice became visible to the police officers, an arrest was impossible to effectuate on the premises; Janice was in the car and driving away before the police could reach him.
Lieutenant LeBrasseur testified that he observed Janice walk around from behind his car, open the driver's door of the car, place "something" or "an object" behind the driver's seat, get in the car and drive away. LeBrasseur and fellow officers followed Janice until their first opportunity to stop him safely--at a traffic light about one and one-half miles from the defendant's home. Janice's car was searched, and a bag...
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Com. v. Gauthier
...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 an......
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Commonwealth v. Williams
...were present at the premises searched. In so doing, the judge expressly relied on two decisions of the Appeals Court, Commonwealth v. Gauthier, 41 Mass. App. Ct. 765 (1996), and Commonwealth v. Callahan, 41 Mass. App. Ct. 420 (1996), concerning anticipatory warrants and the requirements gov......