Com. v. Labelle

• Decision Date: 01 March 1983
• Citation: 15 Mass.App.Ct. 175,443 N.E.2d 1351
• Parties: COMMONWEALTH v. Joylene LABELLE.
• Court: Appeals Court of Massachusetts

Page 1351

443 N.E.2d 1351

15 Mass.App.Ct. 175

COMMONWEALTH v. Joylene LABELLE.

Appeals Court of Massachusetts Worcester.

Argued Oct. 15, 1982.

Decided Jan. 19, 1983.

Further Appellate Review Denied March 1, 1983.

Brownlow M. Speer, Boston, for defendant.

Harry D. Quick, III, Westboro, Legal Asst. to the Dist. Atty. (Lynn Morrill Turcotte, Asst. Dist. Atty., with him), for the Commonwealth.

Before KASS, ROSE and SMITH, JJ.

ROSE, Justice.

The defendant was found guilty by a six-member jury in a District Court on a complaint framed under G.L. c. 266, § 60. ¹ She was sentenced to a term of one year in a house of correction, three months to be served and the balance suspended. The trial judge granted her motion for a stay of execution of sentence pending appeal. On appeal she claims that a motion to suppress evidence was erroneously denied because there was no probable cause to issue the search warrant under which the evidence in question was found, that the warrant itself was invalid because it contained a general clause, and that even if the warrant were partially valid, the search exceeded the scope of the valid clauses. She further claims that a motion for a required finding of not guilty was erroneously denied.

We briefly summarize the evidence, leaving a more detailed presentation for the subsequent discussion of the issues raised. ² Shortly before noon on October 21, 1980, Calvin Stewart of Coldbrook Road in the town of Oakham pulled into his driveway and saw an unfamiliar automobile parked near his cellar door. A man (Gary Brow) standing next to the automobile came over to him and asked for directions to get to a junkyard on Coldbrook Road. After getting directions, Brow asked a woman (the defendant) in the driver's seat to back up the automobile; he then got into the automobile and it turned northward on Coldbrook Road. Stewart, who had once been a part-time police officer, wrote down the license plate number. Approximately fifteen or twenty minutes later Stewart observed the same automobile pass by in the opposite direction. His suspicion aroused, Stewart notified the Oakham police and gave a description of the automobile and its occupants. Shortly before 1 P.M., about an hour after Stewart's encounter with Brow and the defendant, the Oakham police received a report that coins had been found beside Coldbrook Road.

Two hours later, Doris Lonergan, who lived in a northerly direction from the Stewart house, reported to the Oakham police that her home had been broken into and some items taken. The Oakham chief of police arrived at the Lonergan residence shortly afterwards and inspected the premises. He then stopped at the Stewart residence to talk with Stewart about the latter's observations. At approximately the same time, about fifteen miles away in Spencer, State police officer Richard Belanger stopped an automobile matching the description Stewart had given to the police. Belanger asked the driver for her license and vehicle registration and advised both occupants of their Miranda rights. Soon afterwards the Oakham chief of police arrived on the scene with Stewart. Stewart identified the two occupants of the stopped automobile as the same two persons, Brow and the defendant, who had stopped in his driveway earlier that day. After Brow refused to give Belanger permission to open the trunk, Belanger left with the Oakham chief of police and Stewart to obtain a search warrant while other police officers remained with the automobile. Brow and the defendant did not attempt to leave, although they were not told they could not leave and were not placed under arrest at that time. About two hours later, Belanger returned to the automobile with a search warrant, opened its trunk, and found a brown paper bag with the top closed and rolled down halfway. He opened the bag, saw items he believed to have been stolen from the Lonergans, and arrested the defendant and Brow.

Brow pleaded guilty to the charge of receiving stolen property, knowing it to be stolen. He testified at the defendant's trial that on the afternoon of October 21 the defendant drove him to a location on Coldbrook Road. There he received the stolen items from two acquaintances while the defendant waited in the automobile. At the trial Doris Lonergan identified most of the items in the paper bag taken from the automobile trunk as items taken from her home, but she also testified that many of the items taken had not been recovered.

1. The Affidavit.

Belanger submitted the following affidavit in support of his application for a search warrant ³:

"On 10/21/80 at 11:55 A.M., Mr. Calvin Stewart of Coldbrook Rd. in Oakham observed a 1965 Chevrolet Impala MA. Reg. 436 FWK parked in [the] driveway of his home. Mr. Stewart described the occupants as one male and one female. The occupants appeared to be nervous and evasive in giving an account of their presence there. The vehicle left in a northerly direction on Coldbrook Rd. At approximately 12:30 P.M., 10/20/80, ⁴ Mr. Stewart observed the aforementioned vehicle travelling south on Coldbrook Rd. A short time later, 3/4 hour (no other car passed in that 3/4 hour time span) local children found assorted coins in the roadway (Coldbrook Rd.). This finding was reported to the Oakham police at 12:50 P.M., 10/21/80. At 2:50 P.M. on 10/21/80, Mrs. Roger Lonergan of Coldbrook Rd. in Oakham reported a break at her home. The aforementioned coins were identified by Mrs. Lonergan as those taken from her house.

"As a result of the information received, I observed a 1965 Chevrolet Impala Mass. Reg. 436 FWK and stopped same on Mechanic St. in Spencer. Mr. Stewart came to the scene and identified the vehicle and occupants as those at his house at 11:55 A.M., 10/21/80. The occupants were identified as Gary Brow of Central St. in Brookfield and Joylene M. LaBelle of 32 Chestnut St., Spencer. This officer has personal knowledge that subject Brow has had involvement in breaking and entering and receiving stolen property in the past." ⁵

In determining whether the affidavit presents probable cause for the issuance of a search warrant, we must regard it in a "commonsense and realistic fashion." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965). Commonwealth v. Taglieri, 378 Mass. 196, 198, 390 N.E.2d 727, cert. denied, 444 U.S. 937, 100 S.Ct. 288, 62 L.Ed.2d 197 (1979). Although the magistrate who considers the affidavit may not consider facts not contained in the affidavit, Commonwealth v. Martin, 6 Mass.App. 624, 626, 381 N.E.2d 1114 (1978), he may apply common knowledge and draw "a common sense conclusion from the information set forth in the affidavit." Commonwealth v. Taglieri, supra, 378 Mass. at 198, 199, 390 N.E.2d 727. Such common knowledge would include awareness of the general features of the area, such as the approximate size and rural character of Oakham. Given this awareness and the description in the affidavit of Stewart's observations, in combination with the location of the coins found, and the Lonergan break-in, it required no leap of logic or imagination to conclude that the behavior of Brow and the defendant suggested criminal activity. ⁶ This behavior occurred during the short time period when it appeared the Lonergans' house had been broken into. It is not necessary for the person whose property is searched to have been directly observed in the commission of a crime for there to be probable cause to issue a search warrant. See Commonwealth v. Moran, 353 Mass. 166, 168-171, 228 N.E.2d 827 (1967); Commonwealth v. Corradino, 368 Mass. 411, 413-417, 332 N.E.2d 907 (1975); Commonwealth v. Vynorius, 369 Mass. 17, 22-26, 336 N.E.2d 898 (1975); Commonwealth v. Martin, supra, 6 Mass.App. at 629-630, 381 N.E.2d 1114. Belanger's statement in the affidavit that he had personal knowledge of Brow's prior record of breaking and entering, and receiving stolen property properly could be relied upon by the magistrate. United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 2081, 29 L.Ed.2d 723 (1971). Commonwealth v. Anderson, 362 Mass. 74, 76-77, 284 N.E.2d 219 (1972).

2. The Search Warrant.

The search warrant contained three clauses describing the items to be seized: ⁷

"1. One canvas bag approx. 12"' X 18"' X 8"' in size with the name J. Lonergan, Old Turnpike Rd., Oakham 01068 (color green).

2. One canvas bag approx. 12"' X 18"' X 8"' in size with the name J. Lonergan, Old Turnpike Rd., Oakham 01068 (color brown).

3. Other items stolen in recent house breaks in the town of Oakham."

The Commonwealth does not contest the defendant's claim, which we view as sound, that the third clause was invalid for its failure particularly to describe the things to be seized. ⁸ See Commonwealth v. Taylor, 383 Mass. 272, ---, 418 N.E.2d 1226 (1981). The question presented for our decision is whether the third clause invalidates the whole warrant, regardless of how the search was carried out.

In deciding this issue it is not necessary to accept the broader doctrine urged upon us by the Commonwealth that only those items seized pursuant to invalid portions of a partially valid warrant need be suppressed, and the items seized pursuant to the valid portions of the warrant need not be suppressed. Aday v. Superior Court, 55 Cal.2d 789, 797, 13 Cal.Rptr. 415, 362 P.2d 47 (1961). ⁹ Here there was no search made pursuant to the invalid clause. It is necessary only to decide whether the warrant was made invalid by the general clause when no search or seizure was made pursuant to that clause.

The purposes of the exclusionary rule, which requires that illegally obtained materials be excluded as evidence, are to deter improper police behavior, to keep the courts from becoming a party to improper police behavior, and to avoid undermining public confidence in the system of justice by permitting the government to profit from any infringement on fundamental rights. See generally 1 LaFave,...