Com. v. Mitchell

• Decision Date: 31 March 1966
• Parties: COMMONWEALTH v. Alvin MITCHELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 324

215 N.E.2d 324

350 Mass. 459

COMMONWEALTH v. Alvin MITCHELL.

Supreme Judicial Court of Massachusetts, Hampden.

Argued March 7, 1966.

Decided March 31, 1966.

Frank M. Doyle, Springfield, for defendant.

Matthew J. Ryan, Jr., Dist. Atty. (Leonard E. Gibbons, Asst. Dist. Atty., with him), for the Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER, SPIEGEL, and REARDON, JJ.

CUTTER, Justice.

Mitchell was found guilty, under two indictments, of (1) the unlawful possession of marijuana, and (2) conspiracy to violate the narcotic drugs law. See G.L. c. 94, §§ 197--217D, as amended. Other indictments returned are not now before us. Mitchell appealed. The cases are here under G.L. c. 278, §§ 33A--33G, as amended.

Prior to trial Mitchell ¹ moved to suppress certain evidence seized pursuant to a search warrant by a search which he claimed was 'an unreasonable search and seizure not incident to a valid arrest.' The motion was denied, subject to Mitchell's exception. At the trial certain items, seized by use of the warrant, including narcotics, hypodermic needles, eye droppers, and bottles, were received in evidence. Chemical analyses of items thus seized were also received.

Search warrants may be issued in certain narcotics cases in accordance with G.L. c. 94, § 213, as amended through St. 1958, c. 181. ² This provision must be read with G.L. c. 276, §§ 1, 2, 2A, 2B, and 2C, ³ as amended or inserted by St.1964, c. 557, §§ 1--3, effective June 23, 1964, by reason of an emergency declaration by the Governor. Section 2C provides that warrants issued pursuant to c. 94, § 213, 'shall be issued in the manner provided in' §§ 2, 2A, and 2B, 'so far as they are applicable.' The search in the present case took place on November 6, 1964.

At the hearing of the motion to suppress evidence, the application for the warrant was introduced. In form it differed materially ⁴ from that prescribed by § 2B of the 1964 statute (see fn. 3). The application was inadequate under § 2B, at least because it did not 'contain the facts, information, and circumstances upon which 'Lieutenant Meffen relied 'to establish sufficient grounds for the issuance of the warrant.' There was a complete failure to describe (a) the source of Lieutenant Meffen's information, (b) any facts indicating the reliability of that source, and (c) the nature of the information upon which Lieutenant Meffen was acting.

Not only the 1964 statute (Commonwealth v. Dias, 349 Mass. ---, ---, 211 N.E.2d 224 ^a) but decisions of the Supreme Court of the United States make it plain that applications for warrants must be far more informative than the sworn complaint upon which was issued the warrant to search Mitchell's premises. Aguilar v. State of Texas, 378 U.S. 108, 115--116, 84 S.Ct. 1509, 12 L.Ed.2d 723. See Ker v. State of California, 374 U.S. 23, 33, 83 S.Ct. 1623, 10 L.Ed.2d 726. Cf. United States v. Ventresca, 380 U.S. 102, 108--112, 85 S.Ct. 741, 13 L.Ed.2d 684. These decisions (and others collected in Rosencranz v. United States, 356 F.2d 310 (1st Circ.), ^b which, however, analyzes some questions concerning warrant applications not now before us) deal with the application to the States, under the Fourteenth Amendment of the Constitution of the United States, of the Fourth Amendment's proscription of unreasonable searches and seizures. We have recently discussed the necessity of preparing and filing adequate applications for search warrants. Commonwealth v. Rossetti, 349 Mass. ---, ---, ^c 211 N.E.2d 658.

The complaint (which was the application for the warrant in the present case) was inadequate read by itself. Prior, however, to making the complaint and application for a search warrant, Lieutenant Meffen had in his possession, or available to him, statements by one Cathryn Spencer, one James R. Spencer, and one Edward Lee Parsons. These statements, or some of them, provided information that Mitchell had sold to one or more of them small amounts of heroin at his apartment. We assume that the requirements of the 1964 statute could easily have been met if this information had been set out or summarized in an affidavit or affidavits forming part of, or annexed to, the application for a warrant. Lieutenant Meffen testified, however, that the warrant was issued to him by the clerk '(j)ust by verbal (sic) complaint' without the filing of any preliminary affidavit. Whether Lieutenant Meffen actually exhibited to the clerk the written statements signed by James and Cathryn Spencer and Parsons is not altogether clear from his testimony. He indicated, however, that he gave to the clerk certain of the information obtained from them. Even that would not satisfy the statutory requirement of an affidavit unless the Spencers' and Parsons' statements were at least incorporated by reference in the sworn complaint or in an affidavit. The statute (§ 2B, fn. 3) contemplates that the 'person issuing the warrant shall retain the affidavit and shall deliver it within three days after the issuance of the warrant to the court to which the warrant is returnable.' We construe this as requiring that at least a written summary of the facts relied upon in the application for the warrant be included or referred to in the application and filed with the issuing officer. It does not appear that the written statements were summarized or referred to in the sworn complaint or that the statements or copies of them were left with the clerk or delivered to the court thereafter.

The motion to suppress did not very clearly identify 'the physical evidence' sought to be suppressed. Nevertheless, at the hearing of the motion, these items were sufficiently identified by the introduction of the search warrant and related papers.

We recognize, of course, that Mitchell had the burden of proving facts showing that the evidence which he sought to suppress had been illegally obtained. Commonwealth v. Fancy, 349 Mass. 196, 202--203, 207 N.E.2d 276. The facts shown at the hearing on the motion, however, establish that no affidavit had been filed adequate to justify the issuance of the search warrant. Because the warrant was not lawfully issued, the search was thus an illegal search. The evidence seized by use of the warrant should have been suppressed. ⁵

At the trial, the seized narcotics, materials, and instruments were received in evidence. There was no occasion for saving any additional exception when this evidence was offered. Mitchell's counsel could rely upon the earlier exception to the denial of the motion to suppress. Commonwealth v. Jacobs, 346 Mass. 300, 310--311, 191 N.E.2d 873.

The evidence was obviously of significance in relation both to the conspiracy indictment and to the unlawful possession indictment, which were tried together. Although the testimony of the Spencers was sufficient to prove at least the conspiracy charge without use of the illegally seized items, there must be a new trial. The admission in evidence of the illegally seized items was prejudicial and requires the reversal of the judgment on both indictments. ⁶

Judgments reversed.

1 Although a separate motion was not filed in each case, the docket in the possession case indicates that the motion to suppress filed in the conspiracy case was treated as applying to both cases.

2 Section 213, as thus amended, reads, 'If a person makes a complaint under oath to a district court * * * that he has reason to believe that any narcotic drug, article, implement or other...