Com. v. Nine Hundred and Ninety-Two Dollars, NINETY-TWO

Citation422 N.E.2d 767,383 Mass. 764
Decision Date23 June 1981
Docket NumberNINETY-TWO
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

James P. Duggan, Boston, for defendants.

Dyanne Klein Polatin, Asst. Dist. Atty., for Commonwealth.

Robert L. Sheketoff, Boston, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.


WILKINS, Justice.

For the first time since the decision of the United States Supreme Court in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), we consider principles applicable in this Commonwealth to challenges to the validity of a search warrant based on a claim of factual inaccuracies in an affidavit executed in support of the issuance of that warrant. Although the issue arises in the unusual context of a forfeiture proceeding, our conclusions are not affected by that circumstance. 2

The party in interest, Michael S. Rutberg, the admitted owner of the defendant property, does not claim that the affiant lied in making any statement in the affidavit. He asserts that the affiant, a Gloucester policeman, made certain false statements in reckless disregard for the truth or at least negligently, and that, as a result of an adequate preliminary showing of the affiant's misconduct, the judge should have granted Rutberg a Franks -type hearing on the failure of the affidavit to support the issuance of the search warrant. 3

Rutberg appealed from a judgment ordering the Commonwealth's possession of the defendant property, and we transferred that appeal here on our own motion. We affirm the judgment, concluding that Rutberg did not make a showing sufficient to require a hearing on his motion to suppress evidence resulting from the search pursuant to the challenged warrant.

In January, 1980, Rutberg was convicted in the District Court of Eastern Essex of certain drug possession charges. He did not appeal those convictions. The district attorney for the Eastern District had brought this forfeiture proceeding in the previous month. See G.L. c. 94C, § 47(d ). It is agreed that the money (G.L. c. 94C, § 47(a )(5)) and the motor vehicle (G.L. c. 94C, § 47(a)(3)) are proper subjects of forfeiture, assuming the validity of the warrant which led to the discovery of the information on which this forfeiture proceeding is based. 4

We start our analysis by considering Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and the Federal constitutional principles established there. In that context, we note considerations that may favor treating intentional misrepresentations in an affidavit (perjury) differently from reckless or negligent misrepresentations, although the United States Supreme Court has not yet indicated any acceptance of a distinction. Because we are not dealing here with a claim of perjury, but only with a claim of reckless or negligent misrepresentations, we next consider what standard is appropriate in determining whether a governmental affiant has been shown to have been reckless. We also consider whether a showing of only negligence in making false statements in an affidavit would require suppression of the fruits of the resulting search. We conclude that it would not. Finally, we conclude that Rutberg failed to make an adequate preliminary showing that the police affiant acted in reckless disregard for the truth in making any false statements in the affidavit presented in support of the search warrant.

1. The Franks opinion dealt with the question whether a defendant in a criminal proceeding ever has the right, under the Fourth and Fourteenth Amendments, subsequent to the ex parte issuance of a search warrant, to challenge the truthfulness of factual statements made in an affidavit supporting the warrant. The Supreme Court of Delaware had answered the question in the negative. Franks v. State, 373 A.2d 578 (Del.1977). The Supreme Court disagreed. "We reverse, and we hold that, where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit." 438 U.S. at 155-156, 98 S.Ct. at 2676. That opinion makes a persuasive demonstration why a challenge to the truthfulness of information contained in an affidavit presented by a law enforcement officer should not be foreclosed in all instances. In its consideration of the results flowing from a demonstration of a deliberate falsehood or from recklessness, the Franks opinion is arguably less satisfactory in its analysis.

Specifically, the Franks opinion makes no distinction between the consequences that should flow from a showing of a deliberate falsehood or from a showing of reckless disregard for the truth. In each instance no hearing need be held unless the allegedly false statement is necessary for a finding of probable cause, and no suppression is required unless it subsequently appears that the affidavit, excised of false material, is insufficient to establish probable cause. Id. at 155-156, 171-172, 98 S.Ct. at 2676, 2684. Potentially, this approach permits serious and deliberate government wrongdoing to escape the deterrent sanction of the exclusionary rule. See United States v. Carmichael, 489 F.2d 983, 989 (7th Cir. 1973). Further, if a police affiant committed perjury on a matter that may have influenced the magistrate's finding of probable cause, arguably the warrant should be invalidated (and the fruits of the search excluded), even if the nonperjurious aspects of the warrant would have justified a finding of probable cause. 5 Perhaps the protections of the search and seizure provisions of art. 14 of the Declaration of Rights of the Constitution of the Commonwealth can be assured only through a rule that denies admissibility to all evidence obtained following deliberate misrepresentations made under oath to a magistrate by a law enforcement officer. Because Rutberg disclaims deliberate falsehood by the affiant as a basis for his challenge, we need not consider this question. 6

2. In its Franks opinion, the Supreme Court did not indicate what standard a judge should use in determining whether an affiant had made a false statement with reckless disregard for the truth. To obtain a hearing on the issue, we know that the defendant must make "a substantial preliminary showing" that, with reckless disregard for the truth, the affiant made a false statement on a matter necessary to the finding of probable cause. Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978). If a hearing is held, the defendant must prove the affiant's reckless disregard for the truth by a preponderance of the evidence. 428 U.S. at 157, 98 S.Ct. at 2676. At a minimum, we think it is clear that a defendant meets his burden by a showing that the affiant did not have reasonable grounds for believing the material, false statement. See Commonwealth v. Abdelnour, --- Mass.App. ---, --- a, 417 N.E.2d 463 (1981); United States v. Luna, 525 F.2d 4, 8-9 (6th Cir. 1975), cert. denied, 424 U.S. 965, 96 S.Ct. 1459, 47 L.Ed.2d 732 (1976). One court has suggested a somewhat less strict standard, by analogy to precedents in the area of libel and the First Amendment. See United States v. Davis, 617 F.2d 677, 694 (D.C.Cir.1979), cert. denied sub nom. Gelestino v. United States, 445 U.S. 967, 100 S.Ct. 1659, 64 L.Ed.2d 244 (1980). In the Davis case, the court adopted the subjective standard whether the affiant "in fact entertained serious doubts as to the truth of" his statement and indicated that, on what appears to be an objective test, a demonstration of the existence of "obvious reasons to doubt the veracity of the informant or the accuracy of his reports" would satisfy that standard. Id. at 694, quoting from St. Amant v. Thompson, 390 U.S. 727, 731-732, 88 S.Ct. 1323, 1325-1326, 20 L.Ed.2d 262 (1968). Because, as will be seen, Rutberg has made no substantial showing, on either standard, that the affiant acted with reckless disregard for the truth, we need not determine which test is appropriate. 7

3. Generally, State courts have not been asked to consider challenges to the veracity of affidavits in support of a warrant under State constitutional provisions concerned with unlawful searches and seizures. The Supreme Court of New Jersey has been asked, and it declined to extend its State constitutional requirements beyond the limits expressed in the Franks opinion. See State v. Howery, 80 N.J. 563, 568, 404 A.2d 632, cert. denied, 444 U.S. 994, 100 S.Ct. 527, 62 L.Ed.2d 424 (1979). Only California, to our knowledge, has explicitly expressed a State constitutional standard seemingly more strict than that expressed by the Franks opinion. It did so before the Franks opinion (see Theodor v. Superior Court of Orange County, 8 Cal.3d 77, 100-101, 104 Cal.Rptr. 226, 501 P.2d 234 (1972)), and subsequently expanded on the principle (People v. Cook, 22 Cal.3d 67, 88, 148 Cal.Rptr. 605, 583 P.2d 130 (1978)). California will sustain a challenge to a warrant based on a showing of negligent misrepresentations by the affiant, and it also will strike down any warrant based on an affidavit which contains deliberate...

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