Com. v. Reddington

• Citation: 395 Mass. 315,480 N.E.2d 6
• Parties: COMMONWEALTH v. Harold E. REDDINGTON.
• Decision Date: 09 July 1985
• Court: United States State Supreme Judicial Court of Massachusetts

Page 6

480 N.E.2d 6

395 Mass. 315

COMMONWEALTH v. Harold E. REDDINGTON.

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued April 2, 1985.

Decided July 9, 1985.

John C. McBride, Boston, for defendant.

Richard D. Savignano, Asst. Dist. Atty., for Commonwealth.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

As the result of a ruse carried out by the Plymouth police, the defendant fled his house with a bale of marihuana hidden in the trunk of his automobile. When he was stopped by the police, who had observed his activities, the marihuana was discovered. A search warrant was procured for the defendant's house, where the police found more marihuana, as well as cocaine, stolen property, and drug paraphernalia. At a trial before a Superior Court judge, the defendant was convicted of possession of cocaine with intent to distribute, and possession of marihuana with intent to distribute. ^{1 1} He appealed, arguing that both his motion to suppress all the physical evidence and his motion to dismiss all the indictments against him should have been granted. We transferred the case to this court on our own motion. We now decide that the defendant's motion to suppress should have been granted, and the judgments of conviction are therefore reversed.

First, the defendant contends that a police-initiated telephone call to his house by a police informant constituted a warrantless constructive entry into his house, and that any evidence seized as the result of that call must be suppressed. Second, he contends that the warrantless search of his automobile trunk was not supported by probable cause and, therefore, that the evidence discovered there, as well as the evidence seized in his house (as a result of the trunk search), must be suppressed. Third, he claims that the affidavit of the police officer who obtained the search warrant contained misstatements of fact made with knowledge of their falsity or with reckless disregard of the truth, and that the affidavit, when stripped of these misstatements, does not show probable cause. On that ground, he urges that the search warrant for his house be invalidated and the evidence seized there suppressed. The defendant also claims that all the indictments against him should be dismissed because of alleged knowingly false or reckless statements made by the same police officer before the grand jury.

We decide that the defendant has failed to show that the police officer's testimony before the grand jury included any false statements made knowingly or with reckless disregard of the truth. Therefore, the judge was warranted in denying the defendant's motion to dismiss. However, we conclude that under the principles adopted in Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985), the police lacked probable cause to search the trunk of the defendant's automobile. Therefore, the evidence discovered in the trunk, as well as the evidence found in the house (the fruits of that warrantless trunk search), must be suppressed. ²

The facts are as follows. The defendant was suspected of being involved in illegal drug distribution by the Plymouth police after his name and address were found in a ledger seized in 1979 from someone subsequently convicted of drug trafficking violations. In January, 1982, a reliable informant told Officer William Curtis of the Plymouth police department that the defendant was dealing in marihuana and cocaine, and that the informant had recently been in the defendant's house and had witnessed drug transactions taking place. No action was immediately taken as a result of this tip. However, on August 30, 1982, another reliable informant told Officer Curtis that he had heard that the defendant had a large amount of unspecified drugs in his house at the time. Officer Curtis had also heard from various informants of unestablished reliability on six occasions between January and August that the defendant was involved in drug dealing.

Despite these tips, Officer Curtis did not believe that he had sufficient evidence to establish probable cause and to obtain a warrant to search the defendant's house. Therefore, after consultation with a superior officer, he designed a ruse in the hope of uncovering sufficient additional information to establish probable cause. Officer Curtis arranged with an informant to telephone the defendant at exactly 10:30 P.M., on August 30, and to tell the defendant that the police had obtained a warrant to search his house and would arrive soon. Shortly before 10:30, Officer Curtis positioned himself behind some bushes in view of the defendant's house. The telephone call was made, with the informant stating, "Get out of your house. The State Police are going to get a warrant."

The motion judge found that, shortly after the telephone call, Officer Curtis observed one Jay Labell come out of the defendant's house and move his automobile out of the driveway (where it blocked the defendant's automobile), after which he returned to the house. The defendant then backed up his automobile over the grass to the kitchen door, got out, and opened the trunk. Officer Curtis recognized the defendant, who was illuminated by the trunk light. Jay Labell then came running through the kitchen door and Officer Curtis saw him load "something" into the trunk. The defendant then closed the trunk and drove away. ³

Officer Curtis followed in his cruiser, as did another officer in a second cruiser. When the police flashed their lights, the defendant did not immediately stop. After a "low speed chase" of about one-half mile, Officer Curtis cut off the defendant's automobile and forced him to stop. The officers approached the automobile, and the defendant, who looked nervous, produced a valid license and registration. Both officers claimed that they detected a strong odor of marihuana emanating from the trunk, but the motion judge found that the marihuana was encased in an unopened cardboard box wrapped in plastic, and that it could not have been detected by smell. The police then asked the defendant to open the trunk, and when he did so, they observed a fifty-pound bale of marihuana and nine one-pound plastic bags of marihuana. The defendant was arrested, and, based on the marihuana found in the trunk, Officer Curtis sought and obtained a warrant to search the defendant's house for controlled substances and related contraband.

During the house search, the police found three or four more pounds of marihuana in the ceiling of the basement, weighing scales, numerous plastic bags, and other drug paraphernalia. Various items of stolen property were also recovered. In addition, the police found five small glass bottles containing over 100 grams of a white powder, and a small humidor containing a lump of yellow powder. After performing field tests on these substances, one police officer informed Officer Curtis that the yellow powder was opium, and that the white powder was cocaine. However, subsequent laboratory tests showed that the yellow powder was a nonnarcotic substance, and that only 7.62 grams of the white powder was cocaine.

1. Motion to dismiss. The defendant argues that Officer Curtis's testimony before the grand jury, that opium and over 100 grams of cocaine had been found in the defendant's house, was false. He also asserts that this false testimony was made knowingly or with reckless disregard of the truth, and that, as a prophylactic measure to discourage such police tactics, all the indictments against him should be dismissed. We do not agree.

"Our review of the propriety of any indictment is limited to determining whether the grand jury received sufficient evidence to find probable cause for arrest ... and whether the integrity of the grand jury proceedings was impaired" (citation omitted). Commonwealth v. McGahee, 393 Mass. 743, 746-747, 473 N.E.2d 1077 (1985). The defendant argues only that Officer Curtis's inaccurate testimony before the grand jury impaired the integrity of that proceeding. In so arguing, the defendant correctly states the rule that the knowing use of false testimony by the Commonwealth or one of its agents may impair the integrity of grand jury proceedings and is a ground for dismissing the indictments. Commonwealth v. Bongarzone, 390 Mass. 326, 338, 455 N.E.2d 1183 (1983). Commonwealth v. Salman, 387 Mass. 160, 166-167, 439 N.E.2d 245 (1982). However, that is not the situation in this case.

The defendant has failed to establish that the Commonwealth or Officer Curtis knew or should have known that the testimony in question was false or inaccurate. The judge found that Officer Curtis "was merely repeating what some other experienced officer had told him the result of his field test was, and in good faith." ⁴ Furthermore, it is undisputed that the laboratory analysis of the substances seized in the defendant's house was not completed at the time that Officer Curtis testified before the grand jury. ⁵ The defendant has not advanced any valid reason to question the judge's findings or to suggest that Officer Curtis's grand jury testimony included anything more than inaccurate statements made by a witness in good faith. Noticeably absent is any hint of perjury. Contrast Commonwealth v. Salman, supra at 166 n. 4, 439 N.E.2d 245, and cases cited. Since dismissal of all the indictments as a prophylactic measure is a "remedy for deliberate and intentional violations of constitutional rights," Commonwealth v. Manning, 373 Mass. 438, 444, 367 N.E.2d 635 (1977), it would not be appropriate in this case. Compare Commonwealth v. O'Dell, 392 Mass. 445, 448-449, 466 N.E.2d 828 (1984) (distortion of defendant's statement), and Commonwealth v. Salman, supra, 387 Mass. at 167, 439 N.E.2d 245 (large number of indictments obtained through knowing use of false testimony), with Commonwealth v. McGahee, supra, 393 Mass at 747, 473 N.E.2d 1077 (withheld exculpatory evidence did not distort case presented...