Com. v. Rutkowski

• Decision Date: 20 February 1990
• Citation: 550 N.E.2d 362,406 Mass. 673
• Parties: COMMONWEALTH v. Joseph P. RUTKOWSKI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 362

550 N.E.2d 362

406 Mass. 673

COMMONWEALTH v. Joseph P. RUTKOWSKI.

Supreme Judicial Court of Massachusetts Plymouth.

Argued Nov. 7, 1989.

Decided Feb. 20, 1990.

Joseph S. Callahan, Fall River, for defendant.

Mary O'Sullivan Smith, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.

WILKINS, Justice.

We deal with a claim, raised under the Constitutions of the Commonwealth and of the United States, and G.L. c. 276, § 2 (1988 ed.), that a search of the defendant's residence pursuant to a search warrant was unlawful. The search warrant authorized the seizure of "[s]tolen handguns, jewelery [sic ] and coins which are more specifically detailed in the supporting affidavit." Also involved, if the seizure of incriminating evidence was unlawful, is the question whether, in the circumstances, the evidence should have been suppressed. We conclude that the defendant's motion to suppress should have been allowed. ¹

On November 21, 1985, a State trooper assigned to the office of the district attorney for the Plymouth district presented an affidavit in support of an application for a search warrant to an assistant clerk of the Brockton District Court. That affidavit presented probable cause to search the residence of the defendant for property believed to have been stolen: "Handguns, Jewelery [sic ] and Coins which are more specifically detailed in the attached list which is attached hereto and incorporated herein." ² Although the attached documents did not describe any coins, they contained precise sketches of five pieces of limited edition jewelry that had allegedly been taken from a residence in Brockton, and listed numerous guns by make and model number, some or all of which were also allegedly stolen from the Brockton residence.

Although the search warrant described the property to be seized as "[s]tolen handguns, jewelery [sic ] and coins which are more specifically detailed in the supporting affidavit," a copy of the affidavit and its descriptive attachments was not affixed to the warrant as it could have been. ³ It seems reasonable to infer, although there was no testimony on the point, that the search warrant was not prepared by the assistant clerk who issued it, but rather by the trooper who then presented it to the clerk. ⁴

That same day, the trooper, accompanied by other officers, executed the warrant at the defendant's residence. The police found none of the items for which the search was conducted, but did find in "plain view," behind a "hidden panel" in a coat closet, the allegedly stolen property (jewelry and a pellet gun) that became the subject of the indictments in this case.

The trooper who had obtained the search warrant showed a single sheet of paper to the defendant at his residence. A copy of the affidavit descriptive of the items for which the search was authorized was not affixed to the search warrant, nor was it ever shown to the defendant. In fact, there was no evidence as to whether the trooper even had a copy of the descriptive document with him. In these circumstances, the Commonwealth had the burden of coming forward with proof that the descriptive documents were present to guide the search, and available to inform the defendant of the limits of the search. See Commonwealth v. Taylor, 383 Mass. 272, 281-282 & n. 10, 418 N.E.2d 1226 (1981). We thus treat this case as one involving authorization to search for stolen handguns, jewelry and coins, without any further description governing the scope of the search.

The description in the warrant of the items to be seized lacked sufficient particularity to meet the requirements of G.L. c. 276, § 2, art. 14 of the Massachusetts Declaration of Rights, and the Fourth Amendment to the United States Constitution, and thus the search warrant was an unlawful general warrant. See Commonwealth v. Taylor, supra at 275, 418 N.E.2d 1226 ("antique jewelry"); Namen v. State, 665 P.2d 557, 563 (Alaska Ct.App.1983) (jewelry stolen from a particular residence on a stated date); Lockridge v. Superior Court, 275 Cal.App.2d 612, 625-626, 80 Cal.Rptr. 223 (1969) ($150,000 in stolen merchandise); 2 W.R. LaFave, Search and Seizure § 4.6(c), at 243-244 (2d ed.1987). To describe general items like guns and jewelry as "stolen" adds nothing instructive to a description in a warrant. This case is not one in which the stolen items could not have been described in more detail. Not only were the guns and at least five pieces of jewelry capable of specific description, written descriptions had been presented to the magistrate, were thus available, and could properly have been incorporated into the search warrant, directly or by referenced annexation. To be sure, a reference to "antique jewelry" is particularly inadequate when the place to be searched is itself a jewelry store (Commonwealth v. Taylor, supra, 383 Mass. at 275, 418 N.E.2d 1226), but the generic reference in this case to items generally and lawfully available in our society also fails to meet the minimum standard of particularity.

The more difficult issue in this case is whether the evidence, seized pursuant to the unlawful, general warrant, should have been suppressed. ⁵ The Commonwealth does not explicitly rely on United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), to urge that, if the warrant was unlawful, the police acted in good faith with reasonable grounds for...