Com. v. Sbordone

• Decision Date: 01 May 1997
• Citation: 424 Mass. 802,678 N.E.2d 1184
• Parties: COMMONWEALTH v. Gary N. SBORDONE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1184

678 N.E.2d 1184

424 Mass. 802

COMMONWEALTH v. Gary N. SBORDONE.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 5, 1996.

Decided May 1, 1997.

R. Michael Cassidy, Assistant Attorney General, for the Commonwealth.

Paul W. Shaw, Boston, for defendant.

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

ABRAMS, Judge.

At issue is whether the participation of a chief civilian investigator in the execution of search warrants contravenes art. 14 of the Massachusetts Declaration of Rights and G.L. c. 276, § 2. ¹ The defendant, Gary Sbordone, is a chiropractor who has been indicted on fifty-eight indictments, twelve charging larceny, nine charging attempted larceny, thirty-six charging insurance fraud, and one charging presentation of a false claim to the Commonwealth. The defendant moved to suppress medical and business records seized from his Melrose chiropractic clinic during three searches conducted pursuant to three separate search warrants. He argued solely that the searches were unlawfully executed by an unauthorized person in violation of art. 14 and G.L. c. 276, § 2.

After a hearing, a Superior Court judge allowed the defendant's motion and ordered the records suppressed. The judge concluded that, although civilian participation may be permissible in executing search warrants, here the searches were unconstitutional because the police failed to supervise and appropriately to limit the civilian's involvement. The judge also rejected the Commonwealth's argument that the seized evidence was nevertheless admissible under the inevitable discovery doctrine, ruling that suppression was necessary because of the severity of the constitutional violation. A single justice of this court allowed the Commonwealth's request for leave to pursue an interlocutory appeal pursuant to G.L. c. 278, § 28E. See Mass. R.Crim. P. 15(b)(2), 378 Mass. 882 (1979). For the reasons stated below, we vacate the judge's order of suppression.

We summarize the motion judge's factual findings as follows. Robert Tryon, a Massachusetts State trooper assigned to the office of the Attorney General, applied for the first warrant to search the medical offices and appurtenant storage areas of the defendant's chiropractic clinic in December, 1992. The affiant for the warrant application was Tito Medeiros, an investigator for the insurance fraud bureau (IFB), ² who specialized in the investigation of fraudulent bodily injury claims. The application expressly requested that "Tito Medeiros, Investigator from the Insurance Fraud Bureau of Massachusetts be authorized to be present during and assist in the search of said premises," and the assistant attorney general who presented the application for judicial approval also repeated this request orally.

The Commonwealth sought Medeiros's aid in executing the warrant because of his general expertise in investigating insurance fraud and his particular involvement in the ongoing, year-long investigation of the defendant. That investigation also led to the indictment of several of the defendant's patients. ³ The State troopers assigned to the matter were not extensively trained in investigating insurance fraud, they did not have Medeiros's proficiency for identifying the types of insurance documents used to commit fraud, and they did not share his extensive knowledge of the aliases and the use of false social security numbers, the dates of claims and losses, and the modus operandi of this particular fraud ring. A Superior Court judge issued the warrant and orally authorized Medeiros's presence and assistance in the search. The warrant authorized the seizure of all sign-in sheets, logs, or appointment books of the defendant's clinic, and all records concerning several individuals whose names were listed on an addendum.

The warrant was executed on December 5, 1992. Trooper Tryon, who had possession of the warrant, entered the clinic first, displayed the warrant, and secured the premises. Trooper Tryon, Trooper Scott Jennings, Medeiros, an assistant attorney general, and a paralegal from the Attorney General's office were present during the search, as were the defendant and several of his office staff. ⁴ While Tryon was speaking with the defendant, Trooper Jennings waited in the reception area as Medeiros began searching through the thousands of files which were stored in that area. A clinic employee explained that those files were active, and that the closed files were stored upstairs on the second floor. The search team then went upstairs, where there were thousands of closed files stored alphabetically in file cabinets and boxes. The two State troopers, Medeiros, and the paralegal all searched the cabinets and boxes, removing treatment files which were labeled with names listed on the addendum to the warrant. ⁵ At some point during the search, Medeiros, unaccompanied by either State trooper, went with the office manager to her office and searched her desk and other areas for files labeled with names listed on the addendum. The office manager then observed Medeiros entering another office to search for files. Trooper Tryon reviewed each file before it was seized. The two State troopers took possession of all seized files, secured them at the Attorney General's office, and then prepared the inventory.

Trooper Tryon later applied for a second and a third warrant to search the defendant's clinic. These warrants were similar to the first search warrant. Again, Medeiros was the affiant, the applications expressly requested judicial authorization for Medeiros's presence and assistance, the assistant attorney general who presented the applications repeated this request orally, and the Superior Court judges who issued the subsequent warrants orally authorized Medeiros to be present during and to assist in the searches. The description of the records subject to seizure was also the same as on the first search warrant, except that the addenda to each warrant listed a different set of names and aliases.

On May 14, 1993, Medeiros went with Troopers Tryon and Jennings to execute the second search warrant at the clinic. Again, the search process consisted primarily of looking through files that were clearly labeled and alphabetically stored, and this time two of the defendant's employees assisted the search team in locating files bearing names which were designated on the addendum. As with the first search, Medeiros actively participated, searching through an employee's desk as well as through file cabinets and storage boxes. ⁶ Again, Trooper Tryon reviewed each document before it was seized. At the conclusion of the search, Tryon took possession of all seized records, secured them at the Attorney General's office, and prepared the inventory.

Medeiros returned with Troopers Tryon and Jennings to execute the third search warrant at the clinic on April 7, 1994. ⁷ This time, Medeiros divided the names on the addendum among the two State troopers, three clinic employees, and himself, and they all actively searched for files. During the search, a disagreement arose between Medeiros and the office manager as to whether certain appointment books and sign-in sheets were within the scope of the warrant, and Medeiros decided not to seek seizure of the particular documents in dispute. ⁸ Again, Trooper Tryon took possession of all seized items, secured them at the Attorney General's office, and prepared the inventory.

1. Civilian participation. We have not addressed the question whether, and to what extent, a civilian may participate in a search conducted pursuant to a valid search warrant. But see Rodriques v. Furtado, 410 Mass. 878, 881, 575 N.E.2d 1124 (1991) (implicitly recognizing the authority of a private physician to execute a warrant for a body cavity search). Article 14 and G.L. c. 276, § 2, neither expressly permit nor prohibit civilian assistance in executing search warrants. Thus, the motion judge relied on authority from other jurisdictions to conclude that art. 14 and G.L. c. 276, § 2, do not prohibit the police from utilizing civilians "in appropriate circumstances" where such assistance "is necessary or will materially assist the police in executing a warrant." ⁹

This portion of the judge's ruling is well supported by the weight of authority. See generally 2 W.R. LaFave, Search and Seizure § 4.10(d), at 676 (3d ed.1996) ("at least when such a person can be of assistance to the executing officers in determining the location or identity of the items to be seized, it is not objectionable that the officers ... are accompanied during execution by a private person"). Indeed, Federal agents are expressly authorized by statute to utilize civilian assistance when they execute search warrants. See 18 U.S.C. § 3105 (1994). See also United States v. Robertson, 21 F.3d 1030, 1032-1034 (10th Cir.), cert. denied, 513 U.S. 891, 115 S.Ct. 238, 130 L.Ed.2d 161 (1994); United States v. Clouston, 623 F.2d 485, 486 (6th Cir.1980). Where the applicable statute is silent regarding civilian participation, as is the case here in the Commonwealth, other State courts have in particular circumstances upheld civilian assistance in the execution of a search warrant. See, e.g., Harris v. State, 260 Ga. 860, 401 S.E.2d 263 (1991) (dentist authorized to execute search warrant for dental X-rays and impressions); State v. Ricci, 472 A.2d 291, 298 (R.I.1984) (crime victim allowed to be present during search to confirm identity of stolen jewelry). As the motion judge correctly noted, a civilian may possess a peculiar expertise or knowledge regarding the means of retrieval or identification of items covered by a warrant, and a rule permitting civilian assistance in such circumstances actually enhances the reasonableness of the search by lessening its intrusiveness. See also People v. Boyd, 123 Misc.2d 634, 638, 474 N.Y.S.2d 661 (N.Y.Sup.Ct.1984) (use of corroboration witness to identify stolen...