Com. v. Sheppard

Decision Date26 October 1982
Citation387 Mass. 488,441 N.E.2d 725
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

John F. Herlihy, Jr., Wollaston, for defendant.

Newman A. Flanagan, Dist. Atty. (Clyde R.W. Garrigan, Asst. Dist. Atty., with him), for the Commonwealth.


WILKINS, Justice.

In this appeal from a conviction of murder in the first degree, we are faced with the serious and challenging question whether the exclusionary rule, adopted by the Supreme Court of the United States to protect Fourth Amendment rights, requires the suppression of incriminating evidence obtained in the course of a police search conducted in good faith, but pursuant to a warrant which, although issued on probable cause, violated the constitutional and statutory requirement that search warrants describe the things to be seized. See Fourth Amendment to the Constitution of the United States; 1 art. 14 of the Declaration of Rights of the Constitution of the Commonwealth; 2 and G.L. c. 276, § 2. 3 We conclude that, solely on the basis of the opinions of the Supreme Court of the United States, the exclusionary rule requires the suppression of the evidence seized pursuant to this defective warrant. We reject the defendant's other, considerably less substantial challenges to his conviction.

The badly burned body of Sandra D. Boulware, a twenty-nine year old black woman, was found in a vacant lot in the Roxbury section of Boston at approximately 5 A.M. on Saturday, May 5, 1979. Pieces of wire were found on the body and in the vicinity of the body. An autopsy, conducted about 8 A.M. that day, disclosed that the victim had died of multiple compound comminuted skull fractures, caused by at least four blows inflicted within a day of the autopsy. There was medical testimony that the victim was alive, but unconscious, at the time her body was set on fire, but that she succumbed to the blows inflicted on her and not as a result of the burning of her body.

The victim's sister had reported her missing on May 4, and said that she had last seen her on May 1. She identified the body at the morgue. The police learned that the victim had two boyfriends, "Rudy" and "Jimmy." The defendant was known as "Jimmy." The police interviewed "Rudy" on Saturday afternoon, May 5. They also undertook to locate the defendant. Two police officers who knew the defendant went looking for him. They eventually went to a house in Dorchester known as a "gaming house," because card games were regularly played there. After they rang the doorbell, the defendant answered the door. The police told him that "the sergeant" wanted to talk to him at the police station. The defendant said, "Let me get my coat." He went upstairs, accompanied by one of the police officers, and obtained his coat. The defendant, who was not handcuffed, rode to the police station in the back seat of an unmarked police cruiser; the two policemen were in the front seat. The defendant had had experience with police investigations; he had been arrested previously; and he knew he was not in custody. One of the policemen gave the defendant Miranda warnings. In answer to questions in the cruiser, the defendant said he had last seen the victim on Tuesday (May 1). He had gone to her house, stayed there for about an hour, and left with her in a taxicab. They stopped to purchase some marihuana and a bottle of amaretto. The victim left him, he said, at 1 P.M. and he had not seen her since. One of the policemen told the defendant that Sandra Boulware was "no longer with us."

At the District 2 police station, Sergeant Bornstein interviewed the defendant in the presence of several other officers. The interview, which lasted about an hour, was recorded on tape. 4 The defendant substantially repeated what he had said in the police cruiser on the way to the police station and added that on Tuesday, after purchasing the marihuana and the amaretto, he and the victim had gone to the defendant's home at 42 Deckard Street in Roxbury where the victim stayed until she left at 2 P.M. to take a cab. The defendant gave an explanation of his whereabouts from Tuesday (when he claimed he last saw the victim) until Saturday (the day of the interview). He said that he had been at the "gaming house" in Dorchester, where the police found him, from 9 P.M. on Friday (May 4) until he left at 5 A.M. on Saturday (May 5) to take a bus home to Deckard Street. The defendant identified various people who were at the "gaming house" that night. At the end of the interview, Sergeant Bornstein thanked the defendant, and the defendant left the station. 5

The police continued their investigation. They interviewed the men who the defendant had said were at the "gaming house" on Friday night. They learned that at about 3 A.M. on Saturday, the defendant had borrowed the car of one Barros to drive two men home. He dropped them off in a trip that took no more than fifteen minutes. The defendant returned the car to the "gaming house" at about 4:45 A.M. He lay down for only a few minutes, suddenly jumped up, said he had something to do, and left.

The police also learned that at approximately 6 A.M. on Saturday, an occupant of the "gaming house," one "Pee Wee," had left for work. He noticed a pair of black calfskin gloves and a gas can in a corner of the porch, and brought them into the house. The police took possession of these items on Sunday morning. 6

In the course of their investigation on Sunday morning, the police learned from a friend of the defendant that the basement of the defendant's home at 42 Deckard Street had been refinished and that the defendant had said that he entertained women there. On Sunday morning they also spoke with Barros, the owner of the car the defendant was said to have borrowed early on Saturday morning. Barros corroborated the fact that the defendant had borrowed his car, a 1975 black Thunderbird. Only the defendant had used the car in the interim. The police then inspected the Thunderbird with Barros's consent. They found bloodstains and pieces of hair on its rear bumper and near the lid of the trunk. Barros told the police that there had been no blood in the trunk or along the bumper on Friday night when he had driven the car home. Various samples were taken. Inside the trunk, the police found three types of wire.

Later Sunday morning, the district attorney for the Suffolk district, Sergeant Bornstein, and Detective Peter J. O'Malley met at the District 2 police station to discuss the case. They concluded that they should seek a warrant for the arrest of the defendant and a warrant to search 42 Deckard Street, Roxbury. Detective O'Malley prepared and typed an affidavit in support of an application for a search warrant. The district attorney, his first assistant, and Sergeant Bornstein looked at it and concluded that it set forth probable cause for the arrest and for the search. 7 It is at this point that problems began that led to the issuance of a defective warrant. It was then Sunday afternoon. No clerk or assistant clerk of the Roxbury Division of the District Court Department could be found, nor could a suitable form of search warrant be found at the District 2 police station or at two or three other stations. Detective O'Malley found a warrant form of the Municipal Court of the Dorchester District, once used for searches for controlled substances. He attempted to adapt the printed form. He crossed out the words "controlled substance" on the cover side of the form. On the face side, he replaced the word "Dorchester" with the word "Roxbury." He inserted a reference to "2nd & Basement" of 42 Deckard Street as the place to search. However, the reference to "controlled substance" was not deleted in those portions of the form that constituted the application for a search warrant and would constitute the warrant itself.

Arrangements were made to present the affidavit and applications for a search warrant and an arrest warrant to a judge at his home. Detective O'Malley, Sergeant Bornstein, two homicide detectives, and the first assistant district attorney went to the judge's home, arriving at approximately 2:45 P.M. The judge took Detective O'Malley's oath and signed the affidavit to that effect. The judge searched his library without success for an appropriate form of search warrant. He then took the "controlled substance" form from Detective O'Malley, made some changes on it, and dated and signed the warrant. The judge made no change in the substantive portion of the printed warrant form which, therefore, contained authority "to search for any controlled substance, article, implement or other paraphernalia used in, for, or in connection with the unlawful possession or use of any controlled substance." The warrant made no reference to the items listed in Detective O'Malley's affidavit in support of the application. It neither listed them, nor incorporated them by reference; nor was the affidavit attached to the warrant. 8 The judge gave the search warrant, the affidavit, and the arrest warrant to the police. The defendant raises no challenge to the arrest warrant. Detective O'Malley left the judge's home with the affidavit and had it with him during the search. He thought the search warrant was legal and proper when he left the judge's home. The arrest warrant was executed at the "gaming house," while Detective O'Malley and a team of police personnel went to 42 Deckard Street to search its second floor and basement.

At about 5 P.M. Detective O'Malley and others were admitted to 42 Deckard Street. Detective O'Malley spoke with the defendant's mother and sister, showed them the warrant, and said the police were going to look in the defendant's room and in the cellar for things that were implicated in a homicide. It does not appear that either of the two women read the warrant...

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