Com. v. Sheppard

• Decision Date: 02 April 1985
• Citation: 476 N.E.2d 541,394 Mass. 381
• Parties: COMMONWEALTH v. Osborne SHEPPARD. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 541

476 N.E.2d 541

394 Mass. 381

COMMONWEALTH v. Osborne SHEPPARD. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Oct. 2, 1984.

Decided April 2, 1985.

John Reinstein, Nancy Gertner, Boston, Mass., with him, for defendant.

Newman Flanagan, Dist. Atty. (Michael J. Traft and Judith G. Zeprun, Asst. Dist. Attys., with him), for the Commonwealth.

Barbara A.H. Smith, Asst. Atty. Gen., for the Attorney General, intervenor.

William C. O'Malley, Dist. Atty., for the Plymouth District, & others, amici curiae, submitted a brief.

Maureen B. Brodoff, Boston, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Stephen R. Kaplan, Northampton, amicus curiae, submitted a brief.

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

HENNESSEY, Chief Justice.

This case presents a significant question relating to the administration of criminal laws in the Commonwealth: whether, in the circumstances presented here, we will recognize a rule of exclusion under either G.L. c. 276 or art. 14 of the Declaration of Rights of the Constitution of the Commonwealth. We conclude that the trial judge was justified in finding that the police acted on a warrant issued on probable cause, and that the search of the defendant's home was conducted as if the warrant had met the statutory and constitutional requirements of particularity. Therefore, we hold that, in these circumstances, exclusion of the evidence seized is not required. Consequently, there was no error in the denial of the defendant's motion to suppress, and the judgment of the Superior Court is affirmed.

The defendant was convicted of murder in the first degree of Sandra D. Boulware, and appealed to this court on the ground that the trial judge erred in admitting evidence seized pursuant to a defective search warrant. We reversed the conviction because the warrant failed to list with the requisite particularity the items to be seized. Commonwealth v. Sheppard, 387 Mass. 488, 499-501, 441 N.E.2d 725 (1982) (Sheppard I ), cert. granted, 463 U.S. 1205, 103 S.Ct. 3534, 77 L.Ed.2d 1386 (1983). We held that, because the warrant was defective, the Fourth Amendment to the Constitution of the United States required exclusion of the evidence seized, regardless of whether the officers executing the warrant acted on a good faith belief that the search and seizure were lawful. Id., 387 Mass. at 507-508 & n. 20, 441 N.E.2d 725. We further concluded that the warrant violated G.L. c. 276, and art. 14 of the Declaration of Rights, id. at 501, 441 N.E.2d 725, but in view of the result we reached with respect to the Fourth Amendment claim, we did not consider whether exclusion was also required by State law. Id. at 508, 441 N.E.2d 725.

The United States Supreme Court reversed. Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). The Supreme Court held that the Fourth Amendment does not require exclusion in cases, such as this one, where "the officer conducting the search acted in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate that subsequently is determined to be invalid." Id., 104 S.Ct. at 3428. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). After the Supreme Court remanded the case, we directed, by order of July 13, 1984, "further briefing ... on the question whether in view of the violation of art. 14 of the Declaration of Rights of the Constitution of the Commonwealth and G.L. c. 276, § 2, the evidence obtained as a result of that violation should be excluded."

The evidence adduced at the trial for this brutal murder has been adequately described in our first review of this conviction, Sheppard I, supra, 387 Mass. at 489-496, 441 N.E.2d 725, and need not be restated here. The facts with respect to the issuance of the defective warrant are summarized as follows. ² One day after the body of the victim was found, and after a preliminary investigation which established probable cause, id. at 492-493 n. 7, 441 N.E.2d 725, the district attorney for the Suffolk District and two police officers, Sergeant Bornstein and Detective Peter J. O'Malley, concluded that they should obtain a warrant to search the home of the defendant at 42 Deckard Street in Roxbury. Id. at 492, 441 N.E.2d 725. Detective O'Malley prepared an affidavit in support of the application for the warrant, but, because it was Sunday, no suitable form for the search warrant itself could be obtained. Id. at 492-493, 441 N.E.2d 725. Detective O'Malley did find a warrant form which had once been in use by the Municipal Court of the Dorchester District to authorize searches for controlled substances, and he attempted to adapt this form to authorize a search of the premises at 42 Deckard Street. Id. "He crossed out the words 'controlled substance' " on one section of the form, and "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." Id.

Detective O'Malley and a group of other law enforcement officials then went to the home of a judge, who was also unable to locate an appropriate form. Id. at 494, 441 N.E.2d 725. Accordingly, the judge made a few changes on the form provided by Detective O'Malley, and then 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. ³ It neither listed them, nor incorporated them by reference; nor was the affidavit attached to the warrant." Id. at 494, 441 N.E.2d 725. ⁴

Detective O'Malley and others executed the warrant later that same afternoon. Id. They met the defendant's mother and sister at 42 Deckard Street, showed them the warrant, and told them that they were going to search the defendant's room and the cellar. "It does not appear that either of the two women read the warrant or asked to have it read." Id. Detective O'Malley had with him throughout the search a copy of the affidavit listing the items to be seized. Id. A great deal of incriminating evidence was found on the premises, which we later characterized as "most important in rounding out a case based only on circumstantial evidence." Id. at 496, 441 N.E.2d 725. ⁵

The defendant moved to suppress the items uncovered in the search of his home on the ground that they were seized pursuant to a defective warrant. The Superior Court judge concluded that the warrant was issued on probable cause, but agreed with the defendant's contention that it was defective because it failed to list the items to be seized. Id. at 497, 441 N.E.2d 725. However, the judge admitted the evidence on the ground that the officers had conducted the search with a reasonable and good faith belief in the validity of the warrant. He found that the judge who had issued the warrant "told Detective O'Malley that he would make the necessary changes in the warrant form so as to provide a suitable form of search warrant and that the warrant as delivered was sufficient authority in form and content to carry out the search as requested. He found also that the search at 42 Deckard Street was carried out within the limits that Detective O'Malley understood the warrant to permit and that Detective O'Malley had the affidavit and search warrant with him at 42 Deckard Street. He concluded that 'the actual search undertaken was within the limits of the authority the police thought reasonably had been granted.' " Id. at 497, 441 N.E.2d 725.

1. General Laws c. 276. ⁶

The defendant first contends that exclusion is required by G.L. c. 276, § 2, which provides that "[s]earch warrants shall designate and describe the building, house, place, vessel or vehicle to be searched and shall particularly describe the property or articles to be searched for" (emphasis added). Section 2A describes in some detail the form in which warrants shall be issued, and explicitly requires that the warrant contain a "description of [the] property" which is the object of the search. The warrant at issue here clearly failed to meet these statutory requirements. Sheppard I, supra at 499-501, 441 N.E.2d 725. It is equally clear that the warrant failed to meet the particularity requirement of art. 14 of the Declaration of Rights. Id. See Commonwealth v. Taylor, 383 Mass. 272, 275, 418 N.E.2d 1226 (1981).

General Laws c. 276 does not specify the circumstances in which an exclusionary remedy will be applied to the fruits of a seizure conducted pursuant to a defective warrant. In cases in which we are asked to infer a remedy, we are guided by the principle of statutory construction that the act "must be interpreted according to the intent of the Legislature ... considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Commonwealth v. Graham, 388 Mass. 115, 119, 445 N.E.2d 1043 (1983), quoting Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513, 333 N.E.2d 450 (1975).

We emphasize that we are not confronted here with a deficiency as to the probable cause requirements of the statutes or of art. 14. General Laws c. 276 sets out more stringent requirements for a showing of probable cause than either the State or Federal Constitutions. Specifically, G.L. c. 276, § 2B, requires that the grounds for probable cause be set forth in an...