Com. v. Soares

• Decision Date: 27 July 1981
• Citation: 384 Mass. 149,424 N.E.2d 221
• Parties: COMMONWEALTH v. Leonard J. SOARES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 221

424 N.E.2d 221

384 Mass. 149

COMMONWEALTH v. Leonard J. SOARES.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued May 6, 1981.

Decided July 27, 1981.

Frederick C. Mycock, Barnstable, for defendant.

Gary A. Nickerson, Asst. Dist. Atty., for the Commonwealth.

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

NOLAN, Justice.

On July 15, 1980, a Barnstable County grand jury returned an indictment charging the defendant with conspiring, between August 1, 1979, and January 17, 1980, to distribute unlawfully a Class B controlled substance, methamphetamine, in violation of G.L. c. 94C, § 40. ¹ Named as coconspirators were Tracey L. Ellis, a Massachusetts resident, and Wade A. Richter, Russell Wathey, and Carol Wathey, all of California. The defendant was convicted after a three-day jury trial. He appealed and we transferred the case to this court on our own motion. See G.L. c. 211A, § 10(A).

The issues raised are essentially two. The defendant initially challenges the denial of his motion to suppress all evidence seized on January 16, 1980, in the course of two sequential searches of a residence he shared with Tracey Ellis. ² He argues that the first search was pursuant to an "anticipatory" warrant, invalid under G.L. c. 276, § 1, and that because probable cause for the second warrant was derived entirely from observations made during the first search, it too was fatally defective. Turning to his trial, the defendant asserts that thirteen separate exhibits, and testimony related to them, were erroneously received in evidence. These errors, he claims, led the trial judge to rule incorrectly that the Commonwealth had made a prima facie showing of his participation in the conspiracy alleged, and thus led to the admission of a named coconspirator's extrajudicial statements implicating the defendant in the crime. Because the challenged evidence was essential to the Commonwealth's case, the defendant contends that he was entitled to a required finding of not guilty.

On appeal, he seeks reversal of his conviction and either the entry of a judgment of acquittal or a new trial. We conclude that there was no error requiring reversal in either the denial of the motion to suppress or in the conduct of the trial, and we affirm the defendant's conviction.

1. We consider first the defendant's contention that the warrants authorizing the two searches of the Ellis residence were invalid, and begin by recounting the circumstances surrounding those searches. On January 9, 1980, Trooper Paul F. Gregory, a Massachusetts State police officer assigned to investigation of traffic in narcotics, received word from Detective Louis Perry of the sheriff's office in San Bernardino, California, that a package containing methamphetamine had been deposited at the United Parcel Service (UPS) terminal in San Bernardino for delivery to one Tracey Ellis, 317 Lakeside Drive, Marstons Mills, Massachusetts. The suspicions of the desk clerk who took the package had been aroused by the nervous and evasive behavior of the customer mailing it, and she had opened it for inspection as permitted by UPS regulations. Upon discovering that it contained a white powdery substance in a cellophane bag, she notified her supervisor, who in turn called Detective Perry. Perry secured the package, removed a sample of its contents for analysis, and determined that it contained methamphetamine. Retaining the original outer wrapping, Perry repackaged the drug, and initialed both the box and a new outer wrapping. He then copied the original address and return address and mailed the package in care of the UPS supervisor at the North Dartmouth, Massachusetts, terminal. ³ On January 14, 1980, Gregory was advised that the package had arrived at the North Dartmouth terminal and would be shipped to the UPS terminal at Buzzards Bay, from which delivery to the Marstons Mills address would be made.

On January 16, 1980, Gregory filed an application in Barnstable District Court for a warrant to search the residence in Marstons Mills. In an attached affidavit Gregory recited the facts above and described in detail the premises to be searched and the object of the search. The affidavit concluded with the information that a UPS employee "had the package in hand and was awaiting the arrival of the Search Warrant before delivering to the before mentioned address." An assistant clerk issued the warrant in standard printed form (see G.L. c. 276, § 2A), directing an "immediate" search of the described premises and seizure of the package. Accompanied by six other law enforcement officers, Gregory then went to the neighborhood of the Ellis residence. Upon being advised that the package had been accepted by Tracey Ellis, Gregory went to the Ellis residence, presented her with the warrant, and advised her of her Miranda rights. Ellis immediately led Gregory to a closet in which the unopened package was concealed.

Inside the Ellis residence, Gregory observed a variety of paraphernalia associated with the use of illicit drugs, as well as telephone billing records listing calls to California. He thereupon returned to Barnstable District Court, presented an affidavit detailing these observations, and obtained a warrant authorizing him to search the Ellis residence for, and to seize, "cannibus sativa L aka marijuana, cocaine, Methamphetimine (sic ), and all paraphernalia used in the ingesting of narcotics and distribution of same, records and telephone numbers also used for the distribution of narcotics." Gregory returned to the Ellis residence and seized a variety of items associated with the use or distribution of illicit drugs. The inventory of property seized is reproduced in the margin. ⁴

The defendant's motion to suppress all evidence seized in the course of the searches described above was heard and denied on September 22, 1980, immediately prior to his trial. The original motion alleged a variety of defects, both constitutional and statutory, in the warrant authorizing the initial search of the Ellis residence. On appeal, the attack is narrowed to the "anticipatory" nature of that warrant. The defendant asserts that because it was clear from the affidavit offered to establish probable cause that the object of the search was not on the premises to be searched at the time the warrant issued, the authorization to search was beyond the limits set by G.L. c. 276, § 1. In the alternative, the defendant argues that the language of G.L. c. 276, § 1, requires that the issuing magistrate condition the execution of an anticipatory warrant on the occurrence of a future event here, the delivery of the contraband.

We have not previously addressed the permissibility of anticipatory warrants. The questions raised are not novel, however. There is no constitutional impediment to their use in the circumstances presented by this case. See 1 W. LaFave, Search and Seizure § 3.7(c), at 698-704 (1978). Neither logic nor the policies underlying the Fourth Amendment warrant requirement support a general prohibition against the use of anticipatory warrants. First, as to the probative quality of the facts stated to support their issuance, LaFave observes that "as a general proposition the facts put forward to justify issuance of an anticipatory warrant are more likely to establish that probable cause will exist at the time of the search than the typical warrant based solely upon the known prior location of the items to be seized at the place to be searched." LaFave, supra at 701, citing People v. Glen, 30 N.Y.2d 252, 258-259, 331 N.Y.S.2d 656, 282 N.E.2d 614, cert. denied sub nom. Baker v. New York, 409 U.S. 849, 93 S.Ct. 58, 34 L.Ed.2d 91 (1972). This point is demonstrated by the facts of the instant case. The affidavit indicated that the object of the search was subject to the control of law enforcement personnel, and that delivery would occur immediately upon obtaining the search warrant. Second, the goal of encouraging the use of warrants is hardly fostered by requiring that police officers await the actual delivery of known contraband to the premises to be searched, thus putting them to a choice between undertaking an immediate unwarranted search or taking the time to obtain a warrant and risking the destruction or concealment of potential evidence. See Alvidres v. Superior Court, 12 Cal.App.3d 575, 581, 90 Cal.Rptr. 682 (1970). Although the Supreme Court has not specifically passed on the question, we note that these considerations have persuaded the great majority of courts which have considered the issue to conclude that the use of anticipatory warrants is constitutional. See Johnson v. State, 617 P.2d 1117, 1124 (Alaska 1980); LaFave, supra at 698-699 nn. 77 & 78 (collecting earlier cases).

On appeal, the defendant has abandoned the argument that anticipatory warrants are unconstitutional per se; he now argues that G.L. c. 276, § 1, either precludes their use, or, at a minimum, requires that such a warrant explicitly state the conditions under which it may be executed. The first argument is based on a literal reading of the statute, which provides that warrants may issue in criminal cases on a showing of probable cause to believe that defined property or articles, including "property or articles the possession or control of which is unlawful," "are concealed" in the place to be searched. The defendant suggests that this language requires evidence that the object of the search is actually present at the premises to be searched before a warrant may issue. We have already discussed the policy grounds for rejecting such a rigid interpretation of the statutory language. We think that the essential question under G.L. c. 276, § 1, as under the Fourth Amendment, is whether "the evidence (stated in the affidavit) creates substantial probability that the seizable property will be on the premises when searched." People v. Glen, supra 30 N.Y.2d at 259, 331 N.Y.S.2d...