Com. v. Taylor

Decision Date02 April 1981
Citation383 Mass. 272,418 N.E.2d 1226
PartiesCOMMONWEALTH v. George D. TAYLOR.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Howard J. Alperin, Boston, for defendant.

Charles J. Hely, Asst. Dist. Atty., Peter S. Casey, Asst. Dist. Atty., with him, for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and ABRAMS, JJ.

KAPLAN, Justice.

A judge of the Superior Court denied a pretrial motion by the defendant George D. Taylor to suppress evidence and the defendant was thereafter tried by jury and convicted of the crime of knowingly buying, receiving, and aiding in the concealment of stolen property with a value over $100 (G.L. c. 266, § 60), consisting of assorted items of antique jewelry. 1 The Appeals Court reversed, holding that the pretrial motion should have been allowed because there was a fatal defect in the warrant pursuant to which the evidence was seized. --- MASS.APP. ---, 409 N.E.2D 212 (1980)A. We granted further appellate review and now express our agreement with the result reached by the Appeals Court.

Background facts were as follows. Sometime in the late evening of June 19, 1976, or early next morning, an antique shop in Harwichport owned by Philip and Lawrence Marsh, brothers, was burglarized of some 300 antique jewelry pieces. The Harwich police were notified, and the brothers prepared a list of the items stolen on the basis of the shop's inventory books.

Some four months later, on October 9, 1976, Lawrence Marsh with a friend, Lori Ackerman, attended an antique show at Bentley College, Waltham. Lawrence recognized at the booth of one Tania Langerman a few of the stolen pieces, in particular a black marble inlaid frame. Langerman surrendered these items to Lawrence.

Lawrence reported his discovery to the Harwich police and on October 21 there was a meeting of the brothers, Ackerman, Langerman, and two Harwich police officers with Detective-Lieutenant Richard Trahon of the Brookline police. Langerman stated that the pieces Lawrence Marsh recognized had been purchased by her from the defendant at the defendant's store, called Taylor's Jewelers, on Harvard Street in Brookline; and she produced a cancelled personal check, dated August 7, 1976, with which she had paid for most of those items. On the strength of the conversation at the meeting, Trahon sought and obtained on the same day from the clerk of the Municipal Court of Brookline a warrant for the search of 236 Harvard Street, the address of the defendant's store. The warrant was executed that afternoon by Trahon accompanied by five Brookline officers, two Harwich officers, the Marsh brothers, and Ackerman. After a two-hour search, approximately forty-seven pieces of jewelry were seized. 2 The defendant, present at the search, was arrested at its conclusion.

1. Motion to suppress. The defendant moved before trial to suppress the items of jewelry seized on October 21. He called three witnesses. Edward R. Fahey, clerk of the Municipal Court of Brookline, produced two documents which together, he said, constituted the affidavit in support of the warrant: a stapled two-page sworn statement by Trahon setting out the circumstances of the burglary and the purchase by Langerman from Taylor at Taylor's Jewelers in August; and a separate, stapled six-page document containing the list of missing items as compiled by Lawrence Marsh. The two papers became "Exhibit 1" at the hearing. Fahey also produced a stapled two-page document, the top page being the warrant he had handed to Trahon on October 21, and the other page the continuation of the return filed by Trahon a few days after the search (the return began on the back of the warrant). The two pages became "Exhibit 2." Trahon in his testimony confirmed that Exhibit 1 comprised the affidavit, and that the warrant he received from Clerk Fahey was the top paper of Exhibit 2. Brookline Detective John Trainor, present at the search, was called as a witness but he added nothing material. The Commonwealth asked no questions at the hearing and offered no witnesses.

A ground of the defendant's motion was the insufficiency of the warrant. Turning to that single page, we find it directs the seizure of "all the particularly described items of antique jewelry described on the attached six (6) pages ...." But in fact the paper had no attachment. According to both Fahey and Trahon and the findings of the motion judge, the six-page inventory list forming part of Trahon's affidavit was not handed to Trahon as a part of the warrant, and, indeed, under G.L. c. 276, § 2B, that list was required to be retained by the clerk as being a part of the affidavit.

Thus we are left with a warrant that effectively described the property to be seized as "antique jewelry," a description so broad and general as to provide virtually no guidance to one searching the entire goods of a jewelry store for a scattering of pieces claimed to be stolen. This warrant did not answer to the requirements of particularity stemming from the constitutions and the statute the Fourth Amendment ("particularly describing") as applied to the States by the Fourteenth; Massachusetts Declaration of Rights, art. 14 ("special designation"); G.L. c. 276, § 2 ("particularly describe"). See Commonwealth v. Pope, 354 Mass. 625, 628-629, 241 N.E.2d 848 (1968); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325, 99 S.Ct. 2319, 2324, 60 L.Ed.2d 920 (1979); Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927). There are, indeed, cases in which a "generic" description has been held to suffice, but these are usually confined to searches for contraband, or for stolen goods where there is intrinsic difficulty about a particularized description and where the affidavit establishes a probability that the items sought will constitute a large portion of the inventory to be searched. We cite some examples in the margin; 3 the points of distinction are discussed in United States v. Abrams, 615 F.2d 541, 545 (1st Cir. 1980); Montilla Records of P. R., Inc. v. Morales, 575 F.2d 324, 326 (1st Cir. 1978); United States v. Klein, 565 F.2d 183, 187-188 (1st Cir. 1977); 2 W.R. LaFave, Search and Seizure § 4.6, at 101-104 (1978). From the present affidavit there was no reason to believe that the stolen jewelry would be a significant portion of the Taylor's Jewelers inventory (indeed trial testimony indicated it was not), and the particularization was available but was not used in the warrant. In Lockridge v. Superior Court of Los Angeles County, 275 Cal.App.2d 612, 625-626, 80 Cal.Rptr. 223 (1969), a warrant calling for the seizure of merchandise stolen from a certain jewelry store was held invalid on its face; the State had advanced no reason why an inventory list had not been obtained (more than two months had elapsed since the robbery) and incorporated in or attached to the warrant. As in the Lockridge case, the present warrant was invalid simply because it "did not particularly describe the property and/or articles to be seized" (quoting from the present motion to suppress).

Attempting to meet the proposition that "antique jewelry" will not do as a description, the Commonwealth argues that the reference to the six pages, even though these were not attached, indicated that the warrant authorized a search only for a limited group of items and that officers executing the warrant would so understand. The Commonwealth, it seems, wants the warrant to be read as including a part of the affidavit, and thus to avoid the chief vice of a general warrant, that the decision what to search or seize remains in the discretion of the executing officer without direction from the magistrate (see Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927)). The contention ignores the words of the constitutions and the statute which demand that the warrant describe particularly what is to be seized. On occasion we have allowed an extrinsic document such as an application for a warrant or a supporting affidavit to supply the specification of place to be searched or items to be seized, missing from the warrant proper, but in these cases the document was attached to the warrant and the warrant referred to it in terms. See Commonwealth v. Todisco, 363 Mass. 445, 449, 294 N.E.2d 860 (1973) (place); Commonwealth v. Mele, 358 Mass. 225, 229-230, 263 N.E.2d 432 (1970) (same); Commonwealth v. Pope, 354 Mass. 625, 629, 241 N.E.2d 848 (1968) (same); Dwinnels v. Boynton, 3 Allen 310, 312 (1862) (place, items); Commonwealth v. Dana, 2 Met. 329, 336 (1841) (same); Commonwealth v. Gill, 2 Mass.App. 653, 655-656, 318 N.E.2d 628 (1974) (place). Compare Commonwealth v. Accaputo, --- Mass. ---, --- b, 404 N.E.2d 1204 (1980) (administrative inspection warrant must itself grant the "power to seize"; if mention in the application could ever suffice, it must be where the application was physically attached to the warrant). These cases accord with the generally received rule that for an extrinsic document to be considered part of the warrant it must be referred to therein and either be attached to the warrant or accompany it when served. See Accaputo, supra at --- c, 404 N.E.2d 1204; 2 W.R. LaFave, Search and Seizure § 4.5, at 74; § 4.6, at 100 & n.23 (1978). 4

A few cases have permitted an unattached document referred to in the warrant but not tendered with it to supply specificity, but it appears that in each instance that document at least was carried to the search by the executing officer and was available there for use by the officers and inspection by the subjects of the search. See United States v. Thompson, 495 F.2d 165, 170 n.4 (D.C.Cir. 1974); United States v. Averell, 296 F.Supp. 1004, 1014, 1016 (E.D.N.Y.1969); Nunes v. Superior Court, 100 Cal.App.3d 915, 937, 161 Cal.Rptr. 351 (1980). We need not decide whether we would go so far. 5 For in the present case the defendant at the...

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