Com. v. Upton

• Citation: 394 Mass. 363,476 N.E.2d 548
• Parties: COMMONWEALTH v. George L. UPTON.
• Decision Date: 01 April 1985
• Court: United States State Supreme Judicial Court of Massachusetts

Page 548

476 N.E.2d 548

394 Mass. 363

COMMONWEALTH v. George L. UPTON.

Supreme Judicial Court of Massachusetts,

Barnstable.

Argued Oct. 2, 1984.

Decided April 1, 1985.

Nancy Gertner, Boston (David Kelston, Boston, with her) for defendant.

Philip A. Rollins, Dist. Atty. (W. James O'Neill and Michael D. O'Keefe, Asst. Dist. Attys., with him) for the Com.

Barbara A.H. Smith, Asst. Atty. Gen., for the Atty. Gen., intervener.

William C. O'Malley, Dist. Atty., for the Plymouth Dist., and 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, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

We consider the defendant's State law challenges to the denial of his motions to suppress evidence seized pursuant to a search warrant. When this case was before us for the first time, we concluded that the search was unreasonable in violation of the Fourth Amendment to the Constitution of the United States because there was no demonstrated probable cause to issue the search warrant. Commonwealth v. Upton, 390 Mass. 562, 563, 458 N.E.2d 717 (1983). In a per curiam opinion, the Supreme Court of the United States reversed our judgment, concluding that there was a proper showing of probable cause under the "totality of the circumstances" test articulated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). The Supreme Court remanded the case to us for further proceedings consistent with its opinion. Id. 104 S.Ct. at 2089.

The State law issues presented to us include the questions whether probable cause to issue a search warrant should be determined by a stricter standard in this Commonwealth than under the Fourth Amendment and whether evidence seized without probable cause may nevertheless be admitted against a defendant. The defendant argues both these questions on statutory and constitutional grounds. We conclude that (1) there is a statutory exclusionary rule requiring the exclusion of evidence seized without a showing of probable cause (unless there is some other basis for justifying the search), (2) the test for determining probable cause is stricter under art. 14 of the Declaration of Rights of the Massachusetts Constitution than under the Fourth Amendment, and (3) the application for the search warrant in this case did not demonstrate probable cause.

1. The legal consequences of a lack of probable cause. The Commonwealth argues that evidence seized pursuant to a search warrant should be admissible, regardless of whether there was probable cause, because this court has never accepted the concept of an exclusionary rule under the State Constitution when a search violated the requirements of art. 14 of the Declaration of Rights. Although our decision in this case does not turn on the existence or nonexistence of a constitutional exclusionary rule, the Commonwealth has correctly characterized this court's historical position.

During the nineteenth century, as a matter of common law and at least implicitly as a matter of State constitutional law, relevant evidence unlawfully obtained was admissible in evidence in this Commonwealth. See Commonwealth v. Dana, 2 Met. 329, 337 (1841); Commonwealth v. Certain Lottery Tickets, 5 Cush. 369, 374 (1850); Commonwealth v. Certain Intoxicating Liquors, 4 Allen 593, 600 (1862); Commonwealth v. Tibbetts, 157 Mass. 519, 521, 32 N.E. 910 (1893); Commonwealth v. Acton, 165 Mass. 11, 13, 42 N.E. 329 (1895); Commonwealth v. Smith, 166 Mass. 370, 376, 44 N.E. 503 (1896). The constitutional question was thought to have been settled by these and other authorities when the question was reconsidered in Commonwealth v. Wilkins, 243 Mass. 356, 359, 138 N.E. 11 (1923), subsequent to decisions of the Supreme Court of the United States (Weeks v. United States, 232 U.S. 383, 393-394, 34 S.Ct. 341, 344-345, 58 L.Ed. 652 [1914]; Boyd v. United States, 116 U.S. 616, 638, 6 S.Ct. 524, 536, 29 L.Ed. 746 [1886] ), holding inadmissible in the Federal courts property seized in violation of a defendant's Fourth Amendment rights. This court noted that the Fourth Amendment did not apply to State court proceedings and, viewing the fact of an unlawful seizure of evidence as disconnected from the trial, declined to follow the decisions under the Fourth Amendment. Commonwealth v. Wilkins, supra, 243 Mass. at 360-362, 138 N.E. 11. "We prefer to adhere to our rule, which makes the competency of evidence depend upon its inherent probative value rather than upon outside circumstances, and which leaves the redress of grievances for invasion of constitutional rights to the usual and adequate provisions of the civil and criminal law." Id. at 362-363, 138 N.E. 11.

We need not decide in this case whether, as a matter of State constitutional or common law, we should now take a different position on the exclusion of evidence seized pursuant to a search warrant issued without probable cause. ¹ We conclude instead that G.L. c. 276, § 2B, provides a statutory prohibition against the admission of such evidence.

General Laws c. 276, § 2B, ² governing the content of affidavits submitted in support of applications for search warrants, was enacted in 1964. St.1964, c. 557 § 3. Two years later a case reached this court involving the question whether evidence seized pursuant to a search warrant would be admissible if the application for the warrant did not meet the requirements of G.L. c. 276, §§ 2A, 2B, and 2C, but sworn testimony before the magistrate, supplementing the application, provided probable cause to issue the warrant. Commonwealth v. Monosson, 351 Mass. 327, 221 N.E.2d 220 (1966). Recognizing that "[t]he principal issue for decision is whether, notwithstanding violation of the statute, the evidence is admissible," id. at 329, 221 N.E.2d 220, the court concluded that, if the application itself failed to demonstrate probable cause, ³ the evidence was inadmissible. Id. See Commonwealth v. Reynolds, 374 Mass. 142, 148-149, 370 N.E.2d 1375 (1977); Commonwealth v. Causey, 356 Mass. 125, 127-128, 248 N.E.2d 249 (1969); Commonwealth v. Brown, 354 Mass. 337, 345, 237 N.E.2d 53 (1968). ⁴

This court's determination in the Monosson case was to exclude evidence seized pursuant to a search warrant issued under circumstances in which the statutorily prescribed form for establishing probable cause was not met but probable cause may have existed. We think that this same reasoning should also apply when probable cause itself, as required by the State Constitution, is lacking. An absence of probable cause is a particularly significant defect in the warrant process because, if there was no probable cause, a search warrant should not have been issued and (barring any other justification for the search) the search should not have been conducted. Such a violation of a defendant's rights is, therefore, a direct cause of the seizure and the prejudice from the violation is substantial, particularly where the seized evidence is relevant in proving charges against a defendant.

2. The standard for the determination of probable cause. The defendant argues that G.L. c. 276, § 2B, mandates a determination of probable cause according to the standard established by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Section 2B, as well as §§ 1, 2, 2A, and 2C, were added to G.L. c. 276 in substantially their current form by St.1964, c. 557, which was signed by the Governor on June 16, 1964, the day after the opinion in the Aguilar case was released. It is, therefore, not surprising that, in a series of opinions issued shortly thereafter, this court treated the requirements of § 2B as synonymous with those established in the Aguilar case. See Commonwealth v. Dias, 349 Mass. 583, 584, 211 N.E.2d 224 (1965); Commonwealth v. Rossetti, 349 Mass. 626, 633 & n. 6, 211 N.E.2d 658 (1965); Commonwealth v. Mitchell, 350 Mass. 459, 462-464 & n. 5, 215 N.E.2d 324 (1966); Commonwealth v. Cuddy, 353 Mass. 305, 308-309, 231 N.E.2d 368 (1967); Commonwealth v. Brown, 354 Mass. 337, 344, 237 N.E.2d 53 (1968). This court even stated in one opinion that "[t]he purpose of the Legislature [in enacting G.L. c. 276, §§ 1, 2, 2A, 2B, and 2C] was to incorporate as statutory requirements for affidavits those features which the court held in the Aguilar case to be constitutional requirements." Commonwealth v. Franklin, 358 Mass. 416, 421, 265 N.E.2d 366 (1970).

The timing of the bill's enactment forecloses such a view. The Legislature could not have known of the Aguilar opinion because it sent to the Governor the bill that became St.1964, c. 557, five days before the Supreme Court issued its Aguilar opinion. 1964 Bulletin of Committee Work 582. Moreover, the language of § 2B does not support the view that it incorporates the two-prong test that came to be expressed in the Aguilar and Spinelli opinions. See Commonwealth v. Upton, 390 Mass. 562, 581, 458 N.E.2d 717 (1983) (Lynch, J., dissenting). It would be an unacceptable statutory construction to find incorporated in the meaning of a statute, general in its terms, specific constitutional requirements not articulated until after enactment of the statute.

We thus conclude that § 2B does not establish any standard for the determination of probable cause, although it does prescribe in general terms the form and content of applications for search warrants. Sections 1, 2A, and 2B of G.L. c. 276 do require that warrants be issued only if there is a showing of probable cause, and, as we noted earlier, § 2B requires the suppression of evidence seized pursuant to a warrant not based on probable...