Com. v. Walsh

• Decision Date: 02 April 1991
• Citation: 409 Mass. 642,568 N.E.2d 1136
• Parties: COMMONWEALTH v. Michael A. WALSH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1136

568 N.E.2d 1136

409 Mass. 642

COMMONWEALTH v. Michael A. WALSH.

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued Dec. 4, 1990.

Decided April 2, 1991.

Mary O'Sullivan Smith, Asst. Dist. Atty., for Com.

Robert M. Tutino, Brockton, Committee for Public Counsel Services, for defendant.

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

O'CONNOR, Justice.

A grand jury indicted the defendant for trafficking in cocaine and unlawful possession of marihuana in violation of G.L. c. 94C, §§ 32E(b ) and 34, respectively. The defendant moved to suppress all items that had been seized at 229 Crescent Street, East Bridgewater, pursuant to a search warrant, and that motion was allowed. The Commonwealth was granted leave by a single justice of this court to file an interlocutory appeal, and the appeal was referred to the full court. We now vacate the order allowing the defendant's motion to suppress.

The judge found the following facts. Joseph W. Markowicz, an East Bridgewater police officer, applied to the Brockton District Court for a warrant to search the home of Timothy Zentz, who lived at 229 Crescent Street, East Bridgewater, for cocaine and other evidence indicating trafficking in narcotics. The application did not contain the street address and town of the house to be searched, although an affidavit accompanying the application did give that information. On March 26, 1988, a clerk-magistrate issued a search warrant to Officer Markowicz. The warrant contained the following description of the house: "[a] two story wood framed dwelling house white in color with open front porch and black front door with the number 229 located to the left of the front door; red and black trim; red-painted foundation; black shutters had evergreen cut-outs in the top, which is occupied by and/or in the possession of Timothy A. Zentz, DOB 4.17.58, 29 yrs. old." The warrant did not contain the address of the premises to be searched. The warrant explicitly incorporated Markowicz's affidavit, but the affidavit was not physically attached to the warrant, and the officers who executed the warrant did not have the affidavit with them when they did so.

Markowicz did not participate in the execution of the search warrant. The warrant was executed by East Bridgewater police officer Charles F. Whiting accompanied by East Bridgewater police officers Elder, Cowan, and Reed, and Special Agent David Carnevale of the Federal Drug Enforcement Administration. Before the warrant was executed, Markowicz told the group that would search the Zentz house the specifics of the investigation, including the place to be searched. Carnevale had driven by the home twice in anticipation of the search and had pulled into a neighbor's driveway to observe the house.

Zentz, the target of the search, had lived at the Crescent Street address since October, 1982, and Officers Whiting and Elder knew who he was. The Zentz home appeared from the outside to be a Colonial-style two-story single family dwelling with front and rear doors. Since December, 1987, Zentz had rented an upstairs bedroom to the defendant. The defendant had access to, and the use of, the entire house except Zentz's bedroom. The entrance to the defendant's bedroom had a door with a lock on it, and only the defendant had a key to it. When the officers arrived at the house, Zentz responded to their knocks at the front door and admitted them to the house. The officers read both Zentz and the defendant their Miranda rights and showed them the warrant upon entering the house. The defendant believed that the officers possessed a valid search warrant. The defendant then led several officers up to his room and handed over a pouch containing nine packets of cocaine. The officers arrested the defendant, read him his Miranda rights again, and told him that he should hand over any additional drugs. The defendant then handed over an additional forty-seven packets of cocaine, and the officers searched the defendant's room.

The Fourth Amendment to the United States Constitution requires that "warrants shall ... particularly describ[e] the place to be searched...." Article 14 of the Declaration of Rights of the Massachusetts Constitution requires all warrants to be "accompanied with a special designation of the persons or objects of search, arrest, or seizure." In addition, G.L. c. 276, § 2 (1988 ed.), provides that "[s]earch warrants shall designate and describe the building, house, place, vessel or vehicle to be searched...." In Commonwealth v. Sheppard, 394 Mass. 381, 389, 476 N.E.2d 541 (1985), we stated that "unlike [c. 276's] probable cause provisions, the particularity requirements of G.L. c. 276 essentially track the particularity requirements of art. 14 and the Fourth Amendment." We have never held that art. 14 requires greater particularity than the Fourth Amendment, and therefore we make no distinction between art. 14 and the Fourth Amendment in our analysis. See Commonwealth v. Treadwell, 402 Mass. 355, 359 n. 6, 522 N.E.2d 943 (1988).

The relevant inquiry with respect to the adequacy of a search warrant's description of the premises to be searched is whether the description is sufficiently complete to allow the executing officer to locate and identify the place to be searched with reasonable effort, and whether there is...