Com. v. Wilbur

• Decision Date: 07 December 1967
• Citation: 353 Mass. 376,231 N.E.2d 919
• Parties: COMMONWEALTH v. Wallace G. WILBUR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 919

231 N.E.2d 919

353 Mass. 376

COMMONWEALTH v. Wallace G. WILBUR.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Nov. 6, 1967.

Decided Dec. 7, 1967.

Manuel Katz, Boston, for defendant.

A. Stanley Littlefield, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, SPIEGEL and REARDON, JJ.

CUTTER, Justice.

Wilbur was employed by the Commonwealth as a 'natural resource officer.' See G.L. c. 21, §§ 1, 6, 6A--6E, as amended. He was convicted under nine ¹ separate indictments for breaking and entering summer dwellings in the Plymouth and Wareham area with intent to commit larceny and for larceny. The trial was conducted under G.L. c. 278, §§ 33A--33G, as amended. Wilbur appealed. Further facts are stated in connection with particular assignments of error.

1. Prior to trial Wilbur moved to suppress certain evidence obtained by searches which he claimed were 'unreasonable and in violation of' his constitutional rights. At the hearing on the motion, the following facts were found.

Wilbur operated an antique shop known as the Witch's Brew in North Dartmouth, about thirty miles from his house in Plymouth. On Sunday, March 21, 1965, Trooper Waterhouse of the State police requested Wilbur to go to the North Dartmouth State police barracks. Wilbur proceeded toward the barracks in his automobile followed by Waterhouse and another officer in a police vehicle. On the way, Waterhouse received a radio call from his superior, Lieutenant Harrington, asking that they meet him at the Witch's Brew. This request was relayed to Wilbur.

Several days earlier on two separated occasions two of the alleged victims of the thefts had visited the Witch's Brew, and, from the sidewalk through the glass front of the shop, had observed some property belonging to them. On this evidence, on March 19, 1965, Trooper Waterhouse obtained three search warrants (from the Third District Court of Bristol) authorizing a search of the Witch's Brew, and on March 20, 1965, obtained an arrest warrant for Wilbur from the Fourth District Court of Plymouth.

When Wilbur and Waterhouse arrived at the Witch's Brew, Lieutenant Harrington had these warrants in his possession and handed them to Wilbur. Lieutenant Harrington warned Wilbur of his right to counsel, his right to make a telephone call to counsel or friends, his right to remain silent and that anything he said might be used against him in court. Lieutenant Harrington then asked Wilbur to admit them to the shop. Wilbur replied, 'It's all right with me, but I don't have the key.' There--upon, Lieutenant Harrington went to a side door, which 'was slightly ajar but wired from the inside with one strand of copper wire wound around a nail.' He pushed open the door and, with other police officers, followed Wilbur inside.

Within one hour and one half after the defendant's arrest, the officers seized some of the allegedly stolen property. More stolen property was seized at the Witch's Brew during the months following Wilbur's arrest under additional search warrants obtained from the Third District Court of Bristol after other victims had identified property seen through the window of the store as belonging to them.

The judge who heard Wilbur's motion to suppress ruled among other things: (a) Wilbur was lawfully arrested at 10:30 A.M. on March 21, 1965, on the street immediately in front of the Witch's Brew. (b) The search of the Witch's Brew on March 21 and the seizure of stolen property described in the three warrants given by Lieutenant Harrington to Wilbur were incident to a lawful arrest. ² (c) All search warrants issued by the Third District Court of Bristol were defective because they lacked the teste of the first justice of that court.

Reasonable searches may be made without a warrant if incident to a lawful arrest. Commonwealth v. Holmes, 344 Mass. 524, 525--526, 183 N.E.2d 279. ³ This arrest took place in the immediate vicinity of, and in front of, the Witch's Brew which exhibits show to be a small glass structure, little more than a shed. Its walls consisted chiefly of large windows such as are usual in a greenhouse. Much of the interior appears to have been visible from outside the building. The interior was not well secured. It seems probable that the searches were so close in place and time to Wilbur's arrest that they were incidental to it within the cases cited (fn. 3). This we need not decide for the evidence was admissible on another ground.

With respect to all the contents of this structure seized and admitted in evidence, search warrants had been issued by the Third District Court of Bristol. We are not bound by the reasons given for the ruling by the judge (see Randall v. Peerless Motor Car Co., 212 Mass. 352, 384, 99 N.E. 221; Young v. Duncan, 218 Mass. 346, 351, 106 N.E. 1) who heard the motion to suppress. We think that he erred in ruling that these warrants were not valid because they lacked the teste of the first judge of the District Court. The searches were valid if made pursuant to a valid warrant.

The presence of the teste is directed by Part II, c. 6, art. 5, of the Constitution of the Commonwealth, ⁴ if a search warrant is a 'writ' as the term is used in art. 5. A more specific provision appears in G.L. c. 218, § 6 (as amended through St.1964, c. 638; see later amendments through St.1966, c. 699, § 6), which reads, in part, 'Citations, orders of notice, writs, executions and all other processes issued by the clerk of the court shall bear the teste of the first justice thereof.' The section deals primarily with the justices and special justices of such courts and their compensation. No provision for a teste appears in G.L. c. 276, §§ 1, 2, 2A, 2B, 2C (as amended or inserted by St.1964, c. 557; see later amendment of § 2B by St.1965, c. 384). Indeed, the form of warrant specified in § 2A omits any teste whatsoever.

We interpret both the constitutional provision (fn. 4) and c. 218, § 6, as directory only (see Liberty Mut. Ins. Co. v. Acting Commr. of Ins., 265 Mass. 23, 28--29, 163 N.E. 648; Monico's Case, 350 Mass. 183, 185--186, 213 N.E.2d 865) and not as a mandatory requirement, the absence of which destroys the validity of a warrant otherwise correctly issued. The teste relates to a matter of form and not of substance. As Chief Justice Parker said in Ripley v. Warren, 2 Pick. 592, 595, '(N)othing can be more precisely mere matter of form than the teste of a writ, although by some unaccountable means it was thought important enough to be provided for in the constitution of the state. We all know that in practice it is considered wholly insignificant; for the name of the proper officer may be inserted after the writ has been issued by the clerk, a blank being left for that purpose; or the name, if printed, may be erased and another inserted by the party * * *.' In the Ripley case, the court (p. 596) treated the writ, 'though originally defective,' as agreed to by the then defendant who made no point of the matter until late in that litigation. The teste of a writ may be amended at any stage in a proceeding. Nash v. Brophy, 13 Metc. 476, 478. See Austin v. Lamar Fire Ins. Co., 108 Mass. 338, 339--341 (clerk's signature omitted from writ). See also Commonwealth v. Boon, 2 Gray, 74, 75.

The record does not suggest that any interest of Wilbur was affected by the absence of the teste. If he had questioned the authenticity of the warrant on that account, when it was shown to him, it could have been amended on the spot in this insignificant respect, at least with authorization to do so from the clerk who issued it. Examination of the original warrants shows that they were adequately authenticated by the signature of the assistant clerk and by the impressed seal of the court.

The use of search warrants is desirable to protect important individual interests. They, however, and the affidavits upon which they are based, must be read 'in a commonsense way rather than technically.' United States v. Ventresca, 380 U.S. 102, 108--109, 111--112, 85 S.Ct. 741, 13 L.Ed.2d 684. See Commonwealth v. Rossetti, 349 Mass. 626, 632, n. 5, 211 N.E.2d 658; COMMONWEALTH V. CUDDY, MASS., 231 N.E.2D 368;^A United States v. Bowling, 351 F.2d 236, 237 (6th Cir.). We treat the absence of the teste as of no legal significance, ⁵ especially in circumstances such as those before us where it is apparent that omission of the teste was an inadvertence which occurred when the warrant blanks (then currently in use by the court) were printed.

2. The trial judge admitted evidence that, immediately after his arrest, Wilbur made statements which could be found to have constituted admissions. ⁶ It is principally argued that Wilbur's constitutional rights were violated by some brief interrogation of, and short conversations with, Wilbur after his arrest, while he and the others were within the Witch's Brew on March 21, 1965, the day of the arrest. Principal reliance is placed on Miranda v. State of Arizona, 384 U.S. 436, 467--479, 86 S.Ct. 1602, 16 L.Ed.2d 694, decided June 13, 1966. Wilbur's trial began on September 21, 1966. We assume (without deciding) that the principles formulated in the Miranda case may apply to this trial, even though such interrogation as there was took place long before the Miranda decision. Johnson v. State of New Jersey, 384 U.S. 719, 721, 86 S.Ct. 1772, 16 L.Ed.2d 882. Cf. Commonwealth v. Morrissey, 351 Mass. 505, 508--512, 222 N.E.2d 755; Commonwealth v. Rogers, 351 Mass. 522, 528--531, 222 N.E.2d 766.

In the Miranda case, at p. 479, 86 S.Ct. at p. 1630, it was stated that a person arrested 'must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford and attorney one will be appointed for him prior to any questioning if he so desires.' The judge who heard...