Com. v. Wojcik

• Decision Date: 02 February 1971
• Citation: 266 N.E.2d 645,358 Mass. 623
• Parties: COMMONWEALTH v. Zbigniew B. WOJCIK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 645

266 N.E.2d 645

358 Mass. 623

COMMONWEALTH v. Zbigniew B. WOJCIK.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 6, 1970.

Decided Feb. 2, 1971.

Walter T. Healy, Boston, for defendant.

Richard A. Hannaway, Boston, for the Commonwealth.

Before SPALDING, CUTTER, KIRK, SPIEGEL, REARDON and QUIRICO, JJ.

QUIRICO, Justice.

The defendant is charged in four indictments with the crimes of receiving the following allegedly stolen property: two Viewlex strip and film projectors belonging to the city of Boston; 150 napkins belonging to Trans World Airlines, Inc.; three fur throws belonging to Northeast Airlines, Inc.; and two credit cards belonging to Fred DellaRusso.

The case is before us on an interlocutory report by a judge of the Superior Court under G.L. c. 278, § 30A, inserted by St.1954, c. 528, for the determination of the correctness of his order denying the defendant's motion to suppress the above described articles as evidence against him on the ground that they were seized from him by the police in violation of his constitutional rights.

The report of the trial judge states that '(u)pon the hearing of the (m)otion to (s)uppress, I considered the facts set forth in the first five paragraphs in the affidavit to be true.' It includes no statement of any findings of facts by the judge. We therefore summarize the facts alleged by the defendant and which the trial judge 'considered * * * to be true.' On October 14, 1969, police officers applied for and obtained a warrant authorizing the search of the defendant's dwelling and another warrant authorizing the search of his garage and apartment at the rear of the dwelling. Each warrant described the following articles as the objects of the searches authorized: '1 Standard Combination Slide and Film Strip Projector, Model #750CFS Serial #A234796; 1 Sioux Air Wrench, Cat. #315, Serial #B9340; (and) 1 Anniversary Clock, Gold Color, rectangular shaped, enclosed in glass.' When the police executed the warrants they found none of the articles described therein. However, in the course of the searches they found and seized the articles described in the four indictments now pending against the defendant. These articles were seized 'neither pursuant to a search warrant authorizing their seizure nor incident to a lawful arrest, nor with the consent of the defendant or anyone in control of the premises.' Although the defendant was present at the time and place of the searches and seizures, he was not then arrested. He was arrested several days later and charged with the crimes later included in the present indictments. On October 16, 1969, the police executed a return of 'Nothing Found' on each of the two search warrants. ¹

The only issue presented to us by the report is whether the trial judge's denial of the motion to suppress the seized articles was correct. The parties have devoted almost their entire argument to the issue of the validity of the two search warrants. One this issue the Commonwealth contends that the police were lawfully on the premises pursuant to valid warrants and that therefore their seizure of the disputed articles was lawful; whereas the defendant contends that the warrants were invalid because of deficiencies in the application and accompanying affidavits and that therefore the officers were not lawfully on the premises and their seizure was invalid. The defendant contends in the alternative that if the search warrants were valid and the officers were lawfully on the premises, they had no right to seize the articles. For reasons hereinafter stated, we do not believe it necessary to pass upon the validity of the search warrants. For the purpose of this decision we assume that the warrants were valid, but without so deciding.

The Fourth Amendment to the Constitution of the United States first declares that '(t)he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.' It then declares that 'no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized' (emphasis supplied). These provisions have been cited as the basis for the following language first found in Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231, and repeated in many subsequent decisions: 'The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and provents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.' Stanford v. Texas, 379 U.S. 476, 485--486, 85 S.Ct. 506, 13 L.Ed.2d 431. Berger v. New York, 388 U.S. 41, 58, 87 S.Ct. 1873, 18 L.Ed.2d 1040. Seymour v. United States, 369 F.2d 825, 826--827 (10th Cir.), cert. den. 386 U.S. 987, 87 S.Ct. 1297, 18 L.Ed.2d 239. Aron v. United States, 382 F.2d 965, 974 (8th Cir.). Gurleski v. United States, 405 F.2d 253, 257 (5th Cir.), cert. den. Smith v. United States, 395 U.S. 977 and 981, 89 S.Ct. 2127, 2140, 23 L.Ed.2d 765, 769.

A literal application of the rule quoted above from the Marron decision requires a conclusion that the two warrants authorizing the search of the defendant's premises did not authorize the seizure of the articles not described therein and which are the subjects of the present indictments against the defendant. On the other hand the mere fact that the premises were searched by authority of the warrants does not compel the conclusion that there could be no lawful seizure of articles not described in the warrants. In Palmer v. United States, 92 U.S.App.D.C. 103, 203 F.2d 66, 67, and again in Johnson v. United States, 110 U.S.App.D.C. 351, 293 F.2d 539, 540, the court said that 'it is well established that given a lawful search some things may be seized in connection therewith which are not described in the warrant.' We shall now consider the types of situations in which the seizure of an article not described in the search warrant but discovered in the execution of the warrant has been held lawful.

1. It has been held that if a defendant is arrested at the time and place of execution of the search warrant, some articles may be seized lawfully as an incident of the arrest, although not described in the search warrant. The Marron case illustrates this point. There the warrant authorized a search for 'intoxicating liquors and articles for their manufacture' (275 U.S. p. 193, 48 S.Ct. p. 75.). The officers executing the warrant seized intoxicating liquors and arrested the person present in charge of the business. They also seized 'a ledger showing inventories of liquors, receipts, expenses * * * (and) a number of bills * * * for gas, electric light, water, and telephone service furnished on the premises' (p. 194, 48 S.Ct. p. 75). The court decided that although 'the seizure of the ledger and bills * * * was not authorized by the warrant * * * (they) were lawfully seized as an incident of the arrest' (198--199, 48 S.Ct. p. 76--77). See Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, as limited by Chimel v. California, 395 U.S 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.

2. It has been held that if the execution of a search warrant discloses articles which are instrumentalities or means by which a crime is committed they may be seized although not described in the warrant. In Palmer v. United States, 92 U.S.App.D.C. 103, 203 F.2d 66, 67, the court upheld the seizure of pistols discovered in the execution of a search warrant describing 'narcotics and paraphernalia for their preparation and use.' In Bryant v. United States, 252 F.2d 746, 749 (5th Cir.), the court upheld the seizure of milk sugar, gelatin capsules and balloons discovered in the execution of a search warrant for heroin. The court characterized the articles seized as 'instrumentalities incident to the commission of the (narcotics) offense for which the appellant was tried and convicted.' In Porter v. United States, 335 F.2d 602, 604, 606--607 (9th Cir.), cert. den. 379 U.S. 983, 85 S.Ct. 695, 13 L.Ed.2d 574, the court upheld the seizure of a 12 gauge sawed-off shotgun and a .38 caliber Colt revolver discovered in the search of an automobile under a search warrant describing 'a gun, .25 or .32 caliber, a cap, baseball or golf type, and a sport coat, gray in color' as the instrumentalities of a crime of bank robbery. Although it was held for many years that 'merely evidentiary materials' as distinguished from 'instrumentalities and means by which a crime is committed' could not be seized either under the authority of a search warrant or during the course of a search incident to arrest (Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647) that distinction and the resulting limitation on the right to seize 'merely evidentiary materials' were examined at length and rejected in Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. In the later case of United States v. Alloway, 397 F.2d 105, 111--112 (6th Cir.), the court upheld the seizure of two suits of clothes discovered in the execution of a search warrant which listed only a sum of money described as the proceeds of a bank robbery and any weapon used in the robbery. The court discussed the question whether one of the suits 'was a part of the felon's planned paraphernalia and, therefore, was an instrumentality of the criminal enterprise,' but it concluded that in view of the decision in Warden, Maryland Penitentiary v. Hayden, supra, it is immaterial whether the suit was an instrumentality of the crime or merely evidentiary material. In Gurleski v. United States, 405 F.2d 253, 260 (5th Cir.), the court said that 'since Warden, Maryland Penitentiary v. Hayden, supra, it is unnecessary for us to state unequivocally that the...