Commonwealth v. Ellis
| Decision Date | 27 August 1999 |
| Docket Number | 97192 |
| Citation | 1999 MBAR 251 |
| Parties | Commonwealth v. James N. Ellis, Jr. et al.1 |
| Court | Massachusetts Superior Court |
Mass L. Rptr. Cite: 10 Mass. L. Rptr. 429
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): BOHN
This matter is before the Court for resolution of the defendants' motion to suppress evidence seized from the search of the Ellis & Ellis law offices in Worcester Massachusetts on May 2, 1996.2 In their motion to suppress, the defendants argue that all the evidence seized on May 2, 1996 from their offices at 16 Norwich Street and 44 Front Street, as well as evidence seized from the firm's storage facility at 3 Chestnut Street, all of which are located in the city of Worcester, should be suppressed because the search was improperly executed. Alternatively, the defendants argue that various categories of seized documents should be suppressed because the affidavit filed in support of the application for a search warrant failed to set forth probable cause or contained false statements or material omissions, was not sufficiently particular, and failed to provide for the protection of privileged documents. Finally, the defendants argue that the evidence must be suppressed because the assistant attorneys general who applied for the warrant were not disinterested prosecutors.
The Commonwealth opposes the defendants' motion to suppress, arguing that the warrant was executed consistently with its terms and was otherwise proper in all respects.
In October, November, and December 1998, this Court heard testimony and received exhibits regarding the execution of the warrants.3 In January 1999, the parties argued their respective positions concerning those elements of the motion that did not require an evidentiary hearing.4
The defendants' motion will be ALLOWED in part and DENIED in part.
Based on the evidence presented during the six days of hearing regarding the preparation and execution on May 2, 1996 of the search warrants, and on reasonable inferences to be drawn from that evidence, the following facts are found:
I. FINDINGS OF FACT REGARDING EVENTS PRECEDING THE ISSUANCE OF THE SEARCH WARRANTS
In the late fall of 1995, and based on information acquired throughout the course of a three-year investigation by Bruce Spencer of the Massachusetts Insurance Fraud Bureau ("IFB"), the Insurance Fraud Division of the Attorney General's Office ("IFD") began preparation for a search of the Worcester, Massachusetts law offices of Ellis & Ellis.5 That search was to be conducted in the spring of 1996.
In late March or early April of 1996, Lieutenant Robert A. Friend Jr., a state trooper assigned to the Criminal Bureau of the Office of the Attorney General, was asked to assist with the preparation and execution of the warrants necessary to institute the proposed search. To that end, Friend met on several occasions with Spencer, discussed with him his affidavit in support of the warrant, discussed Friend's own affidavit, and fixed the method and structure of the law office search. Among other things, Friend determined the appropriate number of personnel needed to ensure timeliness and orderliness of the search, determined the nonpersonnel resources that would be required, designed a method of maintaining contact with the legal staff of the Office of the Attorney General, and prepared a program to insure that the persons supervising the search were properly briefed as to the nature and scope of the search. Friend also collected information about the layout and contents of the buildings to be searched, and the time that employees were present in the offices. In this latter regard, Friend was aware from information provided by Spencer that employees frequently entered the office early in the morning using a key.6
On April 24, 1996, IFD attorneys Michael Cullen and John Ciardi Friend, and Spencer met with Superior Court Justice Diane Kottmyer to discuss the search warrant affidavit and issuance of the warrant. Although Friend's original plan called for the search to be conducted at 4: 00 in the afternoon, Friend discussed with the judge at this meeting his wish to enter early in the morning, before the office was occupied by clients and employees. From his conversation with Judge Kottmyer, Friend believed that his request to enter the Ellis & Ellis offices early in the morning would be incorporated into the language of the warrant.7 On April 25, 1996, a briefing session was held at the Office of the Attorney General with those persons who would be involved in supervising the Ellis & Ellis search. Friend convened this meeting to ensure that floor monitors, i.e., those troopers assigned to supervise the search of a particular floor, had a working knowledge of the law regarding attorney-client privilege and an understanding of how that privilege would be protected in the course of the search. To accomplish that goal, the following occurred: First, Friend had assembled for each officer a "briefing manual" which contained copies of the various schedules to the search warrants. The briefing manuals also set forth the duties of the searching officers and the safeguards for the protection of privileged material.
Second, Assistant Attorney General Edward Rapacki, an attorney not involved in the ongoing investigation of Ellis & Ellis, discussed the scope of the warrant and the evidence which was the subject of the search.8 Rapacki also described the procedure for seizing and sealing privileged documents for later review by the magistrate. Troopers were to look at the face of the document in a cursory manner to determine whether it concerned one of the clients listed in Schedule B to the warrant and to ascertain if the document appeared to be protected by a privilege. If the trooper could quickly determine upon cursory review that the document fell within the warrant and was privileged, the trooper was to cease looking at the document and it would be immediately sealed. If the trooper was unsure as to the nature of a particular document, the trooper was to stop reviewing it and call the floor monitor. The floor monitor was to conduct the same cursory review of the document as that allowed by the trooper. If an immediate determination as to privilege could not be made by the floor monitor, the floor monitor was instructed to call Rapacki. Rapacki would then make the final decision with regard to privilege.
Third, Assistant Attorney General David Marks briefly spoke with the floor monitors about the privilege issue and the importance of conducting a careful search, particularly with reference to issues relating to law firm confidentiality.
II. FINDINGS OF FACT REGARDING THE ISSUANCE AND EXECUTION OF THE SEARCH WARRANTS ON MAY 2, 1996
On May 1, 1996, some seven days after the meeting between representatives of the prosecution team and Judge Kottmyer, Judge Kottmyer issued two warrants to search the offices of the Ellis & Ellis law firm, the first located at 16 Norwich Street, Worcester and the second at 44 Front Street, Worcester. Schedule A to the warrants included detailed descriptions, with photographs, of the premises to be searched. The particular list of items to be seized was appended to the warrants as Schedule B. That Schedule authorized the searching troopers to seize discrete categories of documents relating to eight employees and seventeen clients, and permitted the troopers to seize bookkeeping records, nurses' records, and bank account information. Schedules C and D to the warrants set forth the protections for privileged documents and for computerized records.
The two warrants were executed on May 2, 1996. On that date, a third warrant was also issued and executed at the law firm's storage facility located at 3 Chestnut Street, Worcester. The evidence seized as a result of the search pursuant to these three warrants is the subject of defendants' motion.
On May 2, 1996, Friend arrived at the State Police Barracks in Grafton, Massachusetts at 5: 00 a.m. When all members of the search party were present, Friend conducted a second briefing, explaining to everyone present that the search that would be conducted was of a sensitive nature, in that it involved a law firm. Assistant Attorney General David Marks spoke about the scope of the warrant. Assistant Attorney General Ed Rapacki spoke about the importance of respecting the attorney-client privilege. Rapacki told those present that if they had any questions about whether any document they were reviewing was privileged, they were to stop immediately and inform the floor monitor. If the floor monitor questioned whether the document was privileged Rapacki would be called. The briefing manual prepared by Friend was distributed to all participants in the search. The briefing manual contained a copy of the schedules to the warrant, which listed the items to be seized.
At approximately 7: 00 on the morning of May 2, 1996, Friend and others approached the glass doors to the front of the law office at 16 Norwich Street. Earlier in the morning, Trooper Martin T. Foley had observed a woman enter the building through the front door with the use of a key. This occurred at approximately 6: 40 a.m. Foley also knew that the woman he had seen enter the building had not left by the time the search team arrived. Friend knocked on the door first with his fist. When he did not receive any answer, he knocked on the door with a flashlight. He then rang the doorbell located on the left side of the outside door. After receiving no answer to his knocks and rings, Friend used his cellular telephone to call the telephone number for the law firm with the hope that someone...
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