Commonwealth v. White
| Decision Date | 09 December 1999 |
| Docket Number | 9910142 |
| Citation | 1999 MBAR 331 |
| Parties | Commonwealth v. Lee White |
| Court | Massachusetts Superior Court |
Mass L. Rptr. Cite: 10 Mass. L. Rptr. 685
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): CONNOLLY
The defendant, Lee White, is charged with armed assault with intent to murder (G.L.c.265, 18(b)), assault and battery by means of a dangerous weapon (G.L.c.265, 15A), possession of a firearm in the commission of a felony (G.L.c. 265, 18B) possession of a firearm without a licence (G.L.c. 269, 10(a)), and possession of ammunition while not having been issued a firearm identification card (G.L.c. 269, 10(h)). Defendant moves to suppress evidence seized in plain view when police, pursuant to a warrant, searched defendant's residence at 159 West Springfield Street, apartment D. Defendant claims the items were seized in violation of his rights to be free from unreasonable searches and seizures pursuant to the Fourth Amendment of the United States Constitution and Article 14 of the Massachusetts Declaration of Rights. On October 15, 1999, this court conducted a hearing on defendant's motion to suppress. For the following reasons, this court DENIES defendant's motion to suppress evidence.
On February 5, 1999, on the basis of an affidavit submitted by Detective Andrew Gambon [the affiant], the Commonwealth issued a warrant to search defendant's apartment at 159 West Springfield Street, apartment D, for clothing and a small gun. Pursuant to the warrant, executed on February 6, 1999, officers seized one pair of black levi dungarees, one black leather coat, and two notebooks and papers. The following facts are a summary of the allegations made in the affidavit.
On January 22, 1999, at around four o'clock in the afternoon, a fight between two groups of youths took place inside the Copley Place Mall [Mall], whereby one youth was stabbed and another youth was shot. In response to the incident, Detective Thomas Connolly and the affiant arrived at Yarmouth Street at approximately four-thirty that afternoon. Upon arrival, they saw Christopher Martin [Martin], who had suffered a gun shot wound to the neck, being placed in an ambulance. Martin indicated he was shot in the Mall.
After having searched both Yarmouth Street and inside the Mall, the affiant failed to find any physical evidence of the crime. Witnesses, however, told the affiant that a fight broke out between two groups of youths inside the Mall, during which one youth had a knife and that it ended when the sound of a gunshot caused all the youths to run away.
At five o'clock that day, Detectives William Hill [Hill] and William Tracy [Tracy], went to the Boston Medical Center to interview Martin. Martin identified Dennis Parham [Parham] as the person who shot him. Subsequently, Parham was arrested that day at six-thirty p.m. At seven o'clock that night, the affiant also interviewed Martin at the Boston Medical Center. Martin told the affiant that he had a knife during the fight and that during the fight he saw Parham reach for something around his waistband area. Believing he was reaching for his gun, Martin stabbed Parham. After this, Martin was attacked by several other youths who ran away after he heard a pop and felt pain in his neck. Martin told the affiant he was unaware of who shot him, although, previously he had told Detectives Hill and Tracy that Parham was the shooter.
A Suffolk County Grand Jury John Doe investigation was conducted during which the affiant re-interviewed Martin as well as other people who were identified as being with Martin at the Mall, including Jamie Campbell [Campbell], Sean Meadows [Meadows] and Cedrick Phillips [Phillips]. Although Martin stated on February 2, 1999, that the shooter was Parham, Martin once again stated he did not know who shot him in the neck. Martin said that he was shot from behind, and that he is certain that Parham was somewhere in front of him at the time of the shooting.
On February 2, 1999, Campbell alleged he saw the individual who shot Martin. From an array of photographs presented by the affiant, Campbell selected defendant's photograph. Campbell stated he knew defendant and that he saw him shoot Martin. Campbell described the gun that defendant allegedly used, as a small caliber chrome handgun with a pearl handle.
On February 3, 1999, Meadows told police he also saw the shooting, and that the shooter was someone other than Parham. Meadows described the shooter as a clean shaven, five-foot, nine-inch dark-skinned male, with a chunky build. He stated the shooter was wearing a black sweatshirt with an attached hood, black jeans and a black leather jacket. Meadows stated the gun was small and shiny with a white handle. The affiant confirmed that the description given by Meadows matched that of defendant who is in fact a five-foot, ten-inch dark-skinned male who weighs approximately 180 pounds.
Finally, on February 4, 1999, Phillips stated he saw the shooter and could identify him because he had seen him before. From a photo array, Phillips selected defendant's photograph and identified him as the person who shot Martin. Each of these witnesses testified to these facts before the Grand Jury.
In his affidavit, the affiant stated that from his experience and training he has learned that handguns are a valuable commodity on the streets, and that many of them are illegally possessed. The affiant explained that generally, persons who possess handguns tend to store them in their homes for both privacy and security reasons, and that such guns are usually kept inside containers to prevent their discovery by other persons. In addition, the affiant stated that personal items and clothing are usually kept in a person's residence as well.
Within a week of submitting the affidavit, the affiant personally went to 159 West Springfield Street, apartment D, where he saw defendant. Also, the affiant spoke with defendant's probation officer, John Turner of the Boston Municipal Court, who confirmed 159 Springfield Street, apartment D as defendant's current place of residence. On the basis of this information in conjunction with the witnesses' testimony, the affiant stated there was probable cause to search defendant's residence for the handgun used to shoot Martin, the clothing described by the witnesses, and all related evidence relevant to the investigation.
On February 5, 1999, the Commonwealth issued a warrant to search defendant's apartment. The warrant authorized police to search apartment D at 159 Springfield Street, for a
On February 6, 1999, at 9: 45 a.m., police executed the warrant to search defendant's apartment. Defendant was not present in the apartment during the time of the search, but his aunt and mother were. They indicated which bedroom was defendant's. While searching defendant's bedroom for the items listed on the warrant, Detective Richard Walsh came across a black notebook with "Hornets Mobb Squad," "South End," and "Killa Beez" written on its cover. He recognized these names as those of known Boston gangs. Defective Walsh picked up the notebook, leafed through it, and determined that the notebook was important to his investigation. Detective Walsh then proceeded to search the room for the gun listed on the warrant. Doing this, he came across a blue notebook to the left of defendant's bed with defendant's name written on it. He picked up the book, leafed through it, and determined it was similar to the black notebook he had just found. No firearms were discovered in defendant's bedroom or apartment. The search warrant return states that police seized one pair of black Levi dungarees, one black leather coat and two notebooks and papers.
Defendant moves to suppress the two notebooks and papers on the basis that they were seized by Boston Police outside the scope of the warrant. Defendant states the warrant lacked adequate particularity of description of the items seized. Items to be seized pursuant to a warrant must be described with adequate particularity. Fourth Amendment to the United States Constitution; Article 14 of the Massachusetts Declaration of Rights; G.L.c.276, 2; Commonwealth v. Cefalo, 381 Mass. 319, 330 (1980). The purpose of this requirement is to protect citizens from unreasonable searches and seizures conducted under a general warrant. Article 14 of the Massachusetts Declaration of Rights; Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). Thus, the items which are seized must be justified on the four corners of the warrant. Commonwealth v. Taylor, 10 Mass.App.Ct 452, 455 (1980). In the present case, it is clear that the notebooks were not listed on the warrant. Also, there is no indication that the notebooks come within the purview of the items listed on the warrant.
Furthermore a search pursuant to a warrant includes searching through all reasonable places, including any area or container, where the object of the search may be found. Commonwealth v. Wills, 398 Mass. 768, 774 (1986) (); Commonwealth v. Lett, Mass. 141, 147-48 (1984). Here, it was unreasonable for police to search for guns or clothing inside a notebook. Commonwealth v. Fernandez, 30 Mass.App.Ct. 335, 340-41 (1991) (). Therefore, the seizure of the notebooks occurred outside the warrant's scope and, as such, the seizure is not justified under its...
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