Commonwealth v. Smith

Kaplan, J.

(dissenting). A printed clause at the end of the standard form of warrant purports to command the search “of any person present who may be found to have such property [i.e., a narcotic drug or associated paraphernalia] in his possession or under his control or to whom such property may have been delivered____” (See G. L. c. 276, § 2A, inserted by St. 1964, c. 557, § 3.) On two previous occasions the court has expressed doubt about such language: read as ordinary prose, it is question-begging or self-fulfilling, and in all events it is not specific or particular. Commonwealth v. Snow, 363 Mass. 778 , 786 n.5 (1973). Commonwealth v. Pellier, 362 Mass. 621 , 625 n.3 (1972).

The court now reads the language to mean any person present at the location at the time of the execution of the warrant. This glosses the first fault. The lack of specificity or particularity remains.

I agree with some of the cases cited that when the Fourth Amendment says “particularly describing,” it expects something fairly indicative of a person or persons. (Article 14 of our Declaration of Rights requires a “special designation of the persons.”) A person may be particularly described (or specially designated) without mention of his name; but it goes to the verge, if not beyond, merely to refer, as here, to indeterminate persons described only by their contingent relationship to a location.

*347 The court suggests that the difficulty may be overcome if it is shown that there was probable cause for the belief that any person who might be present at the location when the warrant was executed would possess the seizable property or at least be engaged in an unlawful activity involving such property. I doubt that this formula can supply the necessary particularity within the tolerances of a constitutional provision directed historically against general warrants.

But if the formula is accepted, then I submit that the police officer’s affidavit, relied on as establishing the probable cause, is short of the mark. I agree with the court that the affidavit is to be read with a certain common sense leniency; but even so it seems inadequate. The affiant mentions two illegal sales and says that officers of the drug control unit have conducted “periodic surveillances” during the past week and observed persons, known by the officers to traffic in heroin, entering and leaving the location. The kinds, times, and frequency of the surveillances are not stated. We are not told the number of persons entering and leaving the location who were recognized by the police as heroin traffickers, and nothing is said about the number of persons entering and leaving the location who were not thus suspect. There is no account of how and when persons, suspect or not, congregated at the location. A report fully comprehensive and exact in every detail could not be expected; but without more complete information thán was provided in the affidavit, I believe probable cause in the sense of the court’s formula was not demonstrated. I suggest that the court should have signalled its insistence on a better demonstration by reversing the conviction, as did the New York Court of Appeals in People v. Nieves, 36 N.Y.2d 396 (1975). If not in the formula itself, then in applying it to facts, the court sets a precedent that may lead to a not inconsiderable erosion of the Fourth Amendment safeguard. I respectfully dissent.