Commonwealth v. Antobenedetto

Tauro, C.J.

(dissenting in part, with whom Braucher, J., joins). I am constrained to dissent from so much of the majority’s opinion as relates to the defendant’s motion to suppress. No analysis of Whiteley v. Warden, Wyo. State Penitentiary, 401 U. S. 560 (1971), compels the conclusion reached by the majority. To the contrary, it is clearly distinguishable. The majority’s unnecessary and unwarranted extension of the rule laid down in the Whiteley case to the facts of the instant case, in my view, contributes nothing to the development of rational rules of criminal procedure respectful of the sensitive balance to be maintained between individual rights and the legitimate expectations of a society for reasonable protection against the ravages of crime.

In the Whiteley case, supra, at 568, the United States Supreme Court stated, “We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin.” By the same token, on receiving in the normal course of their duties a radio report of the commission of a felony, uttering a forged check in violation of G. L. c. 267, § 5, and also a description of the automobile involved including its color, exact registration number, and the sex and number of its occupants, Lt. Keefe and Sgt. Cobb were similarly entitled to act on the strength of that bulletin when, within a very few moments of its receipt, the vehicle so specifically described in it approached them at the location where, relying on the information contained in the bulletin, they had strategically stationed themselves to intercept it. In these circumstances it was in my opinion the right, if not the duty, of these Framingham police officers to act as they did. See Commonwealth v. Brown, 354 Mass. *60 337, 343 (1968). Quite consistently with the rationale of the Whiteley case, the officers in making their search were entitled to depend on the reliability of the radio bulletin, and the materials seized by them during that search should have been admitted in evidence where the “contrary,” the unreliability of that bulletin, was not shown to be true. Ibid.

The language employed by the Supreme Court in the Whiteley case, in effect, asserts that a search of the sort here involved should be considered legal and the material seized admissible in evidence unless the unreliability of the information causing the transmission of the bulletin on which the officers acted is shown. If any logical application of the Whiteley case is to be made here, the burden of proving the “contrary,” that is, demonstrating the unreliability of that information, must rest squarely on the defendant. On the other hand, if the Supreme Court had explicitly stated that this sort of search were to be considered legal and the material seized admissible only if the reliability of that information were shown then, of course, I would be compelled to reach the conclusion which the majority have reached in the present case. The fact is, however, that the Supreme Court did not use any language which compels the majority’s conclusion. See Am. Law Inst., Model Code of Evidence, Rule 11 (1942), with respect to the admissibility of relevant evidence subject to a condition.

In the instant case, the “contrary” was not shown to be true. The defendant never attempted to raise any factual question regarding the reliability of the radio bulletin transmitted by the police dispatcher to Lt. Keefe and Sgt. Cobb. There is no indication that the police dispatcher was not available as a witness who could have been summonsed by the defendant to testify at the hearing on the motion to suppress with respect to the events causing him to transmit the radio bulletin to Lt. Keefe and Sgt. Cobb. Nor is there any record that the defendant ever sought to elicit any testimony on this subject which would have raised at that hearing the issue now advanced here for the first time on appeal. An earlier raising of the issue would have put the *61 prosecution on notice as to the nature of the defendant’s claim.

In the Whiteley case, on the other hand, “at every stage in the proceedings below [the] petitioner argued the insufficiency of the warrant as well as the lack of probable cause at the time of arrest.” Id. at 569 . Furthermore, again in the Whiteley case, the prosecution “[kjnowing the basis for [the] petitioner’s constitutional claim ... [deliberately] chose to try . . . [the case] on the record it had developed” out of an erroneous conviction that the petitioner’s argument could not prevail on appeal. Ibid.

The instant case reaches us in a totally different posture, one, as the majority note, “utterly barren of any information relative to the purported attempt to pass a bad check at the Framingham Trust Company.” Unlike the apparently more assiduous Whiteley, the defendant here never argued the unreliability of the information causing the dispatcher to transmit the radio bulletin. Nor, never having been confronted with such an argument, did the prosecution ever deliberately choose to ignore any constitutional claim based on it. Therefore, absent any such challenge by the defendant to the reliability of the radio bulletin at the hearing on his motion to suppress, it most certainly is not clear from the Whiteley case that, as matter of law compelled by a controlling Federal decision, the burden of establishing the reliability of the information causing the transmission of the radio bulletin rests on the Commonwealth.

It has long been the majority rule, here and elsewhere, that “[o]n a motion to suppress the burden of establishing that evidence has been illegally obtained is on the moving party.” Commonwealth v. Fancy, 349 Mass. 196, 202 (1965). Commonwealth v. Roy, 349 Mass. 224, 229 (1965). Commonwealth v. Mitchell, 350 Mass. 459, 464 (1966). Commonwealth v. Owens, 350 Mass. 633, 636 (1966). Commonwealth v. Stirling, 351 Mass. 68, 74 (1966). Commonwealth v. Nunes, 351 Mass. 401, 404-405 (1966). Commonwealth v. LePage, 352 Mass. 403, 411 (1967). Commonwealth v. Coco, 354 Mass. 78, 79 (1968). Commonwealth v. Connolly, 356 Mass. 617, 625 (1970), cert. *62 den. 400 U. S. 843 (1970). Commonwealth v. Hanger, 357 Mass. 464, 468 (1970). Commonwealth v. Franklin, 358 Mass. 416, 420 (1970). Commonwealth v. Colella, 360 Mass. 144 (1971). Commonwealth v. Pignone, 361 Mass. 566, 568-569 (1972). See Nardone v. United States, 308 U. S. 338, 341 (1939); United States v. Coplon, 185 F. 2d 629, 636 (2d Cir. 1950), cert. den. 342 U. S. 920 (1952); Harlow v. United States, 301 F. 2d 361, 373 (5th Cir. 1962), cert. den. 371 U. S. 814 (1962); Chin Kay v. United States, 311 F. 2d 317, 321 (9th Cir. 1962); Addison v. United States, 317 F. 2d 808, 812 (5th Cir. 1963), cert. den. 376 U. S. 905 (1964); Murray v. United States, 333 F. 2d 409, 411 (10th Cir. 1964), cert. den. 383 U. S. 949 (1966); United States v. Morin, 378 F. 2d 472, 475 (2d Cir. 1967); Moore v. State, 244 Ark. 1197, 1200 (1968), cert. den. 393 U. S. 1063 (1969); State v. Towles, 155 Conn. 516, 518 (1967); Lumpkins v. Commonwealth, 425 S. W. 2d 535, 536 (Ky. 1968); People v. Ferguson, 376 Mich. 90, 95-96 (1965); State v. Holt, 415 S. W. 2d 761, 764-765 (Mo. 1967); Daniels v. State, 441 P. 2d 494, 495 (Okla. Crim. App. 1967); Cook, Constitutional Rights of the Accused — Pre-trial Rights, § 71 at 432 (1972); George and Cederbaums, Criminal Procedure Sourcebook, 478-479 (1970); 22A Ó. J. S. Criminal Law, § 578, and § 657 (32) (a) (1961); Hughes, Evidence, § 268 at 85 (1972 Supp.).

Admittedly, the rule has developed, or more properly appears to have developed, otherwise in a number of jurisdictions, more particularly in recent years while this court, during the same period, has repeatedly reaffirmed the general rule and even purports with some departure to reaffirm it here. See Brett v. United States, 412 F. 2d 401, 405 (5th Cir. 1969); United States v. Schipani, 289 F. Supp. 43, 54 (E. D. N. Y. 1968), affd. 414 F. 2d 1262 (1969); Ellison v. State, 383 P. 2d 716, 720 (Alaska 1963); Parrish v. Civil Serv. Commn. of County of Alameda, 66 Cal. 2d 260, 268-269 (1967); People v. Chacon, 177 Colo. 368 (1972); People v. Mason, 22 Mich. App. 595, 615-616 (1970); Butler v. State, 212 So. 2d 573, 577 (Miss. 1968); State v. Gaudiosi, 97 N. J. Super. 565, 571-572 (1967); People v. Baldwin, 25 *63 N. Y. 2d 66, 70-71 (1969); State v. Elkins, 245 Ore. 279, 292-294 (1966).

To the extent that these decisions represent a discernible trend, they also represent a convolution of the appellate process. They are based largely not on an analysis of precedents and the policies underlying them but rather on judicial speculation as to what the United States Supreme Court might decide if squarely confronted with the question who has the burden of proof on a motion to suppress for lack of probable causé. See, e.g., State v. Elkins, supra, and George and Cederbaums, Criminal Procedure Sourcebook, supra. Other cases sometimes cited in support of the proposition that the burden of proof rests on the prosecution in suppression hearings rely heavily on language of Miranda v. Arizona, 384 U. S. 436 (1966), which rested heavily on issues foreign to the fact situation of the instant case, namely, the inherent judicial suspicion of the voluntariness of confessions obtained during in-custody interrogations of defendants unaware of their rights to legal representation or, if aware of such rights, in the absence of counsel. See People v. Baker, 9 Ill. App. 3d 654, 659 (1973); Gibson v. State, 257 Ind. 23, 28 (1971).

In these respects, however, consider the trend in the opposite direction possibly evolving from more recent decisions of the United States Supreme Court, e.g., Lego v. Twomey, 404 U. S. 477 (1972); United States v. Calandra, 414 U. S. 338 (1974); Michigan v. Tucker, 417 U. S. 433 (1974).

In some instances, the evolution of an apparent rule imposing the burden of proof on the prosecution in hearings on motions to suppress appears to stem from an imprecise use and interchange of the words of art, “burden of proof,” “burden of persuasion,” and “burden of producing evidence.” Compare People v. Malinsky, 15 N. Y. 2d 86, 91, n. 2 (1965), with People v. Baldwin, 25 N. Y. 2d 66 (1969), in which the burden was imposed upon the prosecution after the defendant had challenged the informer’s existence and had accused the police of wiretapping. In the Malinsky case, the New York Court of Appeals stated: “The People, *64 in order to prevail, are under the necessity of going forward in the first instance with evidence to show that probable cause existed both in obtaining a search warrant and in sustaining the legality of a search made, without a warrant, as incident to an arrest.” Ibid. Yet in the Baldwin case, supra, at 70-71, in partial quote from the foregoing footnote, the Court of Appeals stated: “While the ultimate burden of proof is on the defendant, the People must, in order to make out a prima facie case at the suppression hearing, come forward with some evidence to show probable cause.” Compare also State v. Gaudiosi, 97 N. J. Super. 565 (1967), and State v. Scrotsky, 39 N. J. 410, 414 (1963), where, in applying Mapp v. Ohio, 367 U. S. 643, 655 (1961), the New Jersey Supreme Court stated: “Proof of entry by police officers into a person’s home without a proper search warrant, and the taking of articles to be used iri support of a criminal charge against him, without more, makes out a prima facie case for suppression of the seized evidence” (emphasis supplied). State v. Scrotsky, supra, at 414. However, if a warrant had been issued the burden of proof would rest on the defendant. State v. Mark, 46 N. J. 262, 273 (1966). Compare People v. Ferguson, 376 Mich. 90 (1965), with People v. Mason, 22 Mich. App. 595 (1970).

For a thorough discussion of the problems generated in some of these cases by the imprecise and inconsistent use of these terms, see McCormick, Evidence (2d ed.) §§ 336-342 (1972), and authorities cited therein, especially Ashford & Risinger, Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview, 79 Yale L. J. 165 (1969).

A major portion of the problem associated with the resolution of the instant case is that the “seemingly irreconcilable disarray” acknowledged in cases relating to warrantless searches of automobiles, quoting from Commonwealth v. Haefeli, 361 Mass. 271 (1972), has been united in a mixed marriage with the disarray to be found in cases relating to the burden of proof on motions to suppress. By any reasonable expectation confusion can be the only offspring of such a union.

In the midst of this confusion, the majority have found *65 themselves compelled by a readily and, in my opinion, a necessarily distinguishable Federal decision to make a fundamental policy change in established Massachusetts law without analyzing the basis of our prior law or the ramifications of the change in it. The characterization of this fundamental change as a “departúre” from preexisting law rather than as an outright reversal lends little to its understanding and nothing to its rationale.

If the majority, in the exercise of this court’s rule making authority and its supervisory powers over the trial courts, O’Coins, Inc. v. Treasurer of the County of Worcester, 362 Mass. 507 (1972), had determined, as matter of policy and not of compulsion, that the proper administration of justice in this Commonwealth required a change in our pertinent evidentiary rule then they should have forthrightly reversed our earlier cases and stated the new rule without equivocation on such grounds. To have followed such a course of action would have contributed to a more incisive examination of the issues presented in the instant case and a clearer, though not necessarily different, exposition of the law. However, owing to a misplaced reliance on the Whiteley case, the majority have abdicated this court’s responsibility for maintaining, as well as developing, the decisional law of this Commonwealth, and, to the extent that this decision might ultimately be considered by the United States Supreme Court, the law of the land.

The majority concede that “[t]his is definitely not an incident where ‘the constable has blundered.’ ” If anything, the constables are to be commended. Rather, the majority have determined that this is an incident where the prosecution and the trial judge, relying upon a series of unequivocal opinions by this court that the burden of proof is on the defendant in motions to suppress, should now be considered to have blundered. The majority feel themselves compelled to reach this conclusion because the prosecution, never before specifically challenged by the defendant’s pleadings or evidence on the point now at issue, failed to present “a link of evidence easy to supply if it exists.” The majority disregard the fact that, under our criminal procedure as heretofore understood, the defend *66 ant could, by a few very simple questions put to the arresting officers during the hearing on the motion to suppress, have easily raised, and perhaps resolved, this specific issue and, at that time, required the prosecution to have introduced evidence on the issue now raised here for the first time on appeal. 1 See Hughes, Evidence, § 268 at 87-89 (1972 Supp.).

It is well established that the legality of the search and admissibility of the evidence seized during it, absent the showing of any facts eroding the basis of the action of the searching officers, depend “upon whether, at the moment the.. . [search] was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense” (emphasis added).Beck v. Ohio , 379U. S. 89,91 (1964).

Certainly, Lt. Keefe and Sgt. Cobb were justified in considering the bulletin relayed to them to be “reasonably trustworthy information” which, when supported by the appearance on the scene of the automobile described in the bulletin, would authorize them to stop and search it. This much the majority concede. See Commonwealth v. Barnes, Mass. App. Ct. , (1974), a and dissent of Presiding Justice Gillespie in Butler v. State, 212 So. 2d 573, 580-581 (Miss. 1968).

To me, it is inconsistent to concede the reasonableness of the initial search based upon the receipt of the radio bulletin by the searching officers and then to reject that *67 search as unreasonable in judicial proceedings in which no specific attack was made on the reliability of the message. Apparently, the majority would have it that the police officer on patrol can infer that a police dispatcher’s bulletin is based on credible information received from a reliable source and not merely on the unscreened relaying of an unsubstantiated, anonymous tip, but the trial judge, acting on the same facts, without more, must come to the contrary conclusion and suppress the evidence proffered.

No question is raised as to the relevance of the materials seized and offered in evidence. The sole challenge to their admissibility was based upon the lack of probable cause existing at the time of the search.

At the hearing on the motion to suppress, the defendant brought out that the search had been conducted without a valid search warrant having been first obtained. Without more, this would have satisfied the defendant’s burden of proof and established a prima facie case for suppression of the articles seized during the warrantless search of the vehicle. This I take to be the real meaning of cases such as United States v. Schipani, 289 F. Supp. 43 (E. D. N. Y. 1968); People v. Chacon, 177 Colo. 368 (1972); State v. Scrotsky, 39 N. J. 410 (1963); State v. Gaudiosi, 97 N. J. Super. 565 (1967); People v. Malinsky, 15 N. Y. 2d 86 (1965); People v. Baldwin, 25 N. Y. 2d 66 (1969); State v. Elkins, 245 Ore. 279 (1966). See United States ex rel. Anderson v. Rundle, 274 F. Supp. 364, 370 (E. D. Pa. 1967), affd. 393 F. 2d 635 (1968); People v. Hurst, 183 Cal. App. 2d 379, 384 (1960); Traynor, Mapp v. Ohio at Large in the Fifty States, 3 Duke L. J. 319, 337 (1962), cited with approval in State v. Elkins, supra, at 294 .

However, when the searching officers testified that they had conducted their search on the basis of a radio bulletin received by them in the normal course of the performance of their duties, the defendant’s prima facie case should then have lost its presumptive force. See Leach and Liacos, Handbook of Massachusetts Evidence, 55 (1967), and Hughes, Evidence, § 46 (1961), and cases cited therein. At this juncture, with no further inquiry into the reliability of the information presented to the police radio dispatcher, *68 the questions of the reasonableness of the search and the admissibility of the evidence should have been left to the judge presiding at the hearing on the motion to suppress for his decision on the basis of the evidence adduced before him.

Without any evidence to the contrary, it would not be unreasonable to permit that judge, in deciding this issue, to infer the propriety of the police action leading to the broadcast of the bulletin. Indeed, it would be reasonable to allow a presumption of regularity to arise out of the evidence presented by the prosecution if it was believed by him. Such a presumption of regularity is permitted routinely in many areas of activity. See People v. Brown, 92 Cal. App. 2d 360, 366 (1949); People v. Jager, 145 Cal. App. 2d 792, 798 (1956); People v. Murphy, 173 Cal. App. 2d 367, 376 (1959); Bielich v. State, 189 Ind. 127 (1920); State v. Greul, 59 N.J. Super. 34, 39 (1959); State v. Honeycutt, 237 N. C. 595, 598 (1953); State v. Maresch, 75 N. D. 229, 241 (1947); Hancock v. State, 156 P. 2d 155, 158 (Okla. Crim. App. 1945); Ludwig v. State, 259 P. 2d 322, 324-325 (Okla. Crim. App. 1953); Dominguez v. State, 90 Texas Crim. App. 92, 97-98 (1921). Of course, any such presumption would be rebuttable and, in fact, destroyed by the introduction of any credible evidence contrary to the presumed fact, not a heavy burden to impose upon the defendant. See Hughes, Evidence, § 44 (1961), and cases cited therein.

At the risk of having the evidence suppressed, the majority in effect place a negative burden on the prosecution of proving that evidence obtained by means of a warrantless search is free of.any taint of illegality without at any time requiring the defendant even to make a specific objection to the proffered evidence. In my opinion, this is neither wise nor required. 2

Speaking by way of dicta in the plurality opinion in Lego v. Twomey, 404 U. S. 477, 488-489 (1972), Mr. Justice *69 White said: “Without good cause, we are unwilling to expand currently applicable exclusionary rules by erecting additional barriers to placing truthful and probative evidence before state juries and by revising the standards applicable in collateral proceedings. Sound reason for moving further in this direction has not been offered here nor do we discern any at the present time. This is particularly true since the exclusionary rules are very much aimed at deterring lawless conduct by police and prosecution and it is very doubtful that escalating the prosecution’s burden of proof in Fourth and Fifth Amendment suppression hearings would be sufficiently productive in this respect to outweigh the public interest in placing probative evidence before juries for the purpose of arriving at truthful decisions about guilt or innocence.”

Even more recently, the United States Supreme Court in United States v. Calandra, 414 U. S. 338, 347-348 (1974), stated: “The exclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens ‘to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures____’ ”

“The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim .... Instead, the rule’s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable search and seizures:

“ ‘The rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.’ Elkins v. United *70 States, 364 U. S. 206, 217 (1960). Accord, Mapp v. Ohio, ... [ 367 U. S. 643, 656 (1961)]; Tehan v. Shott, 382 U. S. 406, 416 (1966); Terry v. Ohio, 392 U. S. 1, 29 (1968). In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.”

This being so, and the constables not having blundered in this case, I cannot accept the position adopted by the majority.

“With all respect to my Brethren who agree to the judgment and opinion of the Court, I am constrained to say that I believe the decision here is a gross and wholly indefensible miscarriage of justice. For this reason it may well be classified as one of those calculated to make many good people believe our Court actually enjoys frustrating justice.” Mr. Justice Black, dissenting in Whiteley v. Warden, Wyo. State Penitentiary, 401 U. S. 560, 570 (1971).

This does not mean, however, that I indorse a mechanical rule of law that would permit the police to avoid or routinely cure defects in the initial reports of criminal activity by resorting to the transmission of radio bulletins to officers on patrol who, unaware of any such defects, might then make arrests or conduct searches relying in good faith on the reliability of such bulletins. All I maintain is that, when a search of an automobile is made by police officers on patrol pursuant to the receipt in the normal exercise of their duties of a radio bulletin reporting the commission of a crime involving that automobile and a precise description of the suspects and the automobile, that search should be considered reasonable in the absence of any specific challenge to the reliability of that bulletin in a hearing on the motion to suppress. Should it become apparent, as matter of experience, that police resort to such radio bulletins as a subterfuge in order to make otherwise invalid arrests or searches then we should consider the adoption of a deterrent rule of evidence. This does not *71 appear to be the situation in this case and it would be, in my opinion, improper to speculate on this issue at this time.

“The States are not . . . precluded from developing workable rules governing arrests, searches and seizures to meet ‘the practical demands of effective criminal investigation and law enforcement’ in the States, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures and the concomitant command that evidence so seized is inadmissible against one who has standing to complain.” Ker v. California, 374 U. S. 23, 34 (1963).

Within the leeway allowed by the United States Supreme Court, this court should aggressively develop its own procedural and evidentiary rules on the basis of experience and a rational analysis of underlying policy considerations. It should not too quickly feel compelled to reach decisions in such cases on other grounds. Compare our experience with Attorney Gen. v. A Book Named “John Cleland’s Memoirs of a Woman of Pleasure,” 349 Mass. 69 (1965), revd. 383 U. S. 413 (1966); Attorney Gen. v. A Book Named “Naked Lunch,” 351 Mass. 298 (1966); Roth v. United States, 354 U. S. 476 (1957), and Miller v. California, 413 U. S. 15 (1973). Rather, “our preference should be to work out our own destiny.” Commonwealth v. A Juvenile , 365 Mass. 421,435 .

In Commonwealth v. Riggins, post, 81 (1974), decided this day, this court upholds the admissibility of evidence which was seized by the police in circumstances whichre indistinguishable from those of the present case. In the Riggins case the court purports to distinguish the Antobenedetto case on the ground that the record in the Riggins case contained findings which “disclose the existence of a reliable source for the information which was broadcast over the police radio.” Id. at 88, n. 5. Because I believe that the burden of disclosing the nonexistence of such a reliable source is properly on the defendant, where the information is conveyed to the arresting officer through routine radio channels, a burden which the present defendant has failed to carry, I can see no justification for reaching conflicting results in these two cases. The Riggins holding should control our decision in the present case.

312 N. E.2d 575 (1974).

Rule 101B of the Superior Court (1954), as amended, provides that motions to suppress evidence “shall be filed within ten days after a plea of guilty . . . but the court in its discretion may entertain such motions at any time or at the trial.” The purpose of the hearing is to enable defendants to conduct an evidentiary *69 inquiry into the legality of the police conduct. Nelson v. Moore, 470 F. 2d 1192, 1195-1196 (1st Cir. 1972). Smith, Criminal Practice & Procedure, § 528 (1970). In the Nelson case the court said, “An important by-product of such a procedure is that, by conducting the voir dire in the absence of the jury, possible prejudice resulting from jury knowledge of seized articles later determined to be inadmissible, is avoided.”

It is clear that the Superior Court Rule 101B indicates an established practice which requires the defendant to allege and prove illegal police conduct in motions to suppress. The rule also requires that motions to suppress be supported by affidavit, which further supports the notion that the burden of proof is on the defendant.