Petition — Massachusetts v. Sheppard

CLERK

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Fa Of! os Sabian Cont, is]

Yin Bi

82-963

DEC 8 i982

No. ALEXANDER L STEVAS, |

'

IN THE SUPREME COURT

OF THE UNITED STATIS

OCTOBER TERM, 1982

COMMONWEALTH OF MASSACHUSETTS,

Petitioner,

V.

OSBORNE SHEPPARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT

OF MASSACHUSETTS

FRANCIS X. BELLOTTI

ATTORNEY GENERAL

BARBARA A. H. SMITH

Assistant Attorney General

Chief, Criminal Appellate

Division

One Ashburton Place

Boston, Massachusetts 02108

(617) 727-2240

QUESTION PRESENTED

Whether the Fourth Amendment to the

United States Constitution requires

rane application of the

"St exclusionary rule when a police officer

has reasonably and in good faith relied

upon a search warrant to seize items

specified in his application for the

warrant, but the warrant is subsequently

invalidated for judicial error in

failing to specify the items in the

warrant itself?

TABLE OF CONTENTS

QUESTIONS DERSEMTED 4c c'cc cases ctbenieoeetun

OPINION ORTON 6 6000000000 benebbeeensbseeun

GC TION. o90000006000000060600060604n

CONSTITUTIONAL PROVISIONS INVOKED....+++2

FOURTH AMENDMENT. cocccccsocecboeneecceceses

STATEMENT OF THE CASE..ssscsssessseesssee

STATEMENT OF THE i's: PPPPrrrrTrTe

REASONS FOR GRANTING THE WRIT. .sesesseeed

I. THE REFUSAL OF THE SUPREME

JUDICIAL COURT TO RECOGNIZE A

REASONABLE GOOD PAITH

EXCEPTION TO APPLICATION

OF THE EXCLUSIONARY RULE

CONFLICTS WITH THE TENOR OF

DECISIONS BY THIS COURT AND

DECISIONS OF LOWER FEDERAL

AND STATE COURTS co cdvesovscesnet

A. The Decision Below

Conflicts With

Decisions Of This Court..10

B. The Courts Of Appeal

Of The Various

Circuits Are In

Conflict Over

Adoption Of A

Good Faith Exception.....20.

a?" od » ot? Bn tame ee!

FE

~ iti

oy The Decision Of The

Court Below Conflicts o/

With Decisions Of Bit

Other State Courts.......23 a

ON EES OEE AL EEDA IEE POS Z:

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TABLE OF AUTHORITIES

Cases

Aguilar v. Texas,

U.S. 108 (1964) ccccceveeceoesesau

Almeida - Sanchez v. United States,

413 U.S. 266 (UOT S} cccccseccvscevstass

Brown v. Illinois,

422 U.S. 590 (19TEd cococcécceecectsoear

California v. need

443 U.S. 9 Licccetcoveeees ena

Chapman v. California,

0.8. 18 CET a ds tnible ed 00h cee

Commonwealth v. pepkeere,

387 Mass. 468 (1 bocoeeds 7, 9, 14, Lee

Lo-Ji Sales, Inc. v. New York,

442 U.S. 3 LiGGD tied h obbciecbcwkon

Michigan v. eee

U.S. s ohe 6 cette as bie eee

People v. Adams,

53 N.Y.2d 1 N.E.2d 537 (1981)..23, 24

People v. Pierce,

88 Ill. App.3d 1095

N.E.2d 295 (1960) wcccocecooconcdeeeoun

Richmond v. Commonwealth,

Ky. ct. App. ,

29 Cr. Le 2529 (3962) satcc cviovesenan

,

yoye ) TT ae Oe, Be ee ee

es

yt)

State v. Lehnen,

03 So.2d 683 (La. 1961) coccevcceeeeae

State v. Muncey,

130 Ariz. 389 P.2d 637 (1981)......25

Stone v. Powell,

28 v.80. 465 (1976) ccceodcocesseosep 19

United States v. Alverez =- Porras,

Fe 54 (2nd Cir. Sac iwcwecee

United States v. Calandra,

414 U.8. 338 $i ) RE

United States v. Janis,

o@e 433 Cie cikée sewed enue

United States v. Kasrathanos,

F.2d 26 (and cir. 1976),

cert. denied, 428 U.S.

910 (97S ccrcvrscceseoscoccesesoenseaa

United States v. Peltier,

U.S. 531 ety. yp Rr

United States v. Wellins,

654 F.2d 550 n.1l

(9th Cir. LOSLpcecceoevecoectssesscesne

United States v. Williams

622 F.2d 830 tea 1980)

(en banc), (cert. denied,

449 U.S. 1127 (eeGr ii ccteesccwsnee 22

Statute

28 U.S.C. BA957 (3) ccd cduéccdocdverctsdvnsee

Arizona Rev. Stats. Tit. 13,

Ch. 38, SI FK-SSSS 7 c vsieccncsvaveseceene

Colorado Rev. Stats. §16-3=-308....66000+25

e

~

No.

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 19872

COMMONWEALTH OF MASSACHUSETTS,

Petitioner,

Vv.

OSBORNE SHEPPARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT

OF MASSACHUSETTS

OPINION BELOW

The opinion of the court below (App.

A) is reported at 387 Mass. 488

(1982); N.E.2d °

JURISDICTION

The decision of the court below was

entered on October 26, 1982. The

-

? apres) ah ee

jurisdiction of this Court is invoked 2

under 28 U.S.C. §1257(3). |

a Se

CONSTITUTIONAL PROVISIONS INVOKED

FOURTH AMENDMENT

“The right of the people to be

secure in their persons, houses, papers

and effects, against unreasonable

searches and seizures, shall not be

violated, and 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."

STATEMENT OF THE CASE

On May 14, 1979, respondent Osborne

Sheppard was indicted by a Suffolk

County Grand Jury in the Commonwealth of

Massachusetts for murder in the first

degree.

Prior to trial a hearing was held on

the defendant Sheppard's motion to

suppress certain physical evidence

e

- 6

3 /— i

ol Se

-

o 3 =

seized pursuant to a search warrant.

The motion was denied with written

findings of fact and conclusions of

law. (App. B).

After trial by jury, the respondent

was found guilty of murder in the first

degree and sentenced to life

imprisonment.

On appeal, the Supreme Judicial

Court reversed judgment, holding "... we

conclude that solely on the basis of

opinions of the Supreme Court of the

United States, the exclusionary rule

requires the suppression of the evidence

seized pursuant to this defective

warrant." Commonwealth v. Sheppard, 387

Mass. 488, 489 (1982).

STATEMENT OF THE PACTS a.

The facts surrounding the discovery

of the body and the investigation which

oie

warrant and an analysis of the evidence

seized are comprehensively set out in

the opinion of the Supreme Judicial

Court (App. A, pp. 3-21). Petitioner

will limit its reiteration to the facts

concerning the application for issuance

and return of the search warrant.

The beaten and burned body of Sandra

Boulware was discovered at approximately

5:00 a.m. on Saturday, May 15, 1979.

Lengths of wire were attached to one leg

and near the body. Attention ultimately

focused on Osborne “Jimmy" Sheppard. As

a result of inconsistent statements

given by Osborne, and statements given

by individuals whom he had stated he was

with from Friday night, May 4, to the

early morning hours of May 5, and

evidence of blood stains, hair and wire

found in and around the trunk of a car

Sheppard had borrowed in the early

= vo

morning hours of Saturday, May 5, the

police determined on Sunday, May 6, that

they should seek an arrest warrant and

search warrant for Sheppard's home at 42

Deckard Street, Roxbury .2/

Detective O'Malley of the Boston

Police Department prepared and typed an

affidavit in support of an application

for a search warrant. (App. C). By

this time it was Sunday afternoon and

neither a clerk nor assistant clerk of

the Roxbury Division of the District

Court could be found. Moreover, the

police were unable to locate a suitable

form of search warrant. Detective

O'Malley did locate a printed warrant

form formerly utilized by the Dorchester

District Court for searches for

l/ A full description of the

nvestigation may be found in the

Appendix, App. B, PP. 4-15.

=

controlled substances. Detective

O'Malley attempted to adapt this form by

crossing out the words “controlled

substance" on the cover side, replacing

the word "Dorchester" with the “Roxbury”

and inserting a reference to "2nd &

Basement" of 42 Deckard Street as the

place to be searched. However, he did

not delete the reference to controlled

substances in the portions of the forn

that constituted the application for the

warrant itself. At 25¢5p.ma; Detective

O'Malley, other officers and a

representative of the District

Attorney's office appeared at the home

of a judge to present the affidavit and

applications for arrest and search

warrants. The judge took O'Malley's E

oath and signed the affidavit to that

~~” A

effect. The judge searched to no avail

for an appropriate form of search

e7e

warrant. He then undertook to make the

appropriate changes in the “controlled

substance" form, and dated and signed

the warrant. However, as it was later

determined, the judge made no change in

the substantive portion of the warrant

form which authorized a “search for any

controlled substance ..."

(App. D).

Detective O'Malley left the judge's

home with the affidavit and a search

warrant “[he] reasonably believed, on

advice from the judge, was adequate to

justify a search of the designated

premises for the items listed in the

application for the warrant. ..."

(Commonwealth v. Sheppard, 387 Mass. at

502. (App. A, p. 38). At about 5:00

p.m., Detective O'Malley (with the 1

affidavit and search warrant) and other |

officers were admitted to 42 Deckard

e 8 @

Street. O'Malley spoke with the

defendant's mother and sister and told

them the police were going to look in

defendant's room and the cellar for

items implicated in a homicide. It does

not appear that either woman requested

to see the search warrant,

The items seized and introduced at

trial consisted of apparently

bloodstained boots taken from the

defendant's bedroom. In the cellar

O'Malley took pieces of bloodstained

concrete, women's earrings, and an

apparently bloodstained envelope, men's

jockey shorts and women's leotards,

later determined to be bloodstained;

three types of wire and a woman's

hairpiece., The trial judge found "... ,

the search was within the limits that |

O'Malley understood the warrant to

permit.* indings o act and i

; of haus (App. B, p. 23). eee

We as os een i Mia co ee ee ee

REASONS FOR GRANTING THE WRIT

I. THE REPUSAL OF THE SUPREME

JUDICIAL COURT TO RECOGNIZE A

REASONABLE GOOD PAITH EXCEPTION

TO APPLICATION OF THE

EXCLUSIONARY RULE CONFLICTS

WITH THE TENOR OF DECISIONS BY

THIS COURT AND DECISIONS OF

LOWER FEDERAL AND STATE COURTS.

The decision of the Supreme Judicial

Court is based squarely on its

understanding of decisions of this court.

The court addressed the question:

",.-whether the

exclusionary rule

adapted by the Supreme

Court of the United

States to protect Fourth

Amendment rights,

requires the suppression

of incriminating

evidence obtained in the

course of a police

search conducted in good

faith, but pursuant to a

warrant which, although

issued on probable

cause, violated the

constitutional and

statutory requirement

» that search warrants ey’

describe the things to

be seized." ae mnonwealth

She ard, Mags,

asdee (Ap

Pp. Ay Pe 1).

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Pr et, y esd ' Pt Ie. Wet

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The court concluded: | ‘

"We conclude that,

solely on the basis of

the opinions of the

Supreme Court of the

United States, the

exclusionary rule

requires the suppression

of the evidence seized

pursuant to this

defective warrant. Id.

at 489.

*,..we conclude, on the

basis of opinions of the

Supreme Court to date,

that the exclusionary

rule requires

suppression of the

evidence seized at 42

Deckard Street. Id. at

507-508.

A. The Decision Below

Conflicts With Decisions

Of This Court.

Decisions of this court at least

implicitly recognize a reasonable good

faith exception to application of the

exclusionary rule.

In United States v. Peltier, 422

U.S. 531 (1975), this court denied

retroactive effect to its decision in

: 5 £ 7" ‘

27 a . Pace

a 2) i

Almeida - Sanchez v. United States, 413

—.

al

U.S. 266 (1973) (enunciating new Fourth

Amendment standards involving roving

border patrol searches). In doing so,

the court examined the dual purposes

underlying application of the

exclusionary rule: preservation of

judicial integrity and deterrence. As

to considerations of judicial integrity

the court stated:

"The teaching of these

retroactivity cases is

that if the law

enforcement officers

reasonably believed in

good faith that evidence

they had seized was

admissible at trial, the

‘imperative of judicial

integrity’ is not

offended by introduction

into evidence of that

material even if

decisions subsequent to

the search or seizure

have broadened the

exclusionary rule to

encompass evidence

seized in that manner.

Id. at 537.

» 12 «

In considering the deterrence rationale

for application of the exclusionary rule

the court stated:

"If the purpose of the

exclusionary rule is to

deter unlawful police

conduct then evidence

obtained from a search

should be suppressed

only if it can be said

that the law enforcement

officer had knowledge,

or may properly be

charged with knowledge

that the search was

unconstitutional under

the Fourth Amendment."

Id. at 542.

More recently in Michigan v.

DeFillippo, 443 U.S. 31 (1979), this

court refused to require suppression of

evidence seized incident to an arrest

pursuant to an ordinance later declared

unconstitutional. The court refused to

require that the “prudent officer”

anticipate a subsequent,-4udicial

determination that the ordinance was

unconstitutional.

|

— | ee

In both cases this court has

recognized some limitation of the

exclusionary rule when officers act in

reasonable good faith.

Here, the conduct of the officers

cries out for a more reasoned

application of the exclusionary rule

than the rigid, inflexible per se

approach of the majority of the Supreme

Judicial Court.

There is no argument that the

officers had probable cause for the

search. Their application was specific

in terms of the items to be seized and

places to be’ searched. Under

circumstances requring immediate action

they sought out a judge to request the

necessary warrant. The officers were

assured by the judge that he would make

the necessary alterations to the only

warrant form to be found on that Sunday

= 14 @

afternoon. Both the trial judge and the

Supreme Judicial Court found that the

defendant, who was at liberty, could

reasonably be expected to learn fron

others at "the gaming house” that he was

under investigation. (Commonwealth v.

Sheppard, 387 Mass. 488, 497 (1982).

(Pindings at #14, App. B, pp. 10-19).

Moreover, it should be noted that the

items sought could be easily disposed of

by the defendant. Yet, under these

circumstances, the police sought a

Warrant; the police officer was informed

by the judge that the warrant delivered

sufficient authority to carry out the

search as requested and the search was

in fact limited to the items

particularized in the affidavit.

(Pindings at #15, App. B, p. 22). The

officers exercised the warrant in

complete conformity with the affidavit

» 16.

which accompanied Officer O'Malley.

Clearly, no actual prejudice accrued to

the defendant as a result of the

technically defective warrant.

The plurality decision of the

Supreme Judicial Court acknowledges that

the police conduct in this case was

proper;

"the police ... received

a search warrant they

reasonably believed, on

advice from the judge,

was adequate to justify

a search of the

designated premises for

the items listed in the

application for the

warrant" Sheppard at

502.

"... the police

‘conducted the search

in a good faith belief,

reasonably held, that

the search was lawful

and authorized by the

warrant issued by the

judge." Id. at 503.

Yet, finding that the issuing judge had

acted, “negligently, but in good faith”

o 16 «

in failing to strike out the

inappropriate words in the warrant form,

or to refer to or physically attach the

recitation of items to be seized

contained in the affidavit, the Supreme

Judicial Court felt constrained to apply

the exclusionary rule.

Obviously, such application of the

exclusionary rule cannot be construed to

provide a deterrent to police

misconduct. It is suggested that

application of the exclusionary rule to

deter judicial negligence is not

compelled by any decision of this

court. This is not a case in which the

judge participated in the investigation

or execution of the search warrant

(Compare Lo-Ji Sales, Inc. v. New York,

442 U.S. 319, 326-328 (1979)). ‘There is

no claim that the issuing judge acted in

any but an impartial manner. It is

» 17 «

submitted that under these

circumstances, the appropriate response

of a reviewing court should include or

be limited to examination of the alleged

error, be it of constitutional

magnitude, to determine if it is

harmless beyond a reasonable doubt

(Compare Chapman v. California, 386 U.S.

18 (1966). Such examination could be

limited to a determination of prejudice

to a defendant. If, as here, no

prejudice is found, the error should be

deemed harmless and no further

consideration given to application of

the exclusionary rule. To punish

society for negligent judicial error

which caused no prejudice to the

defendant goes far beyond any

requirement of the Pourth Amendment.

Per se application of the exclusionary ‘

a

%,

rule under these circumstances can only ;

4

A SE ee VR eee RY

@ 18 «

be deemed Draconian. It cannot be

aruged that either the search itself or

the police conduct was unreasonable in

any constitutional sense,

Not only does the decision below

conflict with the majority decisions of

this court in Peltier and DeFillippo, it

also runs directly contrary to

statements of individual Justices of

this court. Dissenting in Stone v.

Powell, 428 U.S. 465 (1976), Justice

White set forth a view of the

exclusionary rule which has particular

applicability to the circumstances of

the instant case,

"(T]he rule should be

substantially modified

so as to prevent its

application in those

many circumstances where

the evidence at issue

was seized by an officer

acting in the good faith a

belief that his conduct

comported with existing

law and having

i-

» 19 «

reasonable grounds for

this belief." Stone v.

Powell at 538.

Chief Justice Burger concurring in Stone

has suggested the rule should be limited

in its scope to “egregious bad faith

conduct*® and expressed support for

Justice White's suggestion that the rule

be modified. Stone v. Powell at 501,

(Burger, C.J. concurring). See also

Brown v. Illinois, 422 U.S. 590, 612

(1974) (Powell, J. concurring in part);

United States v. Janis, 428 U.S. 433,

453 (1976); California v. Minjares, 443

U.S. 916 (1979); (Rehnquist, J., with

Burger, C.J. dissenting).

The instant case, it is suggested,

presents a unique opportunity for the

court to speak as a whole on the

application of the exclusionary rule to

reasonable good faith conduct by the

police; conduct which is flawed only by

- 20 =

a technical, negligent mistake by a

neutral magistrate.2/ The obvious

importance and need for resolution of

the issue to the public and to law

enforcement is emphasized by the

conflict between the federal courts of

appeal and state courts of last resort

in their attempts to resolve the issue.

B. The Courts Of Appeal Of

The Various Circuits Are

In Conflict Over Adoption

Of A Good Faith Exception.

In United States v. Williams, 622

F.2d 830 (Sth Cir. 1980) (en banc),

(cert. denied, 449 U.S. 1127 (1981), the

Fifth Circuit adopted a good faith

exception to the exclusionary rule where

an officer had acted in good faith and

2/ It should be noted that the

magistrate's error did not involve an

error of judgment in determining %

probable cause. See Aguilar v. Texas,

378 U.S. 108 (1964).

e 31 «

with a reasonable belief that his

conduct was constitutionally proper. In

Williams, a Drug Enforcement

Administration agent arrested an

individual he knew: was violating a

travel restriction which had been placed

upon her when she was released on appeal

of another conviction, a subsequent

search of her person and search of her

luggage pursuant to a warrant, revealed

quantities of heroin. It was later

determined that the defendant's

violation of the travel restriction did

not constitute a crime under 18 U.S.C.

§3146.

In adopting a reasonable good faith

exception to the exclusionary rule, the

court delineated two categories in which

the exception was applicable: "“yood

faith mistake," - an action under a

reasonable factual error, and a good

- 22 «

faith "technical violation" in which an

officer has reasonably relied upon a

statute later ruled unconstititional or

a warrant which is later invalidated.

Williams, at 841, 846.

It is the latter exception into

which the present case falls and the

rationale for declining to impose the

exclusionary rule is apposite.

"(T]he exclusionary rule

exists to deter willful

or flagrant action by

police, not reasonable,

good faith ones. Where

the reason for the rule

ceases, its application

must cease also. The

costs to society of

applying the rule beyond

the purpoges it exists

to serve are simply too

high ... with few or no

offsetting benefits."

Id. at 840.

Here, the cost is to suppress

reliable physical evidence in the trial

of a murderer, in a case in which police

relied upon a warrant and the error in

@ 93 «

the warrant operated to no prejudice to

the defendant.

While the secona?/ and Ninth4/

Circuits have given consideration to a

good faith exception, neither has

adopted it outright. Other circuits

have rejected such an exception and

given broad application to the

exclusionary rule, United States v.

Kasrathanos, 531 F.2d 26 (2nd Cir.

1976), cert. denied, 428 U.S. 910 (1976).

Cc. The Decision Of The Court

Below Conflicts With

Decisions Of Other State

Courts.

In People v. Adams, 53 N.¥.2d 1, 422

N.E.2d 537 (1981), the New York Court of

Appeals recognized an exception to the

a United States v. Alverez - Porras,

43 F.2d 54, 60 (2nd Cir. 1961).

¥ eee States v. Wellins, 654 P.2d

50, th Cir. 1981).

, oR Oy eee ‘ 4 i a : me

xs

o 24'0

exclusionary rule where the police in

good faith relied upon the consent of a

party to a warantless search, whose

authority to consent was later determined

' to be inadequate. The court declined to

apply the exclusionary rule where police

"rely in good faith on

the apparent capability

of an individual to

consent to a search and

the circumstances

reasonably indicate that

the individual does, in

fact, have the authority

to consent, evidence

obtained as a result of

such a search should not

be suppressed. ... We

emphasize that the

police belief must be

reasonable, based upon

an objective view of the

circumstances present

and not upon the

subjective good faith of

the searching

officers." People v.

Adans, 53 N.Y I, 9

(1981).

Certain other state courts have also

refused to exclude rt where

although police acted pursuant to an

invalid search warrant, they had

@ 2§ «

probable cause and their misconduct was

neither flagrant nor conscious (People

v. Pierce, 88 Ill. App.3d 1095, 411

N.E.2d 295 (1980); or where material

facts were omitted, in good faith, from

an affidavit in support of a search

warrant (State v. Lehnen, 403 So.2d 683

(La. 1981). See also, State v. Muncey,

130 Ariz. 389, 636 P.2d 637 (1981);

Richmond v. Commonwealth, Ky. Ct. App.

7/31/81, 29 Cr. L. 2529 (1981).

In addition to state court decisions

concerning a reasonable good faith

exception at least two states, Arizona

and Colorado, have passed statutes

codifying the “good faith*” exception.2/

A Arizona Rev. Stats. Tit. 13, Ch. 38,

13-3925; Colorado Rev. Stats. §16-3-308.

ee

o 36 «

The foregoing demonstrates

considerable disarray and conflict in

the application of the exclusionary

rule. The effect of such uncertainty

can only be delerterious to law

enforcement officials charged with

honoring constitutional guarantees as

well as securing probative evidence to

combat criminal activity. The decision

of the Supreme Judicial Court in

ordering suppressed the physical

evidence probative of the defendant's

guilt in a murder prosecution does

nothing to deter police misconduct - the

court found no misconduct. As to the

promotion of judicial integrity, it is

questionable whether the integrity of

the judiciary should be promoted to

detriment of society. The cost to

society in suppressing physical evidence

» 27 «

of a defendant's guilt is simply too

great, and does not, it is suggested,

enhance society's belief in judicial

integrity.

It is respectfully submitted that

since this court "judicially created"

the exclusionary rule (United States v.

Calandra, 414 U.S. 338, 348 (1974)), it

is incumbent upon this court to now

dictate what is the “reasonable”

application of the rule. It is only th

"unreasonable" search which is

prohibited by the Fourth Amendment, not

the reasonable, use of a technically

deficient search warrant.

» 28 «

CONCLUSION

For the reasons stated above, the

petition for writ of certiorari to

review the judgment of the Supreme

Judicial Court of the Commonwealth of

Massachusetts should be granted.

FRANCIS X. BELLOTTI

ATTORNEY GENERAL

ay: Batters GN. SIN

BARBARA A. H. SMITH

Assistant Attorney General

Chief, Criminal Appellate

Division

One Ashburton Place

Boston, Massachusetts 02108

(617) 727-2240

GU’ APPENDIX A

S-2513 8.J.C.

COMMONWEALTH vs.

OSBORNE SHEPPARD.

WILKINS, J. In this appeal froma

conviction of murder in the first

degree, we are faced with the serious

and challenging question whether the

exclusionary rule, adopted by the

Supreme Court of the United States to

protect Pourth Amendment rights,

requires the suppression of

incriminating evidence obtained in the

course of a police search conducted in

good faith, but pursuant to a warrant

which, although issued on probable

cause, violated the constitutional and

statutory requirement that search

warrants describe the things to be

seized. see pourth Amendment to the

Constitution of the United

it ae Ue ee : . Ter Lal

o..2@

V/ e

States; art. 14 of the Declaration

of Rights of the Constitution of the

Commonwealth ;2/ and G. L. c. 276, J

§ 2.2/ We conclude that, solely on

l1/ The Fourth Amendment provides 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, and

no warrants shall issue, but upon

probable cause, supported by oatb or

affirmation, and particularly describing

the place to be searched, and the

persons or things to be seized."

2 Article 14 provides, in part, that

[e]very subject has a right to be

secure from all unreasonable searches,

and seizures, of ... all his

possessions. All warrants, therefore,

are contrary to this right, if the cause

or foundation of them be not previously

supported by oath or affirmation; and if

the order in the warrant... to make

search in suspected places ... or to

seize . .. property, be not accompanied

with a special designation of the...

objects of search... or seizure.”

3/ General Laws c. 276, § 2, as

appearing in St. 1964, c. 557, §2,

provides in part that "(sJearch warrants

- « « Shall particularly describe the

property or articles to be searched for.”

They must be substantially in the form

prescribed in G. L. Cc. 276, § 2A.

oe

the basis of the opinions of the Supreme

Court of the United States, the

exclusionary rule requires the

suppression of the evidence seized

pursuant to this defective warrant. We

reject the defendant's other,

considerably less substantial challenges

to his conviction.

The badly burned body of Sandra D.

Boulware, a twenty-nine year old black

woman, was found in a vacant lot in the

Roxbury section of Boston at

approximately 5 A.M. on Saturday, May 5,

1979. Pieces of wire were found on the

body and in the vicinity of the body.

An autopsy, conducted about 8 A.M. that

day, disclosed that the victim had died

of multiple compound comminuted skull

fractures, caused by at least four blows

inflicted within a day of the autopsy.

There was medical testimony that the

- 4<

victim was alive, but unconscious, at

the time her body was set on fire, but

that she succumbed to the blows

inflicted on her and not as a result of

the burning of her body.

The victim's sister had reported her

missing on May 4, and said that she had

last seen her on May l. She identified

the body at the morgue. The police

learned that the victim had two

boyfriends, "Rudy"® and “Jimmy." The

defendant was known as “Jimmy." The

police interviewed "Rudy" on Saturday

afternoon, May 5. They also undertook

to locate the defendant. Two police

officers who knew the defendant went

looking for him. They eventually went

to a house in Dorchester known as a

"gaming house," because card games were

regularly played there. After they rang %

the dcorbell, the defendant answered the

eo § «

door. The police told him that “the

Sergeant" wanted to talk to him at the

police station. The defendant said,

"Let me get my coat." He went upstairs,

accompanied by one of the police

officers, and obtained his coat. The

defendant, who was not handcuffed, rode

to the police station in the back seat

of an unmarked police cruiser; the two

policemen were in the front seat. The

defendant had had experience with police

investigations; he had been arrested

previously; and he knew he was not in

custody. One of the policemen gave the

defendant Miranda warnings. In answer

to questions in the cruiser, the

defendant said he had last seen the

victim on Tuesday (May 1). He had gone

to her house, stayed there for about an

hour, and left with her in a taxicab.

They stopped to purchase some marihuana

-

4 - a

bh ok Aci ata fo F eg Wet. fe Ue TT ee eee htt oe te

@ 6

and a bottle of amaretto. The victim

left him, he said, at 1 P.M. and he had

not seen her since. One of the

policemen told the defendant that Sandra

Boulware was no longer with us."

At the District 2 police station,

Sergeant Bornstein interviewed the

defendant in the presence of several

other officers. The interview, which

lasted about an hour, was recorded on

tape.4/ The defendant substantially

repeated what he had said in the police

cruiser on the way to the police station

and added that on Tuesday, after

purchasing the marihuana and the

amaretto, he and the victim had gone to

the defendant's home at 42 Deckard Street

4/ The tape was introduced as an

exhibit and was heard by the judge

during the hearing on the defendant's |

motion to suppress. At the trial, the |

tape was introduced as an exhibit and

heard by the jury.

— a

in Roxbury where the victim stayed until

she left at 2 P.M. to take a cab. The

defendant gave an explanation of his

whereabouts from Tuesday (when he

Claimed he last saw the victim) until

Saturday (the day of the interview). He

said that he had been at the “gaming

house” in Dorchester, where the police

found him, from 9 P.M. on Priday (May 4)

until he left at 5 A.M. on Saturday (May

5) to take a bus home to Deckard

Street. The defendant identified

various people who were at the “gaming

house" that night. At the end of the

interview, Sergeant Bornstein thanked

the defendant, and the defendant left

the station.2/

5/ The defendant's motion to suppress

evidence included a challenge to the

admissibility of his statements to the

police in the cruiser and at the

District 2 police station,

+ >

be »

Pd oe ees s, Le aad - jp? See

— on

The police continued their

investigation. They interviewed the men

who the defendant had said were at the

"gaming house" on Priday night. They

learned that at about 3 A.M. on

Saturday, the defendant had borrowed the

car of one Barros to drive two men

home. He dropped them off in a trip

that took no more than fifteen minutes.

The defendant returned the car to the

"gaming house” at about 4:45 A.M. He

lay down for only few minutes, suddenly

jumped up, said he had something to do,

and left.

The police also learned that at

approximately 6 A.M. on Saturday, an

occupant of the “gaming house," one "Pee

Wee," had left for work. He noticed a

pair of black calfskin gloves and a gas

can in a corner of the porch, and

a

brought them into the house. The police

took possession of these items on Sunday

morning. ©/

In the course of their investigation

on Sunday morning, the police learned

from a friend of the defendant that the

basement of the defendant's home at 42

Deckard Street had been refinished and

that the defendant had said that he

entertained women there. On Sunday

morning they also spoke with Barros, the

owner of the car the defendant was said

to have borrowed early on Saturday

morning. Barros corroborated the fact

that the defendant had borrowed his car,

6/ At the trial, "Pee Wee" testified

Ehat on Saturday (May 5) in the

afternoon, when he arrived back at the

"gaming house," the defendant was there

and said, "([O]h Pee Wee, I see that you

brought my gloves and gas canin....

I appreciate it very much." The police

and the prosecution were not aware of

this statement until the trial.

- 10 -~

a 1975 black Thunderbird. Only the

defendant had used the car in the

interim. The police then inspected the

Thunderbird with Barros's consent. They

found bloodstains and pieces of hair on

its rear bumper and near the lid of the

trunk. Barros told the police that

there had been no blood in the trunk or

along the bumper on Priday night when he

had driven the car home. Various

samples were taken. Inside the trunk,

the police found three types of wire.

Later Sunday morning, the district

attorney for the Suffolk district,

Sergeant Bornstein, and Detective Peter

J. O'Malley met at the District 2 police

station to discuss the case. They

concluded that they should seek a

Warrant for the arrest of the defendant

and a warrant to search 42 Deckard

Street, Roxbury. Detective O'Malley

P 4 ‘ p yl

uae Jele . tao ew CRS

* id «

prepared and typed an affidavit in

Support of an application for a search

warrant. The district attorney, his

first assistant, and Sergeant Bornstein

looked at it and concluded that it set

forth yvrobable cause for the arrest and

for the search.’

7/ The circumstances set forth in the

affidavit are as follows: ‘°On Saturday

5/5/79 at 5:00 A.M. the body of Sandra

D. Boulware was found beaten and burned

to death opp. 28 Hazelwood St. Rox. ina

vacant field. At the time she appeared

to be only partially clothed. In the

course of the investigation that

followed, it was determined that one

Osborne Sheppard of 42 Deckard St. Rox.

was the last person to have been seen

with Sandra. In an interview [he] gave

to Sgt. Bornstein, 0. Sheppard stated

that he and Sandra went to 42 Deckard

St. Rox. on 5/1/79, which is the last

date she was seen. That prior to going

there, they had stopped and bought 2

nickel bags of herb and a fifth of

amaretto liquor. Officers in this

investigation have established that Oo.

Sheppard was in possession of a 1975

blk. Pord Thunderbird, Mass. Reg. VLB

PNB for a period of time, ending just

before the body of Sandra was found.

And that this vehicle was found to have

human blood on the rear bumper that

wasn't there prior to his [having] taken

vie, “ =

ane ie, tee oa 2) OL ae ee ee pee

« eo

It is at this point that problems

possession. Also in the trunk of this

car were found various pieces of wire

and rope that may have been used to bind

parts of her body. Pieces of wire were

found on the body. OQ. Sheppard has told

McKinley Grimes, a friend, that in the

past he has taken women friends to his

cellar at 42 Deckard St. for social

purposes and has worked on the cellar to

make it comfortable." (Corrected for

punctuation and spelling errors.)

The affidavit described the premises

to be searched as the second floor at 42

Deckard Street, Roxbury, and "that part

of the cellar controlled by Osborne

{(Jimmy] Sheppard." It described 42

Deckard Street as a “three story red

brick apartment building with a

basement."

The affidevit listed the property

for which the search was intended as

follows: “A fifth bottle of amaretto

liquor, 2 nickel bags of marijuana, a

woman's jacket that has been described

as black-grey (charcoal), any

possessions of Sandra D. Boulware,

Similar type wire and rope that match

those on the body of Sandra D. Boulware,

or in the above Thunderbird. A blunt

instrument that might have been used on

the victim, men's or women's clothing

tha: may have blood, gasoline burns on

them. Items that may have fingerprints

of the victim." (Corrected for

punctuation and spelling errors.)

« 13-6

began that led to the issuance of a

defective warrant. It was then Sunday

afternoon. No clerk or assistant clerk

of the Roxbury Division of the District

Court Department could be found, nor

could a suitable form of search warrant

be found at the District 2 police

station or at two or three other

stations. Detective O'Malley found a

Warrant form of the Municipal Court of

the Dorchester District, once used for

searches for controlled substances. He

attempted to adapt the printed form. He

crossed out the words "controlled

substance” on the cover side of the

form. On the face side, he replaced the

word "Dorchester" with the word

"Roxbury." He inserted a reference to

"2nd & Basement" of 42 Deckard Street as

the place to search. However, the

reference to “controlled substance" was

» 14 @

not deleted in those portions of the

form that constituted the application

for a search warrant and would

constitute the warrant itself.

Arrangements were made to present

the affidavit and applications for a

search warrant and an arrest warrant to

a judge at his home. Detective

O'Malley, Sergeant Bornstein, two

homicide detectives, and the first

assistant district attorney went to the

judge's home, arriving at approximately

2:45 P.M. The judge took Detective

O'Malley's oath and signed the affidavit

to that effect. The judge searched his

library without success for an

appropriate form of search warrant. He

then took the "controlled substance"

form from Letective O'Malley, made some

changes on it, and dated and signed the

warrant. The judge made no change in

ot

nth

«ahaa

e 35 «

the substantive portion of the printed

warrant form which, therefore, containad

authority "to search for any controlled

substance, article, implement or other

paraphernalia used in, for, or in

connection with the unlawful possession

Or use of any controlled substance."

The warrant made no reference to the

items listed in Detective O'Malley's

affidavit in support of the

application. It neither listed them,

nor incorporated them by reference; nor

was the affidavit attached to the

warrant .2/ The judge gave the search

Warrant, the affidavit, and the arrest

We note in passing, although the

ommonwealth makes no point of it before

us, that the warrant on its face

authorized a search. for marihuana, that

the defendant referred to marihuana, and

that a search for marihuana at 42

Deckard Street was justified by probable

cause.

° 16 «

warrant to the police. The defendant

raises no challenge to the arrest

Warrant. Detective O'Malley left the

judge's home with the affidavit and had

it with him during the search. He

thought the search warrant was legal and

proper when he left the judge's home.

The arrest warrant was executed at the

“gaming house," while Detective O'Malley

and a team of police personnel went to

42 Deckard Street to search its second

floor and basement.

At about 5 P.M. Detective O'Malley

and others were admitted to 42 Deckard

Street. Detective O'walley spoke with

the defendant's mother and sister,

showed them the warrant, and said the

police were going to look in the

defendant's room and in the cellar for

things that were implicated in a

homicide. It does not appear that

. 1 ¥

ms © Pe een

» 39 «

either of the two women read the warrant

or asked to have it read.

We summarize the evidence seized at

42 Deckard Street which was introduced

at the trial, From the defendant's

second floor bedroom, the police took

apparently bloodstained black boots, In

the cellar, part of which was furnished

as a playroom, Detective O'Malley found

what appeared to be blood stains on the

concrete floor and chipped off and took

pieces of that concrete. He found two

unmatched women's earrings, one

apparently with bloodstains, under a

piece of plywood which in turn was under

a mat in the unfinished portion of the

cellar. In the unfinished portion of

the cellar, he found an apparently

bloodstained envelope, a pair of

apparently bloody men's jockey shorts

and women's leotards, later determined

«= 18

to be bloodstained. He also found there

three types of wire and a women's

hairpiece.

We interrupt the chronology of

events to describe evidence introduced

at the trial bearing on the significance

of these items seized at 42 Deckard

Street. A police chemist testified that

wire found at the murder scene was

Similar to wire found in the Thunderbird

and in the basement of 42 Deckard

Street. He also found a close

resemblance between wire of a different

type found in the cellar and also in the

Thunderbird. A neighborhood friend of

the victim identified the bloody earring

recovered from the basement as looking

like one the victim was wearing about

one week before her disappearance. She

also identified the leotards as of a

type she and the victim had purchased

= 19 «

together and the hairpiece as one the

victim was wearing the last time she saw

the victim alive on Monday, the day

before she disappeared. Another witness

identified the earring as belonging to

the victim,

A special agent of the PBI, assigned

to the serology unit of the FBI

laboratory in Washington, D.C.,

testified that blood from the bumper of

the Thunderbird was human blood, type O,

and contained enzyme groups PGM 2-2 and

EAP B-A; that the right black boot found

in the defendant 's hedfroom had human

blood on it, type O, with enzymes PGM

2-2 and EAP B-A; that blood found

underneath the victim's head at the

murder scene was human blood containing

enzymes PGM 2-2 and EAP B-A (but he

could not determine the blood grouping);

that blood taken from the victim's body

» 20 «

by the medical examiner contained

enzymes PGM 2-2 and EAP BA. There was

other evidence introduced showing that

the victim had blood type 0. The

concrete chips and the envelope taken

from the cellar were found to be stained

with type O blood. The PBI expert

witness testified further that about 1%

of the population would have blood type

O and the enzymes PGM 2-2 and EAP B-A.

It can readily be seen that evidence

seized in the search of 42 Deckard

Street tended to show that the defendant

seriously injured the victim in his

cellar, hid her earrings under a piece

of plywood under a mat, and tied her up

with wire available in the cellar of his

home, This evidence, much of it

obtained as a result of careful and

commendable police investigatory

techniques, was highly probative of the

« 31 «

defendant's guilt. Although the

Commonwealth could have presented a case

against the defendant without this

evidence, this evidence was nost

important in rounding out a case based

only on circumstantial evidence.

An indictment was returned against

the defendant on May 14, 1979, charging

him with murder, including murder in the

first degree, of Sandra D. Boulware.

The defendant moved to suppress the

statements he made to the police on May

5 and the items seized on May 6 at 42

Deckard Street. He claimed, among other

things, that his interrogation on May 5

was a custodial interrogation in

violation of his Pourth Amendment

rights. In turn, he argued that the

search warrant was based on his

statements to the police and that the

items seized pursuant to the search

- 22 -

Warrant had to be suppressed as the

product of his unconstitutional

interrogation. Further, he argued that

the items seized at 42 Deckard Street

should be suppressed because they were

seized pursuant to a defective,

unconstitutional search warrant.

A judge of the Superior Court held a

three day hearing on the motion to

suppress in September, 1980. He made

extensive findings of fact and rulings

of law. He dealt with certain issues

that are not argued on appeal. He

concluded that the defendant freely and

voluntarily made statements on May 5 at

the District 2 police station after a

knowing waiver of his Miranda rights.

He concluded that the investigation had

not then focused on the defendant. de

did not explicitly discuss the

defendant's argument that his statements

« 33 «

should be suppressed because of his

"illegal arrest* or “seizure,” but it is

apparent from his findings that he

regarded the defendant's trip to the

police station and his statements made

there as voluntary. He, therefore,

denied the motion to suppress as it

applied to the defendant's statements to

the police on May 5.

On the matter of the search warrant,

he concluded that the warrant was issued

on probable cause. He concluded,

however, that the warrant was defective

because it failed to list the items to

be seized or to incorporate a list of

those items by reference. He then

considered whether the exclustonaty rule

as applied to Fourth Amendment

violations required suppression of the

evidence seized pursuant to the ‘

defective warrant. He had found that

a? Se °

hte

cl See its 8 je’. oe oe fils + etm et os

@ 94 -

the police had a legitimate need to

proceed with dispatch in obtaining the

search warrant. The defendant was at

liberty and could reasonably be expected

to learn from those questioned at the

"gaming house” that the police were

investigating him. He found further

that the judge told Detective O'Malley

that he would make the necessary changes

in the warrant form so as to provide a

suitable form of search warrant and that

the warrant as delivered was sufficient

authority in form and content to carry

out the search as requested. He found

also that the search of 42 Deckard

Street was carried out within the limits

that Detective O'Malley understood the

warrant to permit and that Detective

O'Malley had the affidavit and search

warrant with him at 42 Deckard Street.

He concluded that “the actual search

o 29 «

undertaken was within the limits of the

authority the police thought reasonably

had been granted." He denied the

defendant's request to suppress the

evidence seized at 42 Deckard Street.

The judge concluded that the good

faith exception to the exclusionary rule

advanced by certain judges in United

States v. Williams, 622 F.2d 830,

840-847 (Sth Cir. 1980) (en banc)

(alternative holding), cert. denied, 449

U.S. 1127 (1981), was well reasoned and

persuasive. He gave greater weight to

the opinion of this court in

Commonwealth v. Rugaber, 369 Mass. 765,

769 (1976), in which we upheld admission

of evidence seized pursuant to an

assumedly defective search warrant. He

regarded the Rugaber case as "a

situation where law enforcement

officials acted mistakenly but upon

4 . 7 «tao

tee " 7 ; : j ~ i” : Fy 7 n

ee eek tS SN SS Sey” 985 Te EI ee OK ee eT gas

e 26 «

probable cause and in good faith and

which presented a factual situation in

which exclusion would have no deterrent

effect. *2/ He concluded that the

police who executed the warrant at

9/ In the Rugaber case, a search was

conducted on probable cause pursuant to

a search warrant that properly described

the street address of the premises to be

searched but contained a physical

description of a house next door.

Commonwealth v. Rugaber, 369 Mass. 765,

). The warrant was executed at

night; officers on the scene directed

the executing officers to the proper

house; the proper premises were in fact

searched; and the officers were unaware

of the misdescription when they executed

the warrant. Id. We regarded the case

as a close one. Id. at 768. We noted

that "[i]nvocations of error and

inadvertence cannot ordinarily save an

invalid warrant." Id. at 767. The,

police were not reckless but at most

negligent in the description. Id. In

these circumstances, we agree[d) with

the judge, who ruled that even if the

warrant was defective, the exclusionary

rule should not be applied, since it

could have no detterent effect." d. at

769. The case before us is not, o

course, like the Rugaber case, one in

which the search warrant was ambiguous.

o 37 «

Sheppard's dwelling would act similarly

in similar situations in the future, and

that "the only consequence of applying

the exclusionary rule would be to keep

from the jury probative evidence and

thereby impair the truth finding

function." The judge did not cite any

case in which the exclusionary rule had

been considered in a situation in which

error was committed, not by the police

or law enforcement officials, but by a

judge or issuing magistrate. Neither

the Williams case nor the Rugaber case,

relied on by the judge, were opinions of

the Supreme Covrt, which, of course, has

the final word on this question.

1. The judge properly denied that

portion of the defendant's motion to

suppress evidence that was directed

toward his statements made to the police

on Saturda,. May 5. The judge found, on

2, ee See

&

@ 28 «

ample evidence, that the defendant

voluntarily accompanied the police to

the station. At the time of the

interview, the police investigation had

not yet focused on the defendant, and

the officers only requested, but did not

order, that he accompany them to the

station for questioning. He was not

handcuffed; he rode alone in the back of

the unmarked police cruiser; he knew he

was not in custody. When the interview

ended, the sergeant thanked him for his

cooperation, and he left.

The issue is substantially disposed

of by what we said recently in

Commonwealth v. Bookman, 386 Mass. 657,

659-661 (1972). This is not a case like

Dunaway v. New York, 442 U.S. 200

(1979), on which the defendant relies,

where there was a custodial

r

:

:

be

)

interrogation, not supported by probable

o 99 «

cause, of a defendant who was

involuntarily detained. The

circumstances here are like those in

United States v. Mendenhall, 446 U.S.

544, 557-558 (1980), in which the Court

held that the defendant's Pourth

Amendment rights were not violated when

she voluntarily accompanied law

enforcement agents to their office for

questioning. As in the Mendenhall case,

the prosecution here met its burden of

proving that the interview was not the

product of express or implied coercion,

but resulted from the defendant's

voluntarily consent. See, as to the

absence of Fourth Amendment violations

where persons consent to accompany

police officers to station houses for

interrogation, United States v. Huberts,

637 F.2d 630, 635-637 (9th Cir. 1980),

cert. denied, 451 U.S. 975 (1981);

Pea SES PE Ee ot a ee

» «a

United States v. Williams, 604 F.2d

1102, 1125-1126 (8th Cir. 1979). See

also Commonwealth v. Walden, Mass. Adv.

Sh. (1980) 1309, 1315 (interrogation of

a defendant who went voluntarily to the

police station).

2. We come then to the question of

the admissibility of the evidence seized

at 42 Deckard Street purportedly

pursuant to the search warrant. We

start with our expression of agreement

with the judge's conclusion that the

Warrant was defective. It failed to

describe the items sought to be

seized.20/ There is authority

10/ The Fourth Amendment requires that

a search warrant describe the “things to

be seized." See Marron v. United, 275

U.S. 192, 196 (1927). Article 14 of the

Massachusetts Declaration of Rights

requires that the warrant be

"accompanied with a special designation

of the. . . objections" of seizure.

The purpose of these limitations is to

forbid general warrants (see Boyd v.

¢ } 4 ' "be : tr

/ wae Aes vy TREN Pe ee Sy Mey is is

RS NAL. aa te Ee TT SEP LR” er eee

@ 91 «

upholding a warrant, which does not on

its face list any items to be seized,

but which incorporates by reference an

accompanying or attached description of

the items to be seizea,+)/ The

warrant in this case, however, described

items (drugs and drug paraphernalia)

different from those listed in the

affidavit (which related to the murder

of Sandra Boulware, but did include

marihuana). Moreover, the warrant was

United States, 116 U.S. 616, 624-626

[1866]), and in doing so to circumscribe

the discretion of the executing officer

and to inform the person or persons

subject to the seizure what the officer

is entitled to take. See Commonwealth

v. Accaputo, Mass. Adv. Sh. ’

1019; In the Matter of the Application

of Lafayette Academ Inc., BPs F.2d 1,

7 (ist ore 1979). See also G. L. c.

276, § 2, which requires that the

Warrant “particularly describe the

», property or articles to be searched for."

il/ Commonwealth v. Taylor, Mass. Adv. |

Sh. (1981) 821, 825-826, and cases cited. F

Pity... Yee “avert re Mey wel 4+

@ 32 .<

not attached to Detective O'Malley's

affidavit which listed the items which

the judge had found there was probable

cause to seize. Most importantly, the

warrant did not contain any words which

referred to the affidavit. It is true

that Detective O'Malley had with hin,

when he conducted the search, the

application for a warrant which listed

the items to be seized. We noted in

Commonwealth v. Taylor, Mass. Adv. Sh.

(1981) 821, 826-827 n.5, that we were

not called on there to decide “whether

we would allow a separate document to

supply the specificity if, though

physically attached to the warrant, it

was not referred to therein, *22/

12 In the Taylor case, supra at

6-827 n.5, we noted "4

Cahill, 461 F. Supp. 1

» which sustained a "warrant. that

e 33 «

Here, however, not only is there a lack

of reference, but also the warrant

listed a different set of items to be

seized, and no further description was

attached to the warrant. We are not

aware of any court that has gone so far

as to uphold a general warrant to search

particular premises where the searching

officer had with him a descriprion of

the items to be seized but the warrant

made no reference to that description

and that description was not attached to

the warrant. We thus proceed on the

premise that the search warrant in this

case violated the requirements of the

did not refer to an attached document

which provided the requisite

specificity. To the same general

effect, see Moore v. United States, 461

F.2d 1236, 1236-1240 (D.C. Cir. 1972).

Contra Brooks v. pees poss? Enters.

nc., 260 5.E£.2d , = eve

).

@ 34 <

Pourth Amendment to the United States

Constitution, art. 14 of the Declaration

of Rights, and G. L. c. 276, § 2. The

question remains whether the defect in

the warrant requires the suppression of

evidence obtained in the search,

The exclusionary rule is "a

judicially created means of effectuating

the rights secured by the Fourth

Amendment." Stone v. Powell, 428 U.S.

465, 482 (1976). It is “designed to

safeguard Fourth Amendment rights

generally through its deterrent effect,

rather than [as] a personal

constitutional right of the party

aggrieved." United States v. Calandra,

414 U.S. 338, 348 (1974). See United

States v. Peltier, 422 U.S. 531, 538-539

(1975). Moreover, because under some

circumstances, evidence obtained as the

result of an unreasonable search or

» 98 «

seizure in violation of Pourth Amendment

rights is admissible, the exclusionary

rule is not coextensive with the

prohibitions of the Pourth

Amendment .22/

Purthermore, because evidence

obtained in violation of the Pourth

Amendment is admissible in particular

circumstances, the notion that such

evidence must in all instances be

i3/ Instances in which evidence

tained in violation of the Pourth

Amendment is admissible in judicial

proceedings include: (a) a case in

which no objection is raised to the

introduction of such evidence, (b) the

use of such evidence in grand jury

proceedings (United States v. Calandra,

introductions of such evidence for the

impeachment of a defendant (Walder v.

United gtates, 347 U.S. 62 (1954]), (4)

c ances in which the defendant has

no standiny to challenge the

constitutional violation ( as Vv.

ete 439 U.S. 128 [19 , and (e)

e use of evidence seized by one

sovereign in civil proceedings m1 drag;

by another sovereign ( Y

Janis, 428 U.s. 433,

= 36.

excluded in order to preserve judicial

intergrity fails as a substantial,

independent support for the rule. Stone

v. Powell, supra at 485. Id. at 499

(Burger, C.J., concurring). See United

States v. Janis, 428 U.S. 433, 458-459

n.35 (1976) .24/

14 We acknowledge the views of Hr.

ustice Brennan that the exclusionary

rule enables “the judicary to avoid the

taint of partnership in official

lawlessness" and assures the people

"that the government would not profit

from its lawless behavior, thus

minimizing the risk of seriously

undermining popular trust in

government.” United States v. Calandra,

supra at 357 (Brennan, J., dissenting).

ee also United States v. Pe er, 422

U.S. 531, - 5) (Brennan, J.,

dissenting). There are those critics of

the rule who would suggest, however,

that exclusion of probative and reliable

evidence itself seriously undermines

ular trust in government. See

references in Oaks, Studying the

Exclusionary Rule in Search and Seizure,

37 U. Chi. + Rev. 665, 737-738 (1970),

» 37 «

The substsantial, and perhaps only,

justification for the exclusionary rule

relied on by a majority of the Justices

of the Supreme Court is the goal of

deterring unconstitutional conduct by

the police and other law enforcement

personnel. See Stone v. Powell, 428

U.S. 465, 486 (1976); United States v.

Peltier, 422 U.S. 531, 542 (1975);

United States v. Calandra, 414 U.S. 338,

347 (1974). As we have demonstrated in

this opinion, the police conduct in this

case was proper. They had probable

cause to search the premises, and they

prepared an adequate affidavit setting

forth that probable cause and submitted

YY =)

. +. te hh oe

wh

- 38 -

it toa judge .22/ The police then

received a search warrant that they

reasonably believed, on advise from the

judge, was adequate to justify a search

of the designated premises for the items

listed in the application for the

warrant,

The police next conducted a search

of Sheppard's dwelling in a manner

consistent with their good faith belief

that a proper warrant had peen issued.

They did not exceed the scope of the

search that would have been authorized

by a warrant in the form that they

1 This is not, therefore, a case in

ich the police failed to demonstrate

probable cause in the application for

the warrant. In such a situation, a

magistrate's erroneous conclusion that

peceanse cause was shown could not

pane ap Raye @ warrant.

ort of : sry cule

be justified to deter future,

ee

. ¢ vy

¢ ' is | ‘Se? 4644 aimloy ee

» 2 - ; ff A ' 2 4 4

yp LOLOL ALG Bet el Bo Om

stegsse® gocessnssccan Be lessens,

bes

o 39 «

sought and believed they had. The items

that were the subject of the intended

search were disclosed on the application

for the warrant, which was present at

the scene of the search. In short, the

police conducted the search in a good

faith belief, reasonably held, that the

search was lawful and authorized by the f

Warrant issued by the judge. The defect

in the warrant was not harmful to the

defendant in the circumstances oft the

actual search. The search was conducted

in the same way and with the same results

as it would have been conducted if the

warrant had not been defective 2 :

3

aA We note that there is no issue in 7

s case as to the reliability of the is

evidence sought to be excluded. Unlike

evidence, such as a confession, obtained

in violation of constitutions) rights,

we

« 60

The question is whether an error of

a magistrate, unrelated to police error,

calls for the application of the

exclusionary rule. It could be argued

that the exclusionary rule should apply

with particular force to evidence seized

pursuant to a search warrant failing to

meet Pourth Amendment standards, issued

by a judge who should have known, and

should have been most sensitive to, the

defendant's constitutional rights. If a

"criminal is to go free because the

constable has blundered" (People v.

Defore, 242 N.Y. 13, 21 [1926] [Cardozo,

J.J]), perhaps the criminal should go

free as well because the magistrate

blundered, even though “the suppression

of probative but tainted evidence exacts

a costly toll upon the ability of courts

to ascertain the truth in a criminal

e 4)

case." United States v. Payner, 447

U.S. 727, 734 (1980). The issue is

whether the exclusionary rule should be

applied to deny to a jury evidence

highly probative of the defendant's

guilt of murder because a judge,

negligently but in good faith, failed to

strike out certain words in the warrant

and failed to refer to, or to attach to

it, a list of the items to be seized.

We are not dealing here with judicial

error rising above the level of

negligence .2//

We have found little discussion of

i We acknowledge that in this case

e problem arose on a Sunday in

circumstances in which no proper form of a

warrant was readily available to the ‘: Aa

judge and there was a need for prompt

action. We do not, however, intend to

minimize the judge's error. The failure eh

roperly to describe in the warrant the Vig

tems to be seized was a serious ee

omission of constitutional significance.

* » 42 <

the goal of deterrence underlying the

exclusionary rule as applied to an error

of a judge, except as related to his

misconception of the propriety of police

conduct .28/ On occasion, the

18/ In Richmond v. Kentucky, 29 Crim.

L. Rep. (BNA) 2529 (Ky. Ct. App. July

31, 1981), the court did not suppress

evidence seized in good faith pursuant

to a warrant issued on probable cause by

a judge who, it was assumed, lacked

authority to issue the warrant in the

district in which it was issued. There

jas no showing that the judge acted in

bad faith. See United States v. Acosta,

dissenting) ("Nor would I expand the

{exclusionary] rule to ‘deter'

magistrates from failing to record

matter upon which they rely, conceiving

that they will obey the mandates of

reviewing magistrates, such as we, when

these are understood"), modified, 509

F.2d 539 (5th Cir.), cert. denied, 423

U.S. 891 (1975); State v. Lien, 265

N.W.2d 833, 840-841 n.1 (Minn. 1978),

quoting State v. Nolting, 312 Minn. 449,

456-457 n.7 (1977) feaclentiaare rule is

; directed at sated, not magistrate, Zi

a misconduct). q

es Por a contrasting view, see ted

2 tates v. Karathanos, 531 F.2d 2 -34 a

ae Tattir.) CTaThe exclusionary rulef } 3

. {has the} effect of making... Mei

we hen seomp ei ed avare phae. Shebe jecis

> ae

aw 42's

exclusionary rule has been characterized

as directed not only toward deterring

police misconduct but also "official

misconduct" or “the Government's

unlawful conduct." See United States v.

Calandra, 414 U.S. 338, 348 (1974) .22/

. Sty 0 t Am ‘

ee gs ie a RE

ic he SR ee Org ae) Nh Rae mee

to issue a search warrant is a matter of

importance . . . in regard to the

success of any subsequent criminal

prosecution. [It] may well induce then

to give search warrant applications the

scrutiny which a proper regard for the

Pourth Amendment requires... .

[Also,] the present universal

application of the exclusionary rule

- « + Gives law enforcement officers no

- . incentive to seek out the most

lenient magistrates"), cert. denied, 428

U.S. 910 (1976). See also Powell v.

Stone, 507 F.2d 93, 98 (9th Cir. 1974),

rev'd on other grounds, 428 U.S. 465

(1976), in which the Ninth Circuit Court

of Appeals applied the exclusionary rule

to evidence seized in good faith

pursuant to an unconstitutional

substantive statute in order to “deter[ ]

legislators from enacting such statutes.”

19/ This court has not dealt with the

application of the exclusionary rule to

deter conduct of judges or magistrates.

a 44 @

There may be reasonable distinctions

between police misconduct and an error

of a magistrate such as is involved in

this case. Police officers have the

objectives of apprehending criminal

wrongdoers and of obtaining evidence to

convict them. As the Supreme Court has

We have said that "[o]ne branch of the

government should not be permitted to

use the flagrant wrongdoing of another

branch of government to punish a

citizen." Commonwealth v. Nine Hundred

& Ninety-Two Dollars, Mass. Adv. Sh.

(1981) ta30, 1427. In that case,

however, we were dealing with alleged

police misconduct. We concluded there

that under art. 14 of the Declaration of

Rights, a negligent misrepresentation in

an affidavit in support of a search

warrant of a fact material or necessary

to a finding of probable cause would not

alone require the suppression of

evidence seized pursuant to such a

warrant. - We noted that where “a

police affiant's misstatement is the

product of good faith but negligent

conduct, the motivetion to temper and

regulate police behavior is less and the

against the government's using

ea ee

- 45 -

said, they are engaged in the “often

competitive enterprise of ferreting out

crime." Johnson v. United States, 333

U.S. 10, 14 (1948). The exclusionary

rule is applied to evidence seized in an

unlawful manner by law enforcement

officials because it is assumed that

such exclusion will “deter future

unlawful police conduct and thereby

effectuate the guarantee of the Pourth

Amendment ayainst unreasonable searches

and seizures ... ‘{by] compel[ling]

respect for the constitutional guaranty

in the only effectively available way -

by removing the incentive to disregard

it.'* United States v. Calandra, supra

at 347, quoting from Elkins v. United

States, 364 U.S. 206, 217 (1960). See

Stone v. Powell, 428 U.S. 465, 492

(1976); Michigan v. Tucker, 417 U.S.

433, 447 (1974).

- 46 -

Unlike police officers, magistrates

who issue search warrants are required

by law to be neutral and detached.

According to the Supreme Court, only if

the issuing magistrate is detached from

the often competitive business of

ferreting out crime can a search warrant

satisfy the Pourth Amendment. Johnson

v. United States, supra. Here, Sheppard

does not claim that the issuing judge

joined the police officers in an attempt

to investigate Sandra Boulware's

homicide, or that the judge was anything

but impartial to, and disentangled fron,

the investigation. Contrast Lo-Ji

Sales, Inc. v. New York, 442 U.S. 319,

326-328 (1979) (town justice acting as a

member of a search party under a general

warrant).

An issuing magistrate, in contrast

to a law enforcement official, should

» 47 «

not be involved in searching for

evidence, apprehending suspects, and

convicting criminals. His job is not a

partisan one of ferreting out evidence

and seeing it used to prosecute

criminals. Instead, he should care

foremost about whether he correctly

applies the laws of the State and

nation, including the Fourth Amendment

and art, 14 of the Declaration of

Rights. Ideally, he should be

indifferent as to whether a particular

piece of evidence is admitted at trial

or a particular defendant is convicted.

» The police, in contrast, properly should

be partisan, investigatory, and oriented

toward discovering ard convicting

perpetrators of crime.

The exclusionary rule may not be

well tailored to deterring judicial

o' 48 =

misconduct, the rule would be just as

costly as it is when it is applied to

police misconduct, but it may be

ill-fitted to the job-created

motivations of judges. As we have said,

ideally a judge is impartial as to

whether a particular piece of evidence

is admitted or a particular defendant

convicted. Hence, in the abstract,

suppression of a particular piece of

evidence may not be as effective a

disincentive to a neutral judge as it

would be to the police. It may be that

a rulinc by an appellate court that

search warrant was unconstitutional

would ‘e sufficient to deter similar j

conduct in the future by magistrates.

We question, therefore, whether %

suppression of evidence is necessary as

a deterrent in cases where the police

conduct was entirely proper, the

is 2

ja ers

- 49 -

defendant was not prejudiced by the

magistrate's error, and an appellate

court clearly identifies the

magistrate's error of law as a guide to

future conduct.

We recognize that our task is to

seek to apply the interpretations of the

Constitution of the United States

expressed by the Supreme Court of the

United States. The usual result ina

case where a warrant fails to describe

the items to be seized is the

suppression of the evidence seized

pursuant to that warrant. See Coolidge

v. New Hampshire, 403 U.S. 443, 471

(1971). Although there are statements

of individual Justices of the Supreme

Court critical of the application of the

exclusionary rule in particular

o 36 «

eircunstances,22/ we conclude, on the

a. See Stone v. Powell, 428 U.S. 465,

1 (1976) (Burger, C.J., concurring);

id. at 538-540 (White, J., oenenarea??

Bivins v. Six Unknown Named Agents o

Ped. Bureau of Narcotics, 403 U.S. 368,

dissenting); Rakas v. Illinois, 439 U.S.

128, 156 n.5 (1578) (Powell,

7

concurring); Brown v. Illinois, 422 U.S.

590, 611-612 (1575) (Powe ’ vr

concurring); Michigan v. Tucker, 417

U.S. 433, 447 COLO

These expressions of opinion suggest

that, in certain instances at least, a

good faith exception to the exclusionary

rule might be adopted. Such an.

exception was recognized as appropriate

by a majority of the judges of the Fifth

Circuit Court of Appeals in United

: ates v. wa Laney 622 F.2 ’

-847 (5 cr. 1980) (en banc)

(alternative holding), cert. denied, 449

U.S. 1127 (1981). In a recent opinion,

the Court noted, however, that "the |

State contends that the police conduct .

here argues for adopting a ‘good faith’ 5

exception to the exclusionary rule. To 4

date, we have not recognized such an at

exception, and we decline to do so

here.* v. Asquama, 102 S.Ct.

2664, 26 82). case involved

the suppression of a confession made Dy,

shortly after an ill arrest a

unsupported by @ cause. .

os 9) «

basis of opinions of the Supreme Court

‘

+

with the adoption of an exception td the

Pourth Amendment: The “*Reasonable*®

Exception to the Exclusionary Rule, 69

J. Crim. L. & Criminology 635 (1978).

It has also been suggested that the

exclusionary rule not apply to serious

crimes. See Kaplan, The Limits of the

Biclusionaty Rule, 26 Stan. L. Rev.

1027, 1046-1049 (1974). Professor

Kaplan notes certain problems, however,

exclusionary rule even where the police

error is inadvertent and reasonable.

qd. at 1044-1045. See 1 W. LaPave,

earch and Seizure § 1.2 (d), (e), and

(£), at 34-39 (1978).

The Model Code of Pre-Arraignment

Procedure § SS 290.2 (2) (Proposed

Offiial Draft 1.975), suggests that,

apart from constitutional mandates, a

motion to suppress evidence should be

granted only where the asserted

violation is substantial. In

determining the substantiality of the

violation, the Model Code directs courts

to consider all the circumstances,

including the extent of the deviation

from lawful conduct, the extent to which

the violation was wilful, the extent to

which privacy was invaded, the extent to

which exclusion will tend to prevent

violations of the law, and the extent to.

which the violation prejudiced the 4

defendant's ability to himself. sal

id. at § SS 290.2 (4). td

» $3 «

to date, that the exclusionary rule

requires the suppression of the evidence

seized at 42 Deckard street .2)/

Because the exclusionary rule as applied

by the Supreme Court in implementing the

purposes of the Pourth Amendment

requires the suppression of this \

evidence, we need not consider whether =

the evidence should be suppressed

pursuant to the laws of this

Commonwealth. To this date this court

has not adopted an exclusionary rule

under the law of the Commonwealth to

2 There is no basis for concluding

at this evidence was only cumulative.

‘ It was of probative force tending, z

: independently of other evidence, to — pi

ay rove the defendant's guilt. Therefore, | .

M ts admission cannot be upheld on the

z so that such admission was harmless

. yond a reasonable doubt.

o $3 «

remedy a violation of a criminal

defendant's art. 14 rights,22/

22/ Before Mapp v. Ohio, 367 U.S. 643

(1961), applied the exclusionary rule to

the States through the Pourteenth

Amendment, illegally seized material

could be admitted in evidence in the

courts of this Commonwealth. See

“Commonwealth v. Spofford, 343 Mass. 703,

._ Oe (1562); Commonwea v. Wilkins, 243 :

Mass.*356, 3595 eLreD (art. If of the

Declaration of Rights does not bar

admission of unlawfully seized evidence).

We have noted the possibility of

affording more substantive protection to

criminal defendants under art. 14 of the

Declaration of Rights than under the

Fourth Amendment as applied through the

Pourteenth Amendment. See Commonweaith

v. Podgurski, 386 Mass. 385, n.

(1982); District Attorney for the

Pl uth Dist. v. hew England Tel. &

Tet. Goes 379 Mass. 566, 509 (1980); id.

a n.l (Liacos, J., dissenting);

Commonwealth v. Ortiz, 376 Mass. 349,

3 ( ). We have concluded that,

where the police intentionally deprived :

a defendant of his statutory right to

use a telephone (G. L. c. 276, § 33A),

"evidence of an in-custody inculpatory

statement or corporeal identification,

even if accidental, should not be

ee.

=

-~ 54 =

3. Because they may arise at a

retrial of the defendant, we comment on

two other issues raised by the

defendant. There is no basis for

reversal of the conviction on the ground

that the judge abused his discretion in

denying the defendant's motion that, if

he were to testi¥y, the Commonwealth

should be barred from using certain

prior convictions, pursuant to G. L. c.

233, § 21, for the purpose of

impeachment. See Commonwealth v. Diaz,

Mass. Adv. Sh. (1981) 605, 610-612.

Nor was there error in denying the

;

See Commonwealth v. Monosson, 351 Mass.

Massachusetts law, even though it may.

not ber ired by the Pederal

Constitution," evidence seized from A

eae atthoes 2. ben home in.

mo.

4

ng

on

,

7

oe

=, -

.

.

eH,

¥ +4

al 7

es £5

ad we

~*

¢

« $3.

defendant's request that he be allowed

to make a sworn or an unsworn statement

to the jury at the close of the

evidence. The matter was within the

judge's discretion. Commonwealth Vv.

Rodriguez, 364 Mass. 87, 95-96 (1973).

The defendant has made no showing of an

abuse of discretion. -

Judgment reversed,

Verdict set aside.

Mr. Justice Nolan took no part in

the consideration or decision of this

case.

LIACOS, J. (concurring, with whom

Abrams, J., joins). While I agree with

the result reached by the court, I

cannot join in that portion of the

Opinion of the plurality of the court

(Part 2) which treats the issue of the

admissibility of evidence seized under a

warrant admittedly defective.

“* my disagreement is™*specificaily af

directed to the grudging acceptance of

the exclusionary rule displayed by

Justice Wilkins in his discussion of the

law and the facts, Cf. Commonwealth v.

Loughlin, 385 Mass. 60, 63 n.3

(1982)("Doubt about the wisdom of the

views of the Supreme Court .. . on the ,

subject of illegal searches and seizures ;

- « « hardly justifies ignoring those 4

views when Fourth Amendment issues are B

raised in this court"). Moreover, the *

discussion by the plurality opinion does til

a =

not accurately reflect either the facts

of this case or the relevant legal

principles. The plurality initially

describes the question involved as one

that is both "serious and challenging,"

because it deals with a “police search

conducted in good faith.” Supra at .

Further, the plurality describes the

issue as “whether an error of a

magistrate, unrelated to police error,

calls for the application of the

exclusionary rule.” Supra at - The

plurality then characterizes the error

of the magistrate as one that occurred

"negligently but in good faith” and as

one not “rising above the level of

negligence.” Supra at .

It is clear and established law that

a warrant, albeit based on probable _,

cause, must specifically describe the

premises to be searched and the objects —

Seve 1,

ath = *

ca thats

. ‘* -

‘en Rn

to be seized in order to be a valid

basis of a search. Ybarra v. Illinois,

444 U.S. 85, 92 n.4 (1979). Lo-Ji

Sales, Inc. v. New York, 442 U.S. 319

(1979). Stanford v. Texas, 379 U.S. 476

(1965). Marcus v. Search Warrant of

Property at 104 E. Tenth St., Kansas

City, Mo., 367 U.S. 717 (1961). Marron

v. United States, 275 U.S. 192, 196

(1927). Commonwealth v. Smith, 370

Mass. 335, cert. denied, 429 U.S‘ 944

(1976). Commonwealth v. Hall, 366 Mass..

790 (1975). The warrant herein had no

reference whatsoever to the items sought

to be seized, contrary to the

*

“a

Foss

requirements of the Fourth Amendment to *

the United States Constitution, art. 14 Z

of the Declaration of Rights, and G. L.

Cc. 276, § 2. Yet the plurality seeks

to minimize this violation because of

the alleged *good faith* of a

- 4-<-

in issuing this grossly defective

warrant. |

The motion judge ruled, and a

majority of the court agrees, the search

warrant was constitutionally defective

and in violation of Federal and State

law because it did not describe with

particularity the items sought in the

search.2/ Supra at - See

generally supra at n.10. The court

then concludes that the exclusionary

rule requires the suppression of the

evidence seized pursuant to the search

Warrant. Because, however, the

plurality finds it necessary to engage

the toe 2a ~~

l/ “Such particularity is necessary in

order to identify .. . the things to be

seized; it both defines and limits the

scope of the search and seizure, thereby

protecting individuals from general %

searches, which was the vice of the.

ution writs of assistanc. *

v. Pope, 354 Mass. (23, 629

ry -

- — rs

* ¥ t es

]

- if <

in a gratuitous discussion of the wisdom

of the rule in this instance, I an

compelled to state my views on this

issue.

I point ou first that nowwhere in

the judge's written findings is there a

finding that the actions of the

magistrate were merely negiicenti

Indeed, while the judge viewed the

police as having acted in good

faith,2/ at the hearing on the motion

he characterized the actions of the

magistrate in these terms: "I saw this

search warrant, and when I saw it I had

to put my glasses on because I had not

seen anything like that before. ...

(T)his warrant is so inappropriate [as]

to be plainly unconstitutional,*

under the State and Federal

shall comment further on this —

*

» &

4

, ~ ,

"... te | ae

«> 2 #. Se wel

' / yy *

at okt ie 7 ’

oe pi |

; a

Mis.

. ae

23

aM “es

Constitutions.2/ The judge viewed the

Warrant as a “general warrant" akin to

the colonial "writs of assistance” which

led to the enactment of art. 14 of the

Massachusetts Constitution and the

Pourth Amendment. He regarded the

warrant as one that “flies right in the

face of the Constitution." He

characterized the magistrate's issuance

of this warrant as a "judicial

blunder." In describing the warrant, he

stated he had “never seen anything so

plainly on its face a nullity."

A reading of the search warrant in

this case reveals that the judge's views Z

were not unduly harsh.4/ Although the

The judge also viewed the warrant as

efective under G.L. c. 276, §$§2, 2A. ss

The warrant used in this murder he

vestigation is reproduced as an i =

mao 3a to this opinion, | —.

eS

plurality agrees that the warrant

nowhere described the things the police

sought to seize and was thus

unconstitutional, the plurality's view

of the magistrate's error as being

merely one of negligent good faith is

supported neither by the record nor the

findings of the motion judge. A proper

legal definition of “good faith"

involves not only a lack of

malevolence,>/ but also a reasonable

effort to comply with the law. One

commentator has defined the good faith

"exception" as follows: ‘“(W]jhen an

officer acts in the good faith belief

ye a te eee

that his conduct is constitutional and

where he has a reasonable basis for that

belief, the exclusionary rule will not

I do not view the conduct of the

strate, the police, or the office ot

the district eotecany, 6° Os Y

y ee Ag

ra,“ “Php

«oj <

operate" (emphasis added). Ball, Good

Paith and the Fourth Amendment: The

"Reasonable" Exception to the

Exclusionary Rule, 69 J. Crim. L. &

Criminology 635, 635 (1978). See United

States v. Williams, 622 F.2d 830, 841 &

n.4a (Sth Cir. 1980) (en banc)

(alternative holding), cert. denied, 449

U.S. 1127 (1981)(recognizing that

reasonable good faith exception must be

grounded on an objective

reasonableness). Cf. Commonwealth v.

Sherry, 386 Mass. 682, 697 (1982)

(mistake of fact defense requires an

objective standard of reasonableness);

Commonwealth v. Huffman, 385 Mass. 122,

126 (1982) (whether “exigent

circumstances" present based on

objective view of totality of

circumstances). The magistrate who

utterly fails to describe or even

2. 3

_, attempt to describe the things to be =~

2 I Rt ee ee eee Nee Ere ee

as SP oe ~ Ae heat, GBT SF -S eye Fe ee en We a2

= oe

seized with the law. Compare

Commonwealth v. Rugaber, 369 Mass. 765

(1976) .&/

I turn now to the conduct of the

police, which both the motion judge and

the plurality find to have been in good

faith." At the outset, it should be

emphasized that an effort to

characterize police conduct here as in

"good faith" is again neither factually

nor legally accurate. The evidence is

undisputed that the officer seeking the

6/ The plurality points out what,

assumably, it believes to be the

extenuating circumstances surrounding

the issuance of this warrant. In my

estimation, however, because everyone

involved knew that they were dealing

with an improper “form” warrant that had

to be adapted to fit their purposes, te

extra care should have been en to lf

ensure that the warrant read properly.

g Thus, I would hold the officers and the

EA magistrate to a higher standard of good

i faith based on the circumstances in this

a case which them on | BS a

detective warrant could easily be tsaued

_ . if proper care were not taken, —

owe oe Pre

. ‘ > °

eel A a vat 2 ok oe a oe wiubes ’

a Saal aa Be an: a se _-

» 26.6

warrant was an experienced officer who

had been on the force for nineteen

years, ten of which were as a

detective. Other experienced officers

were also present. Additionally, the

district attorney reviewed the

application typed by this officer, and

the first assistant district attorney

was present at the home of the

magistrate when the warrant was issued.

It is also undisputed that the form of

the warrant used was that used under a

narcotics statute repealed about eight

years earlier. See G. L. c. 94, § 213,

repealed by St. 1971, c 1071, §2 (now

G.L. c. 94C, the Controlled Substances

Act). All present at the magistrate's

home knew that the form warrant given to °

the judge was defective in form and

substance. According to those present,

the judge made only two altercations in

rr SN

; -ll-

this warrant ,/ by changing the

caption as to the issuing court and the

name of the issuing magistrate.

Even if one puts aside the police

officer's experience, there is no

justification in treating the “police”

separately from the first assistant

district attorney, a trained and

experienced prosecutor. See

Commonwealth v. St. Germain, Mass. Adv.

Sh. (1980) 1807, 1812 n.8 (police are

also part of prosecution). To take the

position that these law enforcement

personnel acted in “good faith" is

simply to say that no showing of evil

intent has been proved. It cannot be

said, however, that they acted

7/ The testimony of the officer who

sought the warrant was that the visit

with the judge took approximately

twent Sive Mhaquece weNe y three or

four to change the

«' 32 @

reasonably when the officers, knowing

from the start that the form warrant was

improper, apparently never even read the

Warrant. Their acquiescence in the acts

of the magistrate cannot be viewed as

"good faith." The plurality's

condonation of this default of

responsibility by law enforcement

personnel is particularly troubling.2/

In using the approach it has taken, the

plurality turns its back on the teaching

of history and opens the door to the |

return of general warrants and writs of

assistance.

8/ The plurality also stresses that the

search, as actually carried out, was

within the limits that the police

understood the warrant to permit, supra

at , and, in any event, the occupants

of the defendant's household did not é

actually read the warrant, supra at .

Both of these factors appear to be

irrelevant in light of our recent

decision in Commonwealth v. Taylor,

Mass. Adv. Sh. (1981) 821, 827.

- 13 -

1. Judicial error. Assuming, as

does the plurality opinion, that what is

involved in this case is not police

error but rather judicial error, the

plurality points to no cases wherein the

supposed good faith but negligent act of

a judge who issues a defective warrant

is relevant in determining whether the

evidence should be suppressed. As the

appellate court of last resort in this

State, our primary concern is to correct

judicial error in all stages of a

proceeding. I fail to understand why

the "good faith" of a judge should make

any difference in this case. Do we not

always assume that the judges of all the

various courts throughout the

Commonwealth carry out their duties in

good faith? If our standard of review

is to be limited to examining the good

faith of the judge, few cases would

he

eae” Se eae

oY en

require reversal, and errors of law

would stand uncorrected.

The plurality opinion appears to

recognize that suppression of illegally

seized evidence may encourage greater

care by magistrates in the future, but

expresses doubt as to the efficacy of

such a rule in deterring judicial

error. I strongly disagree with the

Plurality's reasoning on this point.

Our responsibility as the court of last

resort in this Commonwealth requires

that judicial violations of the Fourth

Amendment find no sanction, express or

implied, in our opinions. Unless this

court "safeguards its own capacity to

function and to preserve the security of

its people, society itself could become

so disordered that all rights and

liberties would be endangered." United

States v. United States Dist. Court, 407 a

* PAE tet j 5d 2 aitatle Bit er 2 > ot ee

ere Py PR Rte. gee Tee %

4 - 15 -

U.S. 297, 312 (1972). The language in

today's opinion will hardly encourage

greater care by judges who issue search

Warrants. Indeed, the language of the

plurality cannot but encourage negligent

behavior, a hardly laudable

characteristic of judicial conduct.

Common sense tells me that greater care

will be encouraged if the rule remains

as it is, viz., evidence seized under an

invalid warrant will be suppressed.

2. Prior Federal precedent.

Acknowledging, as the plurality does,

that the exclusionary rule has not been

applied in all circumstances by the

Supreme Court of the United States, does

not answer the question whether it

should be applied in this instance. 4

Admittedly, the Supreme Court has :

refused to extend the exclusionary rule

beyond that established in Mapp v.

~

; ee

«46 «

367 U.S. 643 (1961). See Alderman v.

United States, 394 U.S. 165, 175 (1969)

See also, cases cited by the plurality,

supra at n.l3. The Supreme Court,

however, has continued to apply

"judicially created means of

effectuating the rights secured by the

Fourth Amendment." Stone v. Powell, 428

U.S. 465, 482 (1976). Even those on the

Supreme Court who have criticized the

exclusionary rule have recognized that

the rule should not be eliminated,

absent a satisfactory alternative means

of protecting Fourth Amendment values.

Thus, despite the minority views cited

by the plurality opinion, the Suprene

Court has not taken the step the

plurality appears to favor. Indeed,

there is some recent indication that the R,

Court would not accept a good faith :

exception to the exclusionary rule, See

a

Taylor v. Alabama, 102 S. Ct. 2664, 2669

1982) (expressly rejecting any good

faith exception to exclusion of

confession that was fruit of an illegal

arrest).

The cases that have discussed a good

faith exception to the exclusionary rule

are significant to the points I have

made. See Michigan v. DeFillippo, 443

U.S. 31 (1979); United States v.

Peltier, 422 U.S. 531 (1975). In the

Peltier case, the Court allowed

admission of evidence obtained from a

search and seizure where the officers

had conducted the search in good faith

reliance “upon a validly enacted

statute, supported by longstanding

administrative regulations and

continuous judicial approval.* Id. at

541, Similarly, in DePillippo, supra,

sufficient; the officer's acts had to be

ee , as . 641

o eh «

seized pursuant to an arrest under an

ordinance which was subsequently found

invalid. So long as “the arrest was

valid when made, the search was valid

and the [contraband was] admissible in

evidence." 443 U.S. at 36. In both

Peltier and DeFilIippo, the searches

were valid under the then existing law,

and, more importantly, there were no

search warrants involved. In the

instant case, the search was invalid

9/

from the beginning. It is one

2/ The plurality's reference to the

good faith" exception relied on in

United States v. Williams, 622 F.2d 830

Ee 0 (en banc), cert. denied,

449 U.S. 1127 (1981), is less than

illuminating. The court in W

stated: “No warrant is involv ere,

hence nothing that we say applies to

factual situations where one has been

obtained." Id. at 840 n.l.

Additionally, the majority made ’

it clear that was not :

o-19 @

thing to consider the reasonable good

faith of law enforcement officials who

proceed according to then existing legal

The decision in Williams was

"unusual." Abell v. Commonwealth, 272

S.E.2d 204, 210 (va. 1980). Sixteen

members of the twenty-four judge court

held that evidence seized incident to an

arrest should not be suppressed because

the arrest was valid. 622 F.2d at 839.

Thirteen members of the court, including

some of those who joined in the first

holding, united in an alternative

holding that even if the arrest were

invalid, the exclusionary rule would not

be applied because the officer acted

under a reasonable goc . faith belief

that the arrest was lawful. Id. at

846-847. Ten judges, in a concurring

opinion, including some of those who

joined in the first holding, objected to

the majority's alternative holding. The

concurrers chastised the court for lack

of judicial restraint in writing an

alternative holding not necessary *o

resolve the case, as the entire court

agreed that the arrest was valid. The

concurrcers also asserted that the

conclusions reached by the court in t:he

second holdi ne rg eb only bi

dissenting = law review

case has hac, at

Most

- 20 - .

standards that are later changed, and

another to consider, in hindsight, the

good intentions of a judge who issued a

Clearly defective warrant that was

invalid at the time issued and is still

invalid today. "(C]Jlearly there is a

crucial distinction between withholding

{the exclusionary rule's] cover from

individuals whose Fourth Amendment

rights have not been violated -- as has

been tintin the ‘standing’ cases, ...

Jones v. United States, 362 U.S. 257

(1960) -— and withdrawing its cover from

persons whose Fourth Amendment rights

have in fact been abridged." United

States v. Calandra, 414 U.S. 338,

364-365 (1974) (Brennan, J., dissenting).

Even assuming that there was a good

faith exception for judicial error, it

would not apply in this case.

Permeating the plurality opinion is the

«(QE «=

assumption, which is plainly stated at

one point in the text, supra at , that

the judge acted “negligently but in good

faith." This is a contradiction in

terms. The plurality acknowledges that

the judge's error "was a serious

omission of constitutional

significance." Supra at n.l7. In

the circumstances of this case, such

error stemmed from a failure on the part

of the judge to exercise reasonable case

in issuing the warrant. Obviously, the

judge did not read the warrant before

handing it over to the police. Such

behavior cannot be characterized as

"good faith." Indeed, Justice

Rehnquist, the most vehement critic of

the exclusionary rule on the Supreme

Court of the United States, has ~ x

recognized that the deterrent function

of the exclusionary rule is served by

- 32 «

proscribing negligent ag well as wilful

behavior: "The deterrent. purpose of the

exclusionary rule necessarily assumes

that the police have enyaged in willful,

or at the very least negligent, conduct

which has deprived the defendant of some

right. By refusing to admit evidence

gained as a result of such conduct, the

courts hope to instill in those

particular investigating officers, or in

their future counterparts, a greater

degree of care toward the rights of an

accused. Where the official action was

pursued in complete good faith, however,

the deterrence rationale loses much of

its force." Michigan v. Tucker, 417

U.S. 433, 447 (1974). In order to be

viewed as being in good faith, official

action, though later proved to be 44

erroneous, must have been undertaken

with a greater degree of care than was

o 33 «

exhibited in this case. See note 6

Supra.

The recent opinions questioning the

purposes and functions of the

exclusionary rule, as it applies to good

faith errors by arresting or searching

officers, stress the problems that the

exclusionary rule “poses to the

policemen who must act on the firing

line (unfortunately too often literally

so) and under the need to make immediate

law enforcement decisions without the

luxury of deliberation." United States

v. Santucci, 509 FPF. Supp. 177, 182 (N.D.

Ill. 1981), rev'd on other grounds, 674

P.2d 624 (7th Cir. 1982). The pressures

of law enforcement cannot serve as an

adequate basis for excusing judicial

error. Cf. Santucci, supra at 182-183

(United States Attorney cannot invoke

"policemen in the field” good faith

ae

- 24°

exception to the exclusionary rule).

3. Judicial integrity. Although the

plurality opinion asserts that the

notion of preservation of “judicial

integrity fails as a substantial,

independent support for the

[exclusionary] rule," supra at , it

fails to address adequately whether the

imperative of judicial integrity, in

this particular instance, would support

invocation of the exclusionary rule. See

Stone v. Powell, supra at 485 (judicial

integrity has limited role in

determining whether to apply

exclusionary rule in a particular

context). “The primary meaning of

‘judicial integrity’ in the context of

evidentiary rules is that the courts

must not commit or encourage violations

of the Constitution." nited tes Vv.

Janis, 428 U.S. 433, 458-459 n.35 (1976).

o 25 «

One need only turn to history to

recognize the dangers to society if the

judiciary cannot, or will not, diligently

and carefully protect the rights of

individuals. See Marsh, Some Aspects of

the German Legal System Under National

Socialism, 62 L.Q. Rev. 366 (1946);

Roetter, The Impact of Nazi Law, 1945

Wis. L. Rev. 516. See also Korematsu v.

United States, 323 U.S. 214 (1944); L.

Tribe, American Constitutional Law 1000

(1978).

The imperative of judicial integrity

strikes me as being at the very core of

Fourth Amendment values. It is appro-

priate to note, in this context, the

impressive words of the Constitution of

the Union of Soviet Socialist Republics: y

"Article 55. Citizens of the USSR

are guaranteed inviolability of the home.

No one may, without lawful grounds,

enter a home against the will of those

residing in it.

it p.

ws ft ghey

o> m 4 ‘ . gee ad 7 re eo fe

Aa, | Pn ee ae Vs, veel For Ao ao we RB OD Mae ei ee eh 2 Ae

@ 26 «

"Article 56. The privacy of

citizens, and of their correspondence,

telephone conversations, and telegraphic

communications is protected by law.

"Article 57. Respect for the

individual and protection of the rights

and freedoms of citizens are the duty of

all state bodies, public organisations,

and officials.

"Citizens of the USSR have the right

to protection by the courts against

encroachments on their honour and

. Youtation, life and health, and

personal’ freedom and property.”

Constitution of the Union of Soviet

Socialist Republics, in 16 Constitutions

of the Countries of the World 29 (A.

Blaustein & G. Flanz eds. 1982).

We take for granted the meaningless

nature of these words because the courts

of that nation cannot, or will not,

implement them to protect the rights of

their citizens. In contrast, John Adams

said of James Otis's argument against

the colonial writs of assitance that

"[t]hen and there was the first scene of

, % n

vr ' Pivt Go

ae * ° ‘ “tae aes

at, ols ios . sip 4 Nia nin al - : u 4 7.

et OP ae eee ee ae nee Ll ee Pier hee ee

» 7 «=

the first Act of Opposition to the

arbitrary Claims of Great Britain. Then

and there the child Independence was

born." 2 Legal Papers of John Adams 107

(L. Wroth & H. Zobel eds. 1965).

In this case, the goal of preserving

judicial integrity is a sufficient

justification for applying the

exclusionary rule, since it is a judge

who committed the violation. "It is the

duty of [judges] to be watchful for the

constitutional rights of the citizen,

and against any stealthy encroachments

thereon." Boyd v. United States, 116

U.S. 616, 635 (1886).

What becomes of judicial integrity

when three members of this court appear

to condone the egregious judidcial error

Fa a eee

involved in this case? And what is left

of the most significant protection

embedded at the core of the Fourth

@ 28 «

Amendment and art. 14 values, namely,

the role of a neutral and detached

magistrate in determining the validity

and terms of a search? See Lo-Ji Sales,

Inc. v. New York, 442 U.S. 319 (1979);

Connally v. Georgia, 429 U.S. 245

(1977); Shadwick v. Tampa, 407 U.S. 345

(1972); Coolidge v. New Hampshire, 403

U.S. 443 (1971). The crucial role of a

magistrate is to determine whether

probable cause for a search warrant

exists and, just as importantly, to

describe with particularity the place to

be searched and the things to be

seized. Stanford v. Texas, 379 U.S.

476 (1965). Marcus v. Search Warrant of

Property at 104 E. Tenth St., Kansas

= 299. <

City, Mo., 367 U.S. 717 (1961) .24/

The particularity requirements of

the Pourth Amendment are “precise and

Clear. They reflect the determination

of those who wrote the Bill of Rights

that the people of this new Nation

should forever ‘be secure in their

persons, houses, papers, and effects’

from intrusion and seizure by officers

acting under the unbridled authority of

a general warrant." Stanford v. Texas,

Supra at 481. In the instant case, the

plurality condones "a manifest neglect

if not an open defiance of the

prohibitions of the Constitution,

intended for the protection of the

10/ One should not have to add that, in

every one of the decisions cited here :

which involve a defective warrant issued P

by a magistrate, the fruits of the ss

; search conducted under the authority of

~~ the defective warrant were suppressed.

= 30 «

people against such unauthorized

action." Weeks v. United States, 232

U.S. 383, 394 (1914). Although "[t]he

criminal goes free, if he must, ... it

is the law that sets him free. Nothing

can destroy a government more quickly

than its failure to observe its own

Iaws, or worse, its disregard of the

charter of its own existence." Mapp v.

Ohio, 367 U.S. at 659.

The language the plurality opinion

uses in reaching the correct result

mandated by State and Federal law does

unnecessary harm to a body of law now

well-established in our jurisprudence.

The case is "serious" but there is

nothing “challenging” about this issue

except the plurality's unnecessary and

unhappy incursion into a field of law

well rooted in American history. One

cannot but wonder as to the purpose of

: : ; SS as ha

Pee iF ote. Syke bono uae i) eos Bee ics rela as Sine fod

~~

such treatment of an issue so clear

cut. It would be well to keep in mind

that what was involved here is a search

of a home, the most sacrosanct of places

under Fourth Amendment jurisprudence.

"The Fourth Amendment protects the

individual's privacy in a variety of

settings. In none is the zone of

privacy more clearly defined than when

bounded by the unambiguous physical

dimensions of an individual's home -- a

zone that finds its roots in clear and

specific constitutional terms: ‘The

right of the people to be secure in

their .. . houses... shall not be

violated.' That language unequivocally

establishes the proposition that ‘[a]Jt

[ the very core [of the Fourth Amendment]

stands the right of a man to retreat

into his own home and there be free from

unreasonable governmental intrusion.'

ee

Silverman v. United States, 365 U.S.

505, 511 [1961]. In terms that apply

equally to seizures of property and to

seizures of persons, the Fourth

Amendment has drawn a firm line at the

entrance to the house." Payton v. New

York, 445 U.S. 573, 589-590 (1980). The

violations of the Pourth Amendmént and

our State laws involved here were not

merely “negligent.” They were

11

inexcusable. The warrant was

clearly defective. The search of this

iv I point out also that despite the

plurality's attempt to excuse the

conduct here on the ground that the

defendant was “at liberty” (supra at

) and that there was need for “prompt

action” (supra at n.17), the

evidence shows that an arrest warrant

had been issued for the defendant, and

that the police knew he was not at home

and dispatched a team of officers who

arrested him at another place at the

same time the search under the defective

Warrant was conducted.

vf , — a ‘ Wa ¢ 4 as, § >

te Oe en . ~~ ie we are, Py. tee eS a ee Be Pe eee ey

; - 33-

. dwelling was as though without a

warrant. The evidence illegally

obtained as a result must be suppressed

without question.

: 4 Fi, -

APPENDIX

To the Justices of the Nuncipal Court

of skirtiiesrex ROXBURY

District , holden in

said Dorchester District for the

transaction of criminal business

within the County of Suffolk:

of Boston

in the County of Suffolk, Police

Officer, on oath informs the said Court,

that he has reason to believe that any

controlled substance, article, implement

or other paraphernalia used in, for, or

in connection with the unlawful

possession or use of any controlled

substance, is kept or deposited by

OSBORN SHEPPARD some

person or persons unknown to the said

in

certain rooms in the 2ND & BASEMENT

of er? ee

: ; ’ y i oye - ; ay ‘ y

by tr & ee Ae On wie Eee SMe te a oS a ie Sara Sh

-2-

story of the building situated and

numbered 42

in DECKARD ST., street in

said city and within the judicial

district of said Court and prays a

Warrant to search there for the same

Received and sworn to before this

Court, this 6TH day of

MAY in the year of our Lord

one thousand nine hundred and seventy

NINE

Clerk.

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, TO WIT:

To the Sheriff of our County of

Suffolk, his Deputies a

Constables and Police Offi

of the City of Boston in said

County: Gre

“=

We command you, and each of you

forthwith, with necessary and proper

assistants, to enter in the day time or

in the night time in the

mentioned in the above information, and

there diligently to search for any

controlled substance, article, implement

or other paraphernalia used in, for, or

in connection with the unlawful

possession or use of any controlled

substance, and to seize and securely

keep the same until final action, and to

arrest the person or persons in whose

possession it is found, together with

all persons present if any of the

aforesaid substances is found, and bring

them before said Court to be dealt with

according to law, and return this

warrant with your doings thereon.

You are also commanded in like

manner to notify the informant to appear

and give evidence touching the matter

contained in the above complaint, when

and where you have the said substances

and persons or either of then.

Witness, Joseph F. Feeney,

Esquire, at Boston, in said

Massachusetts Trial Court, Roxbury

Division, this sixth day of

Ma in the year of

our Lord one ousand nine hundred and

seventy nine

Signed,

Joseph F. Feeney

Trial Justices,

Massachusetts Trial

Court

LYNCH, J. (dissenting). It is

undisputed that the search warrant used

in this case to seize hiyhly probative

evidence linking the defendant to the

murder of Sandra Boulware was formally

defective. At issue in this appeal is

the question whether the failure of the

issuing magistrate to include in a

search warrant, issued on probable

cause, a list of the items to be seized

or to incorporate such a list by

reference to the police affidavit

necessitates the application of the

exclusionary rule where the search and

seizure is limited to the items

described in the affidavit. This court

has concluded that the decisions of the

United States Supreme Court mandate

suppression of this evidence. Supra

at , : I believe, however,

that the majority's conclusion

9 - . f r .

‘(et ayers J . ¢ DM ek, ope, Age See”,

-2-«=

represents a misreading of the relevant

Supreme Court precedent and that its

application of the exclusionary rule is

inappropriate on the facts in this

case. Accordinyly, I dissent. I

believe that a careful exploration of

the purposes behind both the

particularity requirement of the Pourth

Amendment to the United States

Constitution, which the police and judge

inadvertently violated here, and the

exclusionary rule demonstrates that the

trial judge's admission of this evidence

was proper on these facts.

The Supreme Court has noted that the

particularity requirement was included

in the Pourth Amendment to protect

citizens from the general warrants and

writs of assistance that were connonly

used by the British against the

colonists. Boyd v. United States, 116

' : Ks s om ‘ 4 tae

oot Be mek HA ee ey de totale 7

= j=

U.S. 616, 624-627 (1886). These general

warrants granted British officers

unbridled discretion to search the place

and belongings of the colonists and

placed “the liberty of every man in the

hands of every petty officer." Id. at

625. See also Marron v. United States,

275 U.S. 192, 195-196 (1927). The

particularity requirement of the Fourth

Amendment is directed at this specific

evil. It requires that those searches

that are deemed necessary should be as

limited as possible: "[T]he problem is

not that of intrusion per se, but of a

general, exploratory rummaging in a

person's belongings." Coolidge v. New

Hampshire, 403 U.S. 443, 467 (1971).

Also, evidence seized under a general

warrant is unlikely to be supported by #

probable cause. Specificity in the 4

o §

warrant limits the potential for such

abuse. Id.

In the present case none of the

evils associated with searches under

such warrants occurred. At all times,

Detective O'Malley and his colleagues

conducted their search for evidence in a

manner that scrupulously adhered to the

limits that were specified in the

affidavit and that they believed in good

faith the judge had authorized. The

police searched only in the places

particularly described in the warrant

and they seized only the relevant murder

evidence described in Detective

O'Malley's affidavit. They neither

assumed nor exercised any discretion in

the search. The police officers sought

prompt judicial approval for their

search warrant and searched no further

than specified in the affidavit. No

o § «

"rummaging" among the defendant's

belongings occurred. In the face of the

dedication shown by these police

officers to the spirit and purposes of

the Fourth Amendment, abstract fears of

"general warrants" and "writs of

assistance” are completely misplaced.

More importantly, even conceding

that the detective's carrying the

affidavit on his person rather than

attaching it to the warrant rendered the

warrant formally defective, I believe

that application of the exclusionary

rule to suppress the evidence seized

brings about too harsh a result. The

plurality opinion correctly points out

that the substantial, and perhaps only,

justification for the exclusionary rule

relied upon by a majority of the :

justices of the Supreme Court is the

goal of deterriag unconstitutional

« €.<

conduct by the police and other law

enforcement personnel. Supra at .

The plurality opinion also recognizes

the existence of factors in this case

which, in my opinion, militate against

the application of the exclusionary

rule. That opinion acknowledges that

the police conducted the search in a

good faith belief, reasonably held, that

the search was lawful and authorized by

the warrant issued by the judge; the

defect in the warrant was not harmful to

the defendant in the circumstances of

the actual search; the search was ,

conducted in the same way and with the

same results as it would have been

conduted if the warrant had not been

defective; the error in the warrant

consisted of the judge's failure,

negliyently but in good faith, to

strike out certain clearly inapplicable

eg Re ff te a Se sete ‘ MICE Oa nor ea TD Goer ee WT

—e_- ~

}

bee > b 5 eS sei ee aT bi

FE a tee SOT : os Sin Perc ee te te 2

i ee

words printed on the blank form and to

attach it to (or to incorporate by

reference to the affidavit) a list of

the items to be seized; the Supreme

Court has not applied the exclusionary

rule to a judge's error in such

circumstances; there may be reasonable

distinctions between police misconduct

and the errors of magistrates; the

judge's conduct was neutral and

detached; he did not undertake the role

of the police and become concerned with

ferreting out crime; the exclusionary

rule is not well tailored toward

deterring judicial misconduct since the

suppression of a particular piece of

evidence may not be as effective a

disincentive to a neutral judge as it -

would be to the police; the defendant

was not prejudiced by the magistrate's

error; and various members of the

o 6 «

Supreme Court have made statements

critical of the application of the

exclusionary rule in particular

circumstances (not unlike those found to

exist here). Supra at - . The

majority nevertheless concluded that the

exclusionary rule requires the

Suppression of the evidence seized. I

believe that the factors summarized

above, which three menbers of this court

apparently agree are of significance,

compel the conclusion that the evidence

seized at 2 Deckard Street need not be

suppressed under the United States or

the Massachusetts Constitution.

The Supreme Court has noted with

concern that "[e]ach time the

exclusionary rule is applied it exacts a

substantial social cost for the

vindication of Fourth Amendment rights.

Relevant and reliable evidence is kept

@ 9 «

from the trier of fact and the search

for truth at trial is deflected." Rakas

v. Illinois, 439 U.S. 128, 137 (1978).

Frequently the evidence sought to be

excluded is “the most probative

information bearing on the guilt or

innocence of the defendant." Stone v.

Powell, 428 U.S. 465, 490 (1976).

Consequently, "“[a]pplication of the

[exclusionary] rule . . . deflects the

truthfinding process and often frees the

guilty. The [resulting] disparity in

particular cases between the error

committed by the police officer and the

windfall afforded a guilty defendant by

application of the rule is contrary to

the idea of proportionality that is

essential to the concept of justice.

Thus, although the rule is thought to

deter unlawful police activity in part

through the nurturing of respect for

» 18 «

Fourth Amendment values, if applied

indiscriminately it may well have the

opposite effect of generating disrespect

for the law and administration of

justice." Id. at 490-491.

To minimize the social cost

resulting from the indiscriminate

application of the exclusionary rule,

the Supreme Court has held that this P

judicially made rule is not coextensive

with the Fourth Amendment. Stone v.

Powell, supra at 486, 488-489. United

States v. Calandra, 414 U.S. 338,

347-348 (1974). Rather than applying

the exclusionary rule reflexively, the

Court has stated that judges should

weigh the value of deterrence of police

misconduct gained in applying the rule

against the “further encroachment upon

the public interest in prosecuting those

accused of crime and having them

«a i} «

acquitted or convicted on the basis of

all the evidence whioh exposes the

truth." Stone v. Powell, supra, quoting

from Alderman v. United States, 394 U.S.

165, 175 (1969).

Thus, it is clear that the policies

underlying the exclusionary rule are not

absolute and they must be evaluated in

light of competing considerations: “As

with any remedial device, the

application of the [exclusionary] rule

has been restricted to those areas where

its remedial objectives are thought most

efficaciously served." Calandra, supra

at 348. Here, application of the

exclusionary rule will serve no

beneficial purpose. Police misconduct

will not be deterred because none

occurred. ‘The human error committed by

the judge harmed no rights of the

defendant, as mothing beyond the

ao £2 @

evidence listed in the affidavit was

searched for or seized. By contrast,

application of the exclusionary rule

will result in the very substantial harm

of withdrawing highly probative evidence

from the trier of fact.

In discussing the need for applying

the exclusionary rule under the Fifth

Amendment to the Constitution of the

United States, the Supreme Court has

cautioned that before we penalize

official misconduct we must consider

whether the sanction serves a valid and

useful purpose. Michigan v. Tucker, 417

U.S. 433, 446 (1974). I can perceive no

valid and useful purpose for applying

the exclusionary rule to the good faith

search and seizure performed by the

police here, albeit under a defective

Warrant. The failure of the judge or

the police to attach the affidavit to

* Lo =~

Re Re Seer.

' er gars Leper

TS, SSO Se Pre eal Oe ss are cee a ee,

a t9«

the revised warrant form was merely a

harmless error, but under the majority's

holding the consequences are Draconian:

for want of a staple, highly probative

evidence is lost. Such dedication to

rigid formality is commanded neither by

the Constitution nor by logic. I

respectfully dissent.

a

APPENDIX B

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SUPERIOR COURT

NO. 026071

MEMORANDUM

COMMONWEALTH ) CONTAINING

) PINDINGS OF FACT

vs. ) RULINGS OF LAW RE

) DEFENDANT'S

) MOTION AND

AMENDED MOTION

TO SUPPRESS

OSBORNE SHEPPARD

oe. 2-2: ££. eC: 2 2 8

Statement of the Case

The defendant Osborne Sheppard awaits

trial upon the above numbered indictment

which presents murder in the first

degree. Presently, the defendant urges

both a Motion to Suppress physical

evidence which was filed on February 2l,

1980 and an “Amended Motion" seeking

suppression of certain oral statements

SEP 26, 1980

Filed.

Ronan J.

Attest; T. Bakas

Asst. Clerk

-2-

allegedly made by him during a claimed

custodial inquiry on May 5, 1979. The

grounds advanced for the suppression of

the physical evidence are that the items

that were seized were taken pursuant to

the authority of a search warrant that

both as to form and content is so

defective as to be a nullity; and,

alternatively that an examination of the

affidavit supporting its issuance

reveals a lack of probable cause. With

respect to the arguments advanced for

suppression of the oral statements, the

grounds relied upon are a failure to

comply with the requirement of Miranda

in that an alleged custodial

interrogation without a prior

constitutional advices of rights was had

and, in any event, that interrogation

was a detention offensive to the fourth

-3-

amendment under the rationale of Dunaway

v. New York U.S.

(1979).

Findings of Fact

l. As of May 5, 1979 there had been

multiple homicides that had occurred in

the Roxbury section of Boston. There

had been ten or eleven young black

female victims murdered in the span of

approximately four months. These

incidents were understandably a matter

of extreme community interest. The

events received considerable newspaper

, attention and other public coverage. In

response to these several concerns, the

Boston Police had placed its District 2

detective personnel on double shifts

and, or, overtime in an attempt to

discover the perpetrators of these

crimes and thereby restore peace and

order to the community.

a a

2. In the early morning hours of

May 5, 1979 (sometime at or about 5

A.M.) the body of the tenth (or

eleventh) victim was discovered ina

vacant lot within Roxbury. The body had

been burned and the responding officers

observed a patch of material and length

of wire attached to the ley of the

corpse. The Police Commissioner, one

Jordan, and the District 2 detectives

gathered at the scene before 6 A.M.

3. An intensive police effort

commenced. First attempts were made to

identify the visibly unrecognizable

body. A detective Montgomery began

knocking on neighborhood doors to

discover whether nearby residents had

Observed anything. Later, he was

furnished with a photograph of a woman

who, police thought, might possibly have

been the victim. Montcomery started

- 5 «-

asking questions in various local

establishments seeking to find anyone

who.might recognize the woman in the

photograph. While making this routine

inguiry within a tar, a patron

approached and related that the woman

depicted was acquainted with his

girlfriend. After being unable to reach

this person on the telephone, Montgomery

went to the address furnished by the

patron only to learn that other police

had already contacted her and that she

was then at the police station.

4. At some time around midday, Sgt.

Albert Bornstein, Chief of District 2

detectives summonsed all teams working

on the homicide to a briefing session.

Bornstein informed the collected

detectives that the victim was thought

to be a Sandra Boulware, that a positive

identification of the body had been

- 6 -

obtained, and, among other things, that

Bornstein wanted to interview one “Jimmy

Sheppard” who might have been a

boyfriend of the deceased. Montyomery

knew Sheppard from prior contacts with

him. He knew him as a gambler, a

so-called "gaming man". Montgomery and

his partner cruised the neighborhood,

looking for a red and black automobile

which Montgomery thought was owned by

Sheppard. He looked around the general

area of several locations where he

though he might find him (even passing

by 158 Whitfield Street). At

approximately 5 or 6 P.M. he decided to

enter the Whitfield Street premises

notwithstanding the fact that there was

no red and black car to be seen in the

area.

5. Nontgomery, accompanied by his

partner Brad Jones, knocked on the door

7 «

which was opened by the defendant.

Montgomery spoke first. “Jimmie, you're

just the fellow I am looking for", to

which Sheppard responded either “Well,

you're looking at me" or “Are you

looking for me?" Montgomery then gave

him the reason. Syt. Bornstein wanted

to ask him, Sheppard, some questions and

requested he come to the station. The

defendant replied, “Let me:get my

coat". He went from the first floor to

the second. Montgomery also went

upstairs. The card players were

gathering there. Montgomery moved to

relieve any anxiety and told them that

his visit wasn't a gaming raid and that

he wasn't interested in them. Sheppard

had retrieved his coat by this time and

the two left. When they jot outside

Montgomery did not (contrary to the

defendant's contention) handcuff him or

_

- 8 -

ride with him in the back seat.

Montgomery who rode in the front

passenger seat took out his Miranda card

and read it to Sheppard who was seated

alone in the back of the unmarked

automobile.

6. I find that at this time

Sheppard was well aware of his

constitutional rights. He was

fifty-five years of age. He had

considerable prior experience with

police officers and police

investigations. On May 5, 1979, prior

to Montgomery's recital, Sheppard well

knew he had a constitutional right to

remain silent, that anything he said

could be used against him, that he had a

right to a lawyer, and that if arrested

he had a right to use the telephone. He

was alert and not under the influence of

any narcotic or alcohol. Perhaps it

- 9 -

should be noted he was about to act as a

dealer in a card game with “gaming men"

hardly a casual activity where mental

dullness or lack of alterness is long

tolerated. Montgomery commenced to ask

Sheppard about his whereabouts on the

morning of May 5, 1979. Sheppard who

has described himself as rather “well

read and well versed" and certainly who

is intelligent and articulate, asked

what it was all about. Montgomery

replied, "Do you know Sandra Boulware"

to which Sheppard affirmatively

responded. Montgomery stated, “She is

no longer with us".

Montgomery inquired at considerable

length of Sheppard, all as more fully

appears from Exhibits 16 and 17, while

traveling from Whitfield Street to the

police station. This court finds that

Sheppard was well aware of the extent

- 10 =-

and scope of his rights and having just

been re-informed by Montgomery decided

to respond and answer questions. He

knew that the police were investigating

the death of Sandra Boulware and was

interested in exploring his relationship

with her and in determining his

whereabouts and activities at least on

May 4 and May 5, 1979. He had been

arrested on previous occasions. He knew

that he was not in custody. His will

had not been overborne. He made a

rational, strategic decision. He had

not been intimidated, and his waiver was

voluntary.

7. When Sheppard arrived at the

station, Montgomery brought him to

Bornstein's office and introduced them.

Bornstein told him he was investigating

the homicide of Sandra Boulware and

wanted to interview him. Sheppard

- ll -

agreed. He noticed that Bornstein had

an additional black police officer come

into the room. Sheppard thought that

Bornstein was “diplomatic” to do so

since it meant that three black and

three white officers were then present.

Bornstein asked if he could interview

Sheppard on tape. Sheppard agreed.

Since Bornstein's investigation had not

forcused upon Sheppard and since he

considered Sheppard's visit to be

voluntary, he did not repeat the Miranda

warnings given earlier by Montgomery.

On the tape Sheppard has a deep,

rich baritone voice that presents some

audible amplification difficulties.

However, his voice and vocal demeanor

are cool, reflective and calm. His

answers were coherent and directly

responsive to the questions as posed.

Sometimes his answers were cryptic, but

- 12 -

often, after a reflective pause, he

voluntarily enlarged upon the same.

Sometimes he made unsolicited

observations. The tape is without a

trace of confusion, intimidation,

anxiety or uncertainty. On the contrary

the vocal impression gleaned from the

tape is that of a speaker in full, firm,

patient and collected demeanor and in an

easy fluid manner making clear and lucid

responses to the inquiries put.

Sheppard knew that he had a right to -

decline to be interviewed. He also knew

that any answer given could later be

used against him. He well knew he could

secure the service of a lawyer prior to

any questioning. He had pest

familiarity with arrest and booking

procedures. Notwithstanding his

presence within a police station, he was

under no coercive, or harassing

» 13 «

influence. His decision was unfettered

and free. He decided to be interviewed

on tape. It is apparent from the same

tape that he was comfortable and

confident with his decision during the

recording that followed. He depicted

himself as one who knew that he hadn't

done anything wrong.

8. When the interview was concluded

Bornstein thanked Sheppard for his

cooperation and the defendant left.

Perhaps it should be noted that the

victim had another boyfriend whose

possible information was of some initial

interest to the investigators.

9, The police continued their

investigatory efforts and as a part of

that effort, interviewed, among others,

Elbert Robinson, Finley Robinson, a cook

by the name of Howard Bruger, the

defendant's brother and sister-in-law,

- 14 -

and a Philip Barros. The information

solicited contradicted in many

particulars the information furnished

earlier by Sheppard. The investigation

quickly began to focus upon the

defendant.

10. The police had secured

information that Sheppard had borrowed

an automobile, a black "T-Bird" of an

unknown year from Barros and was in

possession of it between 3:00 A.M. and

5:00 A.M. on May 5, 1979. When the

police found Barros, they asked him to

inspect the vehicle. Stains were

observed. A chemist, called for the

purpose, determined these stains were

human blood stains. These were found

both upon the rear bumper and within the

trunk compartment. Also found within

the trunk were certain strands of wire.

Barros told Detective Peter J. O'Malley

- 15 -

that when he last used the car on Friday

night he had placed a box of apples in

the trunk and that there no stains in

the trunk or on the bumper at that

time. This was shortly before he let

Jimmy Sheppard use the car. The car

inspection and the interview with Barros

took place sometime on Sunday nieainn:

ll. Therefore, at about noontime on

Sunday, May 6, 1979 Detective O'Malley

drafted the affidavit that is now

Exhibit No. 2 herein. The affidavit was

intended to support his subsequent

application for a search warrant so as

to permit the inspection of the premises

occupied by Osborne Sheppard, upon the

second floor of 42 Deckard Street,

Roxbury, where the defendant lived with

his mother and sister, and that portion

of the cellar which the defendant

controlled or utilized in connection

- 16 =

with a playroom or recreation room, in

which, upon information furnished, the

police believed that from time to time

he entertained “woman friends...for

social purposes...". When he had

completed the affidavit, Detective

O'Malley showed it to the first

assistant District Attorney for Suffolk

County and asked him to advise him as to

its sufficiency. He was advised the

affidavit set forth probable cause to

Support the issuance of a search warrant.

12. Because it was Sunday, there

was neither immediate nor ready access

to the courts. Although the District 2

Police Station is in close proximity to

the Roxbury District Court, Detective

O'Malley was informed that four attempts

to contact either the clerk or assistant

Clerks were unsuccessful. In any event,

Detective O'Malley and others searched

a $9: o

the station and attempted to find a

Suitable form of search warrant.

Finally, from somewhere, they secured a

form previously in use at “Dorchester

District" entitled "Search Warrant",

Subtitled "Con' rolled Substance G.L. c.

276, §§1 through 3A*°. This search

warrant, as subsequently issued, appears

as Exhibit 1 herein.

Detective O'Malley was aware that

the form of warrant found related to

searches for controlled substances and

needed to be adapted for his intended

use. Therefore, he deleted the subtitle

"controlled substance” with a typewriter.

13. Meanwhile, arrangements had

been made so Detective O'malley might

present his affidavit before a justice

whose residence was in nearby West

Roxbury. This judge had consented to

affording the police an opportunity to

4

- 18 -

be heard immediately at his home.

Detective O'Malley therefore made

certain typed changes in the warrant

form, as seen upon Exhibit 1. In that

portion which comprises the complaint,

he substituted "Roxbury" for the printed

"Dorchester”® and further typed in the

name of “Osborne Sheppard" where a blank

space was afforded for use in

identifying the “keeper"® or "depositor"

of the controlled substance that the

form as printed contemplated. Purther,

the detective typed in "2nd & basement”

in a blank space provided for place; *

sought to be searched; also °42 Deckard

St." in the blank space provided for a

specification of the premises.

14. This court finds that the

police had a legitimate reason and need

for proceeding with all due dispatch.

The defendant, who was at liberty,

oe 19 «

customarily arose at midday. He spent

his later afternoons and early evenings

in the company of gaming men; and,

indeed, with some of the persons whom

the police had questioned after his

recorded interview. It was probable

that the defendant would, within hours,

learn of the police discoveries,

including their observatiors of the

vehicle. Since the items t.e police

sought, as set forth in O'Malley's

affidavit, were all small, light,

susceptible of easy destruction or

guickly transportable, and, if they

existed, were in an area in which the

defendant had instant and private

access, it was reasonable to anticipate

an attempt to rid or remove any telltale

articles. It was because of this

urgency that the police were moving with

dispatch.

- 20 -

15. Detective O'Malley arrived at

the issuing magistrate's home on Sunday

afternoon. He presented his affidavit

and made oath as to its contents and

Signed it before that judicial officer.

The Justice acknowledged the same and

signed his name, all as presently

appears on Exhibit No. 2. I find as a

fact that the Justice concluded upon the

affidavit that there was probable cause

to order the search of the second floor

premises occupied by Sheppard and that

part of the cellar used either as a

playroom or which was controlled by

him. I further find that the Judge

stated he would authorize the search as

requested. Detective O'Malley offered

the form and stated that he knew the

form as presented dealt with controlled

Substances. He showed the Judge where

he had crossed out the subtitles. He

- 21 -

asked the Judge if this form of the

warrant could be adapted so as to

provide authorization for the search

requested. I find that the Judge stated

to Detective O'Malley that he would make

the ncessary changes so as to provide

suitable form of search warrant.

Whereupon, on the back of the warrant

the Judge crossed out with a pen

"Dorchester District" and wrote in

"Roxbury Division, Mass. Trial Court”.

With respect to the command of the

warrant, the Judge crossed out with pen

the name of the judge and judicial

district as it appeared in print and

substituted thereof his own handwriting.

Thereafter, he dated the warrant, signed

it and delivered it to Detective

O'Malley. Also, he gave the affidavit

back to Detective O'Malley without

making in the warrant any other

- 22 -

alterations or additions. I find, as a

fact, as a reasonable inference that may

be drawn from the evidence presented,

that the issuing magistrate considered

that portion of the form furnished which

appears immediately above the command of

the warrant and which was a form

provided for a clerk's attestation of

the fact a complaint had been made, as

an integral part of the process he was

then issuing. He informed Detective

O'Malley that the warrant as delivered

over was sufficient authority in form

and content to carry out the search as

requested .2/ Detective O'Malley then

left the magistrate's home.

l/ Detective O'Malley also sought and

secured an arrest warrant after he had

been examined under oath by the same

magistrate. No issue regarding the

arrest warrant has been raised.

- 23 -

16. Thereafter, the search warrant

was executed by a group of officers

under the direction of Detective

O'Malley. Sheppard was not home. The

premises of the second floor apartment

which was occupied by the defendant and

the playroom in the cellar were

searched. The search was had and

accomplished within the limits that

Detective O'Malley understood the

warrant to permit. I find that O'Malley

had the affidavit as well as the search

warrant with him. The warrant was

peacefully executed. The defendant's

mother and sister were present at “he

time. O'Malley orally informed them of

the fact that he had a warrant

authorizing the serach of the second

floor premises and cellar area occupied

by the defendant. There was no evidence

that either occupant asked to see it or

- 24 -

that it was read spontaneously to them.

17. Sheppard's bedroom was searched

and certain items seized. When police

entered into the cellar playroom area,

they observed an open door leading into

an adjacent unfinished area. The door

was open. The door frame had a device

which permitted it to be secured from

within the playroom. There was no

evidence of any other means of access to

that area other than through the

playroom. The police entered and

searched the playroom. At or near the

open door was a scatter rug containing

blood stains. At or near the door

opening were pieces of cement showing

apparent blood stains. In the

unfinished area most proximate to the

door police observed women's earrings.

Other articles, such as articles of

clothing and wire, were found ir a

o 28 «

depression in this cellar area. I find

this cellar area to be an area under the

control of Sheppard. It was about

fifteeen feet from the door. I find

that the search was within the limits

that O'Malley understood the warrant to

permit.

18. After the search was

accomplished, O'Malley and one McConkey

inventoried the items seized. (One of

the items inventoried was a bed sheet

which was removed from a trash barrel

found outside the dwelling.) O'Malley

made his return to the Roxbury Court on

Monday morning.

Rulings of Law

With respect to the tangible

articles seized by the police on May 6,

1979 from the second floor bedroom of

Osborne Sheppard and the cellar area,

- 26 -

there are two contentions advanced.

The initial contention considered is

that the affidavit fails to establish

probable cause. This argument is

without merit. First, the law is

settled that the affidavit shall be read

in a commonsense fashion and precision

of language is not required. United

States v. Ventresca, 380 U.S. 102,

108-109 (1965). Massachusetts had

followed the federal lead holding that

the contents will not be first dissected

so that each resulting fragment shall be

subjected to a hypertechnical test of

its sufficiency standing alone.

Commonwealth v. Steward, 358 Mass. 747,

751. Nor should the affidavit be

reviewed from the point of view of a

common law pleader. Commonwealth v.

Pellier, 362 Mass. 621 (1972). Indeed,

if police are to be encouraged, it seems

«= 37 «

good policy to allow a certain leeway or

leniency in the after-the-fact review of

the application's sufficiency.

Commonwealth v. Corradino, 368 Mass.

411, 416 (1975).

Of course, the same Fourth Amendment

standard of probable cause is applicable

to a search as it applies to arrest and

this standard was acknowledged in

Commonwealth v. Stevens, 362 Mass. 24

(1972) and restated in Commonwealth v.

Tarver, 369 Mass. 302 (1975) and most

recently in Commonwealth v. Cefalo,

Mass. Adv. Sh. (1980) 1875, 1885-1886.

Probable cause must be shown within

the affidavit without resort to

extraneous evidence. By way of

definition, probable cause exists

wherever the facts and circumstances

within the knowledge of the government

and of which it has reasonably

- 28 -

trustworthy information are sufficient

in themselves to warrant a man of

reasonable caution to believe that an

offense has been or is being committed.

Carroll v. United States, 267 U.S. 132

(1925), Beck v. Ohio, 379 U.S. 89, 91

(1964). Massachusetts has used the

phrase “prudent man" when discussing the

sufficiency of the knowledge necessary.

Commonwealth v. Miller, 366 Mass. 387

(1974). Also, the issuing judge has a

right to draw inferences from the

affidavit. Commonwealth v. Moran, 353

Mass. 166, 170.

Suffice to say that a review of the

affidavit at issue showed that ample

facts were averred which would support a

reasonable belief in a prudent man that

this defendant had committed murder. He

was the last person who was known to

have been in the company of the victim.

@ 29 «

The contact was within five days of the

discovery of the victim. The place was

in Roxbury which was where the body was

found. The defendant operated a

borrowed vehicle in Roxbury at a time

just before the body was discovered.

Upon visual inspection within a day and

one-half of the discovery of the body,

blood stains were found upon that car

and those stains were not present

immediately before the defendant

borrowed the car. Also, the inspection

revealed rope and wire in the car and

the deceased was found with wire wrapped

about her person. In sum, the averments

are sufficient to permit a man of

reasonable caution to believe that it

was probable that the crime of murder

had been committed and that there was

probable cause to believe this defendant

to be the perpetrator.

- 30 -

The next issue is the validity of

the warrant. The Commonwealth seeks to

justify the search as one which was

effected by a warrant valid on its face.

The language of the Fourth Amendment

is clear and requires 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." Article XIV of the

Declaration of Rights to the

Massachusetts Constitution requires that

the warrant contain "...a special

designation of the persons or objects of

search arrest or seizure...with the

formalities prescribed by the laws."

Therefore, as has been often said,

"nothing is left to the discretion of

the officer executing the warrant."

Marron v. United States, 275 U.S. 191,

4

e 3] «

196; see also Commonwealth v. Wojcik,

358 Mass. 623, 625 (1971).

A search warrant which described the

property in greater detail than the

affidavit has been upheld. Commonwealth

v. Cuddy, 353 Mass. 305, 309 (1967). A

search warrant may be read with the

complaint where it is attached to the

warrant to provide sufficiency of

description of the place to be

searched. Commonwealth v. Pope, 354

Mass. 625, 629 (1968). Further, there

are circumstances where it is permissive

that the affidavit and warrant may be

read together. In Commonwealth v.

Todesco, 363 Mass. 445 (1973), the

affidavit was attached to the warrant

and the warrant made specific reference

to the affidavit. It was held the

requirement of specificity could be met

by a reading of both. A wiretap warrant

‘ Taal

- 32 -

which omitted the fifteen-day limit was

considered valid since the warrant could

be read in conjunction with the

application which sought the fifteen-day

authority. Commonwealth v. Vitello, 367

Mass. 224, 271-272 (1975). In that case

it was thought significant that the

police officer who made the affidavit

was involved in the execution of the

Warrant. This was because he could be

deemed to be aware of the limitations on

the warrant. Moreover, an inadequate or

ambiguous warrant description has been

deemed sufficient by a reading of the

affidavit and by the fact of “the

knowledge of the officers on the

scene”. Commonwealth v. Rugaber, 369

Mass. 765, 769 (1976). It has most

recently been suggested that the

affidavit may be read along with the

Warrant to establish sufficiency of

‘. ~~

— * .

- 33 -

description even without physical

attachment but where there was

accompaniment. Commonwealth v. Taylor,

Mass.App.Ct.Adv.Sh. (1980) 1653, 1657.

The argument of the Commonwealth

fails to be persuasive. There are

similarities between the case at bar and

Commonwealth v. Vitello, supra, in that

the omissions from the wiretap were

found by the trial judge to be as a

result of “error and inadvertence" just

as this court has found the omissions in

the warrant to be inadvertent and in

error. Likewise the officer executing

the warrant in this case was the affiant

and he possessed the unattached but

accompanying affidavit. The reason the

government's contention fails is that in

every case in which a document has been

utilized for the purposes of providing

the requisite particularity, the basis

- 34 -

has been that the warrant has used some

suitable terms of reference which have

supported the incorporation of the

document. This has been plainly stated

in the federal circuit which includes

Massachusetts. Application of Lafayette

Academy, Inc., 610 F.2d 1 (lst Cir.

1979); United States v. Klein, 565 F.2d

183 (lst Cir. 1977). Furthermore,

although not necessary to the holding,

this principle has been approvingly

articulated in Commonwealth v.

Accaputo, Mass.Adv.Sh. (1980) 1009, 1019.

Therefore, the warrant at issue is

fatally defective. The remaining issue

becomes whether or not given the

circumstances of this case the

exclusionary rule should not be applied.

An examination of this judicial

creation may be helpful. In contrast to

the Fifth Amendment's direct command

- 35 -

against the admission of compelled

testimony the issue of admissibility of

evidence obtained in violation of the

Fourth Amendment is determined after,

and apart from, the violation. Until

1914 there was no barrier to the

introduction in criminal trial of

evidence obtained in violation of the

Amendment. Adams v. New York, 192 U.S.

585 (1904), Commonwealth v. Dana, 2

Metcalf 329, 337 (1841). In Weeks v.

United States, 232 05383 (1914) it was

held that the Fourth Amendment alore may

be a basis of excluding evidence at. a

federal criminal trial of evidence

illegally seized by a federal officer.

The Weeks holding, however, did not

apply to state officiers and material

unconstitutionally seized by a state

officer could be admitted in a federal

criminal proceeding. This became known

a

=

- 36 =-

as the “silver platter" doctrine.

Lustig v. United States, 338 U.S. 74,

78-79 (1949). Thirty-five years after

Weeks, the right to be free from

arbitrary intrusion that is protected by

the Fourth Amendment is “implicit in the

concept of ordered liberty and as such

enforceable against the states through

the [Fourteenth Amendment] “Due Process

Clause.” Wolf v. Colorado, 338 U.S. 25,

27-28 (1949). The Wolf court however

Gid not impose the Weeks exclusionary

rule upon the states "as an essential

ingredient of that right." See Wolf

Supra at 29. The test became whether

the means used by a state were

sufficiently offensive to the concept of

ordered liberty as to make the admission

of the evidence a violation of the Due

Process Clause. Rochin v. California,

g

» 37 «

California, 347 U.S. 128 (1954).

Thus as matters stood throughout

most of the nineteen-fifties, the Fourth

Amendment was applicable to the states,

but a state could allow an official to

engage in a violation thereof and,

except in the most extreme case, avoid

judicial sanction. To compound the

problem, federal authorities, if they

happened upon a state so inclined could

profit from the state's action by

receiving the unconstitutionally

obtained evidence on the silver

platter. Therefore, in retrospect, it

was not surprising that in 1960 the

Supreme Court exercised its “supervisory

power over the administration of

criminal justice in the federal courts"

and barred from federal trials evidence

improperly seized by state officers.

»

@ 36 «

Elkins v. United States, 364 U.S. 206,

216 (1960).

One year later the exclusionary rule

was made applicable to state criminal

trials Mapp v. Ohio, 367 U.S. 643, 655

(1961). The Mapp majority justified the

application of the rule to the states on

several grounds (i.e. prevention of

introduction of evidence where the

introduction is tantamount to a coerced

confession; deterrence of Fourth

Amendment violations; preservation of

judicial integrity) but principally upon

the proposition that exclusion would

deter future unlawful police conduct.

The debate within the Court upon the

exclusionary rule has been

considerable. However, it is clear and

Plain that the contention that the

exclusionary rule is somehow coextensive

with the Fourth Amendment is simply

- 39 -

inaccurate and false.

"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".

United States v.

Calandra, 414 U.S.

338, 348 (1974).

Because the exclusionary rule is

"strong medicine" care should be had in

prescribing it for all ills and the

majority of the Supreme Court has

exercised caution. Early on, the Court

developed standing requirements in a

balancing process between two competing

social concerns, “the interest that the

public has in prosecuting those accused

of crime and having them acquitted or

convicted on the basis of all the

evidence which exposes the truth",

- 40 -

Alderman v. United States, 394 U.S. 165,

174-175 (1969) as against the particular

individual's right not to be the subject

of an arbitrary intrusion upon his

person or private effects, Brown v.

United States, 411 U.S. 223 (1973). To

state it another way, in deciding

whether or not the exclusionary rule

shall be applied, one first must

recognize that the policies behind the

rule are not absolute but relative.

There is a balancing to be had between

the strong public interest in truth at

trial on the one hand, and an

incremental contribution to the

protection of Fourth Amendment or Fifth

Amendment values. Therefore, although

ghhere is some dispute among the

individual judges as to where the line -

should be drawn, the great majority of .

the Justices employ this reasoning or

@ 4] «

balancing procedure and the results are

easily understandable even if disputed.

Cases clearly illustrate that process.

Harris v. New York, 401 U.S. 222 (1971);

United States v. Calandra, 414 U.S. 338

(1974); Michigan v. Tucker, 417 U.S. 433

(1974); United States v. Peltier, 422

U.S. 531 (1975); United States v.Jones,

428 U.S. 433 (1976); Stone v. Powell,

428 U.S. 465 (1976); United States v.

Ceccelini, 435 U.S. 268 (1978); Rakas v.

Illinois, 439 U.S. 128 (1978); United

States v. Caceres, 440 U.S. 741 (1979);

Michigan v. DiFillipo, 443 U.S. 3l

(1979), and, Yberra v. Illinois,

U.S. (1979).

The nineteen-seventies has beer a

time wherein the Supreme Court has been

establishing the parameters of the

exclusionary rule which it judicially

- 42 -

earlier fashioned and made applicable to

the states in the nineteen-sixties.

In this case the police sought a

warrant. The affidavit was submitted to

an official from the District Attorney's

office for a determination as to its

adequacy from the point of view of

probable cause. There was proper

presentment to a magistrate. There was

an independent assessment of that

disinterested judicial officer that

there was probable cause to search. The

police had adequately described with

constitutional specificity the places to

be searched and the items to be seized.

The police presented a form which was

the only form of warrant available to

them. The magistrate said he could

adopt it. Thereafter the actual search

undertaken was eithin the limits of the

- 43 «-

authority the police thought reasonably

had been granted.

The Commonwealth in this case places

great emphasis on United States v.

Williams, F2 (Sth Cir.

1980) in which there appears a well

reasoned justification for a good faith

exception to he application of the

exclusionary rule. The case is

persuasive. However, of even greater

weight 18 Commonwealth v. Rugaber, 369

Mass. 765 (1976). In a situation where

law enforcement officials acted

mistakenly but upon probable cause and

in good faith and which presented a

factual situation in which exclusion

would have no deterrent effect stated:

In these circumstances

we agree with the judge

who rulec that even if

the warrant was

defective, the

exclusionary rule should

- 44 -

not be applied since it

could have no deterrent

effect. Commonwealth v.

Rugaber, supra at

Likewise in this case, if police

officers undertake their duties

properly, they will act in the same

fashion in similar circumstances in the

future and the only consequence of

* applying the exclusionary rule would be

to keep from the jury probative evidence

and thereby impair the truth finding

function.

Therefore, the evidence seized in

this case is admissive notwithstanding

any defect in the warrant

Based upon the facts found above,

this court now rules that the statements

made on May 5, 1979 at the District 2

Police Station were freely and

voluntarily made.

- 45 «-

Miranda warnings must precede police

questioning whenever the person is

"deprived of his freedom of action in

any significant way." Miranda v.

Arizona, 384 U.S. 436, 444 (1966).

Suffice to say this court has found as a

fact that the defendant was afforded his

Miranda warnings by Montgomery before

any police interrogation was had.

Therefore the issue is whether or

not there was a knc /ledgeable waiver.

In reference to Miranda issues,

trial courts must indulge every

reasonable presumption against waiver of

fundamental constitutional rights.

Johnson v. Zerbst, 304 U.S. 458, 464.

The determination of whether there has

been an intelligent waiver depends in

each case upon the particular

circumstances and facts of the matter,

including the background, experience and

- 46 -

conduct of the defendant. The

Commonwealth has a “very special and

heavy burden" of showing the defendant

knowingly and intelligently waived his

right to silence and counsel

Commonwealth v. Cain, 361 Mass. 224

(1972). Station house inquiry, since it

is generally most conducive to

successful inguiry, is particularly

scrutinized. Commonwealth v. Hass, 373

Mass. 545 (1977). |

In reference to voluntariness,

certain facts are obvious. The

defendant was talkative from the

outset. He was not misled. The

questioning was not unduly long and he

was not subjected to lengthy inquiry.

He did not seek access to any friend,

family or counsel. He did not indicate

any physical or mental ailment.

Sheppard was fifty-five years of age and

,

» 67 «

had prior experience with police

practices sufficient to understand his

position. He was not overawed. He was

not intimidated. The essence of the

ability to make a voluntary statement is

the ability to make a free choice. In

short, the statement must be the produce

of a free will. Eisen v. Picard, 452

F.2d 860. Sheppard's self-preservation

mechanism was operative. Pia v. United

States, 397 F.2d 627, 634. This court

finds that the statements made were the

product of a rational intellect.

Sheppard made the election to talk

rather than exercise his right to

Silence. It was a strategic decision to

present himself as a man with nothing to

hide.

Many of the cases upon which this

court relies were recently collected in

Commonwealth v. Mahnke, 368 Mass. 662,

- 48 -~

699-700 (1975) and there is no reason to

set them forth herein.

This court concludes the statements

made on May 5, 1979 by the defendant

were made after a knowing and voluntary

waiver of his Miranda rights.

Conclusion

The Motion to Suppress and the

Amended Motion to Suppress are to be

endorsed as follows: "The within motion

be and hereby is denied for reason of

findings made and rulings set forth in a

memorandum of this date filed herewith.”

Signed,

John T. Ronan

Justice of the

Superior Court

September 26, 1980

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