# Petition — Massachusetts v. Sheppard

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 468 U.S. 981

## Text

CLERK

=

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!

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oy The Decision Of The
Court Below Conflicts o/
With Decisions Of Bit
Other State Courts.......23 a

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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

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* 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

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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
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«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 ¥
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» 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

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@ 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

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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

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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.

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@ 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

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@ 32 . 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- 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 °
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.
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

« €. 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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0064%3A01. Public record. Not legal advice.