Opinion
No. 94-1248
November 27, 1996
FINDINGS OF FACT, RULINGS OF LAW AND ORDER ON MOTION TO SUPPRESS
Defendant Kerley Cousseillant is charged with possession of a firearm without a license, and possession of ammunition without an F.I.D. card. Defendant moves to suppress evidence seized pursuant to a search warrant during a search of his residence at 9 Clifton Street, Cambridge, on May 4, 1994. Defendant argues, inter alia, that the warrant was invalid, and was issued pursuant to an investigation of earlier charges against defendant, upon which defendant was ultimately found not guilty; and that items seized during the search were beyond the scope of the warrant. At a hearing on the motion, the Commonwealth called Cambridge police Detective Edward Liberacki. Defendant called Karen Cousseillant. For the reasons set forth below, the motion is allowed.
FINDINGS OF FACT
I make the following findings, based on the credible evidence and reasonable inferences drawn therefrom.
On May 4, 1994, Det. Edward Liberacki applied for and received a warrant to search the single family residence at 9 Clifton Street, Cambridge. The warrant was issued upon an affidavit by Det. Liberacki relating a prior incident involving defendant and Officer John Crowley, and the subsequent arrest of defendant. Addendum A to the warrant listed items to be seized (including a red cap and black bookbag) which had been seized pursuant to a warrantless search of a vehicle at the time of the prior incident, and which had subsequently and mistakenly been returned to defendant.
At approximately 9:15 p.m. on May 4, Det. Liberacki and Detectives Paul Ames, Gerald Baptiste, and Theresa Shuman, and uniformed officers Murphy and Boyle, executed the warrant. One of them knocked on the door, which was answered by a female who identified herself as defendant's mother. Det. Shuman showed her the search warrant, which contained the addenda describing the address and the items to be seized.
A brief discussion with defendant's mother and sister, Karen Cousseillant, ensued. The latter were upset, and Det. Shuman explained the purpose of the search and asked them to remain in the kitchen, where she stayed as well. The officers asked where defendant's room was. Defendant's mother directed them to the basement. Det. Liberacki proceeded to the basement to search for the items listed in the warrant, while others performed a cursory search of other parts of the house, looking in part to see if anyone else was present.
The basement on 9 Clifton Street contains a room which was the defendant's bedroom, but is otherwise open, serving as a kitchen, laundry and storage area. As Det. Liberacki approached the door to the bedroom, he saw a small table outside the door. On it he observed various papers and a black plastic box. The lid was off the box, on the table about one and one-half feet away. He saw two labels on the box and one on the top which identified them as a storage box for a nine millimeter Glock handgun. Inside the box, in plain view, were a pistol clip containing nine millimeter ammunition; one loose round; a cleaning brush; and a loading support.
Although Det. Liberacki had not met defendant, he had reviewed his criminal record, knew that defendant was a convicted felon, and believed that he could not legally possess a firearm or ammunition. He seized the box, together with its top and contents, after taping the box shut with the contents inside. None of those items was listed on Addendum A to the search warrant.
Searching the bedroom, Det. Liberacki found in the closet a red cap bearing Officer John Crowley's identifying marks, and approximately $1,000 cash under the mattress in the bedroom. He also found a black book bag. He seized the bag and cap, and gave the cash to defendant's mother before leaving at about 9:55 p.m.
Det. Liberacki did not see a safe in the course of his search of the premises, contrary to the testimony of Karen Cousseillant.
The basement appeared to contain living space for one person, identified by his mother as the defendant. In the bedroom Det. Liberacki observed large men's sneakers, hats, and men's clothing. The basement did not appear to be occupied as living space by any other person.
Officer Crowley did not participate in the execution of the warrant. None of the officers present had earlier seen the evidence listed in the warrant.
RULINGS OF LAW
Defendant's motion to suppress is directed both at the validity of the warrant and the scope and manner of the search. Specifically, defendant argues that: (1) the affidavit relies on evidence obtained in a prior illegal search; (2) the affidavit fails to establish a nexus among the crime under investigation, the location, and the items listed; (3) the affidavit does not satisfy the particularity requirement; (4) the warrant authorized only a daytime search and the officers executed the search at night; and (5) the search exceeded the scope of the warrant. The court will address these arguments seriatim.
I. Prior Search of Vehicle Operated by Defendant
In his memorandum in support of the motion to suppress, the defendant argues that the warrant is invalid because the police obtained the information relied upon to establish probable cause, i.e., information concerning the defendant's hat, bookbag, papers, and books, as a result of a prior illegal search. Therefore, the argument continues, under the fruit of the poisonous tree doctrine, the court must strike any references to the illegally obtained "fruit" in the affidavit in determining probable cause. Wong Sun v. United States, 371 U.S. 471, 484 (1963); Commonwealth v. White, 374 Mass. 132, 139 (1977); Commonwealth v. Upton, 394 Mass. 363 (1985). The court may suppress evidence obtained from a search conducted pursuant to a warrant based on unlawfully obtained evidence or statements. See Commonwealth v. Forde, 367 Mass. 798, 807-808 (1975); Commonwealth v. White, supra, at 138-142 (1977) (illegally obtained statements); Commonwealth v. Meehan, 377 Mass. 552, 568- 569 (1979) (illegally obtained confession); Commonwealth v. D'Onfrio, 396 Mass. 711, 716-718 (1986) (observations made pursuant to an illegal search).
The warrant affidavit (Exhibit A) describes the prior incident as follows: On April 20, 1994, Officer John Crowley saw the defendant driving a 1994 Nissan Pathfinder bearing what Officer Crowley recognized as a counterfeit inspection sticker. After a high speed chase, Officer Crowley stopped the defendant. A physical confrontation between the two ensued; defendant presumably fled. Thereafter, Officer Crowley searched the vehicle and found a red cap, a black canvas bag containing books and personal papers bearing Kerley Robert Cousseillant's name, and a counterfeit inspection sticker indicating a May expiration date, and keys on a ring with a tag.
As a result of Officer Crowley's investigation, police obtained arrest warrants for the defendant on several charges, including possession of a counterfeit inspection sticker, larceny of a motor vehicle, operation of a vehicle in a dangerous manner, and assault and battery on a police officer.
The Commonwealth initially must show that the prior warrantless search was valid. Cf. Commonwealth v. Phillips, supra, at 55; Commonwealth v. Ferguson, supra, at 614; Commonwealth v. Franklin, supra, at 898. Thereafter, the defendant bears the burden of establishing that the warrant (with any offending material excised from the affidavit) lacked probable cause. Cf. Commonwealth v. White, supra, at 139. At the hearing on the motion to suppress, neither party offered an eyewitness to the prior incident. The only exhibits submitted regarding the prior incident were citations issued to the defendant regarding improper operation of a motor vehicle (offered by the defendant), and Cambridge police evidence tags and property receipt (offered by the Commonwealth).
Defendant's attack on the search warrant presents an interesting question regarding the burden of proof and the scope of review by the court. The evidence at issue was seized pursuant to a warrant, but the warrant was based primarily on the earlier warrantless seizure of the same evidence and the mistaken return of that evidence to the defendant. In the case of the prior warrantless search of the vehicle and the contents of the bookbag, the Commonwealth would bear the burden of demonstrating probable cause to search the vehicle and the bookbag. Commonwealth v. Phillips, 413 Mass. 50, 55 (1992); Commonwealth v. Ferguson, 410 Mass. 611, 614 (1991); Commonwealth v. Franklin, 376 Mass. 885, 898 (1978). Conversely, when challenging a search executed pursuant to a warrant, the defendant has the burden of showing that the officers illegally seized the evidence. Commonwealth v. Taylor, 383 Mass. 272, 280 (1981). Moreover, the court is limited to reviewing the warrant application, the warrant, and the affidavits supporting the warrant when determining whether probable cause for the warrant exists. Commonwealth v. Allen, 406 Mass. 575, 578 (1990). Review of a warrantless search is not similarly restricted. Commonwealth v. Simmons, 392 Mass. 45, 48 (1984), cert. denied 469 U.S. 861.
In this case, as noted below, no eyewitness to the prior stop was offered; documents pertaining thereto were admitted in evidence. The court will consider those exhibits and the affidavit in determining the validity of the prior search, and will place the burden as to that issue on the Commonwealth.
The court must first determine if the stop, which constitutes a seizure implicating the Fourth Amendment to the United States Constitution and Article Fourteen to the Massachusetts Declaration of Rights, was proper. Commonwealth v. Ortiz, 376 Mass. 349, 353 (1978). Officer Crowley attempted to stop the vehicle because he recognized the inspection sticker on the car as counterfeit. The suspect led Officer Crowley on a high-speed chase before stopping. Officer Crowley, therefore, had reasonable suspicion to believe that the suspect had violated traffic regulations, and was in the process of committing a crime. Cf. Commonwealth v. Helmes, 399 Mass. 298 (1987). Thus, the initial stop of the vehicle was justified. Id.
The next question is whether Officer Crowley's search of the vehicle's interior and the bookbag was legal. The automobile exception to the warrant requirement permits an officer to search a vehicle when there is probable cause that the vehicle on a public way contains evidence of a crime or contraband, Carroll v. United States, 267 U.S. 132 (1925); United States v. Ross, 456 U.S. 798 (1982); Commonwealth v. Cast, 407 Mass. 891, 901 (1990) (adopting automobile exception under the Massachusetts Declaration of Rights), and when exigent circumstances make obtaining a warrant impracticable. Commonwealth v. Cast, supra, at 901. In this case, even if probable cause is established, exigency is not.
Probable cause "exists [when] `the facts and circumstances within the . . . [officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offence has been or is being committed.'" Commonwealth v. Wallace, 22 Mass. App. Ct. 1986, quoting Commonwealth v. Stewart, 338 Mass. 747, 749 (1971) (quoting from Brinegar v. United States, 338 U.S. 160, 175-179 (1949)).
In the present case, the facts and circumstances support a finding of probable cause to search the suspect's car. First, the suspect drove off at high speed when Officer Crowley attempted to stop him. Moreover, once he stopped, the suspect scuffled with Officer Crowley and fled the scene, leaving the car and its contents behind. Officer Crowley's initial suspicions, coupled with the chase and the suspect's flight, would lead a person of reasonable caution to believe that the vehicle contained evidence of a crime, e.g., identifying papers or articles indicating that it was stolen.
The probable cause to search the vehicle for such evidence extended to any containers in the car in which such evidence might reasonably be found. See United States v. Ross, supra, at 825 (noting that scope of warrantless search is defined by "the object of the search and the places where there is probable cause to believe that it may be found."); Commonwealth v. Bakoian, 412 Mass. 295 (1992); Commonwealth v. Wunder, 407 Mass. 909, 913 (1990); Commonwealth v. Cast, supra, at 906; Commonwealth v. Farinon, 29 Mass. App. Ct. 945 (1990). The bookbag, for example, might reasonably be expected to have contained evidence establishing the identity of the suspect, or of the owner of the vehicle, if the suspect was not the owner.
The Commonwealth must also demonstrate that exigent circumstances justified the warrantless search of the vehicle and its contents. Commonwealth v. Cast, supra, at 904. To establish exigency, the Commonwealth must show that it was impracticable for the police to obtain a warrant. Id., supra, at 904 (citing Commonwealth v. Forde, 367 Mass. 798, 800 (1975)). Although the courts have not applied the exigency requirement rigorously to vehicle searches, id., in the present case, Officer Crowley confronted no exigency that would justify his warrantless search of the vehicle and its contents. Cf. Id. at 904-906.
Courts have relied on the inherent mobility of an automobile to find exigency. Id. Here, however, the defendant had fled the scene prior to the search; therefore, the danger that any evidence of a crime would be lost due to the mobility of the vehicle simply did not exist. In short, the opportunity to obtain a warrant prior to the search was "plain and ample." Cf. Commonwealth v. Bargarzone, 390 Mass. 326, 351 (1983) (quoting United States v. Newbourn, 600 F.2d 452, 457 (4th Cir. 1979) (stating that to invalidate a search, "an opportunity to obtain a search warrant . . . must be plain and ample"). Therefore, the court concludes that the search of the car and the bookbag was improper, and the portion of the affidavit relying on the prior search must be excised under the fruit of the poisonous tree doctrine. Cf. Commonwealth v. White, supra, at 139. Because the prior search constitutes the primary basis of the affidavit, the warrant lacked probable cause.
Defendant asserts, and the Commonwealth does not dispute, that the evidence seized by Officer Crowley was, by agreement, not used in the prior trial, and that the defendant was acquitted. The Commonwealth's apparent agreement not to use the evidence seized strongly suggests a tacit recognition by the Commonwealth that either no exigency justified the warrantless search, or the search was otherwise constitutionally defective.
II. Nexus Among the Crime Under Investigation, the Items Sought, and the Residence Searched
The affidavit must "contain enough information for the issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they may reasonably be expected to be located in the place to be searched." Commonwealth v. Cefalo, 381 Mass. 319, 328 (1980); Commonwealth v. Fenderson, 410 Mass. 82 (1991). The court should read an affidavit in an "`ordinary, common-sense manner without hypertechnical analysis.'" Commonwealth v. Perez-Baez, 407 Mass. 43, 46 (1991), quoting Commonwealth v. Melendez, 407 Mass. 53, 46 (1990) (Greaney, J. dissenting). In reviewing a finding of probable cause, the court may consider only facts revealed on the face of the affidavit and any reasonable inferences drawn therefrom. Commonwealth v. Allen, 406 Mass. 575, 578 (1990); Commonwealth v. Jean-Charles, 398 Mass. 752, 757 (1986). The primary question before the magistrate is whether the affidavit provides a substantial basis for the magistrate to conclude that the items described in the warrant are probably present at the place to be searched. Commonwealth v. Spano, 414 Mass. 178 (1993); Commonwealth v. Byfield, 413 Mass. 426, (1992).
To determine whether the affidavit supports the magistrate's conclusion, the court must examine the veracity and reliability of the persons who provided the information in the affidavit. Commonwealth v. Alvarez, 422 Mass. 198 (1996). When the source of the information is known, the court applies a relaxed standard in determining reliability. See Frieberg v. Massachusetts, 405 Mass. 282 (1989), cert. denied 493 U.S. 940. When, as here, the source of the information is an identified police officer, the reliability prong is satisfied. Cf. Commonwealth v. Vynorios, 369 Mass. 17, 22 (1975).
The facts articulated in the affidavit were sufficient to establish Officer Crowley's basis of knowledge that the cap and bookbag were evidence of a previous crime (for which the police arrested the defendant) and could be found at 9 Clifton Street. Officer Crowley's statements were based on his personal participation in the prior incident, and his personal observation, two days prior to the search of 9 Clifton Street, of the defendant carrying the cap and bag into "his house" at that address. In addition, Officer Crowley corroborated his observations by determining from the police department that the property had been inadvertently returned to the defendant. Hence, the affidavit supplies the requisite nexus among the crime under investigation, the defendant's residence, and the items listed in the search warrant.
Having determined that the affidavit established Officer Crowley's basis of knowledge and reliability, the court concludes that the magistrate had substantial evidence upon which to conclude that the items listed in the warrant would be located at 9 Clifton Street when the officers executed the search.
III. The Particularity Requirement
To be valid, the warrant must describe the place to be searched and the items to be seized with particularity. Commonwealth v. Gonzalez, 39 Mass. App. Ct. 472 (1995), rev. denied 422 Mass. 1101. In this case, Addendum B to the warrant application and the affidavit described the premises to be searched as "9 Clifton Street, Cambridge, MA[,] . . . a single family dwelling, green in color, with a paved driveway on the right hand side of the house and a front and rear door that face this driveway." This description clearly satisfies the particularity requirement as defined by the Massachusetts courts, see Commonwealth v. LaPlante, 416 Mass. 433 (1993); Commonwealth v. Rugaber, 366 Mass. 790, 799 (1975), as no likelihood that another place could be mistakenly searched existed. Commonwealth v. Cohen, 6 Mass. App. Ct. 653 (1978).
Any argument that the warrant failed to list the items to be seized is equally unpersuasive. Cf. Commonwealth v. Cefalo, 381 Mass. 319, 326-332 (1980) (holding that affidavit describing items as "Blood Stained Clothing including Light Brown or tan Leather or Leatherette Spot Coat" satisfied particularity requirement). Here, Addendum A to the warrant application and the affidavit described the defendant's red wool cap and black bookbag in greater detail than that held sufficient in Cefalo. Thus, the warrant satisfied the particularity requirement.
IV. Nighttime Search
The defendant contends the search was invalid because the warrant authorized only a daytime search. G.L.c. 276, § 2 requires a magistrate to specify whether the warrant authorizes a daytime or a nighttime search. G.L.c. 276, § 2. For purposes of a warrant, "nighttime begins at 10:00 p.m. and ends at 6:00 a.m." Commonwealth v. Grimshaw, 413 Mass. 73, 81 (1992). Based upon the credible testimony presented at the hearing, the court finds that the police completed the search by approximately 9:55 p.m. Therefore, the warrant is not invalid on this basis.
V. Scope of the Warrant
Finally, the defendant asserts that the search exceeded the scope of the warrant because the box, the pistol clip containing nine millimeter ammunition, one loose round, a cleaning brush, and a loading support were not among the items listed. The court concludes that, although the warrant did not name these items, they would come within the plain view doctrine but for the warrant's underlying invalidity.
Police officers may seize objects in plain view, but not within the scope of an otherwise lawful search warrant, under the following conditions: (1) the initial intrusion must have been justified; (2) the evidence must have been visible from a position in which the officers had a right to be; (3) the discovery must have been inadvertent; and (4) a nexus between the evidence seized and the crime must have been apparent or the seized items must have been plausibly related to proof of criminal activity. Commonwealth v. Alvarez, 422 Mass. 198 (1996). The inadvertence requirement does not apply to stolen goods, contraband, or objects dangerous in themselves. Commonwealth v. Accaputo, 380 Mass. 435, 448 (1980).
Here, were the warrant valid, seizure of the box and its contents would be justified by the plain view doctrine. As Detective Liberacki approached the defendant's bedroom, he observed the items on the table next to the door to that room, inadvertently discovering those items in plain view.
The incriminating nature of the box and the other items was immediately apparent. Prior to executing the search, Detective Liberacki had reviewed the defendant's criminal record and knew that he was a convicted felon. Upon discovering the box, clearly labeled as a storage box for a nine millimeter Glock handgun and containing ammunition also in plain view, Detective Liberacki had probable cause to believe that the defendant, a convicted felon, was unlawfully in possession of a firearm and ammunition.
Furthermore, the only reasonable inference the officers could draw at the time they conducted the search was that the box and its contents belonged to the defendant. Cf. United States v. Bater, 530 F. Supp. 28, 39 (D. Mass. 1993) (noting that, when police conducted search, only reasonable inference was that gun belonged to one or both residents). The officers found the items in an area designed as a living space for one person, identified by defendant's mother as the defendant. Defendant's bedroom contained large men's sneakers, hats, and men's clothing, and the basement did not appear to be occupied as living space by any other person. The police officers reasonably determined that the defendant was likely the illegal possessor of the ammunition, notwithstanding their failure to request that the defendant's mother or sister produce F.I.D. cards. Cf. id. (when police could reasonably infer that weapon belonged to either the defendant or another person, police, by not requesting F.I.D. cards, failed to determine the likely owners were illegal possessors).
Insofar as the court has determined that the warrant was invalid, the initial intrusion by the police was not justified. Accordingly, the evidence seized pursuant to the search will be suppressed.
ORDER
For the reasons stated above, the defendant's motion to suppress is ALLOWED.
_________________________ Stephen E. Neel Justice of the Superior Court
Dated: November 27, 1996