NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1044
COMMONWEALTH
vs.
JEREMY M. TAYLOR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant moved to suppress the items seized during the
execution of a search warrant of an apartment, arguing among
other things that the warrant's lack of specificity in its
description of a firearm sought by police rendered it an
unlawful "general warrant." A judge of the Dorchester Division
of the Boston Municipal Court agreed and allowed the motion.
The Commonwealth obtained leave to pursue an interlocutory
appeal. Concluding that the warrant's description of a
camouflage jacket was enough to prevent it from being a general
warrant, we reverse the suppression order.
Background. We recite the essentials of the affidavit in
support of the search warrant application. Boston police
received a report of a man threatening several people with a gun
at an apartment building in Dorchester and then fleeing into apartment 104. A resident of the building told police that the
man named Jeremy, who lived in apartment 104 and was wearing a
camouflage jacket, had threatened her and her child with a small
metallic firearm, about the size of an iPhone, that he pulled
from his sock. Police were aware that the defendant lived in
apartment 104 and had an "extensive record of violent criminal
offenses which included a previous firearm conviction."
Police knocked on the door of apartment 104 and found the
defendant inside, although he was not wearing a camouflage
jacket. After removing him from the apartment, police conducted
a protective sweep of the apartment and unsuccessfully searched
the area around the building for a firearm. The resident who
said she was threatened saw the defendant and identified him as
the assailant. The defendant was arrested on assault charges
and the apartment was secured pending execution of a search
warrant. Police believed that, if permitted to search, they
would find the small metallic firearm and the camouflage jacket
inside the apartment.
The search warrant application sought a warrant to search
for "[a] small metallic firearm and a camouflage jacket." The
warrant as issued, however, purported to authorize police to
search for a "[f]irearm, ammunition, all items used for the
storage and upkeep of said firearm, [and] a camouflage jacket."
When they executed the warrant, police recovered a camouflage
2 jacket and numerous other items, including a Ruger .22 caliber
long rifle automatic pistol with nine cartridges and assorted
drugs and drug dealing paraphernalia.
The defendant moved to suppress, asserting among other
things that "[t]he warrant lacked sufficient particularity to
meet the requirements of G. L. c. 276, § 2, art. 14 of the
Massachusetts Declaration of Rights, and the Fourth Amendment to
the United States Constitution, and thus the search warrant was
an unlawful general warrant." 1 At an evidentiary hearing on the
motion, the officer who prepared the warrant application
testified that he also prepared the (presumably unsigned)
warrant itself. He further stated that the discrepancies
between the items listed on the application and those listed on
the warrant were the result of a clerical error. Police did not
bring the application when they executed the warrant.
The judge ruled that although there was probable cause to
search the apartment for a camouflage jacket and a small
metallic firearm, the clerical error expanded the scope of the
1 "'[U]nlike [c. 276's] probable cause provisions, the particularity requirements of G. L. c. 276 essentially track the particularity requirements of art. 14 and the Fourth Amendment.' [The Supreme Judicial Court has] never held that art. 14 requires greater particularity than the Fourth Amendment, and therefore we make no distinction between art. 14 and the Fourth Amendment in our analysis." Commonwealth v. Walsh, 409 Mass. 642, 644–645 (1991), quoting Commonwealth v. Sheppard, 394 Mass. 381, 389 (1985).
3 search, in two ways. First, "[b]y failing to more accurately
describe the firearm, the warrant authorized the officer[s] to
search for any firearm[,] whether it was small enough to fit in
a sock or was so big that there was no way to conceal it in any
article of clothing." Second, "[b]y authorizing the officers to
look for ammunition and items used for storage and upkeep of
said firearm, the warrant allowed the officers to continue to
search the apartment even after the jacket and small metallic
firearm had been discovered.[2] There was no basis for these
items to be included in the warrant and their inclusion expanded
the scope of the warrant." The judge allowed the motion to
suppress, and denied the Commonwealth's motion to reconsider.
This appeal followed.
Discussion. "We view with respect the motion judge's
conclusions of law, but, as this matter is of a constitutional
dimension, the judge's ultimate findings and rulings of law are
subject to de novo review." Commonwealth v. Thomas, 429 Mass.
403, 405 (1999). See United States v. Burgos-Montes, 786 F.3d
92, 105 (1st Cir.), cert. denied, 577 U.S. 1036 (2015).
2 Despite this statement, it is unclear from the record whether the "Ruger .22 caliber long rifle automatic pistol" seized during the search is a "small metallic firearm" as described in the warrant affidavit and application. The defendant asserts that the police did not find a small metallic firearm. Neither party argues that any issue in this appeal turns on the point.
4 "It is beyond doubt that all evidence seized pursuant to a
general warrant must be suppressed. The cost to society of
sanctioning the use of general warrants -— abhorrence for which
gave birth to the Fourth Amendment -— is intolerable by any
measure" (citation omitted). Commonwealth v. Lett, 393 Mass.
141, 145–146 (1984). "Severance of the invalid from the valid
portions of a warrant is unacceptable where no portion of the
warrant is sufficiently particularized to pass constitutional
muster . . . . Otherwise the abuses of a general search would
not be prevented" (quotation and citation omitted). Id. at 146.
The Lett decision illustrates how these principles are
applied. There, a search warrant authorized a search for heroin
and a diamond ring. Lett, 393 Mass. at 146. The officers
executing the warrant found heroin and drug paraphernalia but no
ring. Id. at 142-143. The Supreme Judicial Court ruled that
the specific authorization to search for heroin and the ring was
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1044
COMMONWEALTH
vs.
JEREMY M. TAYLOR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant moved to suppress the items seized during the
execution of a search warrant of an apartment, arguing among
other things that the warrant's lack of specificity in its
description of a firearm sought by police rendered it an
unlawful "general warrant." A judge of the Dorchester Division
of the Boston Municipal Court agreed and allowed the motion.
The Commonwealth obtained leave to pursue an interlocutory
appeal. Concluding that the warrant's description of a
camouflage jacket was enough to prevent it from being a general
warrant, we reverse the suppression order.
Background. We recite the essentials of the affidavit in
support of the search warrant application. Boston police
received a report of a man threatening several people with a gun
at an apartment building in Dorchester and then fleeing into apartment 104. A resident of the building told police that the
man named Jeremy, who lived in apartment 104 and was wearing a
camouflage jacket, had threatened her and her child with a small
metallic firearm, about the size of an iPhone, that he pulled
from his sock. Police were aware that the defendant lived in
apartment 104 and had an "extensive record of violent criminal
offenses which included a previous firearm conviction."
Police knocked on the door of apartment 104 and found the
defendant inside, although he was not wearing a camouflage
jacket. After removing him from the apartment, police conducted
a protective sweep of the apartment and unsuccessfully searched
the area around the building for a firearm. The resident who
said she was threatened saw the defendant and identified him as
the assailant. The defendant was arrested on assault charges
and the apartment was secured pending execution of a search
warrant. Police believed that, if permitted to search, they
would find the small metallic firearm and the camouflage jacket
inside the apartment.
The search warrant application sought a warrant to search
for "[a] small metallic firearm and a camouflage jacket." The
warrant as issued, however, purported to authorize police to
search for a "[f]irearm, ammunition, all items used for the
storage and upkeep of said firearm, [and] a camouflage jacket."
When they executed the warrant, police recovered a camouflage
2 jacket and numerous other items, including a Ruger .22 caliber
long rifle automatic pistol with nine cartridges and assorted
drugs and drug dealing paraphernalia.
The defendant moved to suppress, asserting among other
things that "[t]he warrant lacked sufficient particularity to
meet the requirements of G. L. c. 276, § 2, art. 14 of the
Massachusetts Declaration of Rights, and the Fourth Amendment to
the United States Constitution, and thus the search warrant was
an unlawful general warrant." 1 At an evidentiary hearing on the
motion, the officer who prepared the warrant application
testified that he also prepared the (presumably unsigned)
warrant itself. He further stated that the discrepancies
between the items listed on the application and those listed on
the warrant were the result of a clerical error. Police did not
bring the application when they executed the warrant.
The judge ruled that although there was probable cause to
search the apartment for a camouflage jacket and a small
metallic firearm, the clerical error expanded the scope of the
1 "'[U]nlike [c. 276's] probable cause provisions, the particularity requirements of G. L. c. 276 essentially track the particularity requirements of art. 14 and the Fourth Amendment.' [The Supreme Judicial Court has] never held that art. 14 requires greater particularity than the Fourth Amendment, and therefore we make no distinction between art. 14 and the Fourth Amendment in our analysis." Commonwealth v. Walsh, 409 Mass. 642, 644–645 (1991), quoting Commonwealth v. Sheppard, 394 Mass. 381, 389 (1985).
3 search, in two ways. First, "[b]y failing to more accurately
describe the firearm, the warrant authorized the officer[s] to
search for any firearm[,] whether it was small enough to fit in
a sock or was so big that there was no way to conceal it in any
article of clothing." Second, "[b]y authorizing the officers to
look for ammunition and items used for storage and upkeep of
said firearm, the warrant allowed the officers to continue to
search the apartment even after the jacket and small metallic
firearm had been discovered.[2] There was no basis for these
items to be included in the warrant and their inclusion expanded
the scope of the warrant." The judge allowed the motion to
suppress, and denied the Commonwealth's motion to reconsider.
This appeal followed.
Discussion. "We view with respect the motion judge's
conclusions of law, but, as this matter is of a constitutional
dimension, the judge's ultimate findings and rulings of law are
subject to de novo review." Commonwealth v. Thomas, 429 Mass.
403, 405 (1999). See United States v. Burgos-Montes, 786 F.3d
92, 105 (1st Cir.), cert. denied, 577 U.S. 1036 (2015).
2 Despite this statement, it is unclear from the record whether the "Ruger .22 caliber long rifle automatic pistol" seized during the search is a "small metallic firearm" as described in the warrant affidavit and application. The defendant asserts that the police did not find a small metallic firearm. Neither party argues that any issue in this appeal turns on the point.
4 "It is beyond doubt that all evidence seized pursuant to a
general warrant must be suppressed. The cost to society of
sanctioning the use of general warrants -— abhorrence for which
gave birth to the Fourth Amendment -— is intolerable by any
measure" (citation omitted). Commonwealth v. Lett, 393 Mass.
141, 145–146 (1984). "Severance of the invalid from the valid
portions of a warrant is unacceptable where no portion of the
warrant is sufficiently particularized to pass constitutional
muster . . . . Otherwise the abuses of a general search would
not be prevented" (quotation and citation omitted). Id. at 146.
The Lett decision illustrates how these principles are
applied. There, a search warrant authorized a search for heroin
and a diamond ring. Lett, 393 Mass. at 146. The officers
executing the warrant found heroin and drug paraphernalia but no
ring. Id. at 142-143. The Supreme Judicial Court ruled that
the specific authorization to search for heroin and the ring was
not so broad as to authorize an intolerable "general rummaging
search of the defendant's apartment." Id. at 146. "While the
authorization to search for heroin failed for lack of probable
cause, the valid authorization to search for the ring
sufficiently limited the officer's discretion so as to withstand
constitutional challenge." Id. at 146. Thus, the court allowed
"that portion of the warrant to stand," and went on to consider
whether seizure of the heroin and other items was valid because
5 they were seen in plain view during the search for the ring.
Id. The court ruled that "the application of the doctrine of
plain view to a search conducted pursuant to a partially valid
warrant is ordinarily permissible." Id. at 147. Accordingly,
"[b]ecause the heroin and drug paraphernalia were in plain view
during a permissible search, the motion to suppress those items
was properly denied." Id. at 148. See Commonwealth v.
Fernandes, 30 Mass. App. Ct. 335, 339-341 (1991) (warrant
described certain items with sufficient particularity, and was
not general warrant, notwithstanding that it also included
insufficiently specific phrase, "any other illegally kept
controlled drugs or firearms of various descriptions").
To similar effect is Commonwealth v. Wilkerson, 486 Mass.
159 (2020). There, pursuant to statutory authority, the
Commonwealth sought forty-eight hours of cell site location
information (CSLI) for a murder defendant's cell phone. Id. at
160, 164. The prosecutor received data for a thirty-four hour
period. Id. at 164. On the defendant's motion, a judge
suppressed all but the three hours of the CSLI surrounding the
time of the shooting. Id. On appeal, the defendant argued that
"if there was not probable cause to search the entire thirty-
four hours of CSLI data, it was error for the judge to allow
introduction of the three-hour period surrounding the shooting."
Id. at 166.
6 In rejecting this argument, the court first acknowledged
that "where a warrant so lacks particularity or is so overbroad
that it begins to resemble a general warrant, total suppression
is required." Wilkerson, 486 Mass. at 169. The court held,
however, that "[t]he forty-eight hours requested, and the
thirty-four hours obtained here, [were] not so overbroad on the
facts of this case so as to be akin to a general warrant," id.;
that the three hours of CSLI were severable from the remainder,
id.; and that there was probable cause for the three-hour
period, id. at 172. Suppression of the three hours of CSLI was
therefore not required. Id.
On the other hand, a warrant was held to be an
unconstitutional general warrant where, in the absence of the
supporting affidavit, it effectively granted "authorization to
search for stolen handguns, jewelry and coins, without any
further description governing the scope of the search."
Commonwealth v. Rutkowski, 406 Mass. 673, 675 (1990). The
Rutkowski court explained that "[t]o describe general items like
guns and jewelry as 'stolen' adds nothing instructive to a
description in a warrant. This case is not one in which the
stolen items could not have been described in more detail.
. . . [T]he generic reference in this case to items generally
and lawfully available in our society . . . fails to meet the
minimum standard of particularity." Id. at 676.
7 Against this backdrop, the defendant here does not argue,
nor could we rule, that "no portion of the warrant is
sufficiently particularized to pass constitutional muster"
(citation omitted). Lett, 393 Mass. at 146. The warrant's
specification of a camouflage jacket was constitutionally
sufficient. 3 See E.B. Cypher, Criminal Practice and Procedure
§ 5:107 (4th ed. 2014) ("although the items must be described
with particularity the courts are lenient in regard to
clothing"). The defendant does not argue otherwise. That this
portion of the warrant was sufficiently particularized saves the
warrant from being a general warrant.
To be sure, the warrant's omission of the adjectives
"small" and "metallic" resulted in its description of the
firearm being less particularized than was possible based on the
affidavit. Even so, the warrant as a whole, authorizing a
search for a "firearm, ammunition, all items used for the
storage and upkeep of said firearm, [and] a camouflage jacket,"
did not authorize any "general rummaging search of the
defendant's apartment." Lett, 393 Mass. at 146. See Wilkerson,
486 Mass. at 169.
3 Nor does the defendant argue that the warrant application did not establish probable cause to search for the jacket (or, for that matter, for a small metallic firearm). Although we need not and do not decide the point now, any such argument would seem to face a steep uphill battle.
8 We therefore conclude that it was error to suppress the
items seized on the ground that the warrant here was a general
warrant. We decide only that issue. Whether any part of the
warrant was invalid -- for lack of particularity, lack of
probable cause, or otherwise -- is a matter that the defendant
may pursue through another motion to suppress. Similarly, the
Commonwealth remains free to argue that, if any portion of the
warrant is ruled invalid, the items seized pursuant thereto
nevertheless need not be suppressed, because they were seized
while in plain view during an otherwise lawful search. We
express no views on those issues.
Order allowing motion to suppress reversed.
By the Court (Milkey, Blake & Sacks, JJ. 4),
Clerk
Entered: November 2, 2023.
4 The panelists are listed in order of seniority.