Bristol. Indictments found and returned in the Superior Court on November 7, 1973. A motion to suppress evidence was heard by Taveira, J., and a question of law was reported by him to the Appeals Court. The Supreme Judicial Court, on its own initiative, ordered direct review.
Hennessey, C.j., Quirico, Kaplan, Liacos, & Abrams, JJ.
Search and Seizure. Probable Cause. Constitutional Law, Search and seizure, Probable cause. Practice, Criminal, Suppression of evidence.
The opinion of the court was delivered by: Kaplan
Review of decisions pertaining to the validity of a search warrant based upon an affidavit containing misstatements. [143-147]
Where a stipulation established that an affidavit in support of a search warrant contained material misstatements but failed to show whether the misstatements were intentional or the result of mere inadvertence without negligence, this court remanded the case to the trial Judge for the taking of proof. [149-151]
The defendant Reynolds, indicted for receiving stolen goods and other offenses, moved in the Superior Court before trial to suppress evidence (the alleged stolen property) seized by the Commonwealth pursuant to a search warrant which had been issued by a District Court clerk on the affidavit of a police officer. Facts bearing on the motion to suppress were stipulated between the Commonwealth and the defendant. After consideration, a Judge of the Superior Court denied the motion and, acting under G. L. c. 278, § 30A, reported the following question to the Appeals Court (whence we took it for direct review): "Should a motion to suppress evidence be allowed when such evidence was obtained upon an affidavit containing misstatements?" We shall first discuss the question more or less in the abstract, and then address ourselves to the particular case.
1. After the Supreme Court of the United States had held in Weeks and Mapp *fn1 that evidence obtained in violation of the Fourth Amendment was subject to exclusion at trial, and after Spinelli, Aguilar, and Brinegar *fn2 had described the requirements for a finding of "probable cause" under the amendment, it might have been foretold that courts would begin to question a certain rule restricting attacks on the validity of search warrants. By that rule the allegations of an affidavit supporting a warrant and purporting to show probable cause could be tested judicially only for their surface sufficiency; in no event could the allegations be pierced and their truth inquired into. See Annot., 5 A.L.R.2d 394 (1949). The Supreme Court intimated in Rugendorf v. United States, 376 U.S. 528, 532 (1964), that there was a doubt whether the rule could survive, but the Court has not answered the question. *fn3
In defense of the rule, it may be pointed out that the evidence sought to be suppressed will be in every case material to proof of guilt, otherwise the defendant would not be at pains to try to put it beyond consideration of the triers. An affiant, usually a police officer, will have submitted particulars on oath purporting to establish probable cause. A disinterested magistrate must have examined the allegations and found them sufficient on their face and at least not transparently false. Judicial review of the facts in suppression hearings might thus be thought an unessential if not a perverse procedure for which a price in time and effort has to be paid. See State v. Petillo, 61 N.J. 165 (1972), cert. denied, 410 U.S. 945 (1973), granted sub nom. United States ex rel. Petillo v. New Jersey, 400 F. Supp. 1152 (D.N.J. 1975), vacated per curiam, 541 F.2d 275 (3d Cir.), granted on remand, 418 F. Supp. 686 (D.N.J. 1976). On the other hand, the amount of critical attention a magistrate typically can give to an application, especially in making any inquiry as to truth, is very limited, and these applications in all events are proceeded with ex parte. See Model Code of Pre-Arraignment Procedure § SS 290.3, Commentary at 570 (1975). (In the Commonwealth the magistrate may be a clerk or subclerk without legal training. See G. L. c. 276, § 1; c. 218, § 33.) To confine judicial review to a mere demurrer-like examination of the papers is to depend on the police without a significant outside check. It would appear incongruous to allow circumvention of probable cause requirements by insulating the statements of the police from substantially all effective scrutiny as to their truth. Nor does it appear that reliance can safely be put on any sanction available against the police themselves. See Mapp, 367 U.S. at 652-653; People v. Cahan, 44 Cal. 2d 434, 445-447 (1955) (Traynor, J.). Lawless or mindless police action under warrants improperly obtained may impinge on the privacy of the innocent as well as the guilty.
It has been held in the Federal circuits generally, *fn4 and in some State courts *fn5 (with others opposed *fn6), that the truth of affidavits is not altogether beyond inquiry at suppression hearings, that there are situations in which findings of falsity should result in invalidation of the corresponding warrants and exclusion of the evidence obtained. Differences arise, however, as to the nature of these situations, which is another way of saying that there remains the question how far the postulated purposes of an exclusionary rule -- deterrence of official misconduct, protection of the integrity of the legal process -- are to be pursued despite the price paid for the exercise. See United States v. Halsey, 257 F. Supp. 1002 (S.D.N.Y. 1966). On the side of procedure on an application to suppress, it would be agreed that a means should be found, if possible, to screen out promptly attacks without merit including those made merely as an irregular means of securing marginal "discovery" of the prosecution's case or the identity of an informant.
Falsity in the affidavit can come about through intention, recklessness, negligence, or innocent mistake; the false information may be indispensable to a showing of probable cause or fall short of that. The case for suppression is felt to be strongest where material false information was intentionally introduced into the affidavit by an official acting as affiant. *fn7 There is diminished perceived ground for suppression as the factors of the blameworthiness of the official and the importance of the information shade off; but reasoned authority exists for suppression in some situations of intentional nonmaterial, and negligent material, misstatements. *fn8
Such remarks on the subject as this court has made in previous opinions intimate agreement with the proposition mentioned above as least disputable (and perhaps lend support for a somewhat broader proposition). Thus we have twice been willing to assume arguendo that "a deliberate misrepresentation in an affidavit will render a search warrant invalid." Commonwealth v. Murray, 359 Mass. 541, 548 (1971). Commonwealth v. Perez, 357 Mass. 290, 301-302 (1970). See also Commonwealth v. Gallinaro, 360 Mass. 868 (1971). We have also said the contrary of "'inaccuracies not going to the integrity of the affidavit.'" Commonwealth v. Rugaber, 369 Mass. 765, 768 (1976). Commonwealth v. Murray, supra. See also Commonwealth v. Piso, 5 Mass. App. Ct. 537, 543 (1977); Commonwealth v. Sheppard, 5 Mass. App. Ct. 765 (1977); Commonwealth v. Kinnitt, 2 Mass. App. Ct. 810 (1974); United States v. Edwards, No. CR-76-314-T (D. Mass. Dec. 5, 1977). Cf. Commonwealth v. White, ante, 132 (1977); Commonwealth v. Haas, 373 Mass. 545 (1977).
2. We turn to the details of the present case as they emerge from the report. Presented to the clerk of the First District Court of Bristol on August 22, 1973, was an affidavit dated the same day of Raymond C. McKearney, a Rehoboth police officer. He swore that on the previous day he had been informed by a detective of the Pawtucket, Rhode Island, police department that he, the detective, had received information from a "reliable informant" that two truckloads of assorted lumber, stolen from the Arland Lumber Company in Pawtucket, were in the possession of Bruce J. Reynolds of Rehoboth. McKearney swore, further, that Norman Bisson, general manager of the company, had viewed this lumber, all pre-cut, from Rocky Hill Road, Rehoboth. "The lumber is to the rear of Bruce Reynolds home [82 Rocky Hill Road], and Mr. Bisson identified the covering on the lumber and also some of the lumber as that which was stolen from Arland Lumber Co. on August 20, 1973." On the basis of these averments, the clerk issued a search warrant on August 22. (It is unnecessary to state the exact terms of the warrant or of the return.)
According to the stipulation of the parties addressed to the truth of the averments of the affidavit, Bisson and McKearney were passengers in a car that was driven past the Reynolds house several times on August 21. Bisson did not observe any pre-cut lumber or any special factory covering on the lumber, and had not told the police that he had. He was able to observe a pile of black sheeting material on the Reynolds property and identified that as part of the material stolen from his company. After the drive past the Reynolds house, McKearney conferred with the chief of ...