Commonwealth v. Gauthier

Gillerman, J.

Because the underlying facts in this case regarding an anticipatory warrant¹ appeared to be the same as, or substantially similar to, the facts in Commonwealth v. Callahan, ante 420 (1996), which was decided after the argument in this case, we invited an additional submission by counsel regarding the effect of the decision in Callahan upon this appeal by the defendant.

The panel concludes that the warrant in this case was an anticipatoiy warrant and that, under the authority of Callahan, the evidence seized under the warrant must be suppressed.

In Commonwealth v. Callahan, supra, this court held that where the description of the triggering event² appears in the supporting affidavit for the warrant, but does not appear in the warrant itself (other than the printed form language appearing in the warrant³), and where the affidavit is neither attached to nor served with the warrant, and no mention of the affidavit is made to the defendant when the warrant is executed, the warrant is void and evidence seized in the ensuing search must be suppressed.

In this case, as in Callahan, the warrant neither states the triggering event language⁴ nor makes reference to the affidavit (other than the printed form language), the supporting affidavit was not attached to the warrant or served on the defendant, and no mention of the affidavit was made to the defendant before the search began.⁵ The warrant on its face was presumptively invalid, see Callahan, supra, and the Commonwealth had the burden to show the validity of the warrant, or that the search was valid without the warrant. Compare Commonwealth v. Rodriguez, 378 Mass. 296, 303 (1979) (searches “conducted outside the scope of valid warrants are presumed to be unreasonable. In such circumstances, the burden is on the Commonwealth to show that the search or seizure falls within a narrow class of permissible exceptions” to the warrant requirement). See also Katz v. United States, 389 U.S. 347, 357 (1967). The Commonwealth has failed to carry that burden.⁶

The motion to suppress should have been allowed. Accordingly, because the evidence remaining was insufficient to warrant the submission of the case to the jury, the judgments are reversed, the verdicts are set aside, and judgments shall enter for the defendant.

So ordered.

1 The circumstances surrounding this appeal from the denial of the defendant’s suppression motion are set" forth in the concurring opinion of Justice Greenberg. The motion sought to suppress evidence seized in a search which was executed pursuant to an anticipatory warrant.

2 The occurrence of the “triggering events” provides the probable cause which, but for such events, would not be present. In this case, the triggering events were to provide the basis for the issuance of three warrants, see note 4, infra, but we are concerned here only with the warrant which authorized the search of the defendant’s premises.

3 The language appearing in the printed form is: “Proof by affidavit, which is hereby incorporated by reference, has been made this day and I find there is probable cause to believe (etc). . .”

4 The affidavit filed in support of the application for the anticipatoiy warrant described the triggering event as follows: “The event activating the warrant will be . . . [a known drug dealer] arriving ... [at the defendant’s residence], . . . As . . . [the drug dealer] exits . . . [the defendant’s residence] a search of his person and / or any packages he is in possession of will be searched. Upon finding him in possession of marijuana, all three warrants would be immediately activated.”

5 The written return of the warrant, which describes in detail the events surrounding the warrant and its execution, was signed by Lieutenant John LeBrasseur, the officer in charge of the team which executed the search warrant. The return states that Lieutenant LeBrasseur, after his entry into the premises to be searched, entered the kitchen and was confronted by the defendant. The return continues: “At the kitchen table, I handed him a copy of the Warrant. He read it. I asked if he had anything he wanted to turn over to me.” The report continues with the succeeding events of the search.

6 The Commonwealth’s original brief treats the warrant as if it is not an anticipatory warrant, arguing that probable cause existed for the issuance of a conventional search warrant for the defendant’s residence. We reject this argument. See notes 2 and 4, supra. Moreover, the evidence in the case, which we have reviewed, does not support the argument. In its supplemental submission, the Commonwealth relies on Commonwealth v. Villella, 39 Mass. App. Ct. 426 (1995). Villella is inapposite, for there the affidavit accompanied the search warrant. See id. at 428.