MASSACHUSETTS v. SHEPPARD

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ORAL ARGUMENT OF BARBARA A. H. SMITH, ESQ., ON BEHALF OF PETITIONER

Chief Justice Warren E. Burger: We'll hear arguments next in Massachusetts against Sheppard.

Miss Smith, you may proceed when you are ready.

Barbara A. H. Smith: Mr. Chief Justice, and may it please the Court:

This case presents the question whether the Fourth Amendment to the United States Constitution requires application of the exclusionary rule to evidence seized by police acting under the authority of a search warrant issued upon a finding of probable cause but which is later invalidated because of the technical error of omission committed by the issuing judge, an error of which the police had no knowledge, took no advantage and which resulted in no prejudice to the defendant.

The Supreme Judicial Court of the Commonwealth of Massachusetts ruled that suppression was required because this Court had not yet recognized an exception to application of the exclusionary rule for an error of this type.

The court, thus, overruled the trial court's determination that although the warrant was defective the issuing judge failing to restate in the warrant the items specified in the application or to incorporate that affidavit by reference, he declined to exclude the evidence finding that the police had acted properly in conducting their duties, that they had acted upon probable cause and in good faith thus presenting a factual situation in which the exclusion would have no deterrent effect.

Rather, the sole consequence of exclusion would be to deprive the jury of the real and probative evidence, thus, impairing their fact finding function.

I think the factual situation in this case is extremely important, and I will, therefore, elaborate on it in some detail.

At 5 a.m. the morning of May 5, 1979, a Saturday morning, the badly burned, partially clad body of a young woman was found in a vacant lot in the Roxbury District of Boston.

A piece of wire was bound around one leg.

An autopsy disclosed that the victim had died of multiple skull fractures.

The victim had been alive but unconscious when her body was set on fire.

By midday the victim had been identified and Osborne Sheppard had been identified as a possible boyfriend.

An officer who knew Sheppard as a gambler began to circulate through the Roxbury area stopping at a gaming house he knew Sheppard to frequent.

Sheppard himself opened the door, and after some conversation with the police agreed to accompany them to the police station.

He was given his Miranda rights in the car on the way to the station.

He was told that the police were investigating the death of Sandra Boulware, and they wanted to examine his relationship with Ms. Boulware and establish his whereabouts on May 4th and 5th.

Mr. Sheppard told the police that he had visited with the victim at her home on Tuesday, May 1st, that they together had taken a taxi cab back to his home, stopping on the way to purchase some marijuana and a bottle of Amaretto.

He said that the victim had left him at approximately 2 p.m. on Tuesday.

He also stated that he had been at the gaming house where the police had found him from 9 p.m. on Friday until 5 a.m. that Saturday morning.

After naming some other individuals who had been at the gaming house with him, he left the police station.

Continuing their investigation that afternoon the police questioned the other members of the gaming establishment who said that indeed Osborne Sheppard had left.

He had left at approximately 3 a.m. borrowing a car to drive some men home on a trip that ordinarily took 15 minutes although he did not return until 4:45 a.m. and then abruptly left again.

The police also learned that on leaving the gaming house at 6 a.m. one of the occupants noticed on the porch a gasoline can and a pair of gloves.

On Sunday morning, the police learned from a friend of Sheppards that he had refinished his basement area, and this was an area in which he entertained women for social purposes.

Most importantly on that Sunday morning the owner of the automobile corroborated the fact that Sheppard had borrowed his car.

On inspection of the car the police and a police chemist found human blood stains and pieces of hair on the rear bumper near the trunk area.

In the trunk area they found more human blood stains and pieces of wire similar to that which had been found on the body.

The owner of the car told them that there was no wire and no blood in the trunk of that car on Friday night before he had loaned it to Sheppard.

It was then after consultation with the district attorney's office determined that arrest and search warrants should be obtained.

A Detective O'Malley typed an affidavit in support of the application for the search warrant demonstrating probable cause for the search and the seizure.

He specifically enumerated in his application describing the condition of the body that had been beaten and burned, that Sheppard had been the last person known to have seen the victim, that he and the victim had gone to 42 Deckard Street, that Sheppard had been in possession of a particular automobile, which was found to have blood stains and human hair on it that had not been there prior to Sheppard's using the car.

He reiterated that a friend had told them that Sheppard used his basement area for entertaining women and O'Malley, therefore, specified the areas to be searched as the second floor and second area controlled by Sheppard at 42 Deckard Street.

He specified the items to be seized.

Probable cause for the seizure of each item was related to the facts as set out in the affidavit.

The items included the fifth of Amaretto, two nickel bags of marijuana, possessions of Sandra Boulware, wire matching that found on the body or in the trunk of the car, men's or women's clothing having blood or gasoline stains, blunt instruments, which may have been used to inflict the multiple fractures, and items with the victim's fingerprints.

It was then Sunday afternoon and O'Malley was unable to find a proper warrant form.

The Roxbury court was closed.

Efforts to contact the clerks were unsuccessful.

Efforts to find a proper warrant form at other police stations was also unsuccessful.

O'Malley did find a warrant form used by the Dorchester District Court for searches for controlled substances, which he attempted to adapt.

He crossed out the words 42 Deckard Street, second floor and basement as the places to be searched.

He did not at that time delete the reference to controlled substance in the portion of the form constituting the application which, when signed, would constitute the warrant itself.

The trial court found, and I think it is important to note, that all of the items listed in the affidavit were small and susceptible of easy destruction and transport and were located in a place to which the defendant had total right of access.

The defendant was at liberty, and he was known to spend his evenings with the occupants of the gaming house that had given the information about the car.

Therefore, it was essential that the police move with great dispatch, and they did.

Arrangements were made to meet with the judge at his home.

O'Malley accompanied by other investigating officers and an assistant district attorney went there at approximately 2:45 p.m.--

The judge took O'Malley's oath and signed the affidavit to that effect.

The trial judge found as fact that the judge had concluded upon the affidavit that probable cause existed to search the premises and for the items listed.

Unidentified Justice: Listed where, in the affidavit?

Barbara A. H. Smith: In the affidavit.

O'Malley explained the problem to the judge about the warrant form that he had.

He showed the judge the controlled substance form, and the judge then attempted to search his library for a proper form.

He was unable to find one, and he took the form from O'Malley assuring him that he would make the necessary changes.

He did make some minor alterations as to the name of the judicial district and the judge.

He signed--

Unidentified Justice: Was this person, Miss Smith, a real judge?

Barbara A. H. Smith: --Yes, he was a real judge.

Unidentified Justice: In Massachusetts, Miss Smith, what is the rule with respect to the action of a judicial officer.

That is, the general rule is that the action of a judicial officer is presumptively valid and binding until it is set aside by some higher authority.

Barbara A. H. Smith: That is the position in Massachusetts.

Unidentified Justice: So when this warrant was served, executed it had the benefit of the presumption of validity.

Barbara A. H. Smith: Yes, Your Honor.

Unidentified Justice: Miss Smith, what would have been, if they had been successful, the real form?

Barbara A. H. Smith: We would not be here.

Unidentified Justice: I know.

What is the difference between it and the one they used?

Barbara A. H. Smith: The proper form has a space in which you fill in the items listed in the affidavit or make a simple notation,

"See affidavit incorporated or attached herein. "

and then staple the affidavit to the form.

Unidentified Justice: Is that the only distinction between the form actually used and the real one?

Barbara A. H. Smith: This form used here has printed in reference to controlled substances in the aspect of the form--

Unidentified Justice: In the body of the warrant those items were not listed, the items to be searched for and seized.

Barbara A. H. Smith: --That is right.

Unidentified Justice: Nor was the affidavit attached to the--

Barbara A. H. Smith: The affidavit was not attached.

The only correlation between the warrant that we have is in the affidavit.

Marijuana was named.

Marijuana is a controlled substance.

Unidentified Justice: --So the warrant really was defective?

Barbara A. H. Smith: Yes, as far as the items reflecting the specific items specified in the affidavit.

Unidentified Justice: If you presented it to the owner of the premises to be searched and he said, "What are you searching for"?

, you could not tell that from the examination of the warrant itself.

Barbara A. H. Smith: Officer O'Malley could tell that because he was the one who applied for it and specified the items to be searched.

Unidentified Justice: But the owner of the premises presumably could not tell what items a search had been authorized for.

Barbara A. H. Smith: That is right.

They could only tell that a search had been authorized for controlled substances and, therefore, the only areas that could be searched are areas that could accommodate controlled substances, and it was limited--

Unidentified Justice: Miss Smith, is it not correct that when they executed the warrant they had the affidavit with them?

Barbara A. H. Smith: --Yes, they did.

Unidentified Justice: So they could have showed them the affidavit which would then have given them a bill of particulars.

Barbara A. H. Smith: Absolutely, Your Honor.

Unidentified Justice: If I understand it, all that the judge had to do was simply in that space that said "controlled substances" was strike it out and put in "see attached affidavit"?

Barbara A. H. Smith: That is right.

That is all he had to do.

Unidentified Justice: It would have made a perfect warrant then.

Barbara A. H. Smith: That would have made a perfect warrant, but as the court found through total inadvertence the judge failed to do that in the rush.

Unidentified Justice: He was a real judge.

Barbara A. H. Smith: He was a judge.

[Laughter]

Possibly he was too detached a judge at this particular point.

Pardon me, Your Honor?

Unidentified Justice: I was just going to observe he was not a member of this court.

[Laughter]

Barbara A. H. Smith: No, he was not.

The trial judge returned the warrant and the affidavit to O'Malley informing him, as found by the trial judge, that he had the authority to carry out the search as requested.

The search was then executed under the direction of O'Malley.

It was limited in fact to what O'Malley understood the warrant to permit.

In the bedroom area a bloodstained boot was seized.

In the cellar area a bloodstained scatter rug, pieces of bloodstained cement, women's earrings, women's leotards, bloodstained jockey shorts, a hair piece that was later identified as being very similar to one worn by the victim were found as well as a piece of the wire similar to those found on the body and in the trunk of the car.

After the search was completed O'Malley inventoried the items and a return was made to the Roxbury District Court on Monday morning.

It seems clear to us that the police fully complied under urgent circumstances with the warrant process.

However, the judge issuing the warrant through error and inadvertence, as found by the trial court judge, failed to restate in the warrant the items specified or to incorporate the affidavit by reference--

Unidentified Justice: Miss Smith, did the police have an obligation to execute the warrant as it's written?

Barbara A. H. Smith: --I believe they do, Your Honor.

I believe that once that warrant is signed--

Unidentified Justice: So that is in a sense some kind of an error that occurred when the police did not read it and say, look, that is not what is listed in the warrant.

Barbara A. H. Smith: --Your Honor, I--

Unidentified Justice: I guess if the police had read it at the time the magistrate or judge could have corrected it.

Barbara A. H. Smith: --Yes.

He might have, but I do not think there is any obligation--

Unidentified Justice: Well, theme is no doubt that he would have, is there?

Barbara A. H. Smith: --I would hope that he would have.

I mean, I think once this was brought to his attention he would see the mistake that was made and correct it.

Unidentified Justice: Of course, if you are a policeman the chance that you may feel who am I to tell the judge what form of warrant to use--

Barbara A. H. Smith: Absolutely.

The police knew what they had asked for.

They were assured that they got what they asked for, and they left with both the affidavit and the warrant.

I think that the police have no obligation to do anything further than secure the warrant.

I think the constitutional obligation stops there.

In the general case there is simply nothing more they could do.

Unidentified Justice: --You think the police have no obligation whatever to comply with what is written on the fact of the warrant?

Barbara A. H. Smith: I am not saying that, Your Honor.

I am saying in this case they did not read the warrant.

They knew exactly what they needed to get.

They were moving quickly before this evidence was destroyed.

They did not read the warrant.

Unidentified Justice: Well, if, as you told us, the law of Massachusetts is that the warrant is presumptively valid once signed then it is valid on the instant it was served.

Barbara A. H. Smith: That is right.

I think since the warrant is presumptively valid there really is no obligation on the police to, in a sense, second-guess or judge the judge.

Unidentified Justice: Yes, but, Miss Smith, it is presumptively valid to seize what the warrant says may be seized, is it not?

Barbara A. H. Smith: Yes, Your Honor, and the--

Unidentified Justice: Is it presumptively valid to seize something that is not listed in the warrant?

Barbara A. H. Smith: --Not once that is determined after the fact, but the police do not wait until another court has reviewed the warrant.

They have the warrant as issued by the judge, and what I am suggesting--

Unidentified Justice: But this warrant did not authorize them to seize the matters listed in the--

Barbara A. H. Smith: --Affidavit.

That is why it is defective.

Unidentified Justice: --But they thought it did.

Barbara A. H. Smith: They thought it did absolutely.

There can be no question of that.

They were very specific in their affidavit, and that is why, we submit--

Unidentified Justice: Did they show the person the affidavit?

Barbara A. H. Smith: --No, they did not.

They did no show the person either the warrant or the affidavit.

They did not ask to see it.

Unidentified Justice: What weight does that have?

Barbara A. H. Smith: I do not think it really has any weight.

I think what we have here is a case in which the police from any objective analysis acted in reasonable good faith reliance upon a judicially issued warrant.

Unidentified Justice: Isn't one of the base reasons for the affidavit to show somebody authority?

Barbara A. H. Smith: They had authority to enter these premises.

Unidentified Justice: What authority did they have?

The affidavit?

Barbara A. H. Smith: The authority in the warrant placed them on the premises.

Unidentified Justice: Weren't they obliged to show the warrant?

Barbara A. H. Smith: If someone had asked to see it.

I do not believe there is any obligation that they go in holding the warrant out.

They say we have a warrant.

We are here to search this particular area.

The mother and, I believe, sister who were present had no problem.

Unidentified Justice: The policemen were armed?

Barbara A. H. Smith: I'm sorry?

Unidentified Justice: The policemen had weapons?

We assume so.

Barbara A. H. Smith: I would imagine police officers would not go on a search without a weapon.

Unidentified Justice: That is right.

Barbara A. H. Smith: Did they have drawn weapons, I would say no.

Unidentified Justice: Well, could they be admitted because of the weapon or because of the warrant?

How do you know which one?

Barbara A. H. Smith: There is absolutely nothing in the record to support even speculation that they were admitted because they were waiving weapons at the people.

They went in peacefully.

Unidentified Justice: Isn't that the reason for having the warrant?

Barbara A. H. Smith: They have a warrant.

Unidentified Justice: I mean they show it.

Barbara A. H. Smith: They said, we have a warrant, which in fact is true, and that was enough for the people on the premises.

There was no question raised by the people on the premises.

There were no threats, no need for threats.

Unidentified Justice: They had a presumptively valid warrant.

They did not say that, did they?

Barbara A. H. Smith: Did the police say the had a presumptively valid warrant?

No, I would doubt that, Your Honor.

Unidentified Justice: No, they said we have a warrant.

Barbara A. H. Smith: We have a warrant, which they had, which was later, later determined to be found defective because of the omission by the issuing judge.

Unidentified Justice: Was there any requirement by statute under Massachusetts law that the officer show the warrant without a request?

Barbara A. H. Smith: Not that I know of, Your Honor.

I do not believe--

Unidentified Justice: But if requested what would be the normal practice?

Barbara A. H. Smith: --I think the normal practice would be for the police to go on the premises, say,

"We have a warrant to search the particular area. "

If a request is made,

"I want to see the warrant. "

then they should show the warrant.

There was no request made.

Unidentified Justice: Under the Massachusetts law they are not required to deliver the warrant or a copy of it?

Barbara A. H. Smith: No.

Unidentified Justice: Or to show it.

Barbara A. H. Smith: No.

Unidentified Justice: Miss Smith, there is no question, I guess, that the police were acting with subjective good faith here.

Is it fair to say that a policeman acts with objective good faith in executing a warrant to seize items not mentioned on the face of the warrant?

Do you think that that generally would amount to objective good faith?

Barbara A. H. Smith: I cannot give you an absolute blanket answer to a question like that, Your Honor.

I think it would be limited to examination of the totality of all the circumstances surrounding the officers' obtaining and executing the warrant.

I think in this instance under an objective test the officers acted in a reasonable manner in executing the warrant they had obtained.

They established probable cause.

They listed the items specifically in their affidavit.

They presented them to a neutral and detached magistrate who made a determination that probable cause existed to seize those particular items.

He took the warrant.

He told them that he would adopt it.

The trial judge found that he told them they had the authority to do what they had requested.

He gave them back the warrant.

He gave them back the affidavit, and I think under the circumstances the fact the police did not read the warrant does not render their conduct objectively unreasonable.

I think when they got that warrant there was nothing more they could do.

Unidentified Justice: May I ask you a question here?

May I for the moment just put the exclusionary rule to one side.

Assume we have got a warrant that is defective for the reasons that we have talked about.

In your opinion did the police officers conduct an unreasonable search within the meaning of the Fourth Amendment?

Barbara A. H. Smith: In my opinion if and only if this Court were to extend its holding in Gates where the Court announced a totality of the circumstances test for determining the probable cause aspect, if you were to extend that to determining the reasonableness of a search in this instance, I think, yes, we would have a reasonable search because the police complied with the warrant process.

The police executed the search consistent with what they authority they told they had.

There were exigent circumstances.

This was easily destroyed evidence.

The defendant was going to understand very, very shortly that his alibi had been, in effect, blown out of the water, that he had been identified with a car with human blood on it and practically simultaneously with a body being deposited and burnt in a vacant lot, and I think, yes, indeed--

Unidentified Justice: If you are right on that that there is a reasonable search here then there is no need to reach a good faith exception to the exclusionary rule.

Barbara A. H. Smith: --If the Court is going to extend Gates considered under a--

Unidentified Justice: Well, Gates really dealt with what kind of showing of probable cause is necessary.

Barbara A. H. Smith: --That is right.

Unidentified Justice: Here there is admittedly probable cause and there is also admittedly a defect in the warrant.

Barbara A. H. Smith: Absolutely.

Unidentified Justice: The ultimate holding in Gates was that the warrant was okay.

Barbara A. H. Smith: That is correct, Your Honor.

Unidentified Justice: So it is a little bit different.

Barbara A. H. Smith: It is different.

That is why I cannot say without the Court extending Gates to this type of situation that this would be necessarily a reasonable search without the warrant.

Unidentified Justice: I did not necessarily mean to say without the warrant.

I am just saying taking all the facts together would you say this is a reasonable or an unreasonable search?

Barbara A. H. Smith: Exactly, Your Honor.

Taking all the facts together including the existence of the warrant under the totality of the circumstances, I would say it was a reasonable search.

However, we are talking here about the application of the exclusionary rule.

In a case in which there was no police misconduct, no turn effect can be achieved by application of the exclusionary rule.

I think it is also in appropriate to extend the deterrent rationale to judicial mistakes given that a judge is not a proponent of either side.

He is not a member of the law enforcement team.

I would suggest that appellate determination or identification of the judicial error is sufficient to deter future conduct.

Unidentified Justice: I suppose in answering Justice Stevens I suppose if you just said any time an officer makes a reasonable mistake there is no violation of the Fourth Amendment because it is a reasonable search.

You really arrive at the same result.

Barbara A. H. Smith: We would.

Unidentified Justice: Except then you hold that there has been no violation of the Fourth Amendment at all.

Barbara A. H. Smith: Well, the Fourth Amendment only precludes unreasonable searches so if the search is found to be reasonable with or without a warrant--

Unidentified Justice: No, but usually in searching a house you need a warrant.

Barbara A. H. Smith: --I believe all of the case law says that ordinarily.

Except if you can establish a specific exception a warrant is required for the search of a home, which is why I focused on the application of the exclusionary rule to this type of reasonable mistake.

Unidentified Justice: So you are saying any time it is reasonable for an officer to believe that he has complied with a warrant requirement there is no violation of the Fourth Amendment.

Barbara A. H. Smith: I do not think that quite--

Unidentified Justice: But that was your submission to Justice Stevens.

It was a reasonable search.

The officers reasonably believed they had a good warrant.

Barbara A. H. Smith: --Yes, Your Honor, but--

Unidentified Justice: Because they had the affidavit.

Barbara A. H. Smith: --They had the affidavit.

They had gone through the whole warrant process.

They established probable cause.

Unidentified Justice: The only trouble was that the two pieces of paper were not put together.

Barbara A. H. Smith: Yes.

That is the size of the whole error in this case, and that is one reason that we would argue that the exclusionary rule should not apply because it is totally contrary to the idea of proportionality, which I think is central to our concept of justice.

It deflects the truth-finding process and affords a windfall to, in this case, a guilty defendant of outrageous proportions.

It is a remedy that is simply not consistent with the degree, the extent or the effect of the error committed in this case.

Commonwealth, therefore, requests this Court to recognize an exception to application of the exclusionary rule where the police act in reasonably-based good faith, not merely subjective good faith at all, in obtaining a warrant.

Such an exception, it is submitted, is not inconsistent with the concerns which gave rise to the exclusionary rule in the first instance for it would have no effect under dispositions of those cases involving warrantless rummaging through a person's belongings or other flagrant violations as were the case in Weeks and Mapp, nor would it permit police falsification of the facts according a finding of probable cause because by definition that would not be reasonable good faith.

It would simply be an explicit recognition that exclusion of evidence at the expense of the public where police have complied with the warrant process in an objectively reasonable manner simply has no legitimate justifications.

The exception would not be inconsistent with prior recent rulings of this Court which have implicitly recognized that the deterrent purpose of the rule is not effectuated where the police have acted in a reasonable manner.

Finally, I would suggest that the exception would serve two salutory purposes.

First, the exception will serve to foster this Court's stated preference for warranted searches so that a neutral and detached magistrate is interposed between the police and the individual.

Second, by granting consideration to the extent and effect of the error rather than the mere fact of the error, it will restore some degree of proportionality to our criminal justice system and acknowledge the that truth-finding function of our system will not be unreasonably impaired by inflexible mechanistic application of the exclusionary rule.

Thank you very much.

ORAL ARGUMENT OF JOHN REINSTEIN, ESQ., ON BEHALF OF RESPONDENT

Chief Justice Warren E. Burger: Mr. Reinstein, let me ask you a question right at the outset if I may.

Suppose this affidavit had been attached to the warrant with a clip... what would you say then... and if the warrant had said see attached affidavit?

John Reinstein: The key, I think, is the sufficiency of the words of incorporation whether on the face of the warrant there is an indication by the magistrate that he or she intended to adopt the language of another document so that if there is sufficient words of description in the warrant itself sufficient to identify either by saying "see attached" and the document is attached or "see a document" and describes the document by date and author, then I believe that that would be sufficient to meet the requirements of the particularity requirement.

Unidentified Justice: But without that cross reference the warrant would be invalid you say?

John Reinstein: That is right.

Unidentified Justice: Do you agree with your friend that the law of Massachusetts gives presumptive validity to that warrant?

John Reinstein: I do not agree with Miss Smith--

Unidentified Justice: It is not presumptively valid, the act of a judge?

John Reinstein: --I believe that it is clear that a police officer may not treat as presumptively valid a document which he knows--

Unidentified Justice: Forget about the police officer.

Is it the law of Massachusetts that the action of a judge within the scope of his lawful authority is presumptively valid until it is set aside on review?

John Reinstein: --As a general proposition that would be true.

Unidentified Justice: So this warrant would fall within that rule, would it not?

John Reinstein: No, it would not.

Unidentified Justice: Why not?

John Reinstein: The police officer in this case, Detective O'Malley, who knew from the very outset what this investigation was about.

He knew that it was a murder investigation and knew what they were looking for.

He knew what he asked for in his application for a warrant.

Unidentified Justice: I thought you conceded that if a clip like this or anything like it had attached the two together it would be all right.

John Reinstein: No, not a clip alone.

The proximity is not enough to make it sufficient.

There has to be some indication that the magistrate who reviewed the application actually adopted its language and the scope of the search which it contemplates.

I suggest that a paper clip, a staple, or some other mechanical attachment is not sufficient to do that.

There has to be words of description and incorporation.

Unidentified Justice: If the words were "see affidavit attached"?

John Reinstein: If the words were "see affidavit attached" and the affidavit were attached I believe that that would be sufficient.

Unidentified Justice: Thank you.

John Reinstein: I would like to respond at the outset to the description of some of the facts, which counsel for the State has described in her presentation.

The State says that there was probable cause for this search and that the search described in the application was, in fact, authorized by the magistrate.

Because there is no proper warrant executed by the magistrate in this case, something which reflects on its face that certain findings were made by the magistrate after consideration, the facts set forth in the affidavit, we are forced to rely in this case on after-the-fact reconstruction based on a police officer's testimony approximately one year later in the proceedings related to the motion to suppress the evidence.

That evidence shows as follows: that the police officers with the wrong warrant form in hand went to the magistrate's home on a Sunday afternoon; that they knew of the problems with the warrant form at that time and, in fact, they told the magistrate.

They said,

"We have the wrong form. "

"Something will have to be done about this. "

The magistrate locked at it, and he acknowledged that this was the wrong form.

He said that, in the police officer's words, he would adjust the warrant.

That is all that is in the record about what the magistrate told the police officers about this changes in the warrant.

There is nothing in the record about telling them what the scope of their authority was or that he would grant full approval for the search that they had described in the application.

The officers then took that warrant, and the State concedes today that it was never read.

They simply put it in their pocket and went out to execute it.

Now, let me mention first the question of exigent circumstances.

The police obtained the final link of evidence, which they put in their application for the warrant, early on Sunday morning in their interview with the owner of the car where the blood was found on the trunk.

It was shortly after that time that they made a decision to arrest the defendant and to seek a warrant for the search of his home.

They made no attempt at that time to locate the defendant who was not at that point at his home.

He was at the gaming house where they found him the previous day.

They went to the judge's house sometime early in the middle afternoon still not having, as I understand it, made any attempt to find out where the defendant was.

It was only when they returned to the District Two police station that they discovered by asking one of the witnesses that they had interviewed that morning where is the defendant.

He made a telephone call to the gaming house and learned that he was there.

So the police knew at least from that point on, at least from the point at which they should have known of the defects in the warrant where the defendant was, that he was not in a position to interfere with a search or to tamper with any evidence they might be seeking.

With respect to the finding of probable cause, there is, of course, nothing in the warrant which reflects a finding of probable cause as to the items which were described in that application, and all that the motion judge found, the trial judge, found in this case was... He found as a fact on the basis of the affidavit that the magistrate found that there was probable cause to search the second floor premises of the house at 42 Deckard Street and the playroom, which was in the basement.

That is obvious from the face of the search warrant, which does in the application part of it mention the premises at 42 Deckard.

It says 42 Deckard, second and basement.

There is a photocopy of the warrant itself which appears on page 74a of the record appendix, which appears as an appendix to Justice Liacos concurring opinion in the Supreme Judicial Court.

With respect to the marijuana and the question of whether there was probable cause to search for marijuana, we do not concede that there was probable cause to search for marijuana.

The only evidence supporting the application for the warrant on that was a statement made by the defendant on Saturday that on Tuesday, some five days before the warrant was executed and three to four days before the murder took place, that the victim and the defendant had gone to his house and before going there they had purchased some marijuana.

But the defendant also told the police, which is not reflected in this affidavit, that when the victim had left his house--

Unidentified Justice: Counsel, I was just looking at the opinion of the Supreme Judicial Court of Massachusetts at page 49a in the joint appendix.

This, I believe, Justice Wilkens, if I am not mistaken, describing the findings of the trial court.

He says on the matter of the search warrant he concluded that the warrant was issued on probable cause.

John Reinstein: --The findings of the trial court are contained--

Unidentified Justice: Was Justice Wilkens simply mistaken then in making that observation?

John Reinstein: --I think that that slightly overstates the extent of the findings, and in some respects I think the findings of the trial court go well beyond the testimony that was actually given in the Superior Court.

The only evidence about what took place in the proceedings before the magistrate was the testimony of Detective O'Malley who based it on his recollection of what had happened a year earlier.

The only statement that he says that the judge made to them was that after receiving the warrant that he would adjust it.

There were not statements about findings of probable cause or comments on the substance of the application.

All of the rest of the findings of both the trial court and the conclusions of the Supreme Judicial Court are based on inferences drawn from those facts.

Unidentified Justice: We do not ordinarily take a case to review a question of whether or not there was probable cause when the lower courts have made a finding either that there was or was not.

John Reinstein: Well, in this instance the finding of probable cause invariably is first made by the magistrate.

The problem with this case is that there is nothing to reflect what the magistrate did so that as a result the Superior Court, the Supreme Judicial Court and now this Court are forced to rely on this after-the-fact reconstruction of what happened.

That is what is before the court.

Unidentified Justice: When you are talking about probable cause you are always talking about after-the-fact reconstruction, are you not?

When a search warrant is challenged in court it is always after it has been executed.

John Reinstein: But the preliminary decision is made before the fact, before the search is actually carried out by the magistrate.

That is the function of the warrant requirement to have that determination made before there is some intrusion.

Unidentified Justice: But that is always ex parte, is it not?

John Reinstein: Invariably that is ex parte.

Unidentified Justice: There is no doubt, is there really, that the magistrate if he had noticed the error at the time would have corrected it and authorized the search for the items listed in the affidavit?

John Reinstein: That is certainly a possibility.

Certainly if the--

Unidentified Justice: Well, it is much more than a possibility.

You have direct evidence, do you not, that he expressed his intention to authorize the search for the scope spelled out in the affidavit?

John Reinstein: --Authorized a search.

There is nothing to indicate that he intended to authorize the full search for each of the items that were specified in the affidavit.

Unidentified Justice: We are not here to argue about the rule in Shelley's case or something that goes back to Chittie in pleading.

We have got more important things in mind in granting this writ, I think.

Can we assume that the judge looked at the affidavit?

John Reinstein: Yes, we can assume the judge looked at the affidavit.

Unidentified Justice: Then he knew at least what kind of a search he was authorizing.

John Reinstein: We can assume that the judge knew generally not only what kind of a search was authorized but what it was that the police had found thus far.

He knew there was a murder investigation.

Unidentified Justice: Counsel, before you go on.

There is no question of prejudice to your client in this case, is there?

John Reinstein: I believe there are several ways of looking at the prejudice.

There is definite prejudice.

First--

Unidentified Justice: Let me ask a follow up with this question.

If the affidavit had been attached to the warrant in the way you suggested to the Chief Justice would be appropriate, would the search have been any more extensive or different in any respect?

John Reinstein: --I do not believe it would have.

Unidentified Justice: You doubt that it would?

John Reinstein: I do not believe that it would have.

Unidentified Justice: So in what way was that prejudice, actual prejudice, apart from the theoretical argument that we are addressing here today and that is whether any technical violation of the warrant procedure requires exclusion of obviously probative evidence?

John Reinstein: I do not think that this is a technical violation.

Unidentified Justice: You would agree it was inadvertent, would you not?

John Reinstein: It was careless.

Unidentified Justice: You are not suggesting that the judge deliberately omitted--

John Reinstein: No, I am not suggesting that.

Unidentified Justice: --Right.

John Reinstein: The requirement in the Fourth Amendment that a warrant particularly describe the items to be seized serves a number of important functions.

It is tied to the requirement of probable cause.

The magistrate is expected to find probably cause and then to evidence that finding and to give direction to the police officers.

The magistrate is expected to record that in the written warrant document.

It serves several functions, none of which were met in this case.

That is why there was some prejudice to the defendant.

First, the warrant which was the equivalent of a warrant in blank since it described something completely different from what was described in the affidavit.

It did not give notice to the members of the defendant's family who were home when the police came--

Unidentified Justice: Did they ask to look at the warrant?

John Reinstein: --The police officer testified that it was showed to them.

Unidentified Justice: Did he ask?

My question was did anyone ask to see the warrant and read it?

John Reinstein: The record does not show whether anyone read it.

Detective O'Malley testified that when he went to the defendant's home he was met by the defendant's sister and mother and that he showed them the warrant.

Presumably they examined it and read it.

I should add that--

Unidentified Justice: Well, you find facts in the findings.

I did not find any fact that they presumably read it.

John Reinstein: --There is nothing in the record which suggests they presumably read it.

The record says only that it was shown to them.

Unidentified Justice: That is all?

John Reinstein: That is all.

The second point on the question of prejudice is that although Detective O'Malley knew what he wanted to search for the warrant did not give specific direction to the police officers who were responsible for executing the search.

I should add that there were, I believe, ten police officers who went to the defendant's home, some of whom went to the cellar.

Others went to the second floor.

I believe that Detective O'Malley went to the cellar and led the group that conducted the search there and that a number of other police officers went to the second floor and were on their own so that while Detective O'Malley may have known what it was that he was looking for, the rest of the police officers and to some extent Detective O'Malley were forced in conducting this search to determine its limits by their impression, not of what was written in the warrant, but their impression of what they had asked for, what they thought they had probable cause for and their impression of what the judge had let them do, what he had said, whether there was some clear indication that they could do such and such a search.

Unidentified Justice: Mr. Reinstein, let me go back just a minute.

I do not know if this has a great deal of bearing on the case, but there seems to be numerous kind of conflicting versions of the facts.

Now, I am looking at page 28a of the record, which I believe is the trial justice's findings of fact.

On page 28a it says with respect to the manner is which the warrant was served,

"The defendant's mother and sister were present at the time. "

"O'Malley orally informed them of the fact he had a warrant authorizing the search of the second floor premises and area occupied by the defendant. "

I understood you to say that there was a finding that the detective showed the warrant.

Did you not say that just a minute ago?

John Reinstein: No, I did not say there was a finding.

I said that the testimony was.

Unidentified Justice: Well, this finding certainly does not support any conclusion that the detective showed the warrant.

John Reinstein: That is correct.

The record before the Court includes the full testimony that was considered by the trial judge, and I suggest that the Court is not bound to accept a finding which is not based on any evidence at all where the sole evidence is something else, that the judge's finding is clearly erroneous and is not necessarily to be accepted by this Court.

There is a third reason why there is if not prejudice to the defendant some concern why a warrant, a written warrant, should be required in every case, and that is that as in this case we are trying to determine several years after this event took place what it was that happened.

The Superior Court had that problem, and now this Court is going to have to determine whether there was probable cause, what the judge said and what the effect of the judge's instructions or comments to the police may be.

That raises the possibility if that is an acceptable procedure that in any case where a search warrant is challenged as being defective on its face that the police officers and the prosecution can attempt to bring in additional evidence to go behind the warrant to show that the warrant did not mean what it said and that a search completely different than the search authorized by the warrant was in fact authorized by the magistrate who issued it.

Unidentified Justice: You have been advancing the familiar arguments in favor of the strict exclusionary rule.

We have heard those before.

I suppose the reasoning behind my initial question was whether if the Court responds to the request that it made in this case and in the case that follows for some relaxing of the strictness of the present exclusionary rule, it is relevant or irrelevant that the defendant in the case suffered personal prejudice.

I take it your answer is there is no evidence in this case of any such prejudice, personal prejudice.

If the search warrant had been in perfect condition, the search would have been the same.

John Reinstein: I agree that if the search warrant had been precisely as applied for then the search that was conducted would have, in fact, been fine.

Unidentified Justice: Right.

I would make the same argument you are making for the strictness of the exclusionary rule if I had your responsibility.

John Reinstein: There is a second consideration in dealing with the application of the exclusionary rule in this particular case.

The formulation and the standard suggested by both the State and by the Solicitor General as amicus in this case and as the Petitioner in the Leon case is that the conduct of police officers should be judged by a standard of what a reasonably well-trained police officer would do.

A reasonably well-trained police officer under the circumstances of this case should have been expected to stop, to look at the warrant, to read it and to say,

"This is not the warrant that we requested. "

"This is a different warrant than we requested. "

and to go back to the magistrate and to get the correct warrant.

Unidentified Justice: The trial judge made a finding here or made a reference, not a finding, a reference to the law of Massachusetts saying a search warrant may be read with the complaint where it is attached to the warrant to provide sufficiency of the description of the place to be searched.

That, I suppose, was the basis of your response that if these two pieces had been put together their problem would have been solved.

John Reinstein: That is right so long as there was sufficient description there to incorporate it.

I believe the Fourth Amendment would place some restriction--

Unidentified Justice: Absent a staple or clip or a reference it falls?

John Reinstein: --It is the reference which is the key point.

It is the intent to incorporate.

Unidentified Justice: This statement of the law of Massachusetts does not say anything about the reference.

John Reinstein: No, I do not believe that--

Unidentified Justice: A search warrant, said the judge, may be read with the complaint, that is, here the affidavit, where it is attached to the warrant.

John Reinstein: --That is correct.

That would be the law of Massachusetts.

However,--

Unidentified Justice: He does not say it must be referred to.

There must be a reciprocal reference.

John Reinstein: --I suggest that the Fourth Amendment requires some appropriate words of description so that it is the clear intent of the magistrate to adopt the language of the affidavit.

Because the police officers in this case knew or should have known that the Fourth Amendment requires that a warrant describe what it is to be seized, because they were put on notice by that language by the parallel language of the state constitution and by a state statute, which also requires that search warrants describe what it is that is going to be seized, there is no claim in this case that they had no basis for knowing.

You do not have to be a constitutional scholar.

You do not need the advice of the judge or of the district attorney's office to read what is quite explicit in the Fourth Amendment.

Unidentified Justice: Is there any evidence of bad faith on the part of the police officers?

John Reinstein: The trial court made a finding of good faith, and the officers testified at several points that they believed what they were doing was proper.

However, I believe the trial court's finding is clearly limited to the subjective good faith of the police officers, which we do not question.

Unidentified Justice: Well, your submission then includes a suggestion that an officer would be unreasonable to think that since he had the affidavit in one hand and the warrant in the other that he was authorized to search for the items in the affidavit.

John Reinstein: I do not believe that that is a reasonable proposition absent something in the warrant executed by the magistrate which would tell him that the magistrate had approved the search which is described in the application.

Unidentified Justice: You also would think that the officer should not have taken the magistrate's word for saying,

"I'm going to do what you asked. "

They had to read the warrant.

John Reinstein: They had to read the warrant and--

Unidentified Justice: As it was issued and not just read the affidavit.

John Reinstein: --That is right.

They had to rely on something in writing from the magistrate and then even if they had read it, they would have been on notice.

They cannot execute something which they know of their own personal knowledge is not valid.

For example, if a magistrate issues an arrest warrant which authorizes the arrest of John Doe and the police know either after the fact or contemporaneously that John Doe is not the person either that they applied for or that they have later information which tells them that John Doe is not guilty of the offense.

Unidentified Justice: So if there is an affidavit that asks for a warrant to search a certain address and the warrant comes cut and is one number off... there has been a typographical error... the officers should have picked that up.

John Reinstein: It depends on whether the error in the warrant is in the nature of an ambiguity which--

Unidentified Justice: There is nothing ambiguous about it.

There is a difference between 17 Black Street and 18 Black Street.

John Reinstein: --If there is a 17 Black Street and an 18 Black Street then they cannot conduct the search.

If there is only one house on Black Street then the variance between the affidavit and the warrant would probably not be significant.

Unidentified Justice: If the affidavit is attached to the warrant and says 18, and the warrant on its face says 17, they should not go searching?

John Reinstein: They should not conduct the search in that case.

They are faced with a contradiction and it should be resolved by the magistrate rather than by the police.

Unidentified Justice: Well, there are cases against you on that, I believe, are there not, incorrect address in the affidavit where there really is a place--

John Reinstein: The underlying principle of all the cases dealing with misdescription and ambiguity is that there has to be something which permits the officers on the scene to make a reasoned choice and to understand that the court made a finding of probable cause and granted them the authority to conduct the search.

If there is a choice to be made--

Unidentified Justice: --But supposing you have a case that everybody involved from the magistrate to the officer to the executing officer on down intended 17 Black Street to be searched... that is the place where the defendant lives and all the rest... and they type in 18 Black Street, which is next door.

They go out and execute that affidavit.

There is a lot of cases saying that is not a defective warrant, are there not?

It does not, in fact, authorize the search of 17, but does in fact authorize the search of the place that was intended to be searched.

Maybe I am wrong.

I thought there were such cases.

John Reinstein: --There are some cases about partial misdescriptions, but where, as I understand it, the misdescription is misleading--

Unidentified Justice: What you are saying it is the information on the face of the warrant that makes it clear that they--

John Reinstein: --If there is something on the face of the warrant which would either mislead or makes the police officers make a choice on the scene and leaves doubt about the intention of the magistrate, then they cannot execute the warrant.

Unidentified Justice: --Mr. Reinstein, do you not think there may be a point at which you get... I do not doubt the cases say what you say they say... but you are getting away from kind of Fourth Amendment values that are mandated by the federal constitution and get into something that is really quite finicky almost like the law of wills about misdescription.

Do you think that is all Fourth Amendment law as well as, say, State of Massachusetts law or some other state law?

John Reinstein: I am glad that I am not in a position of having to defend that entire body of law today.

I do not think that the Court needs to reach that issue, and I do not think that the Fourth Amendment necessarily requires pickiness.

But rejection of this warrant is not being picky.

This is a warrant which is just plainly defective on its face.

Unidentified Justice: May I ask another question?

Is there any evidence in this record of a practice of police officers in this jurisdiction serving warrants that contain no specification of the items to be seized?

John Reinstein: There is no evidence in the record of that.

Unidentified Justice: I asked you a little while ago about good faith, and you agreed that the court below, the trial court I suppose, found good faith.

There is no evidence of willful omission of the items to be searched, is there?

John Reinstein: There is nothing to indicate that the police officers deliberately used this warrant for some ulterior motive.

In fact, as the State now suggests they did not read it.

Unidentified Justice: Just one question.

Is your only complaint... Do you admit that if they had written on the warrant "see the attached affidavit" everything would be all right?

Do you admit that?

John Reinstein: And they had attached the affidavit.

Unidentified Justice: Yes.

John Reinstein: So that--

Unidentified Justice: Is that your only complaint?

John Reinstein: --That is the substance of the criticism of this warrant.

Unidentified Justice: That is your only complaint?

John Reinstein: That is correct.

Thank you.

Chief Justice Warren E. Burger: Very well.

Do you have anything further, Miss Smith?

Barbara A. H. Smith: No, Your Honor.

Thank you.

Chief Justice Warren E. Burger: Thank you, counsel.

The case is submitted.