Nos. 95-037, 95-038Commonwealth of Massachusetts Superior Court CRIMINAL ACTION FRANKLIN, ss.
January 10, 1997
MEMORANDUM OF DECISION UPON DEFENDANTS’ MOTIONS TO SUPPRESS
TOOMEY, JUSTICE.
PROCEDURAL BACKGROUND
Defendants have moved to suppress the products of a search, effected in reliance upon a warrant, of identified premises in Orange, Massachusetts. The warrant had been issued by a justice of the superior court and authorized the seizure of certain items of evidence that allegedly pertained to a homicide then under investigation.
On December 12, 1996, the motions were heard by the court sitting in the Hampden Superior Court. After argument by counsel, the matter was taken under advisement. Upon due consideration, the motions shall be decided as follows.
FACTS
On June 7, 1995, upon application of law enforcement officials, the superior court issued a search warrant authorizing the search of the premises at 276 East Main Street, Orange, Massachusetts and of any persons there present. The warrant, by its express terms, permitted the search for and seizure of a variety of items that may fairly be characterized as, generally, items commonly found in a household setting. The items thus identified were:
1. Gray Challenger Orbatron plastic covered DP weights
2. Orange handled scissors
3. Appliances or electrical items with severed electrical cords
4. Electrical cords
5. Broken piece of Erie Tool vise
6. Peroxide
7. Beechnut chewing tobacco
8. Blunt force instruments, including but not limited to:
— yard sticks
— clubs
— baseball bars
— whip antennas
— rope
— muffler caps
— baseball bats
— broomsticks
— hammers
— canes
— hacksaws
— toilet brushes
9. Cutting implements or tools, including but not limited to
— knives
— brown handled kitchen knives
10. Identifications or personal papers of Billy A. Paige
11. Personal belongings of Billy A. Paige
12. Clothing
13. Blood
14. Semen
15. Saliva
16. Physiological fluids and secretions
17. Hair
18. Fibers
19. Fingerprints
20. Palmprints
21. Footprints
22. White cloth
23. Weight lifting bench
The warrant was based upon an application and an affidavit executed on June 7, 1995, by Lieutenant Leonard F. Von Flatern, III of the Massachusetts State Police. The affidavit contained summaries of numerous conversations between Lieutenant Von Flatern and others with knowledge of relevant facts. The persons to whom the affidavit referred included the following:
SGT Pickering, N.H. State Police (detailing the discovery of the body on May 23, 1995 and the condition of the body and the items attached to it; identifying the deceased as Billy Paige)
Officer Laughton, Orange Police Department (asserting that the defendants’ family had moved from Greenfield to Orange sometime before April 26, 1995)
Michelle Roberts (reciting her observations of Billy Paige and the defendants at the latter’s Greenfield home in the fall of 1994; recounting admissions by various of the defendants concerning the death of Billy Paige)
Robert Jardine (fixing the date of the Perrys’ move from Greenfield to Orange as April 9, 1995; recalling that, when the Perrys moved out of the Greenfield residence, no weights were left behind; accompanying affiant to a site where the Perrys had left certain contents when they vacated the Greenfield residence and at which none of the items sought to be seized were located)
Steven Matthews (providing admissions with respect to his observations of Billy Paige and the defendants at the Perrys’ Greenfield residence)
Roger Perry (providing admissions with respect to Billy Paige and the defendants at the Perrys’ Greenfield residence; commenting upon his participation in disposing of the body; noting that the death occurred “a couple of weeks before we moved to Orange;” admitting to “clean[ing] up the whole [Greenfield] house;” admitting that he moved “the rest of his weights to the Orange residence.”)
Frederick Perry (providing admissions with respect to Billy Paige and defendants’ abusive conduct; conceding that the scissors used upon decedent were conveyed to the Orange residence from Greenfield)
CPT LaChance (informing affiant that Leon Perry had made admissions and had observed decedent lying on a weightlifting bench at the Greenfield home)
Clinton Maynard (detailing his observations of Billy Paige and defendants at the Perrys’ Greenfield residence)
Richard Perry (detailing his observations of Billy Paige and defendants at the Perrys’ Greenfield residence)
Tom Nartowicz, Trooper Massachusetts State Police (reciting Roger Perry’s admission that knives used to cut Billy Paige were located at the Perrys’ Orange residence.)
On June 7, 1995, the warrant was executed and search of the Perrys’ Orange residence produced the following:
1. Wooden walking canes (2)
2. Orange handled scissors
3. Orange cord
4. Newspaper
5. Knife with black hilt
6. Weight bench
7. Pillow
8. Bed cover
9. Blue jeans
10. Weights (13)
11. Short weight bars (3)
12. Long bar
13. Assorted papers
14. Electrical cords (2)
15. Nebulizers (4)
16. Hacksaws (2)
17. Hammer
18. Wooden handled knife
19. Broom handles (2)
20. Pool cue
21. Ivory handled knives (3)
22. Weight lifting belt
23. Hydrogen peroxide (2)
24. Gray piece metal
25. Knife w/Indian sheath
26. Electric wire
27. Change of address card
28. Brown handled knives (4)
The products of the search were memorialized on the return DISCUSSION
Defendants seek to have excluded from evidence the items seized at 276 East Main Street in Orange during the June 7, 1995 execution of the search warrant. They assert that the search warrant was issued without probable cause to believe that particular items to be seized were located on the premises to be searched. They also contend that several of the items seized were not recited on the warrant. We shall treat each ground in turn.
The affidavit contained an abundance of particularized, credible assertions that the items listed on the application and on the warrant were material to the on-going investigation of the homicide of Billy A. Paige. Although a number of the items were of generic description (eg, “clubs,” “canes,” “knives”), the common nature of the items rendered more specific identification impossible, and the detailed assertions in the affidavit with respect to those common items made the employment of their homely identities on the warrant not “unreasonable” as that term is used in the federal and state constitutions. Cf. United States v. Morris, 977 F.2d 677, 681 (1st Cir. 1992).[1] This court concludes, therefore, that the warrant’s description of the items to be seized satisfied the constitutional requirement of particularity.
The principal thrust of defendants’ argument is that, assuming arguendo probable cause to believe that items material to the crime were located at 217 Chapman Street, Greenfield, Massachusetts (the locus of the deceased’s lengthy confinement and, finally, his death), there was no probable cause to believe that said items would be found at 276 East Main Street, Orange, Massachusetts.[2] Defendants note that the confinement and death, as to which the items pertained, occurred at the Greenfield residence, according to the affidavit, during the period of January through March, 1995. The warrant authorized the search of the Orange residence on June 7, 1995. The defendants conclude that the affidavit demonstrates no probability that items in Greenfield in late March, 1995 would be found in Orange in early June, 1995.
The flaw in defendants’ analysis lies in the fact that the affidavit does repeat admissions from Roger and Frederick Perry that the weights, scissors and knives were conveyed to Orange from Greenfield. Other portions of the affidavit alluded to first-hand observations that the Greenfield house was cleaned prior to the move to Orange and that none of the items sought to be seized were to be found in the area where the Greenfield detritus had been abandoned. From those assertions in the affidavit, the objective reader, eschewing hypertechnicality, might reasonably conclude that the April 9, 1995 exodus from Greenfield to Orange included all articles that were used in the former and might be useful in the latter. Especially given the “household” character of many of the items, it was indeed probable that they accompanied the Perry clan from their former residence to their new home. And, it was also probable that those items remained at the Orange home from April 9, 1995, to June 7, 1995. There has been no suggestion of any occurrence — such as a general spring cleaning of the Orange locus or an indication that the Perrys were aware that the authorities suspected them of involvement in unlawful conduct — that might intimate a removal of the items from the Orange home. In sum, the affidavit provided probable cause to believe that the material items had been transported from Greenfield to Orange and remained located at Orange at the time the warrant was issued and executed.
There remains the question, raised by the challenge in defendants’ motion to “all items listed on the Return,” of whether the seizure of items not authorized by the warrant was lawful. The extra-warrant items seized during the execution of the warrant were:
1. newspaper
2. pillow
3. bedcover
4. nebulizers (4)
5. pool cue
6. weightlifting belt
7. change of address card.
Of those items, the newspaper, pillow, bed cover, nebulizers and change of address card are not shown, on this record, to have any pertinency to the matter under investigation. Accordingly, their seizure cannot be justified as a plain view apprehension by officers executing a lawful warrant. See, generally, Smith, Criminal Practice and Procedure, 30 Mass. Prac. § 226, n. 3, § 227, n. 6, § 228, n. 1, § 229 and cases cited.
While the weightlifting belt and the pool cue were, arguably, material to the investigation, neither possessed evidentiary characteristics sufficient to justify their “plain view” seizure. Having been omitted from the relatively lengthy list of seizable items set forth in the warrant, they must, to be seizable as “plain view” items, have presented to the warrant executing officers reasonable assurance as to their nexus to the criminality under investigation. Commonwealth v. Rodriquez, 378 Mass. 296, 303-304
(1979). At bar, neither item demonstrated its nexus. There was nothing inherent in either the weightlifting belt or the pool cue that would suggest to the officers an evidentiary connection to the maltreatment of the deceased. While both items might well be said to be “blunt force instruments” used to belabor the deceased, that descriptive is, as noted supra, too imprecise to satisfy constitutional particularity demands. If the concept is too general for warrant purposes, it surely is too general for “plain view” seizure purposes. And, although the Commonwealth has asserted, in its memorandum in opposition to suppression, that the weightlifting belt “had what SGT Von Flatern felt was a blood stain on it,” there was no evidence, presented at the hearing upon the motion to suppress, in support of the Commonwealth’s assertion. For aught that appears in this record, SGT Von Flatern may have observed the blood stain after he seized the belt. The Commonwealth has thus not borne its burden of demonstrating the necessary foundation for the conclusion that the seizure of extra-warrant items was constitutionally permissible. Commonwealth v. Gauthier, 41 Mass. App. Ct. 765, 766-767 (1996).
CONCLUSION
For the reasons aforestated, the Motions to Suppress are ALLOWED with respect to the newspaper, pillow, bed cover, four nebulizers, pool cue, weightlifting belt and change of address card; otherwise, said motions are DENIED.
________________________________ Daniel F. Toomey Justice of the Superior Court
DATE: January, 1997