COMMONWEALTH v. ERICKSON (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant was convicted of breaking and entering, larceny from a building, and receiving stolen property. On appeal, he claims the judge erred in denying his motion to suppress the evidence seized as a result of two search warrants. We affirm.

The “inquiry as to the sufficiency of the search warrant application always begins and ends with the ‘four corners of the affidavit.’ ” Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995). “[The] affidavit must contain enough information for an issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues.” Commonwealth v. Cinelli, 389 Mass. 197, 213, cert. denied, 464 U.S. 860 (1983). The affidavit should be read as a whole, in a commonsense manner, considering the facts contained therein and the reasonable inferences one may draw from those facts. Commonwealth v. Anthony, 451 Mass. 59, 68-69 (2008).

The defendant claims that because the affidavit for the first search warrant did not establish that any of the victim's jewelry had been stolen, there was no probable cause to believe that stolen jewelry or the related pawn slips would be found in the defendant's apartment. We disagree.

The affidavit disclosed that the victim reported to the police (who responded to the burglary) that one piece of luggage was missing and there was an undetermined amount of women's costume jewelry that had been located near to the luggage. Although the victim had not done a precise inventory of the jewelry, the magistrate was permitted to infer from the victim's statement that the jewelry had been taken as well. Indeed, as a matter of common sense, there would have been no need for the victim to do an inventory if some of the jewelry had not been stolen. See Commonwealth v. Hart, 95 Mass. App. Ct. 165, 167 (2019) (allegations in affidavit are viewed in “a commonsense and realistic fashion” [quotation omitted] ).

The defendant also claims that the search warrant application failed to describe the items sought, i.e., a “black piece of luggage” and “[w]oman's jewelry,” with sufficient particularity. See G. L. c. 276, § 2. Because a commonsense reading of the affidavit supports the conclusion that the likely burglar was carrying the victim's black duffel bag when the neighbor confronted him, and because the victim was initially unable to give a specific description of her jewelry because she had not yet determined what had been stolen, we disagree.

The Fourth Amendment to the United States Constitution, art. 14 of the Massachusetts Declaration of Rights, and G. L. c. 276, § 2, require that a search warrant describe with particularity the places to be searched and the items to be seized. See Commonwealth v. Molina, 476 Mass. 388, 394 (2017). “By defining and limiting the scope of the search, these constitutional and statutory particularity requirements prohibit general warrants amounting to ‘exploratory rummaging in a person's belongings.’ ” Id., quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).

Although the police could not provide a more specific description of the jewelry given what the victim had told them, “the warrant was not lacking in guidelines to the point that the officers were on a roving search.” Commonwealth v. McDermott, 448 Mass. 750, 770, cert. denied, 552 U.S. 910 (2007) (police “did not have information that would allow them further to limit the description of this category of items”). Indeed, they were looking for a woman's costume jewelry in a man's home. At the very least, this ensured that police would not simply search for and seize all jewelry in the home, even men's pieces that belonged to the defendant. The same is true with the black piece of luggage, which is descriptive, and was seen by the neighbor in the possession of the likely burglar. Accordingly, the description of the items to be sought in the defendant's home was sufficiently particular to justify issuance of the search warrant.²

Judgments affirmed.

FOOTNOTES

2.   Finally, the defendant claims that evidence seized during the execution of a second warrant should have been suppressed as fruit of the poisonous tree because it relied on evidence found during the first search. However, because we conclude the first search warrant was valid, this argument fails.