Commonwealth v. Jeremy M. Taylor.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-1044

COMMONWEALTH

vs.

JEREMY M. TAYLOR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant moved to suppress the items seized during the

execution of a search warrant of an apartment, arguing among

other things that the warrant's lack of specificity in its

description of a firearm sought by police rendered it an

unlawful "general warrant." A judge of the Dorchester Division

of the Boston Municipal Court agreed and allowed the motion.

The Commonwealth obtained leave to pursue an interlocutory

appeal. Concluding that the warrant's description of a

camouflage jacket was enough to prevent it from being a general

warrant, we reverse the suppression order.

Background. We recite the essentials of the affidavit in

support of the search warrant application. Boston police

received a report of a man threatening several people with a gun

at an apartment building in Dorchester and then fleeing into
apartment 104. A resident of the building told police that the

man named Jeremy, who lived in apartment 104 and was wearing a

camouflage jacket, had threatened her and her child with a small

metallic firearm, about the size of an iPhone, that he pulled

from his sock. Police were aware that the defendant lived in

apartment 104 and had an "extensive record of violent criminal

offenses which included a previous firearm conviction."

Police knocked on the door of apartment 104 and found the

defendant inside, although he was not wearing a camouflage

jacket. After removing him from the apartment, police conducted

a protective sweep of the apartment and unsuccessfully searched

the area around the building for a firearm. The resident who

said she was threatened saw the defendant and identified him as

the assailant. The defendant was arrested on assault charges

and the apartment was secured pending execution of a search

warrant. Police believed that, if permitted to search, they

would find the small metallic firearm and the camouflage jacket

inside the apartment.

The search warrant application sought a warrant to search

for "[a] small metallic firearm and a camouflage jacket." The

warrant as issued, however, purported to authorize police to

search for a "[f]irearm, ammunition, all items used for the

storage and upkeep of said firearm, [and] a camouflage jacket."

When they executed the warrant, police recovered a camouflage

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jacket and numerous other items, including a Ruger .22 caliber

long rifle automatic pistol with nine cartridges and assorted

drugs and drug dealing paraphernalia.

The defendant moved to suppress, asserting among other

things that "[t]he warrant lacked sufficient particularity to

meet the requirements of G. L. c. 276, § 2, art. 14 of the

Massachusetts Declaration of Rights, and the Fourth Amendment to

the United States Constitution, and thus the search warrant was

an unlawful general warrant." 1 At an evidentiary hearing on the

motion, the officer who prepared the warrant application

testified that he also prepared the (presumably unsigned)

warrant itself. He further stated that the discrepancies

between the items listed on the application and those listed on

the warrant were the result of a clerical error. Police did not

bring the application when they executed the warrant.

The judge ruled that although there was probable cause to

search the apartment for a camouflage jacket and a small

metallic firearm, the clerical error expanded the scope of the

1 "'[U]nlike [c. 276's] probable cause provisions, the
particularity requirements of G. L. c. 276 essentially track the
particularity requirements of art. 14 and the Fourth Amendment.'
[The Supreme Judicial Court has] never held that art. 14
requires greater particularity than the Fourth Amendment, and
therefore we make no distinction between art. 14 and the Fourth
Amendment in our analysis." Commonwealth v. Walsh, 409 Mass.
642, 644–645 (1991), quoting Commonwealth v. Sheppard, 394 Mass.
381, 389 (1985).

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search, in two ways. First, "[b]y failing to more accurately

describe the firearm, the warrant authorized the officer[s] to

search for any firearm[,] whether it was small enough to fit in

a sock or was so big that there was no way to conceal it in any

article of clothing." Second, "[b]y authorizing the officers to

look for ammunition and items used for storage and upkeep of

said firearm, the warrant allowed the officers to continue to

search the apartment even after the jacket and small metallic

firearm had been discovered.[2] There was no basis for these

items to be included in the warrant and their inclusion expanded

the scope of the warrant." The judge allowed the motion to

suppress, and denied the Commonwealth's motion to reconsider.

This appeal followed.

Discussion. "We view with respect the motion judge's

conclusions of law, but, as this matter is of a constitutional

dimension, the judge's ultimate findings and rulings of law are

subject to de novo review." Commonwealth v. Thomas, 429 Mass.

403, 405 (1999). See United States v. Burgos-Montes, 786 F.3d

92, 105 (1st Cir.), cert. denied, 577 U.S. 1036 (2015).

2 Despite this statement, it is unclear from the record whether
the "Ruger .22 caliber long rifle automatic pistol" seized
during the search is a "small metallic firearm" as described in
the warrant affidavit and application. The defendant asserts
that the police did not find a small metallic firearm. Neither
party argues that any issue in this appeal turns on the point.

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"It is beyond doubt that all evidence seized pursuant to a

general warrant must be suppressed. The cost to society of

sanctioning the use of general warrants -— abhorrence for which

gave birth to the Fourth Amendment -— is intolerable by any

measure" (citation omitted). Commonwealth v. Lett, 393 Mass.

141, 145–146 (1984). "Severance of the invalid from the valid

portions of a warrant is unacceptable where no portion of the

warrant is sufficiently particularized to pass constitutional

muster . . . . Otherwise the abuses of a general search would

not be prevented" (quotation and citation omitted). Id. at 146.

The Lett decision illustrates how these principles are

applied. There, a search warrant authorized a search for heroin

and a diamond ring. Lett, 393 Mass. at 146. The officers

executing the warrant found heroin and drug paraphernalia but no

ring. Id. at 142-143. The Supreme Judicial Court ruled that

the specific authorization to search for heroin and the ring was

not so broad as to authorize an intolerable "general rummaging

search of the defendant's apartment." Id. at 146. "While the

authorization to search for heroin failed for lack of probable

cause, the valid authorization to search for the ring

sufficiently limited the officer's discretion so as to withstand

constitutional challenge." Id. at 146. Thus, the court allowed

"that portion of the warrant to stand," and went on to consider

whether seizure of the heroin and other items was valid because

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they were seen in plain view during the search for the ring.

Id. The court ruled that "the application of the doctrine of

plain view to a search conducted pursuant to a partially valid

warrant is ordinarily permissible." Id. at 147. Accordingly,

"[b]ecause the heroin and drug paraphernalia were in plain view

during a permissible search, the motion to suppress those items

was properly denied." Id. at 148. See Commonwealth v.

Fernandes, 30 Mass. App. Ct. 335, 339-341 (1991) (warrant

described certain items with sufficient particularity, and was

not general warrant, notwithstanding that it also included

insufficiently specific phrase, "any other illegally kept

controlled drugs or firearms of various descriptions").

To similar effect is Commonwealth v. Wilkerson, 486 Mass.

159 (2020). There, pursuant to statutory authority, the

Commonwealth sought forty-eight hours of cell site location

information (CSLI) for a murder defendant's cell phone. Id. at

160, 164. The prosecutor received data for a thirty-four hour

period. Id. at 164. On the defendant's motion, a judge

suppressed all but the three hours of the CSLI surrounding the

time of the shooting. Id. On appeal, the defendant argued that

"if there was not probable cause to search the entire thirty-

four hours of CSLI data, it was error for the judge to allow

introduction of the three-hour period surrounding the shooting."

Id. at 166.

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In rejecting this argument, the court first acknowledged

that "where a warrant so lacks particularity or is so overbroad

that it begins to resemble a general warrant, total suppression

is required." Wilkerson, 486 Mass. at 169. The court held,

however, that "[t]he forty-eight hours requested, and the

thirty-four hours obtained here, [were] not so overbroad on the

facts of this case so as to be akin to a general warrant," id.;

that the three hours of CSLI were severable from the remainder,

id.; and that there was probable cause for the three-hour

period, id. at 172. Suppression of the three hours of CSLI was

therefore not required. Id.

On the other hand, a warrant was held to be an

unconstitutional general warrant where, in the absence of the

supporting affidavit, it effectively granted "authorization to

search for stolen handguns, jewelry and coins, without any

further description governing the scope of the search."

Commonwealth v. Rutkowski, 406 Mass. 673, 675 (1990). The

Rutkowski court explained that "[t]o describe general items like

guns and jewelry as 'stolen' adds nothing instructive to a

description in a warrant. This case is not one in which the

stolen items could not have been described in more detail.

. . . [T]he generic reference in this case to items generally

and lawfully available in our society . . . fails to meet the

minimum standard of particularity." Id. at 676.

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Against this backdrop, the defendant here does not argue,

nor could we rule, that "no portion of the warrant is

sufficiently particularized to pass constitutional muster"

(citation omitted). Lett, 393 Mass. at 146. The warrant's

specification of a camouflage jacket was constitutionally

sufficient. 3 See E.B. Cypher, Criminal Practice and Procedure

§ 5:107 (4th ed. 2014) ("although the items must be described

with particularity the courts are lenient in regard to

clothing"). The defendant does not argue otherwise. That this

portion of the warrant was sufficiently particularized saves the

warrant from being a general warrant.

To be sure, the warrant's omission of the adjectives

"small" and "metallic" resulted in its description of the

firearm being less particularized than was possible based on the

affidavit. Even so, the warrant as a whole, authorizing a

search for a "firearm, ammunition, all items used for the

storage and upkeep of said firearm, [and] a camouflage jacket,"

did not authorize any "general rummaging search of the

defendant's apartment." Lett, 393 Mass. at 146. See Wilkerson,

486 Mass. at 169.

3 Nor does the defendant argue that the warrant application did
not establish probable cause to search for the jacket (or, for
that matter, for a small metallic firearm). Although we need
not and do not decide the point now, any such argument would
seem to face a steep uphill battle.

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We therefore conclude that it was error to suppress the

items seized on the ground that the warrant here was a general

warrant. We decide only that issue. Whether any part of the

warrant was invalid -- for lack of particularity, lack of

probable cause, or otherwise -- is a matter that the defendant

may pursue through another motion to suppress. Similarly, the

Commonwealth remains free to argue that, if any portion of the

warrant is ruled invalid, the items seized pursuant thereto

nevertheless need not be suppressed, because they were seized

while in plain view during an otherwise lawful search. We

express no views on those issues.

Order allowing motion to
suppress reversed.

By the Court (Milkey, Blake &
Sacks, JJ. 4),

Clerk

Entered: November 2, 2023.

4 The panelists are listed in order of seniority.

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