Commonwealth v. Joseph Nelson (September 15th, 2011)
Docket SJC-10811
Massachusetts Supreme Judicial Court
Facts: Police raided defendant’s home and found a backpack of marijuana in plastic baggies, drug paraphernalia, and prescription drugs. Police determined that this was possession with intent to distribute. Defendant argued that he was a “pothead” and the marijuana and prescription pills belonged to the other people that lived there, and that the police never saw the defendant sell drugs. The defendant was convicted of possession of a class C and E substance, possession with intent to distribute of a class D substance, and a drug violation near a school or park.
Issue #1: Should the motion to suppress have been allowed because the warrant was obtained without a proper oath and the sergeant in charge did not personally appear before a neutral magistrate?
No. When trying to get a search warrant after receiving information from the defendant’s mother about the drugs, the sergeant was only able to reach one on-call judge, who was visiting family in New Jersey. He was able to get the warrant through phone conversations with the judge and through facsimile transmissions. A proper oath was given over the telephone and the sargeant signed the affidavit under the pains and penalties of purgery confirming that everything on the affidavit was true, and the judge crossed out the line that says he personally appeared before him. Even though there is a requirement that the officer appear in person before the judge, the court finds that the combination of fax and telephone conversations fulfilled the constitutional requirements for a proper search warrant.
There is an exclusionary rule that is meant to remedy illegal searches. In order to apply the exclusionary rule to the evidence seized during the search, the court must determine if the defendant suffered prejudice either because of his right to be free from unreasonable searches and seizures or because the defendant could not challenge the warrant and thus the violation was substantial. The sergeant searched the bedroom as specified by the warrant, and since there’s a writing, the defendant could challenge the scope of the search, therefore there is no prejudice.
Issue #2: Did the police officer exhaust all reasonable efforts to find a judge before whom he could appear personally?
No. There was a judge in Roxbury that the officer could have gone to see before getting in touch with the judge away in New Jersey. In court, the officer was not asked about the specific efforts he made to reach this judge or others. The case has to be remanded and the judge must have further findings to determine whether the officer exhausted all reasonable efforts to find a judge before whom he could appear.
Issue #3: Commonwealth admits that the admission of the chemical analysts’ testimony that identified the drugs, instead of the drugs themselves, violated the defendant’s right to confrontation; but, did this have any effect on the outcome of the trial?
Yes. To answer this question we must consider whether the Commonwealth’s circumstantial evidence is so overwhelming that it nullifies any effect that the admission of the certificate might have had on the verdict. The Commonwealth concedes that the admission of the certificate identifying clonazepam was not harmless beyond a reasonable doubt, so the conviction on that charge is vacated. As for trazadene, the court finds that the certificate is not enough, the pills and the prescription bottle should have been introduced into evidence, therefore the charge is vacated. As for the marijuana, since the two officers that testified were asked to identify the marijuana based on their training and experience, the admission of the drug certificate identifying the marijuana was not harmless beyond a reasonable doubt. Standard of harmlessness is “stringent;” the court reverses all the defendant’s convictions.
Conclusion: The court reverses the convictions, sets aside the verdicts, and remands the case to the District Court.
Prepared by KP
