Supreme Judicial Court (September 15, 2011)

"[I]n the rare case where an officer must rely on communication by telephone and facsimile transmission to obtain an otherwise valid search warrant, the motion judge must make an express finding that the officer exhausted all reasonable efforts to find a judge before whom he could personally appear….[I]f the motion judge finds that the officer did not make every reasonable effort, the evidence seized must be suppressed."

The defendant was convicted of several drug crimes. The Supreme Judicial Court granted the defendant's application for direct appellate review to consider the first impression issue of whether the judge improperly denied a motion to suppress because the police officer who applied for the search warrant did not appear personally before the judge who issued the warrant. The defendant's appeal raised additional arguments that are irrelevant to the precedent established in this case.

At the motion to suppress hearing, the police officer who obtained the search warrant testified as follows. On a Saturday evening the defendant's mother called the Stow Police Department to report that her son sold drugs from her home, she smelt burnt marijuana, and she found large quantities of drugs in her son's bedroom. On Sunday morning the officer made three or four attempts to contact an "on-call" judge to obtain a search warrant. A Superior Court judge (who was out of state visiting family) went to a New Jersey police station and called the officer to discuss the warrant application.

The officer further testified that the judge reviewed the warrant application and affidavit by telephone call and documents exchanged via fax. The police officer testified that the warrant judge "signed the [application for the warrant] and swore me in over the phone." The officer also stated that he answered some questions regarding the sequence of events.

At the suppression hearing, the judge found that the warrant judge swore the officer in by telephone and, after reading all pages of the faxed affidavit, the warrant judge faxed back a signed search warrant. The judge denied the defendant's motion to suppress the drugs seized when the police executed the search warrant.

The defendant argued that the motion judge improperly denied the motion to suppress because 1) the warrant was obtained without the proper oath, and 2) the police officer did not personally appear before a magistrate.

The propriety and timing of the oath
The defendant argued that, even if the officer was given the proper oath, it was not administered until after the warrant issued, in violation of the Fourth Amendment, art. 14, and G.L. c. 276, §§ 1, 2B. The Court found that the defendant waived this argument. At the motion hearing, the defendant failed to raise any issues regarding the oath's propriety or timing (he only raised the issue of whether it was proper to be sworn over the telephone). Despite the waiver, the Court concluded that a proper oath was given before the warrant issued.

The personal appearance requirement
The motion judge found that the warrant was valid. The judge noted that the authorization was "unusual," but found that the telephone communication and fax transmissions were sufficient. The motion judge stated that "While it is confusing and certainly irregular, under the circumstances I find that the Commonwealth's efforts to obtain a valid search warrant were both reasonable, consistent with the law, and ultimately satisfactory to meet the constitutional minimum of demonstrating probable cause to a neutral magistrate who had an adequate time to review and make [an] independent determination. I find those requirements were met."

General Laws c. 276, § 2B requires that a person seeking a warrant must appear personally before the court. Article 14 requires that a warrant must be issued according to "the formalities prescribed by the laws." The Court concluded that, to satisfy the personal appearance requirements by relying "on communication by telephone and facsimile transmissions to obtain an otherwise valid search warrant, the motion judge must make an express finding that the officer exhausted all reasonable efforts to find a judge before whom he could personally appear." In this case, the Court found that the police officer seeking the warrant did not exhaust all possibilities to bring the application before a judge, and that his efforts were not explained in sufficient detail.

The Court reversed all of the defendant's convictions on other grounds. The Court found that, before any retrial, the trial judge must receive further findings from the motion judge regarding whether the officer exhausted all reasonable efforts to appear personally before a judge.