Commonwealth v. Sheppard , 387 Mass. 488 ( 1982 )

Wilkins, J.

In this appeal from a conviction of murder in the first degree, we are faced with the serious and challenging question whether the exclusionary rule, adopted by the Supreme Court of the United States to protect Fourth Amendment rights, requires the suppression of incriminating evidence obtained in the course of a police search conducted in good faith, but pursuant to a warrant which, although issued on probable cause, violated the constitutional and statutory requirement that search warrants describe the things to be seized. See Fourth Amendment to the Constitution of the United States;¹ art. 14 of the Declaration of Rights of the Constitution of the Commonwealth;² and G. L. c. 276, § 2.³ We conclude that, solely on the basis of the opinions of the Supreme Court of the United States, the exclusionary rule requires the suppression of the evidence seized pursuant to this defective warrant. We reject the defendant’s other, considerably less substantial challenges to his conviction.

The badly burned body of Sandra D. Boulware, a twenty-nine year old black woman, was found in a vacant lot in the Roxbury section of Boston at approximately 5 a.m. on Saturday, May 5, 1979. Pieces of wire were found on the body and in the vicinity of the body. An autopsy, conducted about 8a.m. that day, disclosed that the victim had died of multiple compound comminuted skull fractures, caused by at least four blows inflicted within a day of the autopsy. There was medical testimony that the victim was alive, but unconscious, at the time her body was set on fire, but that she succumbed to the blows inflicted on her and not as a result of the burning of her body.

The victim’s sister had reported her missing on May 4, and said that she had last seen her on May 1. She identified the body at the morgue. The police learned that the victim had two boyfriends, “Rudy” and “Jimmy.” The defendant was known as “Jimmy.” The police interviewed “Rudy” on Saturday afternoon, May 5. They also undertook to locate the defendant. Two police officers who knew the defendant went looking for him. They eventually went to a house in Dorchester known as a “gaming house,” because card games were regularly played there. After they rang the doorbell, the defendant answered the door. The police told him that “the Sergeant” wanted to talk to him at the police station. The defendant said, “Let me get my coat.” He went upstairs, accompanied by one of the police officers, and obtained his coat. The defendant, who was not handcuffed, rode to the police station in the back seat of an unmarked police cruiser; the two policemen were in the front seat. The defendant had had experience with police investigations; he had been arrested previously; and he knew he was not in custody. One of the policemen gave the defendant Miranda warnings. In answer to questions in the cruiser, the defendant said he had last seen the victim on Tuesday (May 1). He had gone to her house, stayed there for about an hour, and left with her in a taxicab. They stopped to purchase some marihuana and a bottle of amaretto. The victim left him, he said, at 1 p.m. and he had not seen her since. One of the policemen told the defendant that Sandra Boulware was “no longer with us.”

At the District 2 police station, Sergeant Bornstein interviewed the defendant in the presence of several other officers. The interview, which lasted about an hour, was recorded on tape.⁴ The defendant substantially repeated what he had said in the police cruiser on the way to the police station and added that on Tuesday, after purchasing the marihuana and the amaretto, he and the victim had gone to the defendant’s home at 42 Deckard Street in Rox-bury where the victim stayed until she left at 2 p.m. to take a cab. The defendant gave an explanation of his whereabouts from Tuesday (when he claimed he last saw the victim) until Saturday (the day of the interview). He said that he had been at the “gaming house” in Dorchester, where the police found him, from 9 p.m. on Friday (May 4) until he left at 5 a.m. on Saturday (May 5) to take a bus home to Deckard Street. The defendant identified various people who were at the “gaming house” that night. At the end of the interview, Sergeant Bornstein thanked the defendant, and the defendant left the station.⁵

The police continued their investigation. They interviewed the men who the defendant had said were at the “gaming house” on Friday night. They learned that at about 3 a.m. on Saturday, the defendant had borrowed the car of one Barros to drive two men home. He dropped them off in a trip that took no more than fifteen minutes. The defendant returned the car to the “gaming house” at about 4:45 a.m. He lay down for only a few minutes, suddenly jumped up, said he had something to do, and left.

The police also learned that at approximately 6 a.m. on Saturday, an occupant of the “gaming house,” one “Pee Wee,” had left for work. He noticed a pair of black calfskin gloves and a gas can in a corner of the porch, and brought them into the house. The police took possession of these items on Sunday morning.⁶

In the course of their investigation on Sunday morning, the police learned from a friend of the defendant that the basement of the defendant’s home at 42 Deckard Street had been refinished and that the defendant had said that he entertained women there. On Sunday morning they also spoke with Barros, the owner of the car the defendant was said to have borrowed early on Saturday morning. Barros corroborated the fact that the defendant had borrowed his car, a 1975 black Thunderbird. Only the defendant had used the car in the interim. The police then inspected the Thunderbird with Barros’s consent. They found bloodstains and pieces of hair on its rear bumper and near the lid of the trunk. Barros told the police that there had been no blood in the trunk or along the bumper on Friday night when he had driven the car home. Various samples were taken. Inside the trunk, the police found three types of wire.

Later Sunday morning, the district attorney for the Suffolk district, Sergeant Bornstein, and Detective Peter J. O’Malley met at the District 2 police station to discuss the case. They concluded that they should seek a warrant for the arrest of the defendant and a warrant to search 42 Deck-ard Street, Roxbury. Detective O’Malley prepared and typed an affidavit in support of an application for a search warrant. The district attorney, his first assistant, and Sergeant Bornstein looked at it and concluded that it set forth probable cause for the arrest and for the search.⁷

It is at this point that problems began that led to the issuance of a defective warrant. It was then Sunday afternoon. No clerk or assistant clerk of the Roxbury Division of the District Court Department could be found, nor could a suitable form of search warrant be found at the District 2 police station or at two or three other stations. Detective O’Mal-ley found a warrant form of the Municipal Court of the Dorchester District, once used for searches for controlled substances. He attempted to adapt the printed form. He crossed out the words “controlled substance” on the cover side of the form. On the face side, he replaced the word “Dorchester” with the word “Roxbury.” He inserted a reference to “2nd & Basement” of 42 Deckard Street as the place to search. However, the reference to “controlled substance” was not deleted in those portions of the form that constituted the application for a search warrant and would constitute the warrant itself.

Arrangements were made to present the affidavit and applications for a search warrant and an arrest warrant to a judge at his home. Detective O’Malley, Sergeant Bornstein, two homicide detectives, and the first assistant district attorney went to the judge’s home, arriving at approximately 2:45 p.m. The judge took Detective O’Malley’s oath and signed the affidavit to that effect. The judge searched his library without success for an appropriate form of search warrant. He then took the “controlled substance” form from Detective O’Malley, made some changes on it, and dated and signed the warrant. The judge made no change in the substantive portion of the printed warrant form which, therefore, contained authority “to search for any controlled substance, article, implement or other paraphernalia used in, for, or in connection with the unlawful possession or use of any controlled substance.” The warrant made no reference to the items listed in Detective O’Mal-ley’s affidavit in support of the application. It neither listed them, nor incorporated them by reference; nor was the affidavit attached to the warrant.⁸ The judge gave the search warrant, the affidavit, and the arrest warrant to the police. The defendant raises no challenge to the arrest warrant. Detective O’Malley left the judge’s home with the affidavit and had it with him during the search. He thought the search warrant was legal and proper when he left the judge’s home. The arrest warrant was executed at the “gaming house,” while Detective O’Malley and a team of police personnel went to 42 Deckard Street to search its second floor and basement.

At about 5 p.m. Detective O’Malley and others were admitted to 42 Deckard Street. Detective O’Malley spoke with the defendant’s mother and sister, showed them the warrant, and said the police were going to look in the defendant’s room and in the cellar for things that were implicated in a homicide. It does not appear that either of the two women read the warrant or asked to have it read.

We summarize the evidence seized at 42 Deckard Street which was introduced at the trial. From the defendant’s second floor bedroom, the police took apparently bloodstained black boots. In the cellar, part of which was furnished as a playroom,- Detective O’Malley found what appeared to be blood stains on the concrete floor and chipped off and took pieces of that concrete. He found two unmatched women’s earrings, one apparently with bloodstains, under a piece of plywood which in turn was under a mat in the unfinished portion of the cellar. In the unfinished portion of the cellar, he found an apparently bloodstained envelope, a pair of apparently bloody men’s jockey shorts and women’s leotards, later determined to be bloodstained. He also found there three types of wire and a woman’s hairpiece.

We interrupt the chronology of events to describe evidence introduced at the trial bearing on the significance of these items seized at 42 Deckard Street. A police chemist testified that wire found at the murder scene was similar to wire found in the Thunderbird and in the basement of 42 Deckard Street. He also found a close resemblance between wire of a different type found in the cellar and also in the Thunderbird. A neighborhood friend of the victim identified the bloody earring recovered from the basement as looking like one the victim was wearing about one week before her disappearance. She also identified the leotards as of a type she and the victim had purchased together and the hairpiece as one the victim was wearing the last time she saw the victim alive on Monday, the day before she disappeared. Another witness identified the earring as belonging to the victim.

A special agent of the FBI, assigned to the serology unit of the FBI laboratory in Washington, D.C., testified that blood from the bumper of the Thunderbird was human blood, type O, and contained enzyme groups PGM 2-2 and EAP B-A; that the right black boot found in the defendant’s bedroom had human blood on it, type O, with enzymes PGM 2-2 and EAP B-A; that blood found underneath the victim’s head at the murder scene was human blood containing enzymes PGM 2-2 and EAP B-A (but he could not determine the blood grouping); that blood taken from the victim’s body by the medical examiner contained enzymes PGM 2-2 and EAP B-A. There was other evidence introduced showing that the victim had blood type O. The concrete chips and the envelope taken from the cellar were found to be stained with type O blood. The FBI expert witness testified further that about 1 % of the population would have blood type O and the enzymes PGM 2-2 and EAP B-A.

It can readily be seen that evidence seized in the search of 42 Deckard Street tended to show that the defendant seriously injured the victim in his cellar, hid her earrings under a piece of plywood under a mat, and tied her up with wire available in the cellar of his home. This evidence, much of it obtained as a result of careful and commendable police investigatory techniques, was highly probative of the defendant’s guilt. Although the Commonwealth could have presented a case against the defendant without this evidence, this evidence was most important in rounding out a case based only on circumstantial evidence.

An indictment was returned against the defendant on May 14, 1979, charging him with murder, including murder in the first degree, of Sandra D. Boulware. The defendant moved to suppress the statements he made to the police on May 5 and the items seized on May 6 at 42 Deckard Street. He claimed, among other things, that his interrogation on May 5 was a custodial interrogation in violation of his Fourth Amendment rights. In turn, he argued that the search warrant was based on his statements to the police and that the items seized pursuant to the search warrant had to be suppressed as the product of his unconstitutional interrogation. Further, he argued that the items seized at 42 Deckard Street should be suppressed because they were seized pursuant to a defective, unconstitutional search warrant.

A judge of the Superior Court held a three-day hearing on the motion to suppress in September, 1980. He made extensive findings of fact and rulings of law. He dealt with certain issues that are not argued on appeal. He concluded that the defendant freely and voluntarily made statements on May 5 at the District 2 police station after a knowing waiver of his Miranda rights. He concluded that the investigation had not then focused on the defendant. He did not explicitly discuss the defendant’s argument that his statements should be suppressed because of his “illegal arrest” or “seizure,” but it is apparent from his findings that he regarded the defendant’s trip to the police station and his statements made there as voluntary. He, therefore, denied the motion to suppress as it applied to the defendant’s statements to the police on May 5.

On the matter of the search warrant, he concluded that the warrant was issued on probable cause. He concluded, however, that the warrant was defective because it failed to list the items to be seized or to incorporate a list of those items by reference. He then considered whether the exclusionary rule as applied to Fourth Amendment violations required suppression of the evidence seized pursuant to the defective warrant. He had found that the police had a legitimate need to proceed with dispatch in obtaining the search warrant. The defendant was at liberty and could reasonably be expected to learn from those questioned at the “gaming house” that the police were investigating him. He found further that the judge told Detective O’Malley that he would make the necessary changes in the warrant form so as to provide a suitable form of search warrant and that the warrant as delivered was sufficient authority in form and content to carry out the search as requested. He found also that the search of 42 Deckard Street was carried out within the limits that Detective O’Malley understood the warrant to permit and that Detective O’Malley had the affidavit and search warrant with him at 42 Deckard Street. He concluded that “the actual search undertaken was within the limits of the authority the police thought reasonably had been granted.” He denied the defendant’s request to suppress the evidence seized at 42 Deckard Street.

The judge concluded that the good faith exception to the exclusionary rule advanced by certain judges in United States v. Williams, 622 F.2d 830, 840-847 (5th Cir. 1980) (en banc) (alternative holding), cert. denied, 449 U.S. 1127 (1981), was well reasoned and persuasive. He gave greater weight to the opinion of this court in Commonwealth v. Rugaber, 369 Mass. 765, 769 (1976), in which we upheld admission of evidence seized pursuant to an assumedly defective search warrant. He regarded the Rugaber case as “a situation where law enforcement officials acted mistakenly but upon probable cause and in good faith and which presented a factual situation in which exclusion would have no deterrent effect.”⁹ He concluded that the police who executed the warrant at Sheppard’s dwelling would act similarly in similar situations in the future, and that “the only consequence of applying the exclusionary rule would be to keep from the jury probative evidence and thereby impair the truth finding function.” The judge did not cite any case in which the exclusionary rule had been considered in a situation in which error was committed, not by the police or law enforcement officials, but by a judge or issuing magistrate. Neither the Williams case nor the Rugaber case, relied on by the judge, were opinions of the Supreme Court, which, of course, has the final word on this question.

1. The judge properly denied that portion of the defendant’s motion to suppress evidence that was directed toward his statements made to the police on Saturday, May 5. The judge found, on ample evidence, that the defendant voluntarily accompanied the police to the station. At the time of the interview, the police investigation had not yet focused on the defendant, and the officers only requested, but did not order, that he accompany them to the station for questioning. He was not handcuffed; he rode alone in the back of the unmarked police cruiser; he knew he was not in custody. When the interview ended, the sergeant thanked him for his cooperation, and he left.

This issue is substantially disposed of by what we said recently in Commonwealth v. Bookman, 386 Mass. 657, 659-661 (1982). This is not a case like Dunaway v. New York, 442 U.S. 200 (1979), on which the defendant relies, where there was a custodial interrogation, not supported by probable cause, of a defendant who was involuntarily detained. The circumstances here are like those in United States v. Mendenhall, 446 U.S. 544, 557-558 (1980), in which the Court held that the defendant’s Fourth Amendment rights were not violated when she voluntarily accompanied law enforcement agents to their office for questioning. As in the Mendenhall case, the prosecution here met its burden of proving that the interview was not the product of express or implied coercion, but resulted from the defendant’s voluntary consent. See, as to the absence of Fourth Amendment violations where persons consent to accompany police officers to station houses for interrogation, United States v. Huberts, 637 F.2d 630, 635-637 (9th Cir. 1980), cert. denied, 451 U.S. 975 (1981); United States v. Williams, 604 F.2d 1102, 1125-1126 (8th Cir. 1979). See also Commonwealth v. Walden, 380 Mass. 724, 730-731 (1980) (interrogation of a defendant who went voluntarily to the police station).

2. We come then to the question of the admissibility of the evidence seized at 42 Deckard Street purportedly pursuant to the search warrant. We start with our expression of agreement with the judge’s conclusion that the warrant was defective. It failed to describe the items sought to be seized.¹⁰ There is authority upholding a warrant, which does not on its face list any items to be seized, but which incorporates by reference an accompanying or attached description of the items to be seized.* ¹¹ The warrant in this case, however, described items (drugs and drug paraphernalia) different from those listed in the affidavit (which related to the murder of Sandra Boulware, but did include marihuana). Moreover, the warrant was not attached to Detective O’Malley’s affidavit which listed the items which the judge had found there was probable cause to seize. Most importantly, the warrant did not contain any words which referred to the affidavit. It is true that Detective O’Malley had with him, when he conducted the search, the application for a warrant which listed the items to be seized. We noted in Commonwealth v. Taylor, 383 Mass. 272, 277 n.5 (1981), that we were not called on there to decide “whether we would allow a separate document to supply the specificity if, though physically attached to the warrant, it was not referred to therein.”¹² Here, however, not only is there a lack of reference, but also the warrant listed a different set of items to be seized, and no further description was attached to the warrant. We are not aware of any court that has gone so far as to uphold a general warrant to search particular premises where the searching officer had with him a description of the items to be seized but the warrant made no reference to that description and that description was not attached to the warrant. We thus proceed on the premise that the search warrant in this case violated the requirements of the Fourth Amendment to the United States Constitution, art. 14 of the Declaration of Rights, and G. L. c. 276, § 2. The question remains whether the defect in the warrant requires the suppression of evidence obtained in the search.

The exclusionary rule is “a judicially created means of effectuating the rights secured by the Fourth Amendment.” Stone v. Powell, 428 U.S. 465, 482 (1976). It is “designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than [as] a personal constitutional right of the party aggrieved.” United States v. Calandra, 414 U.S. 338, 348 (1974). See United States v. Peltier, 422 U.S. 531, 538-539 (1975). Moreover, because, under some circumstances, evidence obtained as the result of an unreasonable search or seizure in violation of Fourth Amendment rights is admissible, the exclusionary rule is not coextensive with the prohibitions of the Fourth Amendment.¹³

Furthermore, because evidence obtained in violation of the Fourth Amendment is admissible in particular circumstances, the notion that such evidence must in all instances be excluded in order to preserve judicial integrity fails as a substantial, independent support for the rule. Stone v. Powell, 428 U.S. 465, 485 (1976). Id. at 499 (Burger, C.J., concurring). See United States v. Janis, 428 U.S. 433, 458-459 n.35 (1976).¹⁴

The substantial, and perhaps only, justification for the exclusionary rule relied on by a majority of the Justices of the Supreme Court is the goal of deterring unconstitutional conduct by the police and other law enforcement personnel. See Stone v. Powell, 428 U.S. 465, 486 (1976); United States v. Peltier, 422 U.S. 531, 542 (1975); United States v. Calan-dra, 414 U.S. 338, 347 (1974). As we have demonstrated in this opinion, the police conduct in this case was proper. They had probable cause to search the premises, and they prepared an adequate affidavit setting forth that probable cause and submitted it to a judge.¹⁵ The police then received a search warrant that they reasonably believed, on advice from the judge, was adequate to justify a search of the designated premises for the items listed in the application for the warrant.

The police next conducted a search of Sheppard’s dwelling in a manner consistent with their good faith belief that a proper warrant had been issued. They did not exceed the scope of the search that would have been authorized by a warrant in the form that they sought and believed they had. The items that were the subject of the intended search were disclosed on the application for the warrant, which was present at the scene of the search. In short, the police conducted the search in a good faith belief, reasonably held, that the search was lawful and authorized by the warrant issued by the judge. The defect in the warrant was not harmful to the defendant in the circumstances of the actual search. The search was conducted in the same way and with the same results as it would have been conducted if the warrant had not been defective.¹⁶

The question is whether an error of a magistrate, unrelated to police error, calls for the application of the exclusionary rule. It could be argued that the exclusionary rule should apply with particular force to evidence seized pursuant to a search warrant failing to meet Fourth Amendment standards, issued by a judge who should have known, and should have been most sensitive to, the defendant’s constitutional rights. If a “criminal is to go free because the constable has blundered” (People v. Defore, 242 N.Y. 13, 21 [1926] [Cardozo, J.]), perhaps the criminal should go free as well because the magistrate blundered, even though “the suppression of probative but tainted evidence exacts a costly toll upon the ability of courts to ascertain the truth in a criminal case.” United States v. Payner, 447 U.S. 727, 734 (1980). The issue is whether the exclusionary rule should be applied to deny to a jury evidence highly probative of the defendant’s guilt of murder because a judge, negligently but in good faith, failed to strike out certain words in the warrant and failed to refer to, or to attach to it, a list of the items to be seized. We are not dealing here with judicial error rising above the level of negligence.¹⁷

We have found little discussion of the goal of deterrence underlying the exclusionary rule as applied to an error of a judge, except as related to his misconception of the propriety of police conduct.¹⁸ On occasion, the exclusionary rule has been characterized as directed not only toward deterring police misconduct but also “official misconduct” or “the Government’s unlawful conduct.” See United States v. Calandra, 414 U.S. 338, 348 (1974).¹⁹

There may be reasonable distinctions between police misconduct and an error of a magistrate such as is involved in this case. Police officers have the objectives of apprehending criminal wrongdoers and of obtaining evidence to convict them. As the Supreme Court has said, they are engaged in the “often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 14 (1948). The exclusionary rule is applied to evidence seized in an unlawful manner by law enforcement officials because it is assumed that such exclusion will “deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures . . . ‘[by] compelling] respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.’” United States v. Calan-dra, supra at 347, quoting from Elkins v. United States, 364 U.S. 206, 217 (1960). See Stone v. Powell, 428 U.S. 465, 492 (1976); Michigan v. Tucker, 417 U.S. 433, 447 (1974).

Unlike police officers, magistrates who issue search warrants are required by law to be neutral and detached. According to the Supreme Court, only if the issuing magistrate is detached from the often competitive business of ferreting out crime can a search warrant satisfy the Fourth Amendment. Johnson v. United States, supra. Here, Sheppard does not claim that the issuing judge joined the police officers in an attempt to investigate Sandra Boulware’s homicide, or that the judge was anything but impartial to, and disentangled from, the investigation. Contrast Lo-Ji Sales v. New York, 442 U.S. 319, 326-328 (1979) (town justice acting as a member of a search party under a general warrant).

An issuing magistrate, in contrast to a law enforcement official, should not be involved in searching for evidence, apprehending suspects, and convicting criminals. His job is not a partisan one of ferreting out evidence and seeing it used to prosecute criminals. Instead, he should care foremost about whether he correctly applies the laws of the State and nation, including the Fourth Amendment and art. 14 of the Declaration of Rights. Ideally, he should be indifferent as to whether a particular piece of evidence is admitted at trial or a particular defendant is convicted. The police, in contrast, properly should be partisan, investigatory, and oriented toward discovering and convicting perpetrators of crime.

The exclusionary rule may not be well tailored to deterring judicial misconduct. If applied to judicial misconduct, the rule would be just as costly as it is when it is applied to police misconduct, but it may be ill-fitted to the job-created motivations of judges. As we have said, ideally a judge is impartial as to whether a particular piece of evidence is admitted or a particular defendant convicted. Hence, in the abstract, suppression of a particular piece of evidence may not be as effective a disincentive to a neutral judge as it would be to the police. It may be that a ruling by an appellate court that a search warrant was unconstitutional would be sufficient to deter similar conduct in the future by magistrates. We question, therefore, whether suppression of evidence is necessary as a deterrent in cases where the police conduct was entirely proper, the defendant was not prejudiced by the magistrate’s error, and an appellate court clearly identifies the magistrate’s error of law as a guide to future conduct.

We recognize that our task is to seek to apply the interpretations of the Constitution of the United States expressed by the Supreme Court of the United States. The usual result in a case where a warrant fails to describe the items to be seized is the suppression of the evidence seized pursuant to that warrant. See Coolidge v. New Hampshire, 403 U.S. 443, 471 (1971). Although there are statements of individual Justices of the Supreme Court critical of the application of the exclusionary rule in particular circumstances,²⁰ we conclude, on the basis of opinions of the Supreme Court to date, that the exclusionary rule requires the suppression of the evidence seized at 42 Deckard Street.²¹ Because the exclusionary rule as applied by the Supreme Court in implementing the purposes of the Fourth Amendment requires the suppression of this evidence, we need not consider whether the evidence should be suppressed pursuant to the laws of this Commonwealth. To this date this court has not adopted an exclusionary rule under the law of the Commonwealth to remedy a violation of a criminal defendant’s art. 14 rights.²²

3. Because they may arise at a retrial of the defendant, we comment on two other issues raised by the defendant. There is no basis for reversal of the conviction on the ground that the judge abused his discretion in denying the defendant’s motion that, if he were to testify, the Commonwealth should be barred from using certain prior convictions, pursuant to G. L. c. 233, § 21, for the purpose of impeachment. See Commonwealth v. Diaz, 383 Mass. 73, 78-80 (1981). Nor was there error in denying the defendant’s request that he be allowed to make a sworn or an unsworn statement to the jury at the close of the evidence. The matter was within the judge’s discretion. Commonwealth v. Rodriquez, 364 Mass. 87, 95-96 (1973). The defendant has made no showing of an abuse of discretion.

Judgment reversed.

Verdict set aside.

1 The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

2 Article 14 provides, in part, that “[ejvery subject has a right to be secure from all unreasonable searches, and seizures, of . . . all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant... to make search in suspected places . . . or to seize . . . property, be not accompanied with a special designation of the . . . objects of search ... or seizure.”

3 General Laws c. 276, § 2, as appearing in St. 1964, c. 557, § 2, provides in part that “[sjearch warrants . . . shall particularly describe the property or articles to be searched for.” They must be substantially in the form prescribed in G. L. c. 276, § 2A.

4 The tape was introduced as an exhibit and was heard by the judge during the hearing on the defendant’s motion to suppress. At the trial, the tape was introduced as an exhibit and heard by the jury.

5 The defendant’s motion to suppress evidence included a challenge to the admissibility of his statements to the police in the cruiser and at the District 2 police station.

6 At the trial, “Pee Wee” testified that on Saturday (May 5) in the afternoon, when he arrived back at the “gaming house,” the defendant was there and said, “[Ojh Pee Wee, I see that you brought my gloves and gas can in .... I appreciate it very much.” The police and the prosecution were not aware of this statement until the trial.

7 The circumstances set forth in the affidavit are as follows: “On Saturday 5/5/79 at 5:00 a.m. the body of Sandra D. Boulware was found beaten and burned to death opp. 28 Hazelwood St. Rox. in a vacant field. At the time she appeared to be only partially clothed. In the course of the investigation that followed, it was determined that one Osborne Sheppard of 42 Deckard St. Rox. was the last person to have been seen with Sandra. In an interview [he] gave to Sgt. Bornstein, O. Sheppard stated that he and Sandra went to 42 Deckard St. Rox. on 5/1/79, which is the last date she was seen. That prior to going there, they had stopped and bought 2 nickel bags of herb and a fifth of amaretto liquor. Officers in this investigation have established that O. Sheppard was in possession of a 1975 blk. Ford Thunderbird, Mass. Reg. VLB PNB for a period of time, ending just before the body of Sandra was found. And that this vehicle was found to have human blood on the rear bumper that wasn’t there prior to his [having] taken possession. Also in the trunk of this car were found various pieces of wire and rope that may have been used to bind parts of her body. Pieces of wire were found on the body. O. Sheppard has told McKinley Grimes, a friend, that in the past he has taken women friends to his cellar at 42 Deckard St. for social purposes and has worked on the cellar to make it comfortable.” (Corrected for punctuation and spelling errors.)

The affidavit described the premises to be searched as the second floor at 42 Deckard Street, Roxbury, and “that part of the cellar controlled by Osborne [Jimmy] Sheppard.” It described 42 Deckard Street as a “three story red brick apartment building with a basement.”

The affidavit listed the property for which the search was intended as follows: “A fifth bottle of amaretto liquor, 2 nickel bags of marijuana, a woman’s jacket that has been described as black-grey (charcoal), any possessions of Sandra D. Boulware, similar type wire and rope that match those on the body of Sandra D. Boulware, or in the above Thunderbird. A blunt instrument that might have been used on the victim, men’s or women’s clothing that may have blood, gasoline burns on them. Items that may have fingerprints of the victim.” (Corrected for punctuation and spelling errors.)

8 We note in passing, although the Commonwealth makes no point of it before us, that the warrant on its face authorized a search for marihuana, that the affidavit referred to marihuana, and that a search for marihuana at 42 Deckard Street was justified by probable cause.

9 In the Rugaber case, a search was conducted on probable cause pursuant to a search warrant that properly described the street address of the premises to be searched but contained a physical description of a house next door. Commonwealth v. Rugaber, 369 Mass. 765, 767 (1976). The warrant was executed at night; officers on the scene directed the executing officers to the proper house; the proper premises were in fact searched; and the officers were unaware of the misdescription when they executed the warrant. Id. We regarded the case as a close one. Id. at 768. We noted that “[¡Invocations of error and inadvertence cannot ordinarily save an invalid warrant.” Id.&tl&l. The police were not reckless but at most negligent in the description. Id. In these circumstances, we “agree[d] with the judge, who ruled that even if the warrant was defective, the exclusionary rule should not be applied, since it could have no deterrent effect.” Id. at 769. The case before us is not, of course, like the Rugaber case, one in which the search warrant was ambiguous.

10 The Fourth Amendment requires that a search warrant describe the “things to be seized.” See Marron v. United States, 275 U.S. 192, 196 (1927). Article 14 of the Massachusetts Declaration of Rights requires that the warrant be “accompanied with a special designation of the . . . objects” of seizure. The purpose of these limitations is to forbid general warrants (see Boyd v. United States, 116 U.S. 616, 624-626 [1886]), and in doing so to circumscribe the discretion of the executing officer and to inform the person or persons subject to the seizure what the officer is entitled to take. See Commonwealth v. Accaputo, 380 Mass. 435, 444-445 (1980); Matter of the Application of Lafayette Academy, Inc., 610 F.2d 1, 4 (1st Cir. 1979). See also G. L. c. 276, § 2, which requires that the warrant “particularly describe the property or articles to be searched for.”

11 Commonwealth v. Taylor, 383 Mass. 272, 276-277 (1981), and cases cited.

12 In the Taylor case, supra at 277 n.5, we noted Castle News Co. v. Cahill, 461 F. Supp. 174, 181 (E.D. Wis. 1978), which sustained a warrant that did not refer to an attached document which provided the requisite specificity. To the same general effect, see Moore v. United States, 461 F.2d 1236, 1238-1240 (D.C. Cir. 1972). Contra Brooks v. Taylor Tobacco Enters. 298 N.C. 759, 763-764 (1979).

13 Instances in which evidence obtained in violation of the Fourth Amendment is admissible in judicial proceedings include: (a) a case in which no objection is raised to the introduction of such evidence, (b) the use of such evidence in grand jury proceedings (United States v. Calandra, 414 U.S. 338, 350-352 [1974]), (c) introduction of such evidence for the impeachment of a defendant (Walder v. United States, 347 U.S. 62 [1954]), (d) circumstances in which the defendant has no standing to challenge the constitutional violation (Rakas v. Illinois, 439 U.S. 128 [1978]), and (e) the use of evidence seized by one sovereign in civil proceedings brought by another sovereign (United States v. Janis, 428 U.S. 433, 453-454 [1976]).

14 We acknowledge the views of Mr. Justice Brennan that the exclusionary rule enables “the judiciary to avoid the taint of partnership in official lawlessness” and assures the people “that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trust in government.” United States v. Calandra, supra at 357 (Brennan, J., dissenting). See also United States v. Peltier, 422 U.S. 531, 551-562 (1975) (Brennan, J., dissenting). There are those critics of the rule who would suggest, however, that exclusion of probative and reliable evidence itself seriously undermines popular trust in government. See references in Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665, 737-738 (1970), and in Sunderland, Liberals, Conservatives, and the Exclusionary Rule, 71 J. Crim. L. & Criminology 343, 359-360 (1980). See also Stone v. Powell, 428 U.S. 465, 491 (1976).

15 This is not, therefore, a case in which the police failed to demonstrate probable cause in the application for the warrant. In such a situation, a magistrate’s erroneous conclusion that probable cause was shown could not breathe validity into a warrant. Application of the exclusionary rule would be justified to deter future, inadequate presentations by officeraffiants. See Franks v. Delaware, 438 U.S. 154, 164-165 (1978); Aguilar v. Texas, 378 U.S, 108, 114-116 (1964).

16 We note that there is no issue in this case as to the reliability of the evidence sought to be excluded. Unlike evidence, such as a confession, obtained in violation of constitutional rights, the physical evidence seized from 42 Deckard Street has not been rendered untrustworthy by the fact that it was seized pursuant to a constitutionally defective warrant. See Stone v. Powell, 428 U.S. 465, 490 (1976).

17 We acknowledge that in this case the problem arose on a Sunday in circumstances in which no proper form of warrant was readily available to the judge and there was a need for prompt action. We do not, however, intend to minimize the judge’s error. The failure properly to describe in the warrant the items to be seized was a serious omission of constitutional significance.

18 In Richmond v. Kentucky, 29 Crim. L. Rep. (BNA) 2529 (Ky. Ct. App. July 31, 1981), aff'd on other grounds, 637 S.W.2d 642 (Ky. Sup. Ct. 1982), the court did not suppress evidence seized in good faith pursuant to a warrant issued on probable cause by a judge who, it was assumed, lacked authority to issue the warrant in the district in which it was issued. There was no showing that the judge acted in bad faith. See United States v. Acosta, 501 F.2d 1330, 1337 (5th Cir. 1974) (Gee, J., dissenting) (“Nor would I expand the [exclusionary] rule to ‘deter’ magistrates from failing to record matter upon which they rely, conceiving that they will obey the mandates of reviewing magistrates, such as we, when these are understood”), modified, 509 F.2d 539 (5th Cir.), cert. denied, 423 U.S. 891 (1975); State v. Lien, 265 N.W.2d 833, 840-841 n.1 (Minn. 1978), quoting State v. Nolting, 312 Minn. 449, 456-457 n.7 (1977) (exclusionary rule is directed at police, not magistrate, misconduct).

For a contrasting view, see United States v. Karathanos, 531 F.2d 26, 33-34 (2d Cir.) (“[T]he exclusionary rule [ ] [has the] effect of making . . . [magistrates] aware that their decision to issue a search warrant is a matter of importance ... in regard to the success of any subsequent criminal prosecution. [It] may well induce them to give search warrant applications the scrutiny which a proper regard for the Fourth Amendment requires .... [Also,] the present universal application of the exclusionary rule . . . gives law enforcement officers no . . . incentive to seek out the most lenient magistrates”), cert. denied, 428 U.S. 910 (1976). See also Powell v. Stone, 507 F.2d 93, 98 (9th Cir. 1974), rev’d on other grounds, 428 U.S. 465 (1976), in which the Ninth Circuit Court of Appeals applied the exclusionary rule to evidence seized in good faith pursuant to an unconstitutional substantive statute in order to “deter[ ] legislators from enacting such statutes.”

19 This court has not dealt with the application of the exclusionary rule to deter conduct of judges or magistrates. We have said that “[o]ne branch of the government should not be permitted to use the flagrant wrongdoing of another branch of government to punish a citizen.” Commonwealth v. Nine Hundred & Ninety-two Dollars, 383 Mass. 764, 771 (1981). In that case, however, we were dealing with alleged police misconduct. We concluded there that, under art. 14 of the Declaration of Rights, a negligent misrepresentation in an affidavit in support of a search warrant of a fact material or necessary to a finding of probable cause would not alone require the suppression of evidence seized pursuant to such a warrant. Id. We noted that where “a police affiant’s misstatement is the product of good faith but negligent conduct, the motivation to temper and regulate police behavior is less and the arguments against the government’s using the product of that good faith but negligent conduct against a defendant are weakened.” Id.

20 See Stone v. Powell, 428 U.S. 465, 501 (1976) (Burger, C.J., concurring) ; id. at 538-540 (White, J., dissenting); Bivins v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 411-427 (1971) (Burger, C.J., dissenting); Rakas v. Illinois, 439 U.S. 128, 156 n.5 (1978) (Powell, J., concurring); Brown v. Illinois, 422 U.S. 590, 611-612 (1975) (Powell, J., concurring); Michigan v. Tucker, 417 U.S. 433, 447 (1974).

These expressions of opinion suggest that, in certain instances at least, a good faith exception to the exclusionary rule might be adopted. Such an exception was recognized as appropriate by a majority of the judges of the Fifth Circuit Court of Appeals in United States v. Williams, 622 F.2d 830, 840-847 (5th Cir. 1980) (en banc) (alternative holding), cert, denied, 449 U.S. 1127 (1981). In a recent opinion, the Court noted, however, that “the State contends that the police conduct here argues for adopting a ‘good faith’ exception to the exclusionary rule. To date, we have not recognized such an exception, and we decline to do so here.” Taylor v. Alabama, 451 U.S. 687, 693 (1982). That case involved the suppression of a confession made shortly after an illegal arrest unsupported by probable cause.

For a detailed discussion of the appropriateness of a good faith exception, see Ball, Good Faith and the Fourth Amendment: The “Reasonable” Exception to the Exclusionary Rule, 69 J. Crim. L. & Criminology 635 (1978).

It has also been suggested that the exclusionary rule not apply to serious crimes. See Kaplan, The Limits of the Exclusionary Rule, 26 Stan. L. Rev. 1027, 1046-1049 (1974). Professor Kaplan notes certain problems, however, with the adoption of an exception to the exclusionary rule even where the police error is inadvertent and reasonable. Id. at 1044-1045. See 1 W. LaFave, Search and Seizure § 1.2 (d), (e), and (f), at 34-39 (1978).

The Model Code of Pre-Arraignment Procedure § SS 290.2 (2) (1975), suggests that, apart from constitutional mandates, a motion to suppress evidence should be granted only where the asserted violation is substantial. In determining the substantiality of the violation, the Model Code directs courts to consider all the circumstances, including the extent of the deviation from lawful conduct, the extent to which the violation was wilful, the extent to which privacy was invaded, the extent to which exclusion will tend to prevent violations of the law, and the extent to which the violation prejudiced the defendant’s ability to defend himself. Id. at § SS 290.2 (4).

21 There is no basis for concluding that this evidence was only cumulative. It was of probative force tending, independently of other evidence, to prove the defendant’s guilt. Therefore, its admission cannot be upheld on the ground that such admission was harmless beyond a reasonable doubt.

22 Before Mapp v. Ohio, 367 U.S. 643 (1961), applied the exclusionary rule to the States through the Fourteenth Amendment, illegally seized material could be admitted in evidence in the courts of this Commonwealth. See Commonwealth v. Spofford, 343 Mass. 703, 706 (1962); Commonwealth v. Wilkins, 243 Mass. 356, 359 (1923) (art. 14 of the Declaration of Rights does not bar admission of unlawfully seized evidence).

We have noted the possibility of affording more substantive protection to criminal defendants under art. 14 of the Declaration of Rights than under the Fourth Amendment as applied through the Fourteenth Amendment. See Commonwealth v. Podgurski, 386 Mass. 385, 391 n.11 (1982); District Attorney for the Plymouth Dist. v. New England Tel. & Tel. Co., 379 Mass. 586, 589 (1980); id. at 597 n.1 (Liacos, J., dissenting); Commonwealth v. Ortiz, 376 Mass. 349, 358 (1978). We have concluded that, where the police intentionally deprived a defendant of his statutory right to use a telephone (G. L. c. 276, § 33A), “evidence of an in-custody inculpatory statement or corporeal identification, even if accidental, should not be admitted unless the Commonwealth can show beyond a reasonable doubt that the evidence is untainted by the deprivation of the defendant’s right." Commonwealth v. Jones, 362 Mass. 497, 503 (1972). See Commonwealth v. Monosson, 351 Mass. 327, 329-330 (1966). In Selectmen of Framingham v. Municipal Court of the City of Boston, 373 Mass. 783, 786-788 (1977), we ruled that, “as matter of Massachusetts law, even though it may not be required by the Federal Constitution,” evidence seized from a police officer’s home in violation of the Fourth Amendment and art. 14 was not admissible in an administrative hearing to remove the officer.