COMMONWEALTH vs. EDWARD W. SPOFFORD.

WILKINS, C.J. The defendant was found guilty in the District Court of Hampshire upon a complaint charging that in Northampton on September 2, 1960, he "unlawfully did have in his possession certain obscene, indecent and impure prints, pictures, figures, images and other things for the purpose of exhibition." G. L. c. 272, Section 28A (as amended through St. 1959, c. 492, Section 2). From this finding he appealed to the Superior Court, where on October 13, 1960, he was found guilty by a judge sitting without jury. On November 1, 1960, within the appeal period of twenty days, the defendant filed, and the judge allowed, his motion that the trial be made subject to the provisions of G. L. c. 278, Sections 33A-33G, inclusive, as amended. See Commonwealth v. Silvia, ante, 130, 132-133. Cf. Commonwealth v. Dorius, ante, 533, 535-536. On the same day he filed his claim of appeal.

What we have to decide is the admissibility in evidence of allegedly pornographic material, some of which the Commonwealth admits, and all of which the defendant contends, was obtained as a result of unreasonable search and seizure. Stated otherwise, we are asked to decide the effect of Mapp v. Ohio, 367 U.S. 643, upon the nonexclusionary rule (Cf.

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Weeks v. United States, 232 U.S. 383) as exemplified in Commonwealth v. Dana, 2 Met. 329, 337-338, and Commonwealth v. Wilkins, 243 Mass. 356. The following is summarized from the testimony in the Superior Court, where only government witnesses testified.

The defendant resided in an apartment building at 82 Green Street, Northampton. On September 2, 1960, two city police officers were instructed by a sergeant of the State police to go to the defendant's building and to ask him to come to the police station for a talk. An unknown woman occupant admitted them to the building. Finding the defendant's door open, they entered the apartment without a search warrant, took some envelopes from a closet shelf, and were examining the contents when the defendant arrived. He acknowledged ownership, and at the officers'invitation accompanied them to the police station.

There the defendant was interrogated about the seized material, which consisted, for the most part, of photographs of nude, or nearly nude, men. He was not under arrest. During the interrogation the material was on a desk in front of him, and much of it was shown to him, item by item. He admitted having shown the material "4 times or so," without specifying any particular items. In response to questioning, the defendant said that he had more, and with another officer and a postal inspector returned to the apartment where he delivered to them additional similar items. In the view we take of the case, the precise language of the conversation which led to the return to the apartment is not important.

The Commonwealth rightly concedes that the first lot of material seized without a search warrant and not incident to a valid arrest (United States v. Rabinowitz, 339 U.S. 56) was illegal. There was no compliance with G. L. c. 276, Section 1 (as amended through St. 1947, c. 93), our statute relating to issuing search warrants. See especially cl. Eighth. There was a violation of art. 14 of the Declaration of Rights (see Fisher v. McGirr, 1 Gray 1, 28-31) as well as of the Fourth Amendment to the Constitution of the United

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States. Wolf v. Colorado, 338 U.S. 25, 27-28 (not overruled on this point). Elkins v. United States, 364 U.S. 206, 213.

Under Commonwealth v. Wilkins, 243 Mass. 356, decided in 1923, and earlier cases cited at p. 359, the illegally seized material could be admitted in evidence. The exact question is whether the present case, which was tried in the Superior Court on October 13, 1960, and in which there was a claim of appeal on November 1, 1960, is subject to Mapp v. Ohio, 367 U.S. 643, decided on June 19, 1961. In that case five justices (with a qualification in its reasoning by one of them) [Note page706-1] held that all evidence obtained by searches and seizures in violation of the Federal Constitution is inadmissible in a State court, and on this point (pp. 654-655) overruled Wolf v. Colorado, 338 U.S. 25, which had been decided as recently as 1949. The ground of the Mapp majority opinion is that the exclusionary rule of Weeks v. United States, 232 U.S. 383, is "an essential part" of the Fourth Amendment and as such is enforceable against the States under the due process clause in the Fourteenth Amendment (pp. 655-656). See Elkins v. United States, 364 U.S. 206, 213. This complete reversal of so recent a ruling necessarily affecting many State court convictions has led to some discussion whether the Mapp ruling should be given only prospective operation. [Note page706-2] Indeed, at least one court has so held. [Note page706-3] But the Supreme Court of the United States did not limit Griffin v. Illinois, 351 U.S. 12, to prospective operation, as had been suggested in the concurring

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opinion of Frankfurter, J. (pp. 25-26). See Eskridge v. Washington State Bd. of Prison Terms & Paroles, 357 U.S. 214, which in 1958 applied the Griffin rule to a conviction occurring in 1935. We are here concerned with retroactive operation only in a limited sense, as the appeal is before us in regular course for decision on the law as it presently stands. [Note page707-1]

We observe nothing in the Mapp majority opinion which indicates an intent that it be confined to prospective operation, assuming such a position could be soundly taken. The result must be that the majority opinion in the Mapp case, which stands today as the ruling of the court, applies to the present case even though it was tried before the enunciation of that ruling and patently at a time when the trial judge had no choice but to rule as he did.

The Commonwealth, however, contends that the second lot of material was obtained at the invitation of the defendant; that as to it there was no search and seizure at all; and that there was no conduct violative of constitutional rights. See, for example, United States v. Mitchell, 322 U.S. 65, 69-70; Commonwealth v. Tucker, 189 Mass. 457, 469-470. So it is argued that the inadmissible evidence of the first lot was only cumulative, and that the conviction should be upheld upon the basis of the second lot. See Commonwealth v. Sazama, 339 Mass. 154, 159.

We are unable to accept this argument. The Mapp case (p. 655) seems to foreclose any State fashioning the incidents of the exclusionary rule within the bounds of due process. We, accordingly, look to Federal law. See "The Supreme Court, 1960 Term." 75 Harv. L. Rev. 40, 156-158. When the defendant went to the police station in the company of officers and was examined by still other officers on the basis of the illegally obtained material, he was in no environment to make a free choice, even where the record

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is barren of evidence of threats, duress, coercion, or promises by the police officers. Although not denied counsel, he nevertheless had none. The police questioning, including that as to the existence of other photographs and similar material, received impetus from the improperly acquired material. The defendant's purported consent and the second lot were an offshoot of the original unreasonable search and seizure. Its acquisition was branded with the initial taint. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-392. Takahashi v. United States, 143 F. 2d 118, 122 (9th Cir.). United States v. Arrington, 215 F. 2d 630, 635-636 (7th Cir.). United States v. Pollack, 64 F. Supp. 554, 558 (D. N. J.). United States v. Reckis, 119 F. Supp. 687, 690-691 (D. Mass.). United States v. Watson, 189 F. Supp. 776 (S. D. Cal.). See Somer v. United States, 138 F. 2d 790, 791-792 (2d Cir.); Hobson v. United States, 226 F. 2d 890, 893-894 (8th Cir.); McGinnis v. United States, 227 F. 2d 598, 603-604 (1st Cir.); Hair v. United States, 289 F. 2d 894, 895-897 (Ct. App. D. C.). Compare People v. Macias, 180 Cal. App. 2d 193, 197.

The evidence was all inadmissible. The motion to suppress should have been granted.

Exceptions sustained.

Judgment reversed.

Judgment for the defendant.