Com. v. Abdelnour

CourtAppeals Court of Massachusetts
Writing for the CourtGREANEY
Citation11 Mass.App.Ct. 531,417 N.E.2d 463
PartiesCOMMONWEALTH v. Richard A. ABDELNOUR.
Decision Date05 March 1981

Page 463

417 N.E.2d 463
11 Mass.App.Ct. 531
COMMONWEALTH

v.
Richard A. ABDELNOUR.
Appeals Court of Massachusetts, Worcester.
Argued Oct. 16, 1980.
Decided March 5, 1981.

Page 464

Daniel F. Toomey, Asst. Dist. Atty. (Paul F. Bolton, Asst. Dist. Atty., with him), for the Commonwealth.

Harry Zarrow, Worcester, for defendant.

Before GREANEY, ROSE and PERRETTA, JJ.

GREANEY, Justice.

We are concerned in this case with the propriety of an order by a Superior Court judge dismissing indictments which charged the defendant with being found in a place with gaming apparatus (G.L. c. 271, § 17), and with using a telephone for registering bets (G.L. c. 271, [11 Mass.App.Ct. 532] § 17A). The dismissal occurred after the Commonwealth refused to comply with the judge's order to disclose the identity of a confidential informant who had supplied information in an affidavit used by the State police to obtain a search warrant for the defendant's premises. The appeal was transferred to this court by the Supreme Judicial Court. See G.L. c. 278, § 28E, as appearing in St.1979, c. 344, § 45; Mass.R.Crim.P. 15(b)(1), 378 Mass. (1979); G.L. c. 211, § 4A. We conclude that the order was erroneous and must be reversed.

The pertinent facts are these. On December 17, 1979, a State police officer applied to a District Court clerk for a warrant to search the defendant's premises at 70 Miscoe Road in Worcester. The affidavit accompanying the warrant application recited that, as a result of electronic surveillance in November, 1977, a search warrant had been obtained and later executed upon the defendant's property, that gaming apparatus had been discovered therein, that subsequent investigation led to indictments against thirteen persons, and that the defendant had been immunized from prosecution in exchange for his testimony in the matter. The affidavit next stated that a confidential informant, whose reliability had been established through past cooperation with the State Police, 1 had reported to a State trooper on November 12, 1979, that the defendant was again "booking" at a designated telephone number from the Miscoe Road address and that the informant had, as recently as two days before, placed bets with the defendant. In order to corroborate the tip, the trooper arranged a telephone call in the informant's presence on the same day to the designated number. After receiving an answer on the first ring, the trooper "handed the telephone to (the informant) who placed a bet with a person he referred to as 'Dickie' on an [11 Mass.App.Ct. 533] athletic contest being played that night." The affidavit also described the results of a four week investigation which included: verification of the telephone number as the defendant's unpublished listing, observation of the defendant's automobile at the Miscoe Road address at various times on several days when college and professional football

Page 465

games were being played, and busy signals at the defendant's telephone number during the starting times of those games.

The affidavit recited two other pieces of information. The first was a report by the informant that, as of December 1, 1979, he was still placing bets with the defendant at his unlisted number and that the latest bets had been registered over the previous weekend. The second concerned the contents of a telephone conversation between the trooper and a male who answered a call made to the defendant's number at approximately 1:45 P. M. on Sunday, December 9, 1979. 2

Based on the foregoing, and the affiant's experienced opinion that the actions described in the affidavit were consistent with conduct expected of someone engaged in illegal gaming, a search warrant issued which, when executed on [11 Mass.App.Ct. 534] December 17, 1979, produced the items 3 used as the basis for the indictments. 4

Thereafter, counsel for the defendant moved to suppress the items seized under the warrant and separately moved for discovery of the informant's name and address. The motion seeking disclosure alleged that the November 12 telephone call described in the affidavit involved actual participation by the informant in the commission of the crimes. At the motion hearing, defense counsel argued with respect to that particular telephone call that, because the trooper had not listened to the voice on the other end of the line, the truth of what the trooper had overheard from the informant was "put in issue" and, as a result, that "right(s) of confrontation and ... cross-examination of (the informant) were essential to a fair trial." Nothing else of substance was advanced in support of the motion. The judge ordered disclosure over the Commonwealth's objection and he dismissed the indictments at a subsequent hearing when the Commonwealth refused to reveal the informant's identity.

1. We turn first to the contention that disclosure was necessary so that the defendant could test the informant's veracity with respect to the affidavit.

The right to challenge the truthfulness of statements contained in a search warrant affidavit is limited to cases where the defendant can make a substantial preliminary showing that "a false statement knowingly and intentionally, or with reckless disregard for the truth (has been) included by the affiant in the ... affidavit ...." Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978). Commonwealth v. Reynolds, [11 Mass.App.Ct. 535] 374 Mass. 142, 147, 149, 370 N.E.2d 1375 (1977). See also Commonwealth v. Perez, 357 Mass. 290, 301-302, 258 N.E.2d 1 (1970); Commonwealth v. Murray, 359 Mass. 541, 548, 269 N.E.2d 641 (1971). Additionally, the claimed misstatement must be shown by the defendant to be crucial to the existence of probable cause and not merely of peripheral relevance. Franks v. Delaware, supra at 156, 98 S.Ct. at 2676. Rugendorf v. United States, 376 U.S. 528, 532, 84 S.Ct. 825, 827, 11 L.Ed.2d 887 (1964). See Commonwealth v. Reynolds, supra, 374 Mass....

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16 practice notes
  • Com. v. Amral
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 29, 1990
    ...1061 (it should rest entirely with judge who hears motion to decide whether officer is believable witness); Commonwealth v. Abdelnour, 11 Mass.App.Ct. 531, 535, 417 N.E.2d 463 (1981), and cases cited. The Court in McCray and Roviaro, supra, see note 6, supra, offers little guidance, however......
  • Com. v. Gagnon
    • United States
    • Appeals Court of Massachusetts
    • July 22, 1983
    ...(1981) 29, 43-44, 414 N.E.2d 1008. Commonwealth v. Abdelnour, 11 Mass.App. 531, --- - ---, Mass.App.Ct.Adv.Sh. (1981) 549, 552-555, 417 N.E.2d 463. See Commonwealth v. Douzanis, --- Mass. ---, --- - ---, Mass.Adv.Sh. (1981) 2005, 2012-2014, 425 N.E.2d 326. If the credibility of the informer......
  • Com. v. Nine Hundred and Ninety-Two Dollars, NINETY-TWO
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 23, 1981
    ...did not have reasonable grounds for believing the material, false statement. See Commonwealth v. Abdelnour, --- Mass.App. ---, --- a, 417 N.E.2d 463 (1981); United States v. Luna, 525 F.2d 4, 8-9 (6th Cir. 1975), cert. denied, 424 U.S. 965, 96 S.Ct. 1459, 47 L.Ed.2d 732 (1976). One court ha......
  • Com. v. Singer, No. 90-P-518
    • United States
    • Appeals Court of Massachusetts
    • February 27, 1991
    ...209, 216, 521 N.E.2d 1002 (1988); Commonwealth v. Signorine, 404 Mass. at 407, 535 N.E.2d 601. See also Commonwealth v. Abdelnour, 11 Mass.App.Ct. 531, 536 n. 5, 417 N.E.2d 463...
  • Request a trial to view additional results
16 cases
  • Com. v. Amral
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 29, 1990
    ...1061 (it should rest entirely with judge who hears motion to decide whether officer is believable witness); Commonwealth v. Abdelnour, 11 Mass.App.Ct. 531, 535, 417 N.E.2d 463 (1981), and cases cited. The Court in McCray and Roviaro, supra, see note 6, supra, offers little guidance, however......
  • Com. v. Gagnon
    • United States
    • Appeals Court of Massachusetts
    • July 22, 1983
    ...(1981) 29, 43-44, 414 N.E.2d 1008. Commonwealth v. Abdelnour, 11 Mass.App. 531, --- - ---, Mass.App.Ct.Adv.Sh. (1981) 549, 552-555, 417 N.E.2d 463. See Commonwealth v. Douzanis, --- Mass. ---, --- - ---, Mass.Adv.Sh. (1981) 2005, 2012-2014, 425 N.E.2d 326. If the credibility of the informer......
  • Com. v. Nine Hundred and Ninety-Two Dollars, NINETY-TWO
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 23, 1981
    ...did not have reasonable grounds for believing the material, false statement. See Commonwealth v. Abdelnour, --- Mass.App. ---, --- a, 417 N.E.2d 463 (1981); United States v. Luna, 525 F.2d 4, 8-9 (6th Cir. 1975), cert. denied, 424 U.S. 965, 96 S.Ct. 1459, 47 L.Ed.2d 732 (1976). One court ha......
  • Com. v. Singer, No. 90-P-518
    • United States
    • Appeals Court of Massachusetts
    • February 27, 1991
    ...209, 216, 521 N.E.2d 1002 (1988); Commonwealth v. Signorine, 404 Mass. at 407, 535 N.E.2d 601. See also Commonwealth v. Abdelnour, 11 Mass.App.Ct. 531, 536 n. 5, 417 N.E.2d 463...
  • Request a trial to view additional results

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