Com. v. Bond

• Decision Date: 10 May 1978
• Citation: 375 N.E.2d 1214,375 Mass. 201
• Parties: COMMONWEALTH v. James C. BOND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1214

375 N.E.2d 1214

375 Mass. 201

COMMONWEALTH v. James C. BOND.

Supreme Judicial Court of Massachusetts,Middlesex.

Argued Feb. 6, 1978.

Decided May 10, 1978.

Angelo Catanzaro, Boston, for defendant.

Bernard Manning, Asst. Atty. Gen., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and ABRAMS, JJ.

KAPLAN, Justice.

Convicted in District Court on complaints for possession of an instrument designed for obtaining telecommunication service fraudulently (G.L. c. 166, § 42B), possession of marihuana, a controlled substance (c. 94C, § 34), ¹ and possession of a firearm without obtaining a firearm identification card (c. 140, § 129C), the defendant took his appeals to the Superior Court for trial de novo. The defendant had also been indicted for possessing unlawfully intercepting devices (c. 272, § 99 C 5), and possessing burglarious implements (c. 266, § 49). Trial of these indictments was joined with the appeals. The judge, trying jury waived, found the defendant guilty of all five offenses. He fined the defendant a total of $1,562.50 on the three complaints, and on the indictments imposed concurrent sentences of one year's imprisonment in a house of correction, suspended for three years, with probation for an equivalent period.

On the present review in this court of the judgments of conviction, the defendant centers his attack on the trial judge's denial of his motion to suppress materials seized by the Commonwealth. He contends that there was irregularity in the issuance of the warrant initiating the search by which the Commonwealth obtained these articles. But if the warrant was properly issued, the defendant urges that the seizure exceeded the authority of the warrant, and that the judge in all events erroneously cast the burden of proving illegality on the defendant. Besides raising these issues about the search, the defendant says with regard to the firearm conviction that he was exempted from the requirement of an identification card because the possession was necessary for his operation as a federally licensed firearms "dealer." These are the only contentions made.

The witnesses heard on the motion to suppress were the person on whose affidavit a search warrant issued, officers who participated in the search, and the defendant. Interrogation was full and rather less formal than would normally occur before a jury. The judge made written findings responsive to the proof and this we summarize.

On August 28, 1974, J. Walter Kiley, accompanied by an assistant attorney general, appeared before a judge of the Superior Court and swore an affidavit as follows. Kiley was a "security representative" of the New England Telephone and Telegraph Company in Boston, qualified in electrical engineering with particular reference to telephone transmissions. Commencing in May, 1974, information reached him that an unusually large number of calls, most of them of uncommonly long duration, had been made to toll-free numbers from a telephone listed to the defendant at 173 Willow Street, Waltham. This suggested that the caller might be obtaining telephone service fraudulently. Kiley arranged for the surveillance of the suspected telephone source through a mechanical monitor (a checking procedure permitted by 18 U.S.C. § 2511(2)(a)(i) (1970), and G.L. c. 272, § 99 D 1 a). The monitoring established that on eleven occasions the caller, after dialing a toll-free number, had caused a "2600 Hertz tone" to be emitted which enabled the caller to reach a long distance commercial number other than the toll-free number and to evade billing for it. Kiley averred that in all likelihood the emissions were actuated by an electronic instrument called a "blue box" placed on the telephone line or close to the telephone transmitter. Kiley concluded that there was probable cause to believe that a blue box or boxes and other described paraphernalia would be found concealed in the defendant's apartment on the first floor of 173 Willow Street.

On the submission made, the judge on August 28 signed a search warrant which, following the affidavit, directed search at the premises mentioned for blue boxes and any other equipment or material by which the 2600 Hertz tone could be generated, including plans or publications relating to the operation of a blue box. The wording of the warrant is set out in the margin. ²

State troopers connected with the organized crime section of the Attorney General's office executed the warrant the same afternoon. One or more of the officers were knowledgeable in electronic devices; and one or more were acquainted with the defendant, a former private detective who had been refused a renewal of his license to practice. ³ When the officers demanded entrance under the warrant, there was no response, and the door was therefore forced. The place was in considerable disarray. The defendant was in bed, and two other persons were also present. Search was undertaken throughout the apartment. Very shortly a blue box was found (measuring on two sides 31/2 and 41/2 inches). The search continued for another hour or more and resulted in further seizures: an attache case with electronic intercepting equipment, a musette bag with burglarious tools and some electronic equipment, a quantity of marihuana and a pipe with marihuana residue, and two automatic handguns with a considerable amount of ammunition.

1. The search is attacked as illegal from the start because the application for the warrant, presumably following the form set out at G.L. c. 276, § 2B, ⁴ was signed by Kiley who was also the affiant of the affidavit supplying the basic facts. The defendant contends, as we understand him, that the applicant must be an officer, not a private individual. The language of the statute is not altogether clear, ⁵ but we are not called on to attempt a definitive interpretation because the assistant attorney general was present in person and thus gave clear official sponsorship to the application, which satisfies the essence of the claimed requirement. The warrant itself, following the form at § 2A, was properly addressed "(t)o the Sheriffs of our several counties, or their deputies, any State Police Officer, or any Constable or Police Officer of any city or town, within our said Commonwealth," and was executed conformably.

We add, first, that having officers rather than private individuals make the formal applications to magistrates for search warrants is not only the customary practice but the desirable one. It may be noted that Rule 41(a) of the Federal Rules of Criminal Procedure was recently so amended as to ensure that private applications are excluded. ⁶ Second, we stress that using the affidavit by Kiley, in support of the application, to supply the basic information establishing probable cause, was both proper and commendable because he had direct knowledge of the facts. Frequently the magistrate acts on an affidavit which consists only of a hearsay summary of information provided to the affiant by others. Where feasible and we are quite aware that it is not always so it is the better practice to produce the more direct evidence. Cf. Commonwealth v. Reynolds, --- Mass. ---, --- ^a, 370 N.E.2d 1375 (1977).

2. Except for the argument just disposed of, it is not questioned that the Kiley affidavit justified the issuance of a search warrant with the breadth shown at n. 2. Thus the warrant legalized a search throughout the apartment in pursuit of the materials described. See Commonwealth v. Hawkins, 361 Mass. 384, 387, 280 N.E.2d 665 (1972). The officers were not required to stop with the blue box which was validly seized at the center of the search, and would indeed have been less than fully obedient to the command of the warrant if they had done so. If further search should turn up additional materials designated in the warrant, those of course could be taken. Moreover, in the process of a continuing search directed to finding the designated materials not a merely general exploratory search or a search pointed to things known or suspected to be present but not mentioned in the warrant (cf. Commonwealth v. Rand, 363 Mass. 554, 558 n. 2, 296 N.E.2d 200 (1973)) the officers could seize articles "in plain view." By that somewhat misleading expression is meant articles which are come by "inadvertently" without particular design and which, on being discovered, are reasonably believed by the officers to be connected with criminal activity. See Commonwealth v. Wojcik, 358 Mass. 623, 626-630, 266 N.E.2d 645 (1971); Coolidge v. New Hampshire, 403 U.S. 443, 465-467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). It is not required that the police, having already lawfully disturbed privacy, shall delay an otherwise valid seizure to abide their procuring another warrant. Anglin v. Director, Patuxent Inst., 439 F.2d 1342, 1347 (4th Cir. 1971).

A distinction should be taken here. "Mere evidence" inadvertently found, see Coolidge, supra, 403 U.S., at 464, 91 S.Ct. 2022, may be seized only if the officers recognize it to be plausibly related as proof to criminal activity of which they were already aware. The "nexus" problem was examined in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), and that and other cases were recently applied in Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), to a situation of unnamed documentary items turning up during search under a warrant.

There is other material that may be taken not only in the circumstances just described, but also when it bespeaks the likelihood of some criminal conduct of which the officers may have had no prior awareness. ⁷ This material comprises, to quote the Model Code of Pre-Arraignment Procedure, "contraband, the fruits of crime, or things otherwise unlawfully possessed" and "weapons or other things used or likely to be used as means of committing crime" (often called instrumentalities of crime). Id. at § SS...