Com. v. Causey

• Decision Date: 03 June 1969
• Citation: 356 Mass. 125,248 N.E.2d 249
• Parties: COMMONWEALTH v. Larry CAUSEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 249

248 N.E.2d 249

356 Mass. 125

COMMONWEALTH v. Larry CAUSEY.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 5, 1969.

Decided June 3, 1969.

Robert A. Novick, Reuben Goodman, Boston, for defendant.

Barry M. Haight, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, SPIEGEL and REARDON, JJ.

CUTTER, Justice.

Causey was found guilty and sentenced on three indictments charging armed robbery on December 22, 1966. The case is before us on appeal under G.L. c. 278, §§ 33A--33H.

The only assignments of error argued in behalf of Causey arise from the denial of motions to suppress certain property seized. It is contended that the affidavit in support of an application for a search warrant did not contain sufficient information to permit the search warrant to issue. Also are presented the questions (a) whether testimony at the trial of the indictments showed that there was no necessity for any search warrant, and (b) whether the failure to suppress, even if erroneous, was not prejudicial because the evidence was admissible on grounds not apparent from evidence at the hearing on the motions to suppress.

1. An affidavit was executed under date of January 10, 1967, by Captain Murphy, a Lowell police officer. Its text is set out in part in the margin. ¹ At a hearing on the motions to suppress on December 8, 1967, only this affidavit and the search warrant itself were introduced in evidence. On the back of the search warrant there was an affidavit by Captain Murphy which stated (in part) that he received the warrant on January 10, 1967, and executed it, as follows, 'On January 10, 1967 at 11 o'clock P.M. I searched the premises described in the warrant * * * and (t)he following is an inventory of the property taken pursuant to the warrant: One 12 gauge pump shotgun. One red jacket.' The remainder of the hearing on the motions to suppress consisted entirely of argument by counsel.

The affidavit was plainly deficient in stating the facts essential to showing probable cause for issuing a search warrant. This type of deficiency occurs in greater or less degree in altogether too many affidavits and is likely to impede greatly the administration of justice. Police officers making affidavits, and judges and clerks of court issuing warrants, should know by this time the various matters which must be covered in reasonable detail if an affidavit is to satisfy the requirements of G.L. c. 276, §§ 1, 2, 2A, 2B, and St.1967, c. 802, § 4). See Commonwealth c. 557, §§ 1--3 (see also amendment of § 2B by St.1965, c. 384, and of § 2C, by St.1967, c. 802, § 4). See Commonwealth v. Rossetti, 349 Mass. 626, 630--634, 211 N.E.2d 658 (pre-1964 search, see fn. 4 at p. 630); Commonwealth v. Mitchell, 350 Mass. 459, 461--463, 215 N.E.2d 324; Commonwealth v. Colardo, 351 Mass. 76, 78--79, 217 N.E.2d 775. Affidavits also must satisfy requirements of the Constitution of the United States and decisions of the Supreme Court of the United States. See Aguilar v. Texas, 378 U.S. 108, 115--116, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 413--419, 89 S.Ct. 584, 21 L.Ed.2d 637.

The italicized language of the affidavit (see fn. 1, supra) does not tell what information was communicated to the affiant by the eyewitness; how either the eyewitness or the affiant had any reason to know where the items sought were likely to be found; what investigations had been made and by whom; what opportunity informants, eyewitnesses, and the affiant had to observe or ascertain incidents or facts relevant to probable cause for issuing a search warrant; what relation the items sought bore to the robbery; or why the informants were considered reliable. The affidavit is little more than a disconnected recital of incomplete conclusions. It is apparent from the evidence summarized below that the affiant had far more than sufficient knowledge to justify issuing a search warrant. He, however, has almost completely failed to include that knowledge in the affidavit. It is incumbent upon affiants to make a full presentation of the facts in the affidavit itself (see Commonwealth v. Monosson, 351 Mass. 327, 328--330, 221 N.E.2d 220) and upon magistrates and clerks engaged in issuing warrants to refuse them when the affidavits do not do this. It is the duty of these officials to make real scrutiny of the affidavits presented to them and to insist upon a sufficient statement of the basis of the affiant's knowledge. Deficiencies cannot be cured by testimony about matters stated to the magistrate that to not appear in the affidavit. See the Monosson case, supra, at p. 330, 221 N.E.2d 220. The affidavit was bad on its face. If it had been established clearly that the items were seized pursuant to the search warrant, there would have been clear error in denying the motions to suppress.

2. On December 8, 1967, on the afternoon of the day when the motions to suppress were denied, trial of the indictments began. During the trial there was evidence, not presented at the hearing of the motions, from Captain Murphy, from Causey himself, and from others. If this evidence, or part of it, had been appropriately summarized in Captain Murphy's affidavit, the affidavit would have been sufficient. As it was, we think that the testimony described below makes plain that there was no reason for any search warrant. From this evidence at the trial, the trial judge in passing on the admissibility in evidence of the gun and the jacket, and the jury, in passing on the merits, would have been warranted in making the following findings and conclusions.

On the night of December 22, 1966, A.L. Turcotte's package store on Worthen Street, Lowell, was robbed by a man carrying a long gun, a twelve gauge shotgun. Before and after the time of the robbery, a man carrying a long gun and wearing a short jacket, variously described as maroon, red, or rust colored, was observed in the vicinity, near a blue Chevrolet automobile with a white top. The operator of a parking lot on Worthen Street on that evening had ordered an automobile with no front license plate out of his parking lot and made a note of the registration number. Later he saw a man, wearing a maroon jacket and holding a shotgun, enter the vehicle and...