Com. v. Cuddy
| Decision Date | 22 November 1967 |
| Citation | 353 Mass. 305,231 N.E.2d 368 |
| Parties | COMMONWEALTH v. David J. CUDDY (and nine companion cases 1 ). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Joseph J. Balliro, Boston, for defendants.
Robert Snider, Asst. Dist. Atty., for the Commonwealth.
Before WILKINS, C.J., and SPALDING, CUTTER, KIRK, SPIEGEL and REARDON, JJ.
There have been reported to us for decision under G.L. c. 278, § 30A, questions arising out of ten indictments of the defendants for possession of burglarious instruments and for receiving stolen goods. Motions by the defendants to suppress evidence were heard before a judge of the Superior Court, at which hearing the evidence presented was based upon the face of the search warrant and the affidavits upon which the warrant was based. Two affidavits are involved, one pertaining to David Cuddy and one to Alberta Cuddy. As both are identical we shall refer only to the one pertaining to David Cuddy and our comments will apply with equal force to both. Three questions have been propounded:
The pertinent language contained in the affidavit reads as follows:
The warrant itself authorized a search 'of the rooms in the fourth story of a certain building * * * numbered two hundred and twenty-nine in Marlborough street, this being a five story brick building, (said building being occupied by one David Cuddy) and to search the person of said Cuddy' for property which the warrant described as 'property or articles stolen, embezzled or obtained by false pretences, or described as follows: three twenty-two calibre revolvers, 1 twenty-five calibre pistol, 1 depositors money bag #134 containing cash and checks to the value of $3100.--1 tear gas gun, silver in color--1 1/2 inches by ten inches in size.'
On the day of the issuance of the warrant, and by virtue of it, a large number of items were seized at 229 Marlborough Street, including various implements and tools (such as a pry bar, shears, hacksaw blade) customarily useful in the occupation of burglary, and including also several twenty-five calibre pistols and a number of twenty-two calibre revolvers, in addition to guns of other description and assorted ammunition.
1. In testing and interpreting this warrant, which without question could have been drawn in such a manner as to contain more complete basic information, we are well aware that a purely conclusory affidavit will not suffice and that the...
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Com. v. Mascolo
...v. Christian, 549 F.2d at 1371. Such an affidavit is to be viewed in a "common sense and realistic fashion." Commonwealth v. Cuddy, 353 Mass. 305, 308, 231 N.E.2d 368 (1967). Nor do we find merit in the defendants' assertion that the warrant was drawn in such vague terms that it constituted......
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Com. v. Cefalo
...(1966). Oral statements may be considered, however, when they do not bear on the probable cause determination. Commonwealth v. Cuddy, 353 Mass. 305, 309, 231 N.E.2d 368 (1967). Cf. Commonwealth v. Rugaber, 369 Mass. 765, 768, 343 N.E.2d 865, 866 (1976), quoting from Commonwealth v. Murray, ......
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Com. v. Upton
...& n. 6, 211 N.E.2d 658 (1965); Commonwealth v. Mitchell, 350 Mass. 459, 462-464 & n. 5, 215 N.E.2d 324 (1966); Commonwealth v. Cuddy, 353 Mass. 305, 308-309, 231 N.E.2d 368 (1967); Commonwealth v. Brown, 354 Mass. 337, 344, 237 N.E.2d 53 (1968). This court even stated in one opinion that "[......
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Com. v. Fielding
...implicate Fielding. Spinelli v. United States, 393 U.S. 410, 415--416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Cf. Commonwealth v. Cuddy, 353 Mass. 305, 231 N.E.2d 368 (1967). The arrest of Fielding at 7:30 P.M. was thus warrantless in a legal sense, but it could be held lawful if the knowledg......