Com. v. Dias

• Decision Date: 28 October 1965
• Citation: Com. v. Dias, 211 N.E.2d 224, 349 Mass. 583 (Mass. 1965)
• Parties: COMMONWEALTH v. Peter F. DIAS. COMMONWEALTH v. Albert HYATT. COMMONWEALTH v. Raphaell M. VAGA, Jr.
• Court: Supreme Judicial Court of Massachusetts

Page 224

211 N.E.2d 224

349 Mass. 583

COMMONWEALTH v.Peter F. DIAS.

COMMONWEALTH v.Albert HYATT.

COMMONWEALTH v.Raphaell M. VAGA, Jr.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Oct. 4, 1965.

Decided Oct. 28, 1965.

Melvin S. Louison, Taunton, for Albert Hyatt and another.

Talbot T. Tweedy, Taunton, for Peter F. Dias.

Edmund Dinis, Dist. Atty., and L. Barry Tinkoff, Asst. Dist. Atty., for the Commonwealth.

Before SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

SPIEGEL, Justice.

Following convictions in a District Court on charges of violation of various gaming and lottery lows (G. L. c. 271, §§ 7, 17 and 18), the defendants appealed to the Superior Court.In that courtthe defendants renewed motions made in the District Court to suppress evidence, to dismiss and for the return of certain personal property.After hearing, the trial judge denied the motions.The facts having been agreed on, the judge reported three questions of law presented by the motions.

The first question presented for decision is whether 'the affidavit based only upon the 'belief' of the affiant without anything else is a sufficient affidavit to permit the issuance of a search warrant.'

The affidavit states that the officer 'believes, and has probable cause to believe that the rooms in the cellar and every story of a certain building * * * namely: Corner Cafe, 50 Washington Street, Taunton, 1st floor of 3 story wooden structure * * * is unlawfully used as and for a common gaming house * * *.'The Commonwealth asserts that statements in support of the affidavit were made to the official issuing the warrant, but there is nothing in the record before us to support this assertion.

General Laws c. 276, § 2B, requires that the affidavit in support of an application for a search warrant contain 'facts, information, and circumstances upon which such person relies to establish sufficient grounds for the issuance of the warrant.'Search warrants for gaming violations are to be issued under G.L. c. 271, § 23, only 'if satisfactory evidence is presented.'The rule established in Aguilar v. State of Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, is that 'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant * * * [drew his conclusions], and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, seeRugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825[11 L.Ed.2d 887], was 'credible' or his information 'reliable."

In the instant case the affidavit did not state the basis for the officer's belief and therefore was insufficient to permit the issuance of a warrant.Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159;United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684.SeeCOMMONWEALTH V. LEPORE, 349 MASS. ----, ----, 207 N.E.2D 26^A....