Com. v. Dinnall

• Decision Date: 13 August 1974
• Citation: 366 Mass. 165,314 N.E.2d 903
• Parties: COMMONWEALTH v. John J. DINNALL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 903

314 N.E.2d 903

366 Mass. 165

COMMONWEALTH v. John J. DINNALL.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May, 7, 1974.

Decided Aug. 13, 1974.

Stephen R. Katz, Boston, for defendant.

Imelda C. La Mountain, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, HENNESSEY, KAPLAN and WILKINS, JJ.

REARDON, Justice.

The defendant was tried on four indictments charging him with unlawful possession of cocaine, unlawful possession of cannabis, unlawful possession of heroin, and possession of heroin with intent to sell. A judge in a jury waived trial found the defendant guilty of the first three charges and not guilty on the fourth. The defendant comes here on appeal under applicable provisions of G.L. c. 278, §§ 33A--33G, and argues assignments of error which will be severally considered.

1. The defendant first argues that the search of the apartment in which the narcotics were discovered was not conducted pursuant to a valid search warrant in that the warrant was obtained by virtue of a prior surveillance of the police which violated the defendant's right to privacy as guaranteed by the Fourth Amendment to the United States Constitution. It appears that on April 23, 1971, acting on a warrant, several Boston police officers entered the second floor apartment at 17 Erie Street in Dorchester where various narcotics, and implements employed in measuring, diluting and packaging the same, were seized. Prior to trial the defendant moved to suppress the evidence which was there obtained. A police detective gave evidence at the hearing on the motion that acting on information from a reliable informant the police commenced surveillance in and around 17 Erie Street prior to April 22. The affidavit in support of the application for the warrant stated in part that between April 19 and April 22, 1971, a number of suspected users and sellers of narcotics had entered and left the apartment. It was further stated that while making observations a conversation was heard from the apartment relative to the sale and uses of narcotics. The contention is that this was an illegal eavesdropping which invalidated the search warrant. Number 17 Erie Street is a three-story apartment house. The front entrance affords a separate stairway to each of the three apartments in the building. The entrance to the rear of the building is by a common stairway leading to the second and third floor apartments. The conversation was heard by the officers while they were in the second floor hallway outside of a kitchen door. There was testimony that no electronic equipment was used to hear this conversation and that no officer even placed his ear to the door. It is our view that in employing this conversation as a partial basis for the issuance of the warrant there was no violation of the defendant's Fourth Amendment rights. The Commonwealth has cited United States v. Llanes, 398 F.2d 880 (2d Cir. 1968), cert. den. 393 U.S. 1032, 89 S.Ct. 647, 21 L.Ed.2d 576 (1969), where narcotic officers stationed themselves in the hallway and heard conversations from within an apartment carried on in a tone of voice which was audible in the hallway. The court there distinguished the constitutional protection outlined in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and noted also Mr. Justice Stewart's comment therein: 'What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protestion' (emphasis supplied). Id. at 351, 88 S.Ct. at 511. In the Llanes case, the court said, 'We believe that conversations carried on in a tone of voice quite audible to a person standing outside the home are conversations knowingly exposed to the public.' 398 F.2d at 884 (1968). See United States v. Wilkes, 451 F.2d 938, 941, n. 6 (2d Cir. 1971). The defendant has referred to United States v. Case, 435 F.2d 766 (7th Cir. 1970), as governing the situation in this case. In that case it was held that the surreptitious listening by government agents to conversations overheard in the hallway was an invasion of the right of privacy. However, it is to be noted that the agents in that case were listening in a hallway which was kept locked and which was used 'by a very confined group, and, most of the time, limited to the proprietors of the stores in the building.' Id. at 769. The court distinguished the Llanes case on those facts. Here we have an area which could be freely entered by anyone. See Commonwealth v. Thomas, 358 Mass. 771, 774, 267 N.E.2d 489 (1971); Commonwealth v. Anderson, --- Mass. --- - ---, n. 1, 284 N.E.2d 219 (1972). ^a We see no vice in the employment of the information which was obtained nor error in denying the motion to suppress evidence procured through the search warrant.

2. The defendant next contends that the warrant which was issued for a search of 17 Erie Street and the second floor apartment thereof was void in that it lacked specificity, and that the items seized should not have been admitted. The warrant issued stated that there was probable cause to believe that narcotic drugs and implements were 'kept or deposited by Jane Doe and John Doe in certain rooms in the second floor apartment of the building situated (at) and numbered seventeen (17) Erie Street in (Boston).' The warrant was issued on April 23, 1971, and executed the same evening. Drugs and implements, and an Eastern Airlines ticket which carried the name of the defendant and listed his address as 17 Erie Street, Dorchester, were seized. There was an adequate description of the person or place to be searched. G.L. c. 276, § 2. The description falls within the requirements which we have frequently stated. See Commonwealth v. Pope, 354 Mass. 625, 628--629, 241 N.E.2d 848 (1968). Directly in point is Commonwealth v. Franklin, 358 Mass. 416, 265 N.E.2d 366 (1970), which makes reference to the focus of the police on a place rather than on the person occupying the place. The Franklin case contains a full discussion of the requirements for a valid warrant which it is not necessary to repeat here.

3. There was no error in the admission in evidence by the trial judge of the tinfoil, strainers, spoons, and packets of cocaine, heroin, and marihuana found in the apartment. It is argued by the defendant that there was no evidence to connect these items with him. We view the...