Com. v. Frado

• Decision Date: 11 April 1977
• Citation: 362 N.E.2d 206,372 Mass. 866
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 206

362 N.E.2d 206

372 Mass. 866

COMMONWEALTH v. Ronald FRADO et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 5, 1977.

Decided April 11, 1977.

Paul S. Carter, Dover, for defendants.

Judd J. Carhart, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and QUIRICO, KAPLAN and LIACOS, JJ.

RESCRIPT.

The defendants appeal from a decision of a single justice reversing, pursuant to the Commonwealth's petition under G.L. c. 211, § 3, the order of the judge of the District Court of East Norfolk granting the defendants' motion to suppress evidence. The motion asserted, inter alia, that the affidavit supporting the application for the search warrant did not contain facts sufficient to establish the reliability of the informant, and hence failed to show probable cause. The issues before the single justice were: (1) whether G.L. c. 211, § 3, was a proper vehicle for the Commonwealth to obtain review of an adverse decision by a District Court judge on a motion to suppress evidence, ¹ and, if so (2) whether the decision of the judge in allowing the motion was correct. The defendants seek by this appeal to have us set aside the interlocutory decision of the single justice and reinstate the order of the District Court judge. We believe that in the current posture of the case the appeal should be dismissed. It is, or should be, a well-known principle that interlocutory orders will not receive full appellate review until the entire case is ripe for review. CAPPADONA V. RIVERSIDE 400 FUNCTION ROOM, INC., --- MASS. --- , 360 N.E.2D 1048 (1977)^A. Kargman v. Superior Court, --- Mass. ---, --- ^b, 357 N.E.2d 300 (1976). Rollins Environmental Servs. Inc. v. Superior Court, --- Mass. ---, --- ^c, 330 N.E.2d 814 (1975). While it is true that appellate review of an interlocutory decision may be had, at the discretion of the court 'in exceptional circumstances, when necessary to protect substantive rights,' Healy v. First Dist. Court of Bristol, --- Mass. --- ^d, 327 N.E.2d 894 (1975), this case does not call for the exercise of that extraordinary power. See, e.g., Lataille v. District Court of E. Hampden, 366 Mass. 525, 320 N.E.2d 877 (1974); Gilday v. Commonwealth, 360 Mass. 170, 171, 274 N.E.2d 589 (1971). We need not decide the correctness of the single justice's ruling that the Commonwealth may in some cases assert substantive rights under G.L. c. 211, § 3. The defendants have not only the opportunity to assert their innocence in the District Court but also they may obtain a de novo review of all issues in this case in the Superior Court. Mann v. Commonwealth, 359 Mass. 661, 271 N.E.2d 331 (1971). Subsequently the defendants will be entitled to full...