Com. v. Gill

• Decision Date: 15 November 1974
• Parties: COMMONWEALTH v. Carolyn GILL.
• Court: Appeals Court of Massachusetts

Page 628

318 N.E.2d 628

2 Mass.App.Ct. 653

COMMONWEALTH v. Carolyn GILL.

Appeals Court of Massachusetts, Suffolk.

Argued Oct. 15, 1974.

Decided Nov. 15, 1974.

Maurice F. Ford, Dorchester, for defendant.

Frances M. Burns, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C.J., and ROSE, KEVILLE, GRANT, and ARMSTRONG, JJ.

GRANT, Justice.

The defendant, in proceedings had under G.L. c. 278, §§ 33A--33G, has been convicted on an indictment charging her with unlawful possession of a Class A controlled substance (heroin) with intent to distribute the same, G.L. c. 94C, §§ 31 and 32. She has assigned as error (1) the denial of her pre-trial motion to suppress certain evidence seized pursuant to a search warrant and (2) the denial of her separate motions (a) for a directed verdict generally and (b) for a directed verdict on so much of the indictment as charged intent to distribute.

1. The sole contention raised by the motion to suppress appears to be that

the search warrant did not meet the 'particularity' requirement of the Fourth Amendment to the Constitution of the United States concerning the place to be searched. ¹

The application for the warrant, which appears on the same sheet of paper as the warrant itself (see Commonwealth v. Pope, 354 Mass. 625, 628--629, 241 N.E.2d 848 (1968)), referred to 'certain rooms in the one family, two story brick building . . . situated and numbered . . . 145 . . . in Stanwood Street' in the Dorchester district of Boston. The warrant directed a search of the 'premises described above.' The affidavit in support of the application (see Commonwealth v. Todisco, --- Mass. ---, --- - ---, ^a 294 N.E.2d 860 (1973)) referred successively to ehe 'dwelling located at 145 Stanwood St., Dorchester,' the 'aforementioned address,' the 'above mentioned address' (twice), and the 'premises THERE SITUATED AND NUMBERED 145 Stanwood St., Dorchester.' The request of the application was for the issuance of a warrant to search 'the dwelling located at 145 Stanwood St., Dorchester, a one family, two story brick building.'

The premises searched pursuant to the warrant consisted of one half of a two story wood ² building located on Stanwood Street which contained two separate duplex apartments, neither of which was physically interconnected with the other. The only means of approach to the building which was described in the evidence adduced at the hearing on the motion to suppress consisted of a walk and steps (possibly brick; see n. 2) which led from Stanwood Street to a single door which was set in the front of the building and which opened into a front porch partially enclosed by glass. On a post to the left of and on the exterior side of that door there were, at the time of the execution of the warrant, two mailboxes, one directly over the other; over the uppermost mailbox was the number 145. To the right and also on the exterior side of the same door was another post with one mailbox; directly over that box was the number 143. Once the exterior door was opened there were immediately visible (if they were not already visible through the glass which formed the exterior wall of the porch) two distinct doorways, one to the left and one to the right, which led, respectively, to the two separate duplex apartments of which the building was comprised. The officers who executed the warrant searched the apartment on the left hand side of the building, where they found the heroin and other articles hereinafter described. The apartment on the right hand side of the building was not searched.

We hold that the warrant, when read in the light of the application and the supporting affidavit and considered in conjunction with the physical facts, described with sufficient particularity the premises which were to be and were searched. 'A conveyancer's precision of language is not to be expected in the affidavit' (Commonwealth v. Pellier, --- Mass. ---, ---, ^b 289 N.E.2d 892, 894 (1972)) or on the face of the warrant. 'It is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.' Steele v. United States No. 1, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925). See also United States v. Hinton, 219 F.2d 324, 326 (7th Cir. 1955). The warrant in this case, when read together with the application, referred specifically and only to the premises numbered 145 Stanwood Street; it did not purport to, nor did it, authorize a search of the premises numbered 143 Stanwood Street. Compare Commonwealth v. Lillis, 349 Mass. 422, 423, 425, 209 N.E.2d 186 (1965). We reject the notion that any officer who read the warrant in the light of the physical facts which confronted him as he progressed up the front walk and into the building could reasonably have concluded that he was authorized to search anything other than the only apartment which was numbered 145. Compare Commonwealth v. Pope, 354 Mass. 625, 628--629, 241 N.E.2d 848 (1968); Commonwealth v. Todisco, --- Mass. ---, --- - ---, ^c 294 N.E.2d 860 (1973); United States v. Lee, 448 F.2d 604, 605--606 (7th Cir. 1971), cert. den. 404 U.S. 858, 92 S.Ct. 107, 30 L.Ed.2d 100 (1971); United States v. Sklaroff, 323 F.Supp. 296, 318--319, 321 (S.D.Fla.1971). Contrast Commonwealth v. Perada, 359 Mass. 147, 148--149, 268 N.E.2d 334 (1971); United States v. Hinton, 219 F.2d 324, 325--327 (7th Cir. 1955); United States v. Higgins, 428 F.2d 232, 233--235 (7th Cir. 1970; United States v. Chin On, 297 F. 531, 532--533 (D.Mass.1924); United States v. Esters, 336 F.Supp. 214, 215--219 (E.D.Mich.1972); United States v. Harris, 365 F.Supp. 261 (N.D.Ohio, 1972).

2. There was no error in denying either of the motions for a directed verdict.

The search yielded, and there were introduced in evidence, the following: a 'hundred some-odd' bags of heroin found in a man's suitcoat jacket hanging in an upstairs bedroom closet; various types of paraphernalia (found in an attache case discovered in the bedroom) which, on the testimony of an officer of the drug control unit of the Boston Police, were customarily used in the cutting and packaging of heroin for the street trade; and various personal papers (found in a bureau in the same bedroom) which specifically identified the defendant by name (some of them also identifying her by reference to the 145 Stanwood Street address), such as Medicaid eligibility and welfare identity cards, a driver's license, a savings account passbook, and a receipt for payment of the rent of the apartment in question for the month in which the search was made. ³ The defendant was found in the apartment with 'several of her minor children' some time after 7:30 P.M. on a winter evening. There was evidence that following her arrest and receipt of Miranda warnings the defendant had told one of the searching officers (the one who had arrested...