Com. v. Lepore
| Decision Date | 29 April 1965 |
| Parties | COMMONWEALTH v. Joseph A. LEPORE. COMMONWEALTH v. Paul TAI. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Ronald J. Chisholm, Winchester (Edgar A. Rimbold, with him), for defendants.
Newman A. Flanagan, Asst. Dist. Atty. (Robert Snider, Legal Asst. to Dist. Atty., with him), for the Commonwealth.
Before WILKINS, C. J., and WHITTEMORE, KIRK, SPIEGEL, and REARDON, JJ.
Each defendant has appealed under G.L. c. 278, §§ 33A-33G, as amended, from sentences imposed in the Superior Court after findings of guilty under six indictments, three charging breaking and entering and larceny and three charging larceny in a building.
1. The defendants contend that there was error in the denial of their motions to suppress evidence. The motions were addressed to items of personal property seized under a search warrant. We discern no error.
(a) Adequate basis for the issuance of a warrant was shown to the judge. The application, set out in the margin, 1 disclosed that 'another defendant' had given information, and had pointed out the house named in the warrant and 'that two other men were involved in the theft.'
An officer testified that it was as a result of being presented with this application that the judge issued the warrant. By this application the judge was in effect told that larceny by three men had occurred; and that one of the three men had been apprehended 2 and had given the police information as to the location of the stolen goods, that is, the apartment building named. We may assume the officer stated as much when he presented the application to the judge. Apart from such assumption, however, the recital of information obtained from 'another defendant' was adequate to show probable cause within the principles stated in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684. Incriminating admissions by one who asserts participation tend to show the reliability of his statements.
(b) The warrant described the property with sufficient particularity. It speaks for itself on this point. Compare Commonwealth v. Jacobs, 346 Mass. 300, 307-308, 191 N.E.2d 873.
2. There was no error in the admission of statements of the defendants to a police officer.
At the apartment, the searching officers were admitted by the defendant Tai, to whom Officer Brooks exhibited the warrant. After the search Tai was asked what he knew about the items discovered, that is, jewelry, radio, cigarettes and 'change' (coins). Tai said he had 'bought them downtown from a guy he didn't know for twenty-five or thirty dollars.' Q. 'All the jewelry and cigarettes and so forth?' A. 'Yes.' The officer asked if Tai was the only occupant of the apartment and Tai answered, 'No,' and that Joseph Lepore occupied it with him.
Three or four minutes later Lepore walked in. One of the officers explained the presence of the police, showed him the warrant, and asked him if he was an occupant. Lepore answered that he was, and that he and Tai had been living there for about four days. The officer told him what they had found and asked 'what he knew about it.' Lepore answered that Tai had 'bought them from a guy downtown Boston.' Asked if he knew what Tai paid, Lepore answered that he did not.
The officers completed the search and told the defendants they were under arrest.
Plainly these inquiries were threshold in character and were investigatory rather than accusatory. The questions gave Tai and Lepore the opportunity to explain the compromising circumstances and helped the officers to appraise whether the two men were probably concerned. The police investigation had not then focused on these defendants for purposes of the holding in Escobedo v. State of Illinois, 378 U.S. 478, 492, 84 S.Ct. 1758, 12 L.Ed.2d 977.
The day after the arrest the officer asked Tai about a blue suitcase found in the apartment. Tai answered that a man had brought it up and asked Tai to hold it. The officer asked Tai about some rings reported as stolen that had not been found at the apartment the day before, and Tai answered that a girl friend of his had some of them. Tai said, as to the suitcase, 'that the man * * * brought it up' on June 7, 1964, and asked him to hold it for him and that it contained these rings, cigarettes and jewelry. The officer asked the name of the man, and Tai said he did not know it. Asked for a description, Tai gave it. The officer said, Tai answered that he did not.
The officer on the same day asked Lepore if he knew anything about a man bringing a suitcase to the apartment. When Lepore said that he did, the officer asked, 'What was in the suitcase?' The answer was, 'Cigarettes, jewelry,' and the other items seized. When asked if he knew the man, Lepore answered, 'No, he is a friend of Mr. Tai's.' Lepore gave the same description of the man that Tai had given and said that he did not know anything more about...
To continue reading
Request your trial
-
Michaud v. State
... ... 532] process is beyond the investigatory stage. Commonwealth v. Lepore (1965), 207 N.E.2d 26 (Mass.) ... Although we accept the findings of fact of the justice below, we are not bound by his conclusion ... ...
-
Com. v. Taylor
... ... We have not dealt with the question of burden when the Commonwealth rests a search on a warrant and the defendant claims the warrant is itself invalid. One would not expect the question to come up often, since, as we said in Commonwealth v. Lepore, 349 Mass. 121, 123, 207 N.E.2d 26 (1965), a warrant usually "speaks for itself" regarding the description of the place to be searched and the things to be seized, and there are no relevant factual matters left in dispute. See [383 Mass. 281] Commonwealth v. Jacobs, 346 Mass. 300, 308, 191 N.E.2d ... ...
-
State v. Jackson
... ... United States, 281 F.2d 132 (8th Cir.), cert. denied, 364 U.S. 904, 81 S.Ct. 239, 5 L.Ed.2d 196; Commonwealth v. Lepore, 349 Mass. 121, 207 N.E.2d 26. That the informant was a participant has been held sufficient by itself to support a warrant in some cases. Bernard ... ...
-
Com. v. Norris
... ... Dansker, referred to at one point in the affidavit as "Defendant Dansker," was a potential codefendant of the party whose property was to be searched. Information provided by such an individual may be relied upon to establish probable cause. Commonwealth v. Lepore, 349 Mass. 121, 123, 207 N.E.2d 26 (1965). Commonwealth v. Von Utter, 355 Mass. 597, 600, 246 N.E.2d 806 (1969). Incriminating admissions by one who asserts participation in a crime carry their own indicia of credibility. Commonwealth v. Lepore, 349 Mass. 121, 123, 207 N.E.2d 26 (1965). United ... ...