Com. v. McDermott
| Decision Date | 03 April 1964 |
| Citation | 347 Mass. 246,197 N.E.2d 668 |
| Parties | COMMONWEALTH v. Leo McDERMOTT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James F. Freeley, Jr., Boston, for defendant.
A. T. Handverger, Asst. Dist. Atty., for the Commonwealth.
Before WILKINS, C. J., and SPALDING, WHITTEMORE, KIRK, and REARDON, JJ.
The defendant is charged with two complaints under G.L. (Ter.Ed.) c. 271: (1) under § 17, that on May 7, 1962, in Needham he 'did register a bet upon the result of a contest of speed of a certain beast, to wit, a horse'; and (2) under § 7, that on the same date he 'was concerned in setting up a certain lottery for money.' The cases were originally heard in the District Court of Northern Norfolk, and upon findings of guilty were appealed to the Superior Court. Before trial there was filed a motion to suppress evidence of three State police officers which was alleged to have been obtained contrary to the laws of this Commonwealth and the Constitution of the United States. The motion was denied, and the defendant excepted. At the jury trial the same evidence was admitted subject to the defendant's exception, and the defendant was found guilty on both complaints.
We first state the testimony of Trooper Nielsen. He was assigned to place under surveillance 'Robert's Lunch,' a restaurant in Needham. On May 3 and 4, 1962, about noon he saw the defendant in 'Robert's Lunch' registering or taking bets on horses and number pool plays. Nielsen was dressed in working clothes and sitting at a table with truck drivers. The defendant was a stock clerk in a factory near by. On May 7 Nielsen and Lieutenant Kerrigan went to the District Court of Northern Norfolk and obtained a search warrant ('commonly called a bookie warrant') under G.L. c. 271, § 23 ().
The warrant, addressed to the State police, among others, recited that Nielsen had made oath that he suspected and had probable cause to suspect that the rooms in the one story cement building situated at 120 Highland Avenue, known as 'Robert's Lunch,' were unlawfully used as a common gaming house for the purpose of gaming for money and other property, and that divers persons whose names were unknown to Nielsen resorted to the rooms for that purpose. The warrant authorized the police to enter the rooms 'to arrest the keepers thereof, and all persons in any way assisting in keeping the same, * * * and all persons who are there found participating in any form of gaming, and all persons present, whether so participating or not, if any lottery, policy or pool tickets, slips, checks, manifold books or sheets, memoranda of any bet, or other implements, apparatus or materials of any form of gaming are found in said place, and to take into * * * custody all the implements, apparatus or materials of gaming as aforesaid, and all the personal property, including money, furniture and fixtures there found * * *.'
We summarize further testimony of Nielsen. He never obtained a warrant for the arrest of the defendant. On May 7 about 12:05 P. M. he again went to 'Robert's Lunch' and sat at a table with a group of truck drivers who were at lunch. A few minutes later the defendant came in and sat at a table with other customers. A truck driver approached the defendant's table, and spoke to the defendant. The truck driver mentioned the name of a race horse, and the defendant wrote something in a notebook which Nielsen, although he could not see, believed to be the name of the horse. Nielsen saw the defendant speak with another truck driver and write down a number or series of numbers which the truck driver had given him. The defendant gave the truck driver a slip of paper on which, although the witness could not make them out from where he was sitting, appeared to be a series of number plays. The truck driver gave the defendant some United States coins. At 12:20 P. M. Lieutenants Kerrigan and Moriarty entered the restaurant. Nielsen approached them and pointed out the defendant, saying, 'That is Leo, he's got the stuff in his pockets.' The lieutenants showed their badges to the defendant and informed him that they were State police officers. They asked him to step to the back of the restaurant which was separated by a partition, and the defendant complied. About five minutes later Nielsen went behind the partition, where he saw the two lieutenants questioning the defendant, and observed booking paraphernalia, notebooks, and personal belongings of the defendant spread on a counter. The lieutenants, and not Nielsen, arrested the defendant.
Evidence introduced through Lieutenants Kerrigan and...
To continue reading
Request your trial
-
Com. v. Cruz
...366 Mass. 81, 88, 315 N.E.2d 525 (1974); Commonwealth v. Lanoue, 356 Mass. 337, 340, 251 N.E.2d 894 (1969); Commonwealth v. McDermott, 347 Mass. 246, 249, 197 N.E.2d 668 (1964), find that the facts known to the police at this time constituted more than a "bare suspicion" that the defendant ......
-
Com. v. Imbruglia
...350 Mass. 751, 757, 217 N.E.2d 187 (1966), cert. denied, 385 U.S. 1031, 87 S.Ct. 760, 17 L.Ed.2d 679 (1967); Commonwealth v. McDermott, 347 Mass. 246, 249, 197 N.E.2d 668 (1964), the defendant argues that the knowledge possessed by the Federal agents as to his allegedly illegal activities m......
-
Com. v. Brown
...in a coo perative effort in the performance of their duty. The knowledge of one was the knowledge of all.' Commonwealth v. McDermott, 347 Mass. 246, 249, 197 N.E.2d 668, 670. It was not necessary that all information be transmitted over the police radio in order to justify the arrest by the......
-
Com. v. Rossetti
...is found) the arrest of persons operating the premises or found there as participating in any form of gaming. See Commonwealth v. McDermott, 347 Mass. 246, 249, 197 N.E.2d 668. The warrants before us, however, were issued on an application insufficient to justify a search warrant and equall......