Com. v. Monosson

• Decision Date: 03 November 1966
• Citation: Com. v. Monosson, 221 N.E.2d 220, 351 Mass. 327 (Mass. 1966)
• Parties: COMMONWEALTH v. David L. MONOSSON (and a companion case).
• Court: Supreme Judicial Court of Massachusetts Supreme Court

Page 220

221 N.E.2d 220

351 Mass. 327

COMMONWEALTH v.David L. MONOSSON (and a companion case).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 4, 1966.

Decided Nov. 3, 1966.

Joseph S. Oteri, Braintree, for defendant.

Jack I. Zalkind, Asst. Dist. Atty. (Robert Snider, Legal Asst. Dist. Atty., with him), for the Commonwealth.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

WILKINS, Chief Justice.

The defendant was named in two indictments: (1) for possessing a narcotic drug with intent unlawfully to sell, G.L. c. 94, § 198(as appearing in St.1957, c. 660, § 1), (2) for unlawful possession of a narcotic drug.G.L. c. 94, § 205(as appearing in St.1958, c. 95, § 1).The cases are here on an interlocutory report by a judge of the Superior Court who denied the defendant's motion to suppress.G.L. c. 278, § 30A, inserted by St.1954, c. 528.Three questions are reported.'A.Maythis Court give consideration to the sworn testimony presented to the magistrate, in addition to the information contained in the written affidavit, in making its decision as to probable cause?B.Was it the intention of the Legislature in the enactment of General Laws, c. 276, §§ 2A, 2B, and 2C, ¹ to make suppression of evidence mandatory where there is a non-compliance with statutory requirements as to the affidavit, even though probable cause is established by sworn testimony before the magistrate but not wholly incorporated in the affidavit?C.Is it now the law of this Commonwealth that non-compliance with General Laws, c. 276, §§ 2A, 2B, and 2C, makes it mandatory to suppress the evidence even though probable cause is established by sworn testimony before the magistrate but not wholly incorporated in the affidavit?'

Section 2A of G.L. c. 276 prescribes the form of the warrant.Section 2B provides in material part: 'A person seeking a search warrant shall appear personally before a court or justice authorized to issue search warrants in criminal cases and shall give an affidavit in substantially the form hereinafter prescribed.Such affidavit shall contain the facts, information, and circumstances upon which such person relies to establish sufficient grounds for the issuance of the warrant.The person issuing the warrant shall retain the affidavit and shall deliver it within three days after the issuance of the warrant to the court to which the warrant is returnable.* * * The affidavit in support of the application for a search warrant shall be in substantially the following form: * * * I, (name of applicant) being duly sworn, depose and say: * * * 2.I have information, based upon (describe source, facts indicating reliability of source and nature of information; if based on personal knowledge and belief, so state).3.Based upon the foregoing reliable information * * * there is probable cause to believe (and so forth).'

In the cases at bar the affidavit, which was by a Boston police officer, contained in print the language of paragraph 2 as above quoted.It also contained the printed words, '(If space is insufficient, attach affidavit of affidavits hereto)' which was followed in longhand by, 'Information from a reliable informant, whose information has proved reliable in the past.'

The trial judge ruled that the affidavit did not conform to the requirements of G.L. c. 276, §§ 2A, 2B, and 2C, 'for the reason that it did not contain all the information presented under oath to the magistrate.'

This ruling was correct, and the district attorney's brief rightly so concedes.Commonwealth v. Dias, 349 Mass. 583, 584, 211 N.E.2d 224, 225("believes, and has probable cause to believe * * *" without more.)Commonwealth v. Rossetti, 349 Mass. 626, 632, 211 N.E.2d 658(application inadequate).Commonwealth v. Maneatis, 350 Mass. ---, ^a216 N.E.2d 452('two reliable inf.').Aguilar v. State of Texas, 378 U.S. 108, 109, 84 S.Ct. 1509, 1511, 12 L.Ed.2d 723("* * * received reliable information from a credible person * * *"), 115--116.

The principal issue for decision is whether, notwithstanding violation of the statute, the evidence is admissible.The report suggests that the answer to Question 'A' should be in the affirmative.The burden of the argument for the Commonwealth, based in large part on the report of the judge, is that there was no violation of the Constitution of the United States, and nothing to prevent the use of the evidence by the prosecution.We however, do not decide any constitutional issue because we are satisfied that the Legislature in enacting §§ 2A,2B, and2C, had no intent that, after its mandate has been ignored in a manner tending to prejudice the defendant, the effect of such illegality can nevertheless be avoided by evidence presented to the magistrate.The trial judge found that no oral, real, or documentary evidence was referred to in the affidavit for the stated purpose of preserving 'the anonymity of the police undercover man.'But the identity of an informant need not be disclosed provided that a basis for believing him is disclosed.Rugendorf v. United States, 376 U.S. 528, 533, 84 S.Ct. 825, 11 L.Ed.2d 887.

In Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, the Supreme Court of the United States overruled Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782'to the extent that it failed to apply the...