Com. v. Monosson
Citation | 351 Mass. 327,221 N.E.2d 220 |
Parties | COMMONWEALTH v. David L. MONOSSON (and a companion case). |
Decision Date | 03 November 1966 |
Court | United States State Supreme Judicial Court of Massachusetts |
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.
The defendant was named in two indictments: (1) for possessing a narcotic drug with intent unlawfully to sell, G.L. c. 94, § 198 ( ), (2) for unlawful possession of a narcotic drug. G.L. c. 94, § 205 ( ). 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. '
Section 2A of G.L. c. 276 prescribes the form of the warrant. Section 2B provides in material part:
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 ( ) Commonwealth v. Rossetti, 349 Mass. 626, 632, 211 N.E.2d 658 (application inadequate). Commonwealth v. Maneatis, 350 Mass. ---, a 216 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 (), 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, and 2C, 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....
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