Com. v. Moran

• Decision Date: 19 July 1967
• Parties: COMMONWEALTH v. Patricia MORAN (and seven companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 827

228 N.E.2d 827

353 Mass. 166

COMMONWEALTH v. Patricia MORAN (and seven companion cases ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 1, 1967.

Decided July 19, 1967.

Harold Katz, Boston, (William P. Homans, Jr., Boston, with him) for defendants.

James E. Foley, Asst. Dist. Atty., for the Commonwealth.

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

SPIEGEL, Justice.

The questions for decision were reported under G.L. c. 278, § 30A. They arose out of eight indictments charging various offences under the gaming laws.

The statement of facts included in the judge's report may be summarized as follows: On July 7, 1966, Ralph V. Ryan, a Boston police officer, made an application to the Municipal Court of the Roxbury District for a warrant to search premises at room 611 of the Hotel Gladstone, 677 Dudley Street, Roxbury. The application was supported by the affidavits of Ryan and of Leonard Frisoli, an F.B.I. agent. A search warrant was issued, under the authority of which the police entered the premises described and seized gaming paraphernalia. The defendants were also arrested at that time. After arraignment in the Municipal Court on July 8, 1966, on complaints, those cases were continued to September 12, 1966. On September 9, evidence was presented to the Suffolk grand jury, and the indictments were returned against each defendant alleging violation of the gaming laws. On September 12 the defendants appeared in the Municipal Court and answered 'ready for trial.' The Commonwealth, however, asked for a dismissal of the complaints in the Municipal Court on the grounds that two indictments covering the same matter had been returned against the defendants and that other indictments were then pending before the grand jury. Over the defendants' objections, the complaints were dismissed.

In the Superior Court, pre-trial motions were made by each defendant to suppress the evidence and to dismiss the indictments. All of these motions were denied. The judge was of opinion that the motions presented questions of law of such importance as to require the decision of this court before any further proceedings in the trial court. The questions reported are: '1. As a matter of law, did the supporting affidavits attached to the application for a search warrant set forth sufficient facts for a Court of find probable cause for the issuance of the search warrant? 2. Is the search warrant otherwise defective for lack of sufficient dates in the supporting affidavits? 3. As to the motion to dismiss, was there a violation of due process of law guaranteed to the defendants by Amendments 4 and 14 of the Constitution of the United States and the 12th article of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts by the dismissal of the complaints in the * * * (Municipal) Court over the objection of and without the consent of the defendants?'

1. The affidavits from a Boston police officer and from a special agent of the Federal Bureau of Investigation disclose the following facts based on information received from a reliable informant ² and from personal knowledge. ³

(1) The defendant Marcus residing in Newton, Massachusetts, has a bookmaking office and also is engaged in the transmission of horse racing information and results to bookmakers.

(2) He 'is operating this illegal activity through telephone number Hi2 5692 which is listed at 677 Dudley St. Roxbury, Massachusetts' (emphasis supplied).

(3) He 'is associated in this illegal activity at this location with an unknown woman' (emphasis supplied).

(4) 'The telephone number * * * is listed in the telephone directory to one Ruth Dunner at 677 Dudley St. Roxbury' (emphasis supplied).

(5) On June 21, 22, 23, 24, 25, 27, 28, 29, and 30; July 1, 2, 4, 5, 6, and 7, Marcus entered room 611 at 677 Dudley Street. He remained in the room on these dates from about 12 noon to about 6:40 P.M.

(6) 'In 1963, * * * Marcus was sentenced to serve 6 months at the Federal correctional Institution at Danbury, Conn. for contempt of court, for refusing to answer questions before a Federal Grand Jury which was investigating the interstate transmission of illegal racing information' after he had been granted immunity.

The principles governing the sufficiency of information for the issuance of a search warrant have been fully set forth in recent decisions of the Supreme Court of the United States. Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684; McCray v. State of Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62. See Rosencranz v. United States, 356 F.2d 310, 313--314 (1st Cir.); Commonwealth v. Rossetti, 349 Mass. 626, 630--632, 211 N.E.2d 658; Commonwealth v. Maneatis, 350 Mass. 780, 216 N.E.2d 452. The principles which are applicable here are that (1) inferences leading to the issuance of a warrant should be drawn by a neutral magistrate rather than by a police officer, and (2) the magistrate must be presented by the applicant for the warrant with a recitation of underlying circumstances which support such inferences.

It is most difficult to determine with exactness when a statement is a conclusion or a subsidiary fact. If we should isolate each individual assertion in the affidavits it may well be argued that a number of them are merely conclusions. However, we need not isolate each individual statement and determine that this or that statement is a conclusion. We deal with the affidavits in their entirety and draw inferences therefrom.

We believe that the information contained in the affidavits, taken as a whole together with the inferences which reasonably could be drawn from such information provided ample justification for a judicial mind to conclude the existence of probable cause. See McCray v. State of Illinois, supra.

It would indeed be naive for the court to insist upon an affidavit which would state in minute detail facts with which almost everyone is familiar. It is common knowledge that race track bookies do operate. It is also common knowledge that the dates set out in the affidavit exclude sundays and fall within the horse racing season in this area and the times between Marcus' arrival at and departure from the hotel include the hours during which races are held. When a man is known by the police to be a bookie, was sentenced to serve six months for contempt of court for refusing to answer questions regarding illegal racing activity, enters the same...