Com. v. Morton

• Decision Date: 09 August 1988
• Docket Number: No. 87-758,87-758
• Citation: 526 N.E.2d 1074,26 Mass.App.Ct. 949
• Parties: COMMONWEALTH v. John T. MORTON.
• Court: Appeals Court of Massachusetts

Page 1074

526 N.E.2d 1074

26 Mass.App.Ct. 949

COMMONWEALTH v.John T. MORTON.

No. 87-758.

Appeals Court of Massachusetts Plymouth.

Argued Jan. 20, 1988.

Decided Aug. 9, 1988.

Martin J. Drilling(Frederick J. Watson, III, Plymouth, with him), for defendant.

Robert P. Snell, Asst. Dist. Atty., for Com.

Before BROWN, KAPLAN and SMITH, JJ.

RESCRIPT.

On March 9, 1985, a clerk-magistrate issued a warrant authorizing the police to search the defendant's home in Duxbury for "stolen or illegal" items.As a result of that search, the defendant was charged with the unlawful possession of a sawed-off shotgun.G.L. c. 269, § 10(c ).He was convicted at a jury-waived trial and sentenced to one year in the house of correction.His sentence was stayed during appeal.

Prior to trial the defendant filed a motion to suppress certain evidence, including a gun, which had been seized from his home as a result of the search.After a hearing, a Superior Court judge denied the motion.On appeal, the defendant claims, among other things, ¹ that the affidavit in support of the warrant was insufficient to establish probable cause because it did not show on its face that the information supplied by the informant was timely.In particular, he points out that the affidavit, pertinent portions of which are reproduced in the margin, ² failed to state the time when the informant allegedly observed, in the defendant's home, the items named in the warrant.

It is well established that, in order for a valid search warrant to issue, probable cause must be established by "proof ... of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time."Commonwealth v. Atchue, 393 Mass. 343, 349, 471 N.E.2d 91(1984), quoting fromSgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed. 260(1932).Commonwealth v. Reddington, 395 Mass. 315, 322-323, 480 N.E.2d 6(1985).Commonwealth v. Malone, 24 Mass.App.Ct. 70, 73, 506 N.E.2d 163(1987).Also seeUnited States v. Dauphinee, 538 F.2d 1, 5(1st Cir.1976)("the temporal proximity or remoteness of the events observed has a bearing on the validity of a warrant").Therefore, the omission of the time that the informant observed the "stolen or illegal" items is a serious defect in the affidavit.Rosencranz v. United States, 356 F.2d 310, 315-316(1st Cir.1966).2 LaFave, Search and Seizure§ 3.7(b)(2d ed. 1987).³

The Commonwealth contends that the omission is not fatal because other statements in the affidavit demonstrate that the informant supplied sufficient information to enable the issuing magistrate to determine that the items would be in the defendant's home on March 9, 1985, when the warrant was issued.It notes that the affidavit states that the informant gave credible information to Detective Loyd as recently as "the first part of 1985," some two months before the issuance of the warrant.According to the Commonwealth, that fact, coupled with the nature of the property sought ("stolen or illegal" items) and the place to be searched (the defendant's home), supports an inference that the items would be present at the time the warrant was issued.

We disagree with the Commonwealth's analysis.A reading of the affidavit shows that the informant's tip in "the first part of 1985" had nothing to do with the defendant.In fact, from the affidavit, we cannot discern when the informant talked to Detective Loyd about the defendant.Even if we could infer that the informant told Detective Loyd of his observations concerning the defendant in "the first part of 1985," it is not enough to establish present probable cause because what is required is the time that the informant made his observations, not the time that he told Detective Loyd of them.See2 LaFave, supra§ 3.7(b), at 88 n. 56("[i]t must be emphasized that the time needed is the time of the facts relied upon to establish probable cause, not the time that these facts were conveyed to law enforcement authorities").Here, there is a total absence in the affidavit of any indication concerning the time when the informant made his observations.⁴We therefore conclude that in the circumstances in this case the suppression motion should have been allowed because there was no showing of present probable cause for the warrant to issue.Because it is apparent from this record that the Commonwealth cannot make its proof without reference to the suppressed evidence, we reverse the judgment and order judgment for the defendant.

So ordered.

1The defendant also claims that the magistrate was not "informed of (1) some of the underlying circumstances from which the informant concluded that the ['stolen or illegal' items were] where he claimed [they were](the basis of knowledge test), and (2) some of the underlying circumstances from which the affiant concluded that the informant was 'credible' or his information 'reliable'(the veracity test)."Commonwealth v. Upton, 394 Mass. 363, 375, 476 N.E.2d 548(1985)(Upton II), quoting fromAguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723(1964).Because of our decision, we do not address these concerns.

2The affidavit attached to the application for the search warrant read as follows:

"I, Sgt John G Colbert of the Duxbury, Massachusetts Police Department, being duly sworn depose and say that on March 9, 1985, I received the following information from Det Leonard Loyd of the Marshfield Police Department.Det Loyd stated that a reliable confidential informant referred to as CI-A gave him information that the items described in section four of the affidavit could be found at 44 Bay Rd,...