Com. v. Penta

• Citation: 225 N.E.2d 58,352 Mass. 271
• Parties: COMMONWEALTH v. Richard M. PENTA (and a companion case).
• Decision Date: 31 March 1967
• Court: United States State Supreme Judicial Court of Massachusetts

Page 58

225 N.E.2d 58

352 Mass. 271

COMMONWEALTH v. Richard M. PENTA (and a companion case).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 6, 1967.

Decided March 31, 1967.

Joseph J. Balliro, Boston, for defendant.

John J. Irwin, Asst. Dist. Atty. (Ruth I. Abrams, Asst. Dist. Atty., with him), for the Commonwealth.

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

WILKINS, Chief Justice.

The defendant was convicted on two indictments. Number 72,080 was in three counts, each charging concealment of a stolen motor vehicle. G.L. c. 266, § 28 (as amended through St.1959, c. 160, § 2). Number 72,081 was in one count charging the possession or making use of 'falsely made, altered, forged or counterfeited license to operate motor vehicles.' G.L. c. 90, § 24B, as amended. Before trial the defendant argued motions to suppress evidence all of which were denied. The trial was subject to G.L. c. 278, §§ 33A--33G. The defendant on his appeals assails the validity of the search warrants.

1. The clerks ¹ had power to issue the warrants. General Laws c. 218, § 33, provides, 'A clerk, assistant clerk, temporary clerk or temporary assistant clerk, paid by the county, may receive complaints, administer to complainants the oath required thereto, and issue warrants, search warrants and summonses, returnable as required when such processes are issued by said courts.' Contrary to the defendant's contention, the last clause does not mean that the power can be exercised only after action by a judge, but refers merely to the time when the several documents are returnable. The authority of clerks to issue warrants under c. 218, § 33, has been recognized by this court. Commonwealth v. Posson, 182 Mass. 339, 340--342, 65 N.E. 381. Thompson v. Globe Newspaper Co., 279 Mass, 176, 185--187, 181 N.E. 249. Their authority is not limited by indirection in G.L. c. 276, § 1 (as amended through St.1964, c. 557, § 1), which allows search warrants to be issued by 'A court or justice authorized to issue warrants in criminal cases.' Clerks are included within in the word 'court.' See O'Connell v. Retirement Bd. of City of Boston, 254 Mass. 404, 405--406, 150 N.E. 2; Massachusetts BAR ASSN. V. CRONIN, MASS., 220 N.E.2D 629.^A This construction becomes free from doubt in reading § 2B of c. 276 (inserted by the same statute, St.1964, c. 557, § 3), which, after repeating the clause, 'A person seeking a search warrant shall appear personally before a court or justice,' provides, 'The person issuing the warrant (italics supplied) 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.'

Throughout, the plain intention is to refer to officials authorized to issue warrants under c. 218, § 33. Depriving clerks of this power would impose the duty exclusively on the members of the judiciary and would subject the issuing of warrants to hampering delay. This result would serve no constructive purpose. Legislative intent to this effect is unthinkable.

The further argument that clerks are forbidden to issue warrants by art. 14 of the Declaration of Rights of the Constitution of the Commonwealth is a strained interpretation not worthy of discussion.

2. The defendant attacks the sufficiency of the contents of the affidavits in support of the applications for the warrants, all of which were dated January 6, 1965.

(a) The first warrant issued, number 3337, concerns the automobile which is the subject of count 3 of indictment number 72,080. The affidavit is by a sergeant in the State police. It states that he has information that a 1962 green Oldsmobile sedan, Massachusetts 1964 registration 428--109, reported stolen on October 17, 1964, by the Somerville police department, is located in a one-story concrete block garage on Sunnyside Avenue, Everett. 'Based upon the foregoing reliable information--and upon ny personal knowledge--there is probable cause to believe that the property hereinafter described has been stolen--is unlawfully possessed or controlled--and is concealed and may be found in the possession of Richard M. Penta or other persons at the following premises a one story concrete block garage located on Lots 3 & 4, Sunnyside Avenue, Everett, owned by Anna Abrams.' The affidavit then repeats its description of the Oldsmobile sedan.

This affidavit is not a compliance with G.L. c. 276, § 2B, as amended. It does not 'contain the facts, information, and circumstances upon which such person relies to establish sufficient grounds for the issuance of the warrant.' The form of affidavit prescribed in § 2B is, '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).' The affidavit does not disclose the source of the sergeant's information or personal knowledge. This is required by § 2B. Commonwealth v. Mitchell, 350 Mass. 459, 462, 215 N.E.2d 324. Commonwealth v. Maneatis, 350 Mass. 780, 216 N.E.2d 452. Contrary to the contention of the Commonwealth, this affidavit does not state that he saw the 1962 Oldsmobile. Its contents cannot be buttressed by oral testimony as to what may have been stated to the magistrate. COMMONWEALTH V. MONOSSON, MASS., 221 N.E.2D 220.^B Apart from the uncertainty which such a procedure would create, there would always be a strong possibility of subjecting the magistrate, as in the case at bar, to the inconvenience of being called as a witness, an unseemly occurrence at best.

The seizure of the 1962 Oldsmobile cannot be upheld as incidental to a lawful arrest. The testimony relied upon by the Commonwealth shows that the automobile was seen by a police officer when he entered the garage pursuant to the invalid warrant number 3337. There is nothing to indicate it was seen earlier by the police.

The motion to suppress this evidence should have been granted.

(b) Warrant number 3338 relates to the two automobiles which are the subjects of counts 1 and 2 of indictment number 72,080, and is not open to the objections which are fatal to warrant number 3337.

The affidavit by the same State police sergeant states that he had information that 'a stolen 1964 Cadillac coupe; color white; vehicle identification number 64J077777 reported stolen on 12/3/64 by Police Dept. Malden was seen by me in a garage located on Lot numbers 3 & 4 on Sunnyside Ave., Everett and a 1964 Chevrolet Corvette vehicle identification number 40867S108337 stolen 12/6/64 and reported stolen by Metropolitan District Commission Police.' Similar to the affidavit in support of the application for warrant number 3337, this affidavit states: 'Based upon the foregoing reliable information--and upon my personal knowledge--there is probable cause to believe that the property hereinafter described has been stolen--and is concealed any may be found in the possession of Richard M. Penta or other persons at the following premises a one story concrete block garage located on Lots numbered 3 & 4 on Sunnyside Ave. Everett, being owned by one Anna Abrams.'

This affidavit shows that the source of the sergeant's information and knowledge was that he personally saw them. There is no fatal failure to state underlying facts which would verify the stolen character of the vehicles. The reference to the reports of the police departments stating this fact was ample. There was no error in the denial of the motion to suppress this evidence.

(c) Warrant number 3339 concerns the subject matter of indictment number 72,081, namely, miscellaneous articles obviously of great importance in a general stolen car scheme. The affidavit is not open to the objections raised to the first affidavit. It was made by a State police officer and very clearly shows that he had seen them in the garage. These articles were eight VIN (vehicle identification number) plates (the specific numbers given), approximately 150 General Motors auto keys, two boxes of pop rivets, one pop rivet gun, one Jacobs multicraft electric drill, one envelope of miscellaneous 'auto decals,' and one package of approximately forty fraudulent Massachusetts automobile operators license blanks. There was no failure to allege the illegal nature of these articles, which were obviously, and perhaps exclusively, useful to conceal stolen vehicles, itself a crime. G.L. c. 266, § 28. Mere possession of the operators license blanks is a crime also. G.L. c. 90, § 24B.

The defendant relies upon testimony of the assistant clerk of the District Court as...