Com. v. Pope

• Decision Date: 30 October 1968
• Citation: 354 Mass. 625,241 N.E.2d 848
• Parties: COMMONWEALTH v. Lewis R. POPE (and a companion case between the same parties).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 848

241 N.E.2d 848

354 Mass. 625

COMMONWEALTH

v.

Lewis R. POPE (and a companion case between the same parties).

Supreme Judicial Court of Massachusetts, Hampden.

Argued Oct. 7, 1968.

Decided Oct. 30, 1968.

Henry E. Quarles, Boston, for defendant.

Leonard E. Gibbons, Asst. Dist. Atty., for the Commonwealth.

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

SPALDING, Justice.

Verdicts of guilty were returned against the defendant on two complaints. In one, the defendant was charged with setting up and promoting a lottery (G.L. c. 271, § 7); in the other, with using telephones for the purpose of accepting wagers and bets upon the lottery called the numbers game (G.L. c. 271, § 17A).

Before the trial commenced the defendant presented motions to suppress and motions to dismiss the complaints. The motions were denied, subject to the defendant's exceptions. The question presented by the motions was whether certain evidence ought to have been suppressed on the ground that it was obtained in violation of the defendant's rights under the Fourth Amendment to the United States Constitution and art. 14 of our Declaration of Rights; there was the additional ground that the evidence was obtained in violation of G.L. c. 276, §§ 2, 2A, and 2B.

Evidence introduced by the Commonwealth at the trial included the following: On November 20, 1964, Springfield police officers, pursuant to a search warrant, entered the premises known as The Rib City Barbecue. The officers entered the premises in two groups. One entered through the front door, and the other through the rear door. One of the officers observed the defendant in a telephone booth talking on the telephone with a notebook in his hand. On the floor near the booth the officer found a slip of paper containing some numbers. As the defendant stepped out of the booth, the officer 'slipped this book out of his hand and placed him under arrest.' The notebook, according to the officer, 'contained a record of play reported by the agents for several weeks.' From another sheet obtained in the search the officer was abelt to 'determine the arents' percentage which usually ran from 20 to 25 percent of the take.' Other officers found slips of paper on the premises which in their opinion were memoranda of the sort used in number pool operations.

1. The first ground in the motions to suppress is that the affidavit on which the search warrant is based failed to show probable cause. ¹ Search warrants may be issued under G.L. c. 271, § 23, for violations of the gaming laws. The information to be furnished in obtaining such a warrant should be of the sort to satisfy the standard set forth in G.L. c. 276, § 2B. This is so despite the fact that G.L. c. 271, § 23, is not included among the statutes listed in § 2C under which the procedure set forth in §§ 2, 2A and 2B of c. 276 shall control as far as applicable. See Commonwealth v. Rossetti,349 Mass. 626, fn. 6, at p. 633, 211 N.E.2d 658; Commonwealth v. Dias,349 Mass. 583, 584, 211 N.E.2d 224. The defendant contends that the affidavit did not contain the showing of probable cause which is required by the Fourth Amendment and by G.L. c. 276, § 2B. ²

Although hearsay may be the basis for a warrant (Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233) the 'magistrate must be informed of some of the underlying circumstances from which the informant * * * (drew his conclusions), and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed * * * was 'credible' or his information 'reliable. " Aguilar v. State of Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723; Commonwealth v. Monosson, 351 Mass. 327, 329, 221 N.E.2d 220.

The affidavit here was sufficient to support the issuance of the warrant. The affidavit sets out the 'underlying circumstances' from which the informant drew his conclusions. The defendant, however, maintains that the affidavit does not show the credibility of the informant or the reliability of his information. It is true that the characterization of the informer as being 'very reliable' dos not satisfy the requirements laid down in the Aguilar case or in our decisions. Commonwealth v. Maneatis, 350 Mass. 780, 216 N.E.2d 452. Commonwealth v. Monosson, 351 Mass. 327, 329, 221 N.E.2d 220. But the statements in the affidavit concerning the observations of the police officers were sufficient to establish the credibility of the informant and the reliability of the information he gave the officers. Commonwealth v. Cuddy, 353 Mass. 305, 308--309, 231 N.E.2d 368. ^a Compare Commonwealth v. Rossetti, 349 Mass. 626, 632, 211 N.E.2d 658, where the court pointed out that the affidavit did not indicate that Rossetti had been under police surveillance.

2. The second ground set forth in the motions to suppress is that the warrant does not sufficiently describe the place to be searched. Under G.L. c. 276, § 2, a search warrant 'shall designate and describe the building, house, place vessel or vehicle to be searched and shall particularly discribe the property or articles to be searched for.' This requirement is similar to the command of the Fourth Amendment that 'no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' Likewise under art. 14 of our Declaration of Rights the 'order in the warrant * * * (must be) accompanied with a special designation of the persons or objects of search, arrest, or seizure * * *.' Such particularity is necessary in order to identify the place to be searched and the things to be seized; it both defines and limits the scope of the search and seizure, thereby protecting individuals from general searches, which was the vice of the pre-Revolution writs of assistance.

The warrant itself refers only to 'the rooms...