Com. v. Postoian

• Decision Date: 29 March 1972
• Citation: 361 Mass. 869,281 N.E.2d 588
• Parties: COMMONWEALTH v. Edward POSTOIAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 588

281 N.E.2d 588

361 Mass. 869

COMMONWEALTH v. Edward POSTOIAN.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Feb. 7, 1972.

Decided March 29, 1972.

Reuben Goodman, Boston, and Robert V. Greco, Roslindale, for defendant.

John M. O'Connor, Asst. Dist. Atty., for the Commonwealth.

Before CUTTER, SPIEGEL, REARDON, QUIRICO and HENNESSEY, JJ.

RESCRIPT.

The defendant was convicted on seven indictments: two charging armed robbery, two charging putting persons in fear for the purpose of stealing from a building, one charging two counts of assault with a dangerous weapon, one charging larceny of a motor vehicle, and one charging conspiracy to commit larceny. He was sentenced on all but the last described indictment. He seasonably claimed an appeal but failed to perfect it by filing assignments of error. A single justice of this court, acting on the defendant's petition for a writ of error, authorized him to file his assignments late. The sole error assigned is the trial judge's denial of his motion to suppress and return to him a green shirt and the admission of the shirt in evidence. The shirt was seized by a police officer from the defendant's motel room in the execution of a valid search warrant authorizing a search for 'United States Currency (approximately $8700.00); small grey metal box approximately 18 9 8 , 1 green bandanna, two construction type metal helmets, a 45 caliber automatic pistol, pair of dark glasses.' The officer stated in his return of service that he seized 'one dk. green shirt (torn).' The sole argument by the defendant is that '(a) bandanna simply is not a shirt' and therefore the shirt was not lawfully seized in the execution of the search warrant. This argument is without merit. Basically the warrant authorized the search for and seizure of any green cloth capable of being worn as or used in the manner or fashion of a bandanna, whether it actually was a bandanna or whether it was a handkerchief, scarf, torn shirt or cloth from any other source. If the words 'green bandanna' in the warrant did not include green cloth from a torn shirt, the torn shirt was nonetheless lawfully seized. When the police officer entered the motel room to execute the search warrant he possessed information given him by several eyewitnesses to the crimes to the effect that one of the perpetrators wore a green cloth mask over the lower portion of his face. That cloth had been more fully described to the police officer as being ...