Com. v. Rugaber

• Decision Date: 26 February 1976
• Parties: COMMONWEALTH v. Jack R. RUGABER (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 865

343 N.E.2d 865

369 Mass. 765

COMMONWEALTH

v. Jack R. RUGABER (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Hampden.

Argued Feb. 2, 1976.

Decided Feb. 26, 1976.

David Burres, for defendant.

Daniel E. O'Malley, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

BRAUCHER, Justice.

After a jury waived trial, the defendants appeal from convictions for drug offenses. They argue that (1) evidence seized under a search warrant should have been suppressed because the premises to be searched were misdescribed, and (2) their motions for findings of not guilty should have been allowed. We hold that the motion to suppress evidence seized under the search warrant was properly denied, and that there was sufficient evidence of the defendants' guilt to warrant submission of the cases to a jury. We therefore affirm the convictions.

The defendant Rugaber was convicted on four indictments charging unlawful possession of marihuana and LSD with intent to distribute and unlawful possession of amphetamines and cocaine. The defendant Manning was convicted on four indictments charging unlawful possession of LSD with intent to distribute and unlawful possession of marihuana, cocaine and hashish. Rugaber was sentenced to one year in a house of correction on the LSD charge and on the remaining convictions was ordered placed on probation for three years from and after the LSD sentence. Manning was given a suspended sentence on the LSD charge and placed on probation for three years; on the other charges she was placed on concurrent probation for three years. They appealed under G.L. c. 278, §§ 33A--33G, and we transferred the appeals here on our own motion.

1. The search warrant. In denying the defendants' motion to suppress evidence, the judge made detailed findings, which the parties accept. He concluded that Springfield police officers had probable cause to search for drugs at 3 Fenwick Street, Springfield, a brick house with two front entrances and a green porch. By reason of an error by a Federal agent, one of the officers included the following in his affidavit in support of his application for a search warrant: 'This house #3 Fenwick St. is a two-story wooden structure, red over gray located on the east side of the street in Springfield, Mass.' The warrant commanded a search of '#3, Fenwick St., Springfield, a two story wooden frame dwelling, color red & grey.'

The description of color and type of building material precisely fitted the house next door, which fronted on Wilbraham Road but had an unnumbered side or rear entrance on Fenwick Street. Number 3 bore no lettering or numeral to indicate its address. The officers who obtained the warrant were directed by other officers to the house from which a suspect had emerged about an hour before. They searched that house, which was No. 3 Fenwick Street. The warrant was executed at night, and the discrepancy was not apparent. The officers who obtained the warrant were not aware of the misdescription when they executed it and they were not reckless; at most they were negligent in this respect. The judge was unable to find that any of the officers actually involved was aware of the misdescription.

Particular description of the place to be searched is required by the Fourth Amendment, by art. 14 of our Declaration of Rights and by G.L. c. 276, § 2. Commonwealth v. Pope, 354 Mass. 625, 628--629, 241 N.E.2d 848 (1968). Invocations of error and inadvertence cannot ordinarily save an invalid warrant, although we have allowed the warrant to be read with the application or complaint. Commonwealth v. Vitello,--- Mass. ---, --- - ---, ^a 327 N.E.2d 819 (1975), and cases cited. But 'if the police are to be encouraged to use the warrant procedure, it seems good policy to allow a certain leeway or leniency in the after-the-fact review of the sufficiency of applications for warrants.' Commonwealth v. Corradino, --- Mass. ---, ---, ^b 332 N.E.2d 907 (1975). 'Factual inaccuracies not going to the integrity of the affidavit do not destroy probable cause for a search.' Commonwealth v. Murray, 359 Mass. 541, 548, 269 N.E.2d 641, 646 (1971). Cf. Commonwealth v. Gallinaro, 360 Mass. 868, 277 N.E.2d 527 (1971).

The present case is a close one, since the description of the place to be searched is 'to be read without poetic license.' Commonwealth v. Hall, --- Mass. ---, ---, ^c 323 N.E.2d 319 (1975). The judge concluded that an officer attempting to execute the warrant with no information other than the description contained within it and the attached affidavit would 'most assuredly' have invaded the wrong property. The Commonwealth 'does not fully agree' with that conclusion, since it is not clear how far it takes into account the physical facts. See Commonwealth v. Gill, --- Mass.App.Ct. ---, ---, ^d 318 N.E.2d 628 (1974). Perhaps it would be more accurate to say that the warrant was ambiguous in its description of the property to be searched.

The defendants cite cases where warrants were upheld because erroneous street numbers were overcome by additional descriptions. United States v. Goodman, 312 F.Supp. 556, 557 (N.D.Ind.1970). United States v. Pisano, 191 F.Supp. 861, 863 (S.D.N.Y.1961). State v. Daniels, 46 N.J. 428, 438, 217 A.2d 610 (1966). Contra: State v. Lee, 247 La. 553, 562, 172 So.2d 678 (1965). The determining factor, they say, is 'whether the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premises might be mistakenly searched which is not the one intended to be searched under the search warrant,' quoting from United States v. Sklaroff, 323 F.Supp. 296, 321 (S.D.Fla.1971).

There is authority for piecing out an inadequate description with the personal knowledge of the searching officers. United States v. Gomez, 42 F.R.D. 347, 348 (S.D.N.Y.1967). But we need not go so far here. The description here was not inadequate on its face. The executing officers did not become aware of its ambiguity as applied to the physical facts, and they were not reckless in this respect. They had probable cause to search No. 3 Fenwick Street, the address was a sufficient description if the erroneous references to color and type of building material were disregarded, and the knowledge of the officers on the scene eliminated any danger that there might be a mistaken search of the premises next door. In these circumstances we agree...