Com. v. Stewart

• Decision Date: 01 March 1971
• Citation: 267 N.E.2d 213,358 Mass. 747
• Parties: COMMONWEALTH v. Allan W. STEWART, Jr. (and five companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 213

267 N.E.2d 213

358 Mass. 747

COMMONWEALTH v. Allan W. STEWART, Jr. (and five companion cases

¹

).

Supreme Judicial Court of Massachusetts, Franklin.

Argued Sept. 22, 1970.

Decided March 1, 1971.

Reuben Goodman, Boston (Alexander Whiteside, II, Boston, with him), for defendant.

Stanley L. Cummings, Asst. Dist. Atty., for the Commonwealth.

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

QUIRICO, Justice.

The defendant, Allan W. Stewart, Jr., was convicted on a complaint charging him with being present where a narcotic drug was illegally kept. The defendant, Richard K. Garon, was convicted on five complaints charging him with the following crimes: unlawful possession of a narcotic drug, unlawful possession of harmful drugs, unlawful possession of hypodermic needle and syringes, being present where a narcotic drug was illegally kept, and concealing stolen property.

The drugs, hypodermic needle, syringes and allegedly stolen property had been seized by the police in the execution of a search warrant. The sole issue raised by each bill of exceptions is the sufficiency of the affidavit in support of the application for the search warrant. The defendants seasonably moved to suppress the evidence seized pursuant to the warrant. Their motions were denied and they excepted to such denials.

The warrant involved in these cases authorized a search of an apartment occupied by the defendant Garon. The articles described in the warrant as the objects of the search were 'marijuana, hypodermic needles and syringes, parking meter head--property of the Town of Greenfield.' The 'magistrate' issuing the warrant was the clerk of a District Court.

A basic limitation on the issuance of search warrants is the requirement that there be a showing of probable cause before one may issue. This limitation by its very terms recognizes the vast difference between proof of guilt beyond a reasonable doubt on the one hand and proof of probable cause to believe a fact or facts on the other hand. 'In dealing with probable cause * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicans, act. The standard of proof is accordingly correlative to what must be proved. 'The substance of all the definitions' of probable cause 'is a reasonable ground for belief of guilt.' * * * And this 'means less than evidence which would justify condemnation' or conviction. * * * Probable cause exists where 'the facts and circumstances within * * * (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed.' Brinegar v. United States, 338 U.S. 160, 175--176, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879; Commonwealth v. Lillis, 349 Mass. 422, 424, 209 N.E.2d 186.

Applying this general rule to the present cases, the burden on the Commonwealth in applying for a search warrant was not to provide an affidavit which convinced the issuing magistrate beyond a reasonable doubt that there were narcotic drugs, hypodermic needles and syringes and a parking meter head in the defendant Garon's apartment. If the affidavit provided the magistrate with a substantial basis for concluding that any of such articles was probably present in the apartment, that is sufficient. Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697; Rugendorf v. United States, 376 U.S. 528, 533, 84 S.Ct. 825, 11 L.Ed.2d 887.

The defendants do not contend that the affidavit may not be based on hearsay information or that it must reflect the direct personal observations of the affiant. Jones v. United States, supra, 362 U.S. 269--271, 80 S.Ct. 725. They rely, however, on the holding in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, that when, as in these cases, the affidavit is based on hearsay, 'the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant * * * was 'credible' or his information 'reliable. " Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 21 L.Ed.2d 637.

In determining whether the affidavit before us complies with the rules stated above we follow the further rule that the affidavit 'must be tested and interpreted by * * * (this court) in a commonsense and realistic fashion,' that we 'should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner,' and that 'the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.' United States v. Ventresca, 380 U.S. 102, 108--109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684.

Testing the affidavit before us in this manner, we conclude that it was legally sufficient. We summarize the facts stated therein, but not in the same order. The affiant was an officer with the Criminal Information Bureau of the Massachusetts State police. There had been a narcotic drug investigation in the town of Greenfield prior to the date of the affidavit, November 5, 1968. On November 3, 1968, 'an informer, known to be a reliable person' received a manila envelope containing plant fragments and seeds at the Garon apartment. He gave it to Officer Joseph Lachance of the town's police department, and the latter gave it to his superior, Captain Donald Grogan. On November 5, 1968, Captain Grogan spoke to the same person, whom he knew to be a reliable informant, who told him that he had been in the Garon apartment within the prior three days and had seen a parking meter...