Com. v. Todisco

• Decision Date: 05 April 1973
• Citation: 294 N.E.2d 860,363 Mass. 445
• Parties: COMMONWEALTH v. Maurice TODISCO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 860

294 N.E.2d 860

363 Mass. 445

COMMONWEALTH v. Maurice TODISCO.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 6, 1972.

Decided April 5, 1973.

Herbert A. Black, II, Natick, for defendant.

Terence M. Troyer, Asst. Dist. Atty., for Commonwealth.

Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY and KAPLAN, JJ.

TAURO, Chief Justice.

The defendant was charged with (1) fraudulently obtaining telephone service; ¹ (2) allowing the premises to be used for gaming; ² and (3) allowing a telephone to be used for gaming. ³ Prior to trial ⁴ the defendant moved to suppress evidence alleged to have been obtained illegally. The motion was heard on a statement of agreed facts and was denied subject to the defendant's exceptions.

At the conclusion of the Commonwealth's case, the defendant moved for directed verdicts, which were denied subject to his exceptions. The case is here on the defendant's consolidated bill of exceptions.

We summarize the events as they appear in the record. On July 22, 1969, about 2 P.M., Trooper Edward A. Lussier of the Massachusetts State Police applied for a gaming search warrant and filed a supportive affidavit. The affidavit included information that a telephone numbered 481--1417 listed to Maurice Ferrante of 83 Pleasant Street, Marlborough, apartment number three, was being used in a bookmaking operation. The application for the warrant, however, stated that the rooms of apartment three, 83 Pleasant Street, were occupied 'by some person, whose name is to your informant unknown.' The warrant authorized a search of 'the rooms of apartment number (3) of the three (3) story red brick building with white trim situated at and numbered 83 Pleasant Street in the town of Marlborough, Mass.'

Sometime after 2 P.M., Trooper Lussier and other police officers went to 83 Pleasant Street and were admitted by an unknown female tenant. The building has five apartments in the basement and six apartments on both the ground and top floors. Each floor has an apartment numbered three. These apartment numbers are distinguishable in that they are preceded by the appropriate floor number. Basement apartment three is numbered 'b/3'; ground floor apartment three is numbered '1/3'; and the top floor apartment three is numbered '2/3'.

In the vestibule of the building, the officers executing the warrant discovered a mailbox that bore the name 'Ferrante, 2/3.' The officers proceeded to apartment 2/3 and receiving no response to their request to open the door, they looked through the peephole but could see no movement. One officer went outside the building and placed a call to 481--1417, listed to Maurice Ferrante, which was answered by a male voice. Another officer stated that he heard the telephone ringing while standing outside the door of the apartment. Shortly after 2 P.M., the officers made entrance to the apartment. No one was there. ⁵

1. The defendant argues that the search of apartment 2/3 violated his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Declaration of Rights of the Massachusetts Constitution because the warrant did not describe the place to be searched with sufficient particularity. He also argues that the failure of the warrant to describe sufficiently the premises to be searched constituted a violation of G.L. c. 276, § 2, as appearing in St. 1964, c. 557, § 2, which requires that a search warrant 'shall designate and describe the building, house, place, vessel or vehicle to be searched and shall particularly describe the property or articles to be searched for.'

In Commonwealth v. Pope, 354 Mass. 625, 628--629, 241 N.E.2d 848, we stated that the requirements of the Fourth Amendment, art. 14 of the Declaration of Rights and G.L. c. 276, § 2, were similar with respect to the particularity necessary in a warrant to identify the place to be searched. In that case, the warrant referred only to 'the rooms mentioned in the above complaint,' but the complaint identified the particular rooms in a numbered building on a designated street. We held that the complaint could be relied upon to support the validity of the warrant, but we noted that the complaint was 'physically attached to the warrant and a part thereof.'

In the instant case, the warrant described the premises to be searched as 'the rooms of apartment number (3) of the three (3) story red brick building with white trim situated at and numbered 83 Pleasant Street in the town of Marlborough, Mass.' It is agreed by the parties that there 'is on each . . . (of the three floors) an apartment door with a number 3 preceded by either a letter B or an appropriate number.' It thus appears that there were three different apartments, all of which fitted the description in the warrant.

The application for the warrant, which was attached to the warrant filed by Officer Lussier, stated that the rooms in apartment three at 83 Pleasant Street were 'occupied by some person, whose name is to your information unknown.' The application does not therefore increase the particularity of the warrant, even if the warrant and the application are read together.

The affidavit supporting the warrant was filed by Officer Lussier. It recited that 'a reliable informant . . . told me that telephone number 481--1417 . . . was being used in a book-making operation,' and that 'telephone number 481--1417 was listed to Morris (sic) Ferrante of 83 Pleasant St., Marlboro (sic), Mass. Apartment number three.' If the affidavit and the warrant are read together, it is clear that the warrant described precisely the apartment to be searched, for there was only one apartment 'three' purportedly occupied by Maurice Ferrante at 83 Pleasant Street in Marlborough.

We think that, in the circumstances of this case, the affidavit and the warrant may be read together. See Dwinnels v. Boynton, 3 Allen 310, 312--313; Fry v. United States, 9 F.2d 38, 39 (9th Cir.); United States v. Snow, 9 F.2d 978, 979 (D.Mass.); People v. Grossman, 19 Cal.App.3d 8, 96 Cal.Rptr. 437; United States v. Moore, 263 A.2d 652, 653 (D.C.App.), aff'd. sub nom. Moore v. United States, 149 U.S.App.D.C. 150, 461 F.2d 1236; Thompson v. State, 198 Ind. 496, 154 N.E. 278; Frey v. State, 3 Md.App. 38, 46, 237 A.2d 774; O'Brien v. State, 158 Tenn. 400, 402, 14 S.W.2d 51; Ellison v. State, 186 Tenn. 581, 583, 212 S.W.2d 387, annotation, 11 A.L.R.3d 1330, 1346. The parties have stipulated that Officer Lussier made out the affidavit and was also one of the officers executing the warrant issued on the basis of that affidavit. The search warrant recites that it is grounded upon '(p)roof by affidavit having been said this day before John F. Gabriel Clerk of the District Court of Marlborough, by Edward A. Lussier.' No objection to the probable cause justifying the warrant has been argued. Because Officer Lussier filed the affidavit, it is evident that he knew that the apartment number 'three' to be searched was in fact the apartment listed to Maurice Ferrante. The police officers executing the warrant discovered a mailbox in the vestibule of the building carrying the name 'Ferrante, 2/3.' It was this apartment that they proceeded to search.

The Fourth Amendment, art. 14 of the Declaration of Rights, and G.L. c. 276, § 2, all protect the public 'from intrusion and seizure by officers acting under the unbridled authority of a general warrant.' Stanford v. Texas, 379 U.S. 476, 481, 85 S.Ct. 506, 510, 13 L.Ed.2d 431, rehearing den. 380 U.S. 926, 85 S.Ct. 879, 13 L.Ed.2d 813; Steele v. United States No. 1, 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757; Commonwealth v. Pope, 354 Mass. 625, 629, 241 N.E.2d 848. In the instant case, where the affidavit supporting the warrant described the premises to be searched with sufficient particularity, and the warrant made specific reference to the affidavit filed by Officer Lussier who was one of the policemen executing the warrant, we believe that the warrant and the affidavit may be read together. When they are so read together, the premises designated in the warrant are described with sufficient particularity and the warrant does not violate the defendant's constitutional or statutory rights. The motion to suppress the evidence obtained as a result of the execution of this warrant was, therefore, properly denied.

2. The defendant also argues that the search warrant was improperly executed. We examine this claim first as it relates to the seizure of the telephones in apartment 2/3. As we noted in Commonwealth v. Laudate, 345 Mass. 169, 173, 186 N.E.2d 598, 600 (petition for cert. dism. sub nom. Laudate v. Massachusetts, 372 U.S. 951, 83 S.Ct. 947, 9 L.Ed.2d 976), "There is no formula for the determination of reasonableness (of a search). Each case is to be decided on its own facts and circumstances.' Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374.' See Abel v. United States, 362 U.S. 217, 234--235, 80 S.Ct. 683, 4 L.Ed.2d 668.

Before entering apartment 2/3, an officer went outside the building and placed a call to 481--1417 which was answered by a male voice. The officer remaining outside apartment 2/3 stated that he could hear the telephone ringing inside the apartment. When the officers entered the apartment no one was there. The warrant authorized the officers to arrest the keepers of the premises and all persons present 'if any lottery, policy or pool tickets, slips, checks, manifold books and sheets, memoranda of any bet or other implements, apparatus and materials of any form of gaming are then and there found in said rooms and to take into your custody all the implements, apparatus and materials of gaming as aforesaid.' The apartment's furnishings included two black telephones which were observed to have no number discs or receiver units (earpieces). The officers discovered that when an outside call was placed to 481--1417, the two telephones in the apartment...