Com. v. Wright

• Decision Date: 31 January 1983
• Citation: 444 N.E.2d 1294,15 Mass.App.Ct. 245
• Parties: COMMONWEALTH v. James WRIGHT (and five companion cases 1 ).
• Court: Appeals Court of Massachusetts

Page 1294

444 N.E.2d 1294

15 Mass.App.Ct. 245

COMMONWEALTH v. James WRIGHT (and five companion cases ¹).

Appeals Court of Massachusetts Middlesex.

Argued Oct. 7, 1982.

Decided Jan. 31, 1983.

James W. Sahakian, Asst. Dist. Atty., for the Commonwealth.

Michael Reilly, Boston, for defendants.

Before HALE, C.J., and ROSE and GRANT, JJ.

ROSE, Justice.

These cases are before the court for interlocutory review of a Superior Court judge's rulings on each defendant's motion to suppress evidence. ² The homes of both defendants were searched pursuant to search warrants issued on the basis of the same affidavit, and both defendants moved to suppress the evidence obtained in the searches. The judge granted Mathews' motion to suppress but denied Wright's motion. The judge also denied Wright's requests for evidentiary hearings concerning certain statements contained in the affidavit. ³

The issues in these cases focus on the sufficiency of the affidavit of Detective Lieutenant O'Halloran of the Massachusetts State police to establish probable cause for the issuance of the search warrants. Therefore, the information and statements contained in the affidavit must be reviewed in detail.

The affidavit states that the defendants, Officers Wright and Mathews of the Burlington police department, were assigned to the same police cruiser at 1:58 A.M. on December 12, 1980, when the Burlington police station received a telephone alarm from IVAC Corporation (IVAC). The call was broadcast over the police radio, and Officer Glejzer, who was one-half mile from the scene, answered the call. Mathews, however, broadcast that he was already at the scene and that Officer Glejzer need not respond since there was only a broken window. A short time later Mathews called for Sergeant Hyde, although normal police procedure, according to the affidavit, would dictate calling the closest officer, Officer Glejzer. Sergeant Hyde arrived at the scene. The owner of IVAC could not be reached immediately and did not arrive until approximately 3:00 to 3:30 A.M., after Sergeant Hyde had left the scene. The owner reported the following items as missing: two color televisions, one black and white television, three video tape decks, and some adult and regular movies.

Although police reports are normally filed after a tour of duty, according to the affidavit, Captain Rose and the file clerk did not find a report of the incident until one or two weeks before the filing of the search warrant affidavit, which was several weeks after the incident. The report, filed by Wright, stated that a dark 1969-1970 Chevrolet with three occupants was seen by the defendant officers leaving the scene of the crime and heading towards Lexington. This automobile was not pursued by the defendants although that was stated in the affidavit to be contrary to normal police procedure.

The affidavit further related that on December 15, 1980, Inspector Chicarello and Officer Glejzer spoke to the owner of IVAC who gave them additional information on the missing items. The owner stated that adult movies are regularly shipped to him in green containers but that he removes the films and puts them in light blue boxes. His routine practice is to place white tape on the boxes and write the names of the movies in black letters.

On December 22, 1980, at a gathering of police officers at the home of Officer Soda, Officer Glejzer, according to the affidavit, heard Wright say that anyone who wanted to come was invited to his house for "Super Sunday" to see the football game and watch adult movies. Inspector Chicarello overheard a conversation between Sergeant Devlin and Officer Patuto that adult movies would be shown at Wright's home on "Super Sunday." On January 3, 1981, a Burlington police officer stated that he overheard Wright tell other officers that his wife had given him a video tape player for Christmas.

On January 25, 1981, some police officers went to Wright's home for "Super Sunday." One of the officers had been shown the type of video tape players and movies stolen from IVAC. He saw a blue tape box and video tapes with white labels and black lettering at Wright's home. The titles of two adult movies shown at the "Super Sunday" gathering were among those noted on a list of the films stolen from IVAC. Mathews was among those present at the "Super Sunday" gathering and was overheard to say that he had given his wife a video recorder for Christmas. He stated that he had adult movies but that he hadn't brought them because they were a tape size that didn't fit Wright's machine. According to the affidavit, one of the stolen video tape players and some of the stolen films were a different size and type from those seen at Wright's house.

Both the defendants claim that the search warrants were not properly issued because the affidavit was not legally sufficient to establish probable cause to believe that any of the stolen property would be found in their respective homes. In addition, Wright cites as an error of law the motion judge's rulings that evidentiary hearings regarding the validity of certain statements in the affidavit were not necessary.

In reviewing rulings on motions to suppress evidence uncovered in searches made pursuant to search warrants, this court must review the information contained in the affidavit which forms the basis for issuance of the warrant at issue in a "commonsense and realistic fashion," without resort to "hypertechnical" scrutiny. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965). Commonwealth v. Stewart, 358 Mass. 747, 750, 267 N.E.2d 213 (1971). Commonwealth v. Fleurant, 2 Mass.App. 250, 252, 311 N.E.2d 86 (1974). Commonwealth v. Scanlan, 9 Mass.App. 173, 179, 400 N.E.2d 1265 (1980). The standard of review to be applied is whether the affidavit presented a reasonable basis for a finding of probable cause by the judge issuing the warrant. Commonwealth v. Taglieri, 378 Mass. 196, 199, 390 N.E.2d 727, cert. denied, 444 U.S. 937, 100 S.Ct. 288, 62 L.Ed.2d 197 (1979). Probable cause, in turn, requires "more than mere suspicion" but a "lesser showing than that which is necessary to justify a conviction." Commonwealth v. Grammo, 8 Mass.App. 447, 450, 395 N.E.2d 476 (1979). In evaluating the affidavit, the information contained within it must be read as a whole and reasonable inferences are valid considerations. Commonwealth v. Alessio, 377 Mass. 76, 82, 384 N.E.2d 638 (1979). In close cases, preference is accorded to warrants. Commonwealth v. Blye, 5 Mass.App. 817, 362 N.E.2d 240 (1977). See United States v. Ventresca, 380 U.S. at 109, 85 S.Ct. at 746; Commonwealth v. Alessio, supra 377 Mass. at 82, 384 N.E.2d 638.

Both defendants cite hearsay problems with the information contained in the affidavit. Although they acknowledge that hearsay information may be utilized by an affiant in connection with an application for a search warrant, they contend that the two-pronged test for such information set out in Aguilar v. Texas, 378 U.S. 108, 114-116, 84 S.Ct. 1509, 1513-1514, 12 L.Ed.2d 723 (1964), has not been met. See also Spinelli v. United States, 393 U.S. 410, 415-416, 89 S.Ct. 584, 588-589, 21 L.Ed.2d 637 (1969); United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). Both defendants argue that the specific source of much of the information set out in the affidavit is unclear, and that there is not sufficient indication of the reliability of the sources of the information.

Under the two-pronged test of Aguilar v. Texas, supra, an affidavit based upon hearsay information obtained from an informant must inform the issuing judge or magistrate of some of the underlying circumstances which led...