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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth
v. Baharoian, 25 Mass.App.Ct. 35
Appeals Court of Massachusetts,
Argued
Decided
Further Appellate Review Denied
Laura Callahan, Asst. Dist. Atty., for the Com.
[25 Mass.App.Ct.
36] John J. Ruby, Jr. (Roger Witkin,
Before [25
Mass.App.Ct. 35]
DREBEN, KASS and FINE, JJ.
[25 Mass.App.Ct. 36] KASS, Justice.
In support of an
application for a search warrant, a
A large number of
citizens had complained to the police that there was gambling going on in
Avenue Variety at 64A
People arrived at the
Avenue Variety by private car, MBTA bus, taxi or on foot. Generally these customers visited the shop
for no more than a minute and emerged empty handed, or carrying a newspaper or
a soda. Many patrons entered the store
with money or slips of paper in hand.
Inventory in the store struck the officers as unusually spare and some
of the canned goods were covered with a heavy film of dust. There was no telephone in the shop, yet the
defendant Baharoian found it necessary from ten to
twenty times each day to use a pay phone in a gas station across the
street. Foot traffic each day was
heaviest between
Upon those facts a
magistrate issued a search warrant, and the police, in their search of the
store, found four cardboard boxes with note pads, betting slips, loose note
pads and $564 in cash. That evidence a
judge of the Boston Municipal Court, acting on motions by the defendants,
suppressed. The Commonwealth has
appealed under Mass.R.Crim.P. 15(a)(2), 378
*687 [1] [2] [3] [25 Mass.App.Ct.
37] 1. Sufficiency of affidavit in support of application for a search
warrant. As was the case in Commonwealth v. Lotfy,
8 Mass.App.Ct. 126, 127‑128, 391 N.E.2d 1249
(1979), there is no need to apply the
Aguilar and Spinelli
(FN2) tests to the citizen tips (there were at least twenty‑five of
them). We may analyze the case entirely
on the basis of whether the facts developed by the police investigation
supported the issuance of a warrant. Commonwealth v. Lotfy,
supra. In deciding to allow the
suppression motion, the Boston Municipal Court judge appeared to be moved by
the innocent explanations which could be imagined for many of the activities
observed, e.g., the variety store may have been a place to which persons came
to socialize and at which, indeed, they bought relatively little. Establishing probable cause, however, though
it requires a showing of more than suspicion, does not require evidence
sufficient to warrant a conviction. Brinegar v.
[4] The comings and
goings (see Commonwealth v. DiAntonio, 8 Mass.App.Ct.
434, 440, 395 N.E.2d 358 [1979] ); the
observation of what appeared to be betting slips in the hands of customers (see Commonwealth v. Wingle,
8 Mass.App.Ct. 905, 905‑906, 394 N.E.2d 983
[1979] ); the increased tempo of
activity and then closing of the shop near post time (see Commonwealth v. Dellicolli, 10 Mass.App.Ct. 909, 910, 410 N.E.2d 742 [1980] ); the observation of consistently suggestive
activity over a period of several days (ibid.); the scant inventory in the store; the application of the police officers'
experience to the observations they had made (Commonwealth[25 Mass.App.Ct. 38] v. DiAntonio, 8
Mass.App.Ct. at 440‑441, 395 N.E.2d 358)‑‑all
these taken together provided a reasonable basis for believing that gaming was
going on in the Avenue Variety store and that a search of the premises would
produce evidence of that activity.
[5] 2. The "any person present" phrase in the search warrant. Two defendants, Spearman and Jones, were not specifically named in the search warrant but were searched pursuant to a printed "any person present" catch‑all phrase in the warrant. (FN3) They protest that the facts stated in the affidavit do not provide a basis for this broad language and that, as applied to them, the search warrant was constitutionally defective as a general warrant.
What circumstances
justify use of the "any person present" language in a search warrant
was discussed extensively in Commonwealth
v. Smith, 370 Mass. 335, 339‑346, 348 N.E.2d 101 (1976). In that case information in an affidavit,
obtained through periodic surveillance, described heavy traffic in heroin
within the confines of an apartment.
Such was the nature of *688. the highly risky activity‑‑dealing
in hard drugs‑‑that "participants would act in secret and to
the exclusion of innocent persons...."
[6] Much turns,
therefore, on whether the premises to be searched are small, confined and
private, or relatively public.
Other examples from the books are instructive:
A warrant to search a
shoe store for evidence of gaming did not empower Federal agents to search
everyone present in the target premises.
On the other hand, evidence obtained from persons neither named nor described in a warrant, but who were subjected to search on the strength of "any person present" language, was not suppressed in situations where it was simply not reasonable to suppose that anyone on the scene would have arrived by accident and been unaware unlawful business was going on. See, e.g., State v. Hinkel, 365 N.W.2d 774, 776 (Minn.1985) (after hours gambling, drinking, and consumption of drugs in a [25 Mass.App.Ct. 40] locale that masqueraded as a private house); State v. DeSimone, 60 N.J. at 322‑326, 288 A.2d 849 (gambling transactions in an automobile). See, generally, the discussion in 2 LaFave, Search and Seizure s 4.5(e) (2d ed. 1987).
Even if it is a front, a neighborhood variety store is a public place which persons, in their innocence, may enter to buy a newspaper, bread, milk or a can of soup. There was not a reasonable basis for anticipating that everyone present was placing or taking a bet.
As to the evidence found on the premises or on the persons of Baharoian, Hoyt and Link, the order of suppression is vacated; as to the evidence obtained from the persons of Spearman and Jones, the order of suppression is affirmed.
So ordered.
FN1. Melvin T. Hoyt, Jr., Sidney Link, Lloyd Spearman and Harrison Jones. Baharoian is variously referred to as Baharian, Baharonian, Bahronian and Baharion. We adopt the name used in the criminal complaint and, ultimately, by counsel for the defendants.
FN2. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).
FN3. The warrant commanded "an immediate search of a four story wooden building situated and numbered sixty four A in Blue Hill Avenue, Roxbury [,d]oing business as Avenue Variety [,] (occupied by John Baharian [sic ] ) and of the person of Sidney Link and Melvin Hoyt, and of any person present who may be found to have such property in his possession or under his control.... [A list of the property to be searched for follows.]"