|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. DeCologero,
19 Mass.App.Ct. 956 (1985)
Appeals Court of Massachusetts,
Argued
Decided
[19 Mass.App.Ct.
959] John C. McBride,
Mary Ellen O'Sullivan, Asst. Dist. Atty., for the
Commonwealth.
Before GREANEY, C.J., and DREBEN and FINE, JJ.
[19 Mass.App.Ct. 956]
RESCRIPT
These
appeals challenge the validity of the indictments brought against one of the
defendants and claims that a search warrant which led to the discovery of
incriminating evidence was defective. We
affirm the convictions of both defendants.
[19 Mass.App.Ct.
957] 1. Validity of Indictments Against Paul DeCologero.
[1] Paul
was convicted in a jury‑waived trial of concealing an insured motor
vehicle with intent to defraud the insurer and of making false statements to
the insurer in connection with a claim under a motor vehicle policy. Prior to trial he filed a motion to dismiss
the indictments (FN2) asserting, citing
Commonwealth v. McCarthy, 385 Mass. 160, 163‑164, 430 N.E.2d 1195
(1982), that there was no evidence before the grand jury of his participation
in any criminal activity.
The
following account was presented to the grand jury through the testimony of two
police officers, Lothrop Hedge and Philip Ryan. Paul is Anthony's nephew, and the two men
worked "at the same place of employment." In June of 1981, Paul reported that his 1977
Cadillac had been stolen and made a written claim of loss to his insurance
company. On
The car
and the name DeCologero reminded Hedge of an
unrelated incident some fifteen days earlier when he had seen a "car very
similar to this Cadillac" in the driveway of Anthony's summer house. Hedge drove to Anthony's summer residence
where in the driveway, he saw charred red material, "much the same"
as the interior of the Cadillac, and vinyl material which "appeared the
same as the vinyl material" covering the car's roof. He obtained a search warrant and, accompanied
by Ryan, searched the house, where they found Paul's license plate for the
Cadillac, the car's radio and a piece of metal from its roof. Another stolen vehicle was also found in
Anthony's driveway.
The
relevant standard for analyzing Paul's claim that he has not been sufficiently
linked to the concealment of the automobile is whether the indictment is
"supported by evidence sufficient to establish probable cause to
arrest." Commonwealth v. O'Dell, 392 Mass. 445,
450‑452, 466 N.E.2d 828 (1984). Commonwealth v. Botto,
19 Mass.App. 938, 472 N.E.2d 977 (1985). Is there "reasonably trustworthy
information ... sufficient to warrant a prudent man in believing that the
defendant had committed ... an offense?" Commonwealth v. O'Dell, supra
392 Mass. at 450, 466 N.E.2d 828, quoting from Commonwealth v. Stevens, 362 Mass. 24, 26, 283 N.E.2d 673 (1972).
"In
dealing with probable cause ... 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
technicians, act." Commonwealth v. Hason,
387 Mass. 169, 174, 439 N.E.2d 251 (1982), quoting from
[19 Mass.App.Ct.
958] Brinegar
v. United States, 338 U.S. 160, 175, 69 S.Ct.
1302, 1310, 93 L.Ed. 1879 (1949). In weighing probabilities, we think it
appropriate to take into account normal familial ties. Reasonably prudent persons recognize that
there is some affinity between uncles and nephews. Here, the two men were not only related, but
they also worked together. We also note
that Paul's purportedly stolen car with its ignition intact remained parked for
a considerable length of time in his uncle's driveway open to view.
Although
the links between Paul and the theft, as presented to the grand jury, would not
warrant a finding of guilty, see
Commonwealth v. Iannello, 344 Mass. 723, 738‑739,
184 N.E.2d 364 (1962); cf. Commonwealth v. Derry, 221 Mass. 45, 48‑49,
108 N.E. 890 (1915), "[p]robable cause does not
require the same type of specific evidence of each element of the offense as
would be needed to support a conviction." Commonwealth v. O'Dell, 392
Mass. at 451, 466 N.E.2d 826, quoting from Smith, Criminal Practice and
Procedure § 104 (2d ed. 1983). There is
a large "difference between what is required to prove guilt in a criminal
case and what is required to show probable cause for arrest or search .... There is ... a like difference in the quanta and modes of proof required to
establish them." Brinegar v. United
States, 338 U.S. at 173, 69 S.Ct. at 173. The "requirement of sufficient evidence
to establish the identity of the accused and probable cause to arrest him is
considerably less exacting." O'Dell, 392 Mass. at 451, 466 N.E.2d
826. See also Commonwealth v. Hason, 387 Mass. at 175,
439 N.E.2d 251. While the question is
admittedly close, we think there was sufficient "reasonably trustworthy
information" for a prudent person to believe that Paul had participated in
the offenses. Commonwealth v. O'Dell, 392 Mass. at 450,
466 N.E.2d 826. See Commonwealth v. Francil, 15 Mass.App. 35, 37, 443 N.E.2d 420 (1982). Contrast
Commonwealth v. McCarthy, 385 Mass. at 163‑164, 430 N.E.2d 1195.
2. Validity of the Search Warrant.
[2] (a)
The defendants' claim that probable cause was lacking to issue the warrant to
search Anthony's house for the license plate and other missing portions of
Paul's Cadillac is without merit.
Officer Ryan's affidavit described the vandalized car, its missing
parts, Hedge's previous observation of the car at Anthony's house, and what was
found in Anthony's driveway. The
affidavit specified the items sought (plate, keys, radio, etc.). There is here no claim that the warrant and
the affidavit should not be read together, (FN3) and Ryan, the affiant, was one
of the officers executing the search warrant.
See Commonwealth v. Todisco, 363 Mass. 445, 449, 294 N.E.2d 860 (1973);
Commonwealth v. Vitello, 367 Mass. 224,
272‑274, 327 N.E.2d 819 (1975).
Compare Commonwealth v. Taylor,
383 Mass. 272, 274‑275, 418 N.E.2d 1226 (1981).
[3] (b)
The defendants fare no better in their claim that the affidavit failed to
comply with G.L. c. 276, § 2B. The
affidavit consists of three pieces of [19
Mass.App.Ct. 959]
paper, a printed form (FN4) labeled "Affidavit in Support of Application
for Search Warrant" and two attached typewritten sheets, the second of
which was signed. The printed form
leaves space only for two lines to describe the information on which to base
the issuance of the warrant and is designed so that the space would be filled
by appropriate words such as were here inserted, namely "see attached
affidavit." Ryan's oath and the
description of the goods to be seized appear on the printed form and did not
have to be repeated on the attached sheets.
The fact
that the clerk of court who took Ryan's oath on the affidavit used a form which
erroneously calls for acknowledgement before a notary public instead of a clerk
of court is of no consequence, particularly where, as here, the same person who
acknowledged the oath on the affidavit signed the warrant as
"clerk." See Commonwealth v. Snow, 363 Mass. 778,
784‑786, 298 N.E.2d 804 (1973).
Compare Commonwealth v. Dozier,
5 Mass.App. 865 and n. 1, 366 N.E.2d 1270 (1977).
Judgments affirmed.
FN1. One of
the companion cases is against Paul A. DeCologero and
one is against Anthony P. DeCologero. Anthony was convicted of concealing a motor
vehicle with intent to defraud an insurer.
FN2. Paul A. DeCologero
was found not guilty on a third indictment (making false statements to police).
FN3. In any event the warrant specified the
license plate which was the most significant item found in the house.
FN4. We take a dim view of the defendants'
failure to include in the record appendix that page of Officer Ryan's affidavit
which appeared on the printed form and of counsel's argument which proceeded as
if that page did not exist. This
failure, despite the explicit ruling of the motion judge that the pages should
be read together, even if inadvertent, is not consistent with counsel's
obligations as an officer of the court.