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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. Fleurant, 2 Mass.App.Ct.
250 (1974)
Appeals Court of Massachusetts, Worcester.
Argued
Decided
Conrad W. Fisher, Worcester, for defendant.
James P. Donohue, Asst. Dist. Atty., for the
Commonwealth.
Before HALE, C.J., and KEVILLE and ARMSTRONG, JJ.
[2 Mass.App.Ct.
251] HALE, Chief Justice.
[1] [2] At
a jury trial held subject to the provisions of G.L.
c. 278, ss 33A‑‑33G, the defendant was
found guilty on two indictments each charging unlawful possession of a machine
gun. G.L. c.
269, s 10, as amended through St.1969, c. 799, ss 14‑‑16. He has assigned as error: (1) the denial of
his motion to suppress evidence; (2) certain evidentiary rulings made at trial;
and (3) the denial of his motions for directed verdicts. (FN1)
1. (Assignment of Error No. 1.) The machine guns
in question, together with other weapons and ammunition, were seized on
The
affidavit recited, among other things, that Lieutenant Leahy received
information from one Michael Bonin 'this morning that
Fleurant has all types of rifles and handguns and
that they are stored in various rooms in his shop and that some of them are
kept in the cellar there.' The affidavit
also recited that 'Bonin further states that Fleurant has displayed to him and let him handle a variety
of guns and described one as a British Sten fully
automatic machine gun; . . . another as a .45 caliber (C)olt
machine gun . . . (and) another as a [2
Mass.App.Ct. 252]
German machine pistol 40.' The affidavit
stated the defendant's prior arrests and convictions. The affidavit concluded: 'Based upon
information included in this affidavit and upon Fleurant's past record of convictions and observation at
Bridgewater State Hospital I have reason to believe and do believe that if
Richard Fleurant is in possession of a firearms
Identification Card that he is in possession of it by reason of false
statements and information provided to the licensing authorities and the same
would apply in reference to any firearms license or permit to purchase.' Attached to the affidavit were statements of Bonin and one Lemerise, in which
both admitted participation with Fleurant in certain
criminal activities not directly related to weapons offenses.
The
defendants attacks the sufficiency of the affidavit on two grounds: that the
familiar 'two‑pronged test' of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), was not met, and that
the information supplied by Bonin was stale. We disagree with the defendant on both
grounds.
[3] The
two‑pronged test enunciated in the Aguilar case and refined by the
Supreme Court in Spinelli v. United States, 393 U.S.
410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and in
United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075,
29 L.Ed.2d 723 (1971), requires that an affidavit accompanying an application
for a search warrant inform the magistrate issuing the warrant (in this case an
assistant clerk of the Central District Court of Worcester) of some of the
underlying circumstances upon which the affiant concluded that the informant
was reliable and of some of the underlying circumstances upon which the
informant concluded that the defendant was engaged in criminal activity. Aguilar v. Texas, supra, at 112‑‑116. Commonwealth v. Stewart, 358 Mass. 747, 750,
267 N.E.2d 213 (1971). COMMONWEALTH V.
STEVENS, ‑‑‑ MASS. ‑‑‑, 283 N.E.2D 673 (1972)(FNA).
[4] [5]
[6] [7] In applying that test to a particular affidavit, the affidavit is not
to be subjected to hypertechnical scrutiny but is to
be interpreted in a commonsense fashion. Commonwealth v. Stewart, supra, at 750. The affidavit is to be examined as a
whole. Commonwealth v. [2 Mass.App.Ct.
253] Moran, 353 Mass. 166, 170, 228
N.E.2d 827 (1967). COMMONWEALTH V.
VICTOR, ‑‑‑ MASS.APP. ‑‑‑, 304 N.E.2D 444 (1973)(FNB). The test is applied to determine if the
magistrate had probable cause to issue the warrant, not to determine whether
there was evidence of guilt beyond a reasoanble
doubt. United States v. Harris, 403 U.S.
at 584, 91 S.Ct. 2075, 29 L.Ed.2d 723. COMMONWEALTH V. HAEFELI,
‑‑‑ MASS. ‑‑‑, 279 N.E.2D 915 (1972)(FNC). The inquiry is ordinarily limited to those
facts which the magistrate had before him as contained in the affidavit. Commonwealth v. Monosson,
351 Mass. 327, 328‑‑329, 221 N.E.2d 220 (1966). United States v. Sultan, 463 F.2d 1066, 1070
(2d Cir. 1972). United States v. Harris,
482 F.2d 1115, 1118 (3d Cir. 1973).
[8] [9]
Examining the affidavit with these considerations in mind, we conclude that the
affidavit was amply sufficient to satisfy each prong of the Aguilar test. It was not necessary for the affiant to
allege that the informant was believed to be reliable. The facts presented in the affidavit itself
may be sufficient indicia of the informant's credibility. United States v. Harris, supra, at 579‑‑580,
91 S.Ct. 2075, 29 L.Ed.2d 723. United States v. Unger, 469 F.2d 1283, 1286‑‑1287
(7th Cir. 1972). The specificity of the
information supplied, the affiant's occasion to question the informant, and the
fact that the informant was named and was not a paid informer are all relevant
circumstances in determining the informant's credibility. United States v. Viggiano,
433 F.2d 716, 718 (2d Cir. 1970). United
States v. Bigos, 459 F.2d 639, 641‑‑642
(1st Cir. 1972). United States v. Unger,
supra. United States v. Wilson, 479 F.2d
936, 940 (7th Cir. 1973). The fact that the informant admitted his own
involvement in criminal activity is also of some relevance, although it should
be noted here that such criminal activity was not directly related to the
offenses comprehended within the scope of the affidavit. An informant's admitted criminal involvement
is not conclusive of the issue of reliability, but it may be taken into
consideration if other factors indicative of reliability are also present. See Commonwealth v. Stewart, 358 Mass. [2 Mass.App.Ct.
254] 747, 752, 267 N.E.2d 213
(1971). See also United States v. Viggiano, supra, at n. 3.
[10] The
second prong of the Aguilar test is also satisfied. The affidavit discloses that the informant
personally observed the criminal activity at issue. Evidence that the informant was an eye
witness is a constitutionally sufficient demonstration of the source of his
information. United States v. Bigos, supra, 459 F.2d at 641. Commonwealth v. Stevens, ‑‑‑
Mass. ‑‑‑, (FNd) N.E.2d 673.
[11] We
find no merit in the defendant's claim that the information supplied by the
informant was stale. The defendant bases
that assertion upon Bonin's testimony at trial that
he had not seen the machine guns for thirteen months prior to making the
statement to the police. The principal
weakness in the defendant's argument is his contention that the information
concerning the machine guns 'was the only information upon which probable cause
could be based to issue the warrant . . .' (emphasis supplied). An examination of the affidavit discloses
that Bonin supplied considerable additional
information indicating his continuing observation of other weapons upon which
probable cause to issue a warrant was properly based. It also appears from the affidavit that the
defendant was suspected of possessing firearms in violation of G.L. c. 140, ss 129, 129B, and
129C, as well as possessing machine guns in violation of G.L.
c. 269, s 10. The fact that the
defendant was subsequently indicted only for violating G.L.
c. 269, s 10, bears no relation to the initial determination of probable cause
to issue a search warrant for the various items described in the affidavit.
[12] It
should also be pointed out that the magistrate did not have before him the
evidence that the machine guns had been seen some months earlier; that evidence
was elicited at trial. Our review of the
magistrate's action must be confined to the circumstances presented by the
affidavit. The language of the affidavit
indicated that at least some of the events contained therein had taken [2 Mass.App.Ct.
255] place recently. See United States v. Unger, 469 F.2d 1283,
1287 (7th Cir. 1972). An affidavit need
not, in every case, disclose the precise times at which the informant gleaned
his information. The nature of the
criminal activity at issue determines the necessity for specifying times. Unlike drugs or liquors, a collection of
weapons is not likely to be consumed or destroyed. Bastida v.
Henderson, 487 F.2d 860, 864 (5th Cir. 1973).
We think the affidavit recited 'facts indicating activity of a
protracted and continuous nature (and therefore) . . . the passage of time
(became) less significant.' United
States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972). Commonwealth v. Moran, 353 Mass. 166, 171,
228 N.E.2d 827 (1967). Commonwealth v. Misci, 358 Mass. 804, 263 N.E.2d 445 (1970).
We hold
that the search warrant was properly issued in conformity with G.L. c. 26, ss 1‑‑8;
that the affidavit complied with Federal constitutional requirements and,
therefore, that the motion to suppress was properly denied. We perceive no violation of G.L. c. 123, s 36 (inserted by St.1970, c. 888, s 4), as
alleged by the defendant.
[13]
2. In view of our decision that the
motion to suppress was properly denied, we hold that the evidentiary rulings complained
of in seven assignments of error (Nos. 2‑‑7 and 10) were proper and
do not require further discussion. The
question complained of in the ninth assignment of error was properly
allowed. There is no merit in the
defendant's claim that the question, which pertained to the date of an earlier
visit by a police officer to the defendant's place of business, tended or was
intended to suggest the defendant's involvement in other crimes. Furthermore, testimony of the date of the
visit had been elicited moments earlier without objection.
[14](
Assignment of Error No. 8). There was no
error in the judge's exclusion of a question put to a police officer by defense
counsel which was intended to elicit part of a conversation between the
defendant and the police. The judge, at
the defendant's request, had previously ruled [2 Mass.App.Ct. 256] the entire conversation inadmissible on the basis of Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966). Admitting part of the
conversation would have entitled the Commonwealth to elicit relevant portions
of the entire conversation. Commonwealth
v. Taylor, 327 Mass. 641, 648‑‑649, 100 N.E.2d 22 (1951), and cases
cited. McCormick, Evidence (2d ed.) s
56. Wharton's Criminal Evidence (13th
ed. Torcia) s
162. It is clear from the record that
the defendant was unwilling to have the entire conversation admitted in
evidence.
[15]
3. (Assignments of Error Nos. 11, 16,
31). The defendant argues that his
motions for directed verdict should have been allowed. He stipulated that he did not have a license
to possess and carry a machine gun (see G.L. c. 140,
s 131, as amended through St.1969, c. 799, s 11) but maintains that he nevertheless
did not violate G.L. c. 269, s 10 (as amended through
St.1969, c. 799, ss 14‑‑16), (FN2)
because the firearm identification card issued to him entitled him to possess
(so long as he did not carry) a machine gun.
In other words, the defendant argues that his ownership of a firearm
identification card brings him within the protection of the phrase 'except as
provided by law', as used in G.L. c. 269, s 10.
We
disagree. First, we note that the phrase
'except as provided by law' was inserted in s 10 by St.1935, c. 290, more than
thirty years before the enactment of the firearm identification card statutes (G.L. c. 140, ss 129B‑‑
129D, inserted by St.1968, c. 737, s 7); thus, the phrase could not have been
intended to apply to the situation presented here. Second, we think that the precision with
which the terms 'firearm' and 'machine gun,' both of which are defined in G.L. c. 140, s 121 [2
Mass.App.Ct. 257]
(as amended through St.1971, c. 456, s 1), (FN3) are used throughout c. 140
demonstrates a clear intention that machine guns be treated differently from
other weapons. Assuming without deciding
that certain machine guns‑‑i.e., those
with barrels shorter than sixteen inches‑‑may be classified as
'firearms', as defined under s 121, it is nonetheless clear that additional
restrictions are placed upon the possession of machine guns of any description,
regardless of their barrel length.
(FN4) The additional restriction
material to this case is that, in addition to a valid firearm identification
card, the defendant was also required to secure a license to possess and carry
a machine gun issued pursuant to s 131 in order to avoid prosecution under G.L. c. 269, s 10.
The motions for directed verdicts were properly denied.
[2 Mass.App.Ct.
258] In view of our decision on this
point, the error complained of in the thirty‑first assignment, if it was
error, was harmless.
Judgments
affirmed.
FN1. Of the thirty‑five assignments of error
filed by the defendant, only thirteen will be considered. Nine assignments of error are deemed waives
as they have not been briefed.
Commonwealth v. Martin, 358 Mass. 282, 283, 264 N.E.2d 366 (1970). Eighteen assignments of error (including five
of those deemed waived) do not conform to the requirements quirements
of G.L. c. 278, s 33D, in that no specific grounds
upon which they are based are set forth.
See Commonwealth v. Silvia, 343 Mass. 130, 138 177 N.E.2d 571 (1961).
FNa. Mass.Adv.Sh. (1972) 1095, 1097.
FNb. Mass.App.Ct.Adv.Sh. (1973) 713, 714.
FNc. Mass.Adv.Sh. (1972) 423, 436.
FNd. Mass.Adv.Sh. (1972) 1095, 1098.
FN2.
The relevant portion of that statute provides:
'Whoever,
except as provided by law, possesses a machine gun as defined in section one
hundred and twenty‑one of chapter one hundred and forty, without
permission under section one hundred and thirty‑one of said chapter,
shall be punished by imprisonment in the state prison for life or for any term
of years.'
FN3. Section 121, as so amended, reads in part:
'In . . . (ss 122 to 131F), inclusive, 'firearm'
shall mean a pistol, revolver or other weapon of any description loaded or
unloaded, from which a shot or bullet can be discharged and of which the length
of barrel is less than sixteen inches or eighteen inches in the case of a
shotgun, and the term 'length of barrel' shall mean that portion of a firearm,
rifle, shotgun or machine gun through which a shot or bullet is driven, guided
or stabilized, and shall include the chamber.
A 'machine gun' is a weapon of any description, by whatever name known,
loaded or unloaded, from which a number of shots or bullets may be rapidly or
automatically discharged by one continuous pull of the trigger, and includes a
submachine gun.'
FN4. See, e.g., G.L. c.
140, ss 123 and 131E, pertaining to the sale and purchase
of firearms. Section 131E (as amended
through St.1969, c. 799, s 12) authorizes the purchase of 'firearms, rifles and
shotguns from any . . . (licensed) dealer' by any resident who presents a
'license to carry firearms issued . . . under the provisions of . . . (s 131),
or a permit to purchase issued . . . under . . . (s 131A) together with a
firearm identification card issued . . . under . . . (s 129B) . . ..' Section 123 (as amended through St.1969, c.
799, s 3), however, specifically restricts the sale, rental, or leasing of a
machine gun to persons who have 'a license to possess the same issued under . .
. (s 131).' Thus, it would appear that
one who has a license to carry firearms issued pursuant to s 131, but who does
not have a license to possess and carry a machine gun, also issued pursuant to
s 131, would be prohibited by s 123 from lawfully purchasing a machine gun.