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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. Kenneally,
383
Supreme Judicial Court of Massachusetts,
Argued
Decided
John P. Courtney,
Michael B. Roitman,
Before HENNESSEY, C. J., and BRAUCHER,
KAPLAN, WILKINS and ABRAMS, JJ.
BRAUCHER, Justice.
In
November, 1978, the defendant was convicted by a jury on nine indictments
charging larceny of property worth more than $100 and on two charging larceny
of property worth less than $100. The
charges arose out of a series of insurance transactions in 1977 between [383
On appeal
the Appeals Court held that the evidence was sufficient to warrant convictions
on nine indictments but that judgments of acquittal should be entered on the
other two. It upheld the seizure of
records under a warrant, ordered a new trial on the remaining indictments
because the judge's instructions to the jury had confused larceny by false
pretenses with embezzlement, and upheld the denial of a motion to sever the
indictments for trial. ‑‑‑
Mass.App. ‑‑‑ ([FNA]),
406 N.E.2d 714 (1980). We granted the
defendant's application for further appellate review, which sought review of
the rulings on the search warrant, motions for directed verdicts as to two of
the indictments, and the motion to sever.
We discuss only the search warrant, since we agree with the opinion of
the Appeals Court as to the other issues argued. As to the search warrant, we are in
substantial agreement with the Appeals Court, but we think the breadth of the
warrant calls for comment.
(1) The
search warrant, dated January 30, 1978, directed search of a third floor
apartment in described premises in Whitman and seizure of "All records and
papers of the Yankee Insurance Agency."
Four boxes of documents were seized under the warrant. We agree with the Appeals Court that the
warrant was not a "general warrant," since it left nothing to the
discretion of the executing officer.
"All" the records and papers was a broad but sufficiently
particular description. See United
States v. Abrams, 615 F.2d 541, 549 (1st Cir. 1980) (concurring opinion of
Campbell, J.); In re LaFayette Academy, Inc., 610
F.2d 1, 5‑6 (1st Cir. 1979); Commonwealth v. Accaputo,
‑‑‑ Mass. ‑‑‑, ‑‑‑ ‑
‑‑‑ ([FNB]), 404 N.E.2d 1204
(1980); Commonwealth v. Coco, 354 Mass. 78, 80‑81, 235 N.E.2d 555 (1968).
[383 Mass. 271] (2) The question remains whether the affidavit supporting the
application for the warrant disclosed probable cause for the seizure of
"all" the papers. Commonwealth
v. Cefalo, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑ ([FNC]),
409 N.E.2d 719 (1980). The affidavit
recited information received from two named investigators of the State Division
of Insurance that Yankee, operated by the defendant at an address in East
Sandwich, had received premium money, that policies paid for were not received
by the insureds, that a complaint by a named woman
had resulted in an investigation and serious allegations of a criminal nature, and that Yankee "is not licensed to do
business in the Commonwealth of Massachusetts." It recited further that Yankee had closed on
December 31, 1977, the defendant had told the investigators that he had all the
records at his home in Whitman, and the son of the landlord in Sandwich had
stated that the defendant had put a number of insurance papers in the trash.
It is
clear that there was probable cause to search for and seize records relating to
the insureds who had complained. The issuing magistrate could conclude that
the defendant was concealing evidence of criminal activity and that there was a
danger that evidence might be destroyed.
Since the agency was closed, there was no disruption of its
business. We need not decide whether an
inference was warranted that there was a pattern of fraud against customers. United States v. Brien,
617 F.2d 299, 307‑308 (1st Cir.), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980). See Andresen v. Maryland, 427 U.S. 463, 480‑481
n.10, 96 S.Ct. 2737, 2748‑2749, 49 L.Ed.2d 627
(1976). In any event, there was probable
cause to believe that Yankee was operating without a license and thus that
everything it did was unlawful. G.L. c. 175, ss 163, 166. Considering the facts disclosed in the
investigation in the light of the absence of a license, we think there was
probable cause to search for and seize "all" the records and papers
of Yankee.
The
judgments of the Superior Court are reversed.
Judgments of acquittal are to be entered on indictments 38482 and
38483. Further proceedings are to be in
accordance with the opinion of the Appeals Court.
So
ordered.
(FNA.) Mass.App.Ct.Adv.Sh.
(1980) 1267.
(FNB.) Mass.Adv.Sh. (1980) 1009, 1017‑1020.
(FNC.) Mass.Adv.Sh. (1980) 1877, 1885‑1887.