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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
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Commonwealth v. Pellier, 362
Supreme Judicial Court of Massachusetts,
Argued
Decided
Edelmiro Martinez, Jr.,
Garret H. Byrne, Dist. Atty., and Alfred E. Saggese, Jr.,
Before [362
KAPLAN, Justice.
The
defendants Solorzano and Pellier
were convicted of unlawful possession of heroin and possession with intent to
sell; Solorzano was convicted in addition of defacing
the serial number of a firearm and of possession of a firearm without obtaining
a firearm identification card. The
questions on this appeal are framed by assignments of error with respect to the
judge's denial before trial of motions to suppress the products of police
searches (and his incidental exclusion of certain questions put to a police
officer), and his denial of motions for directed verdicts at the close of the
Commonwealth's case.
On
On the
same day Officer Shepard applied by affidavit for another search warrant, this
one covering one Moise and apartment B‑‑1
in the basement at the same address. The
informant was qualified as reliable by reference to the same arrests. He had informed the officer that while in
apartment B‑‑1 during the past ten days he met Moise
(describing him) and his wife and observed a large quantity of heroin,
approximately two ounces, stated by Moise to be pure;
that Moise said he intended to cut it twelve to one
and sell it at $125 a bundle. The
informant further said that Moise had driven to New
York city earlier that week (meaning the week of January 31) in his maroon
Chevrolet automobile to make a contract and buy a quantity of pure heroin for
$2,000; that Moise was in the drug traffic with his
brother Fernando who lived in apartment 8.
On the
motion to suppress, Officer Shepard testified, more particularly, that the
informant had told him about the New York trip two or three days before he
applied for the warrant and had stated that the car in question bore
Massachusetts registration plates with the last digits '18H,' and that there
were two men in the car, one called Solorzano. He saw the informant again in the late
afternoon of February 3, a few hours after receiving the warrants; the
informant now told him that the car was on the way back to Boston with the
heroin, and that there [362 Mass.
624] was a small amount of heroin at the Beacon
Street address. Some time before
February 3 Officer Shepard evidently knew there were two Solorzanos
in the house and connected that name with Fernando and Moise.
Shepard
with other officers had the building under surveillance. At about 10 P.M. on February 3 a car
answering the description (registration number 992‑‑18H) with two
occupants drove up. The police came
forward and asked the men their names and addresses. (FN2) They identified themselves as Fernando Solorzano and Miguel Pellier of
apartment 8 at the Beacon Street address.
They were placed under arrest for narcotic violations and taken to
apartment B‑‑1. There they
were searched. A bag with white powder,
later shown to be about one and one‑half ounces of heroin, was found on Pellier. Meanwhile
officers entered and searched apartment 8. They found heroin and implements of
the trade. In the course of the search a
loaded .45 caliber automatic pistol with an additional clip was found on a bed
under the pillow. The serial number of
the weapon had been obliterated. The
defendant Solorzano had no firearm identification
card.
[1] [2]
1. There was no error in the refusal to
suppress the material seized in apartment 8.
Regardless of the legality of the arrests (to which we return), the first
warrant legalized the search for heroin and related things in apartment 8. Commonwealth v. Glavin,
354 Mass. 69, 71‑‑72, 235 N.E.2d 547. Wong Sun v. United States, 371 U.S. 471, 484‑‑487,
491, 83 S.Ct. 407, 9 L.Ed.2d 441. It is contended that the warrant was bad
because the affidavit supporting it, while giving the street address, omitted
the city, Boston. This is a
triviality. The specimen affidavit at G.L. c. 276, s 2B, as amended through St.1965, c. 384, does
indeed call for identification of the premises to be searched but the point of
the affidavit, after all, is practical, not formal, to furnish a proper basis
for issuing the warrant, see Commonwealth
[362 Mass. 625] v. Monosson, 351 Mass. 327, 330, 221 N.E.2d 220, and here the
affidavit bespeaks Boston as though it had been named; these were Boston police
and this was a Boston court, and the warrant issued did in fact give the
address as in Boston. A conveyancer's precision of language is not to be expected
in the affidavit. United States v. Ventresca, 380 U.S. 102, 108‑‑109, 85 S.Ct. 741, 13 L.Ed.2d 684.
Commonwealth v. Mele, 358 Mass. 225, 228‑‑229,
263 N.E.2d 432. Commonwealth v. Stewart,
Mass., 267 N.E.2d 213. (FNa) . Commonwealth v. Perada,
Mass. 268 N.E.2d 334. (FNb)
[3] [4] It
is also argued that the substance of the affidavit was too general or conclusory to justify the warrant. This is not the impression the affidavit
makes on us. The informant is an
eyewitness of the occurrences and he describes them as an eyewitness might; and
reasons are fairly set out for considering the informant to be reliable. Commonwealth v. Causey, 356 Mass. 125, 127,
248 N.E.2d 249, Commonwealth v. Stewart, Mass., 267 N.E.2d 213. (FNc) Commonwealth v.
Stevens, Mass., 281 N.E.2d 224. (FNd) Cf. Aguilar v. Texas, 378 U.S. 108, 110‑‑115,
84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli
v. United States, 393 U.S. 410, 417, 89 S.Ct. 584, 21
L.Ed.2d 637; United States v. Harris, 403 U.S. 573, 91 S.Ct.
2075, 29 L.Ed.2d 723. To be weighed with
the rest are the observations of the building by the police themselves. As to the pistol, not mentioned in the
warrant, it was contraband discovered in the natural course of a lawful search,
and could be seized.
Coolidge v. New Hampshire, 403 U.S. 443, 464‑‑471, 91 S.Ct. 2022, 29 L.Ed.2d 564, and authorities cited. Commonwealth v. Wojcik,
Mass., 266 N.E.2d 645. (FNe)
[5] [6]
2. To convict Pellier
it might possibly have sufficed for the Commonwealth to introduce only the
material seized in apartment 8; but it went further and introduced the bag of
heroin found on his person. As it is not
possible to say that the jury were unaffected by this evidence, the conviction
of Pellier, at least, depends on the legality of this
search. The 'persons present' clause of
the first search warrant should not be held to cover Pellier.
(FN3)
[362 Mass. 626] Rather we conclude, though the judgment
involved is not altogether an easy one on the facts, that the search was lawful
because it was incident to a lawful arrest.
There was probably no adequate basis for arresting Solorzano,
and surely none for arresting Pellier, up to the
arrival of the car at 10 P.M. That
occurrence, however, together with the answers given by the defendants at the
time, consolidated and confirmed the information already received by the
police, and in our view the combination justified the arrest of Pellier together with Solorzano. Fernando and Moise
are not to be treated as fungible; but the fact that the Solorzano
in the car was Fernando rather than Moise is not very
significant for the present purpose because the brothers had been tied together
in the second affidavit. Pellier was vulnerable to arrest because, though not
previously known by name, he fitted into the event as it was foretold and as it
happened. Cf. Commonwealth v. Brown, 354
Mass. 337, 237 N.E.2d 53; Commonwealth v. Breen, 357 Mass. 441, 444‑‑446,
258 N.E.2d 543; Draper v. United States, 358 U.S. 307, 79 S.Ct.
329, 3 L.Ed.2d 327. 'Probable cause' for
arrest means reasonable cause for the officer's belief that the person about to
be arrested is guilty of crime, and the belief is reasonable when it rests on
an objective or concrete, substantial basis as contrasted with mere subjective
suspicion. Compare Bringar
v. United States, 338 U.S. 160, 173, 175‑‑176,
69 S.Ct. 1302, 93 L.Ed.
1879; with Henry v. United States, 361 U.S. 98, 80 S.Ct.
168, 4 L.Ed.2d 134; see Commonwealth v. Stewart, Mass., 267 N.E.2d 213 (FNf), and authorities cited; cf. Am. Law Inst., A Model Code of Pre‑Arraignment
Procedure, s 120.1 (Official Draft No. 1, 1972). Here, we think, there was a sufficient basis
for holding Pellier rather than letting him go at
large. (FN4)
[7] [8]
3. The Commonwealth's proof at the trial
was ample to support the charges and the defendants' claim of error [362 Mass. 627] in the judge's denial of motions for directed verdicts was
actually aimed at the judge's alleged refusal to permit counsel to argue in
support of the motions (this grievance is not pitched at a constitutional
level). The transcript shows a
submission and denial of the motions. It
does not show a request to argue or a refusal.
Accordingly the point is not available for review.
Judgments
affirmed.
FN1. Of the companion cases one is against Miguel Pellier and four are against Fernando B. Solorzano.
FN2.
As to this threshold questioning, see G.L. c.
41, s 98; Commonwealth v. Wilson, Mass.
(Mass.Adv.Sh. (1971) 1731, 1732‑‑1733,
276 N.E.2d 283), and authorities cited; and Adams v. Williams, 407 U.S. 143,
145‑‑147, 92 S.Ct. 1921, 32 L.Ed.2d 612.
FNa. Mass.Adv.Sh. (1971) 231, 233.
FNb. Mass.Adv.Sh. (1971) 457, 459.
FNc. Mass.Adv.Sh. (1971) 231, 233‑‑235.
FNd. Mass.Adv.Sh. (1972) 649.
FNe. Mass.Adv.Sh. (1971) 91, 95‑‑96.
FN3.
The warrant in terms authorized search of 'any person or persons present
who may be found to have such property in his her or their possession or under
his her or their control or to whom such property may have been
delivered.' This lacks specificity and
is of dubious meaning.
FNf. Mass.Adv.Sh. (1971) 231, 232.
FN4.
The judge on the motion to suppress excluded certain questions put to
Officer Shepard intended to show that the information concerning the car and
its occupants and the trip to New York and return rested initially only on the informant's
statements. That this was the case was
evidently assumed by the judge, and hardly required elaboration. See Draper v. United States, 358 U.S. 307,
312‑‑313, 79 S.Ct. 329, 3 L.Ed.2d 327.