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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Rugaber, 369
Supreme Judicial Court of Massachusetts, Hampden.
Argued
Decided
David Burres, for
defendant.
Daniel E. O'Malley, Asst. Dist. Atty., for the
Commonwealth.
Before [369
BRAUCHER, Justice.
After a
jury waived trial, the defendants appeal from convictions for drug
offenses. They argue that (1) evidence
seized under a search warrant should have been suppressed because the premises to be searched were misdescribed,
and (2) their motions for findings of not guilty should have been allowed. We hold that the motion to suppress evidence
seized under the search warrant was properly denied, and that there was
sufficient evidence of the defendants' guilt to warrant submission of the cases
to a jury. We therefore affirm the
convictions.
The
defendant Rugaber was convicted on four indictments
charging unlawful possession of marihuana and LSD with intent to distribute and
unlawful possession of amphetamines and cocaine. The defendant Manning was convicted on four
indictments charging unlawful possession of LSD with intent to distribute and
unlawful possession of marihuana, cocaine and hashish. Rugaber was sentenced
to one year in a house of correction on the LSD charge and on the remaining
convictions was ordered placed on probation for three years from and after the
LSD sentence. Manning was given a
suspended sentence on the LSD charge and placed on probation for three years;
on the other charges she was placed on concurrent probation for three
years. They appealed under G.L. c. 278, ss 33A‑‑33G,
and we transferred the appeals here on our own motion.
[369
The
description of color and type of building material precisely fitted the house
next door, which fronted on Wilbraham Road but had an unnumbered side or rear
entrance on Fenwick Street. Number 3
bore no lettering or numeral to indicate its address. The officers who obtained the warrant were
directed by other officers to the house from which a suspect had emerged about
an hour before. They searched that
house, which was No. 3 Fenwick Street.
The warrant was executed at night, and the discrepancy was not
apparent. The officers who obtained the
warrant were not aware of the misdescription when
they executed it and they were not reckless; at most they were negligent in
this respect. The judge was unable to
find that any of the officers actually involved was aware of the misdescription.
[1][2][3]
Particular description of the place to be searched is required by the Fourth
Amendment, by art. 14 of our Declaration of Rights and by G.L.
c. 276, s 2. Commonwealth v. Pope, 354
Mass. 625, 628‑‑629, 241 N.E.2d 848 (1968). Invocations of error and inadvertence cannot
ordinarily save an invalid warrant, although we have allowed the warrant to be
read with the application or complaint.
Commonwealth v. Vitello,‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑,
([FNA]) 327 N.E.2d 819 (1975), and cases cited. But 'if the police are to be [369 Mass. 768] encouraged to use the warrant procedure, it seems good policy to
allow a certain leeway or leniency in the after‑the‑fact review of
the sufficiency of applications for warrants.'
Commonwealth v. Corradino, ‑‑‑
Mass. ‑‑‑, ‑‑‑, ([FNB])
332 N.E.2d 907 (1975). 'Factual
inaccuracies not going to the integrity of the affidavit do not destroy
probable cause for a search.'
Commonwealth v. Murray, 359 Mass. 541, 548, 269 N.E.2d 641, 646
(1971). Cf. Commonwealth v. Gallinaro, 360 Mass. 868, 277 N.E.2d 527 (1971).
[4] The present case is a close one, since the
description of the place to be searched is 'to be read without poetic
license.' Commonwealth v. Hall, ‑‑‑
Mass. ‑‑‑, ‑‑‑, ([FNC])
323 N.E.2d 319 (1975). The judge
concluded that an officer attempting to execute the warrant with no information
other than the description contained within it and the attached affidavit would
'most assuredly' have invaded the wrong property. The Commonwealth 'does not fully agree' with
that conclusion, since it is not clear how far it takes into account the
physical facts. See Commonwealth v.
Gill, ‑‑‑ Mass.App.Ct. ‑‑‑,
‑‑‑, ([FND]) 318 N.E.2d 628
(1974). Perhaps it would be more
accurate to say that the warrant was ambiguous in its description of the
property to be searched.
The defendants
cite cases where warrants were upheld because erroneous street numbers were
overcome by additional descriptions.
United States v. Goodman, 312 F.Supp. 556, 557
(N.D.Ind.1970). United States v. Pisano, 191 F.Supp. 861, 863
(S.D.N.Y.1961). State v. Daniels, 46
N.J. 428, 438, 217 A.2d 610 (1966).
Contra: State v. Lee, 247 La. 553, 562, 172 So.2d 678 (1965). The determining factor, they say, is 'whether
the description is sufficient to enable the executing officer to locate and
identify the premises with reasonable effort, and whether there is any
reasonable probability that another premises might be mistakenly searched which
is not the one intended to be searched under the search warrant,' quoting from
United States v. Sklaroff, 323 F.Supp.
296, 321 (S.D.Fla.1971).
[369 Mass. 769] [5] There is authority for piecing out an inadequate description
with the personal knowledge of the searching officers. United States v. Gomez, 42 F.R.D. 347, 348 (S.D.N.Y.1967). But we need not go so far here. The description here was not inadequate on
its face. The executing officers did not
become aware of its ambiguity as applied to the physical facts, and they were
not reckless in this respect. They had
probable cause to search No. 3 Fenwick Street, the address was a sufficient
description if the erroneous references to color and type of building material
were disregarded, and the knowledge of the officers on the scene eliminated any
danger that there might be a mistaken search of the premises next door. In these circumstances we agree with the
judge, who ruled that even if the warrant was defective, the exclusionary rule
should not be applied, since it could have no deterrent effect. Cf. United States v. Thomas, 489 F.2d 664,
669‑‑670 (5th Cir. 1973); United States v. Carmichael, 489 F.2d
983, 988‑‑989 (7th Cir. 1973); Model Code of Pre‑Arraignment
Procedure, s 290.2(2), (3), (4) (Proposed Official Draft, 1975); Kipperman, Inaccurate Search Warrant Affidavits as a Ground
for Suppressing Evidence, 84 Harv.L.Rev. 825, 830‑‑832
(1971).
[6]
2. Sufficiency of evidence. Each of the defendants was found guilty of
narcotic offenses involving only those narcotics found in his or her room. Each contends that there was insufficient
evidence of either possession or intent to distribute to warrant findings of
guilty. In determining the sufficiency
of evidence on these issues, the judge need not be convinced beyond a
reasonable doubt. Commonwealth v. Baron,
356 Mass. 362, 365‑‑366, 252 N.E.2d 220 (1969).
There was
evidence that both defendants, seven other adults and two children were present
at the time of the search of the premises at No. 3 Fenwick, Street. There were approximately seven rooms on the
first floor, approximately five on the second, and five partitioned [369 Mass. 770] spaces in the third‑floor attic. In respect to the defendant Rugaber, the search yielded four separately packaged bags
of marihuana, a larger quantity of unpackaged marihuana, over 100 LSD tablets
and a quantity of cocaine. These items were found in a room
containing a knapsack bearing Rugaber's name, a black
name tag bearing his name, and a college identification card with his
photograph and name. As to the defendant
Manning, more than 900 tablets of LSD and quantities of marihuana, cocaine and
hashish were found in a room where she had gone to get some things for her
child.
[7][8] The
evidence of possession was sufficient.
Commonwealth v. Dinnall, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑,
([FNE]) 314 N.E.2d 903 (1974), and cases cited. Commonwealth v. Mott, ‑‑‑ Mass.App. ‑‑‑, ‑‑‑, ([FNF]) 308 N.E.2d 557 (1974). Intent to distribute a drug may be inferred
from possession of large quantities of that drug. Commonwealth v. Ellis, 356 Mass. 574, 578‑‑579,
254 N.E.2d 408 (1970). Commonwealth v.
Gill, ‑‑‑ Mass.App. ‑‑‑,
‑‑‑, ([FNG]) 318 NE.2d 628 (1974)
and cases cited.
Judgment
affirmed.
(FN1.)
Commonwealth vs. Bonnie‑Jean
Manning.
(FNA.) Mass.Adv.Sh. (1975)
769, 838‑‑842.
(FNB.) Mass.Adv.Sh. (1975)
2414, 2421.
(FNC.) Mass.Adv.Sh. (1975)
343, 355.
(FND.) Mass.App.Ct.Adv.Sh.
(1974) 2037, 2040.
(FNE.) Mass.Adv.Sh. (1974)
1351, 1354‑‑1355.
(FNF.) Mass.App.Ct.Adv.Sh.
(1974) 233, 239.
(FNG.) Mass.App.Ct.Adv.Sh.
(1974) 2037, 2044.