|
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. Scala, 380
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Samuel E. Greydanus, III,
James W. Sahakian, Asst. Dist. Atty., for the
Commonwealth.
Before [380
HENNESSEY, Chief Justice.
The
defendant appeals his conviction for the unauthorized possession of amphetamine
with intent to distribute. He contends
that his motion to suppress evidence of the drugs seized at the time of his
arrest should have been allowed. He
bases his claim on principles of collateral estoppel and on the ground that the
drugs were found incident to an unlawful arrest. He also argues that his motions to dismiss
the indictment and for a directed verdict were erroneously denied. There was no error.
The facts,
as established at the Superior Court hearing on the motion to suppress, are as
follows. On
Prior to
his trial on the felony charge in question, the defendant appeared in a
District Court in Malden on two complaints arising from the seizure of drugs in
the attic. The defendant's motion to
suppress evidence of the drugs seized in the search of the apartment was
allowed. ([FN1]) Thereafter, the District Court judge found
the defendant not guilty on one complaint and dismissed the other complaint for
lack of probable cause.
Subsequently,
the Commonwealth obtained an indictment against the defendant with regard to
the amphetamine seized at the time of his arrest. The defendant brought a motion to suppress,
arguing, as he does now on appeal, that under the principles of collateral
estoppel the Commonwealth is bound by the District Court judge's ruling that
the seizure of drugs in the attic was illegal and that, given the fact that
this prior illegal search provided the probable cause for all that followed,
the arrest warrant, the arrest, and the search incident to the arrest were also
unlawful so as to require suppression of evidence of the amphetamine. The defendant also argued that, regardless of
the applicability of collateral estoppel, the attic did not constitute part of
the second floor apartment.
Consequently, he claims that the search exceeded the scope of the
warrant and that drugs found in the attic could not establish the probable
cause basis for the arrest warrant pursuant to which the amphetamine[380 Mass. 503] was found. The defendant's motion was denied, as was his
application for an interlocutory appeal before this court. Following his trial and conviction, the
defendant sought review in the Appeals Court, which affirmed his
conviction. Commonwealth v. Scala, ‑‑‑ Mass.App. ‑‑‑
([FNA]), 392 N.E.2d 869 (1979). We
granted the defendant's petition for further appellate review.
Although
we reach the same result, our reasoning differs in two ways from that of the
Appeals Court. First, we recognize only
the double jeopardy underpinnings of criminal collateral estoppel without
reaching the question of its possible due process justifications. Second, we consider and reject, under the
substantial risk of miscarriage of justice standard, arguments with regard to
the attic search that were not raised below.
Like the Appeals Court, we conclude that the warrant designation of the
entire second floor apartment encompassed the third floor attic and that the
defendant's motion for a directed verdict and his motion to dismiss the
indictment are without merit.
(1) We
turn first to consider the possible application of the doctrine of collateral
estoppel to the instant case. ([FN2]) Collateral estoppel "means simply that
when an issue of ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same parties in any
future lawsuit." Ashe v. Swenson,
397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). Although first developed in civil litigation,
collateral estoppel is relevant in criminal proceedings as part of the Fifth
Amendment's guarantee against double jeopardy, [380 Mass. 504]
applicable to the States through the Fourteenth Amendment. Ashe v. Swenson, supra at 445‑446, 90
S.Ct. at 1195.
(2)(3) To
prevail under the Ashe collateral estoppel doctrine, the defendant must have
been placed in jeopardy twice for the same offense. See United States ex rel. DiGiangiemo v.
Regan, 528 F.2d 1262, 1265 (2d Cir. 1975), cert. denied sub nom. DiGiangiemo v.
Olgiatti, 426 U.S. 950, 96 S.Ct. 3172, 49 L.Ed.2d 1187 (1976). The defendant argues that the illegal attic
search links his Superior Court felony conviction to his District Court
misdemeanor acquittal so that the two offenses constitute "a single
alleged criminal transaction," which the Commonwealth is precluded from
relitigating. See Ashe v. Swenson, supra
at 445 n.10, 90 S.Ct. at 1195. This
argument is without merit. The two
charges did not involve the same time and place, nor did they involve an
"identical mass of a single drug."
See Kuklis v. Commonwealth, 361 Mass. 302, 308, 280 N.E.2d 155, 160
(1972). The felony of which the
defendant was convicted occurred in Somerville on October 7, 1977, and
concerned the possession, with intent to distribute, of twenty packets of
amphetamine. The misdemeanor of which he
was acquitted related to the alleged possession, with intent to distribute, of
talwin and allegedly arose in Malden on October 6, 1977. These are two separate offenses involving
different sets of facts. They did not
grow out of a single criminal transaction merely because the allegedly illegal
attic search was a factor in each offense.
([FN3]) In
light of the fact that the charged offenses transpired at different time and in
different places and pertained to different types of drugs, the defendant's
felony conviction,[380 Mass. 505]
after his acquittal on the misdemeanor charge, did not implicate double
jeopardy concerns. ([FN4]) See Commonwealth v. Lovett, 374 Mass. 394, ‑‑‑
([FNB]), 372 N.E.2d 782 (1978); State v. Doucet, 359 So.2d 1239, 1245, 1247
(La.1977) (on rehearing). Thus the
Federal constitutional doctrine of collateral estoppel announced in Ashe v.
Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), does not aid the
defendant.
(4) It has
been suggested, however, that the due process clause, independent of the double
jeopardy clause, may embrace collateral estoppel safeguards. ([FN5])
United States ex rel. DiGiangiemo v. Regan, supra at 1265‑1266. Influenced by collateral estoppel policy
considerations, such as judicial inefficiency and the danger of prosecutorial
harassment, as evidenced by the disparity of resources between the State and a
criminal defendant, and the strain of a second prosecution in which the same
nonjeopardy issues would be relitigated, the United States Court of Appeals for
the Second Circuit stated in dictum that due process provides at least [380 Mass. 506] some collateral estoppel protection in criminal cases. Id. at 1265‑1266, 1269. Even so, the Court was careful to limit such
protection. It concluded that due
process would forbid the relitigation by a State of an issue determined
adversely to it in a suppression hearing only in those cases where the State
had an opportunity for a full hearing and at least one appeal as of right. Id. at 1266.
(5) These
limiting factors were seemingly mandated by the passage in the Ashe opinion
which described collateral estoppel as applying when "(an) issue of
ultimate fact has once been determined by a valid and final
judgment." See Ashe v. Swenson,
supra 397 U.S. at 443, 90 S.Ct. at 1194 (emphasis supplied). The Court noted that "(f)actors
supporting a conclusion that a decision is final for this purpose are 'that the
parties were fully heard, that the court supported its decision with a reasoned
opinion, (and) that the decision was subject to appeal or was in fact reviewed
on appeal.' " United States ex rel.
DiGiangiemo v. Regan, supra at 1265, quoting from Restatement (Second) of
Judgments, s 41 (Tent. Draft No. 1,
1973). All these factors had been
satisfied with regard to the suppression motion under consideration in
DiGiangiemo. Id. at 1265. However, such is not the case here. First of all, we have no record of the
District Court suppression hearing ([FN6]) and consequently cannot determine
whether the ruling reflected a "full and careful determination of the issue(s)." See Watts v. United States, 402 F.2d 676, 685
n.24 (D.C.Cir.1968), rev'd on other grounds, 394 U.S. 705, 89 S.Ct. 1399, 22
L.Ed.2d 664 (1969). At least one court
has refused to hold a lower court's nonappealable ruling suppressing evidence
in a nonjeopardy situation binding on the trial court when there was no record
to support the prior ruling. See State
v. Kangiser, 8 Or.App. 368, 371, 494 P.2d 450 (1972); State v. Stahley, 7
Or.App. 464, 468, 492 P.2d 295 (1971).
See also State v. Swain, 267 Or. 527, 531, 517 P.2d 684 (1974) (subsequent
legislation provided for appeal of suppression order). Second, the prerequisite of an appeal as of
right is not satisfied here. See Cook v.
State, 281 Md. 665, [380 Mass. 507] 674‑675, 381 A.2d 671 (1978); 3
W.R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment s 11.2(g),
at 532 (1978) (Ex. 1); Restatement (Second) of Judgments s 68.1(a) and comment
on cl. (a) (Tent. Draft No. 4, 1977). Cf. Rudow v. Fogel, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
([FNC]), 382 N.E.2d 1046 (1978) (civil case).
At the time of the proceedings below, ([FN7]) G.L. c. 278, s 28E, as
amended by St.1972, c. 740, s 16, permitted a prosecutorial appeal only from a
Superior Court, not a District Court, order allowing a defendant's motion to
suppress. ([FN8])
In view of
the then statutory limitation on the Commonwealth's right to appeal and in view
of the absence of any transcript or findings from the initial suppression
hearing in this action, the DiGiangiemo dictum, by its own terms is
inapplicable. Consequently, we need not
reach the question whether the policies cited by the Second Circuit warrant the
application of collateral estoppel as an incident to due process. ([FN9])
However, we note that it is far from clear in nonjeopardy[380 Mass. 508] situations that the possible
preclusive effect of a pretrial order granting a motion to suppress should be
controlled by policies underlying the collateral estoppel doctrine rather than
those underlying the Fourth Amendment and the exclusionary rule, especially
where, as here, it is evident on review that the evidence was lawfully
seized. See discussion infra. Cf. 3 W.R. LaFave, supra, s 11.2(g), at 532‑534. It has been observed that "(t)he
exclusionary rule as it applies to the Fourth Amendment has conceptual validity
only if it is applied to prevent the introduction of illegally seized evidence,
for only then will it have the desired deterrent effect. (See Stone v. Powell, 428 U.S. 465, 486, 96
S.Ct. 3037, 3048, 49 L.Ed.2d 1067 (1976).)
A rule of collateral estoppel which would work to prevent the
introduction of legally seized evidence merely because that seizure has been
incorrectly decided to be unconstitutional would not accord with the purposes
of exclusion and would have no relationship to fundamental fairness." State v. Doucet, 359 So.2d 1239, 1245, 1248
(La.1977) (on rehearing).
In sum, we hold that in the circumstances of
the present case, where the defendant was not twice placed in jeopardy for the
same offense and where the suppression ruling of the District Court judge could
not be appealed and was not supported by a record, the application of the
doctrine of collateral estoppel is not constitutionally required.
(6)(7) We
next examine the validity of the attic search.
The defendant argues that the attic was not within the scope of the
premises described in the search warrant.
It is well settled that the Fourth Amendment requires particularity in
warrants, which "are to be read without poetic license." Commonwealth v. Hall, 366 Mass. 790, 799, 323
N.E.2d 319, 325 (1975). However, the
proscription of poetic license is not also a proscription of common sense. See Commonwealth v. Corradino, 368 Mass. 411,
416, 332 N.E.2d 907 (1975).
(8) As
noted previously, the building in question was represented in the search
warrant as consisting of two stories.
The third floor not being evident from exterior observation, the place
to be searched was described in the warrant in accordance[380 Mass. 509] with the outward appearance of the
building. See Commonwealth v. Rugaber,
369 Mass. 765, 767, 343 N.E.2d 865 (1976).
The warrant authorized a search of "the entire apartment located on
the second floor above a business establishment." The evidence reasonably indicates that the
third floor attic was part and parcel of the second floor apartment. Its single entrance was via the second floor
apartment; it was directly above and adjacent to that apartment and had no
separate address; there were no other apartments sharing the attic, which
apparently had no connection with the first floor business establishment. In these circumstances, we conclude that the
warrant designation of the entire second floor apartment encompassed the third
floor attic. ([FN10]) Consequently, the search of the attic and the
ensuing seizure of drugs in plain view, see Commonwealth v. Bond, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
([FND]), 375 N.E.2d 1214 (1978), were proper.
See United States v. Evans, 320 F.2d 482, 483 (6th Cir. 1963) (warrant
for 1000 Baldwin Street held to cover attic of 1004 where common wall between
two attics broken through, lower floors of 1004 sealed off, and two attic areas
used as one); United States v. Palmisano, 386 F.Supp. 599, 599‑600
(E.D.Wis.1974) (warrant authorizing search of premises as stated address,
described as single story brick structure, held to include basement); Rainey v.
State, 74 Wis.2d 189, 202‑206, 246 N.W.2d 529 (1976) (warrant describing
only first floor permitted search of balcony room somewhat above first floor
where that room reached only by means of first floor apartment).
(9) The
remaining claims of the defendant with regard to the attic search must
fail. In this appeal he attacks the [380 Mass. 510] denial of his motion to suppress on grounds not raised before the
trial judge, namely that (1) there was insufficient connection between the
defendant and the Malden apartment; that (2) there was no evidence of the
defendant's dominion or control over the controlled substances seized in the
attic; that (3) the contraband was not in plain view; and that (4) contraband
may not be lawfully seized in the execution of a search warrant describing
other property. Because these
contentions were never presented to the trial judge, they are not technically
before us, except under the standard of a substantial risk of miscarriage of
justice. Commonwealth v. Clark, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ([FNE]), 393 N.E.2d 296
(1979). Commonwealth v. Johnson, 371
Mass. 862, 867, 359 N.E.2d 1286 (1977).
Commonwealth v. Lewis, 346 Mass. 373, 382‑383, 191 N.E.2d 753
(1963), cert. denied, 376 U.S. 933, 84 S.Ct. 704, 11 L.Ed.2d 653 (1964). But even under a less restrictive standard of
review, there would be no error in the denial of the defendant's motion to
suppress.
(10) The
first three grounds argued by the defendant concern factual matters not clearly
resolved by the record. ([FN11]) This is not to say, however, that the
Commonwealth's case is fatally defective.
Where, as here, the search and the arrest were pursuant to warrants,
"the general rule that on a motion to suppress the burden of establishing
that evidence has been illegally obtained is on the moving party" is fully
applicable. Commonwealth v.
Antobenedetto, 366 Mass. 51, 56‑57, 315 N.E.2d 530, 534 (1974), and cases
cited. "(T)he defendant could, by a
few very simple questions put to the arresting officers during the hearing on
the motion to suppress, have easily raised, and [380 Mass. 511] perhaps
resolved, th(ese) specific issue(s) and, at that time, required the prosecution
to have introduced evidence on the issue(s) now raised here for the first time
on appeal." Id. at 65‑66, 315
N.E.2d at 540 (Tauro, C. J., dissenting in part). Therefore, the defendant must accept the
consequences of his failure to raise these issues.
(11) The
defendant's final argument, that contraband may not be lawfully seized in
execution of a search warrant describing other property, misconstrues the law
of this Commonwealth. In Commonwealth v.
Bond, ‑‑‑ Mass. ‑‑‑, ‑‑‑ ‑
‑‑‑ ([FNF]), 375 N.E.2d 1214 (1978), this court recognized
that contraband was among the articles in plain view that police officers could
seize in the course of "a continuing search directed to finding (other)
designated materials." In the
present case, the police had not located all the furniture listed in the search
warrant when they discovered the attic steps.
There is evidence that upon entering the attic, one of the officers
inadvertently came upon an open bag containing numerous bottles of drugs. The officer could reasonably believe the
drugs to be illegally obtained and, accordingly, had the right to seize them as
contraband.
(12)(13)
The defendant's motions for a directed verdict and for a dismissal of the
indictment are without merit. With
regard to the motion for a directed verdict, the defendant contends that the Commonwealth
failed to prove his intent to distribute the drug. However, there was evidence before the jury
that the individual packets of amphetamine were "awful fat" and had a
street value of $280 a packet. There
were twenty packets. Intent to distribute
may be inferred from the quantity of drugs possessed by the defendant at the
time of his arrest. Commonwealth v.
Rugaber, 369 Mass. 765, 770, 343 N.E.2d 865 (1976). Commonwealth v. Ellis, 356 Mass. 574, 578‑579,
254 N.E.2d 408 (1970).
(14) The
defendant's motion to dismiss the indictment was not timely filed. Rule 60 of the Superior Court (1974). See Commonwealth v. Beneficial Fin. Co., 360
Mass. 188, 229‑231, 275 N.E.2d 33 (1971), cert. denied sub nom. Farrell
v. Massachusetts, 407 U.S. 910, 92 S.Ct. 2433, 32 L.Ed.2d 683, and sub nom.
Beneficial Fin. Co. v. [380 Mass.
512] Massachusetts, 407 U.S. 914, 92
S.Ct. 2433, 32 L.Ed.2d 689 (1972); Mass.R.Crim.P. 13(d)(2)(A) (effective July
1, 1979). Moreover the defendant's contention
that the indictment was predicated on erroneous and biased information was
properly left for consideration by the judge and the jury at the trial. See Commonwealth v. Robinson, 373 Mass. 591,
592‑593, 368 N.E.2d 1210 (1977); Commonwealth v. Ventura, 294 Mass. 113,
120‑121, 1 N.E.2d 30 (1936). He
has not cited facts or law to support a finding that there was an impairment of
the grand jury's integrity. See
Commonwealth v. Gibson, 368 Mass. 518, 525, 333 N.E.2d 400 (1975).
Judgment
affirmed.
(FN1.) The District Court judge made no
findings despite the numerous contentions underlying the defendant's motion,
including lack of probable cause for the search warrant for furniture; facial
insufficiency of the search warrant application and affidavits; lack of proof
of informer's reliability or of affiant's independent corroboration; extension
of the search beyond the scope of the warrant; seizure of property not listed
in the search warrant and not a proper subject for seizure; and the illegal and
unreasonable execution of the warrant.
At the hearing on the motion in Superior Court, however, both the
defendant and the Commonwealth argued that the District Court judge's ruling
was based on the illegality of the search of the third floor attic under a
warrant authorizing a search of "the entire apartment located on the
second floor."
(FNA.)
Mass.App.Ct.Adv.Sh. (1979) 1623.
(FN2.)
The Commonwealth argues that the defendant's assignment of error pertaining to
the admission of the controlled substance seized at the time of his arrest does
not specifically set forth any allegation that the principles of collateral
estoppel were violated. Consequently, it
argues that that ground is not fully before us, see G.L. c. 278, s 33D, and
that review must be under the standard of a substantial risk of a miscarriage
of justice. See Commonwealth v. Clark, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (Mass.Adv.Sh. (1979) 1646, 1652) 393 N.E.2d 296;
Commonwealth v. Freeman, 352 Mass. 556, 563‑564, 227 N.E.2d 3
(1967). Although we agree that the
defendant's language is somewhat garbled, we nonetheless think that the ground
was properly preserved in the assignment of error.
(FN3.)
There is no question of the application of double jeopardy considerations with
regard to the complaint which was dismissed for lack of probable cause, as no
jeopardy attached in that action. See
Burke v. Commonwealth, 373 Mass. 157, 365 N.E.2d 811 (1977).
Even were we
to espouse Mr. Justice Brennan's capacious concept of what constitutes a
criminal "transaction" for purposes of double jeopardy, see Ashe v.
Swenson, supra 397 U.S. at 453, 90 S.Ct. at 1199 (concurring opinion), the
defendant's argument would fail.
"(N)ot even that broad measure would embrace two crimes of
different types committed at different times." Maldonado, petitioner, 364 Mass. 359, 363
n.5, 304 N.E.2d 419, 422 (1973). Cf.
Commonwealth v. Lovett, 374 Mass. 394, ‑‑‑ (Mass.Adv.Sh. (1978) 355, 359), 372 N.E.2d 782 (1978).
(FN4.) Given this basis of our holding, we
need not reach the question whether a fact determined in the course of ruling
on a motion to suppress may be termed an "ultimate fact" in the Ashe
sense. Cf. United States ex rel.
DiGiangiemo v. Regan, 528 F.2d 1262 (2d Cir. 1975), cert. denied sub nom.
DiGiangiemo v. Olgiatti, 426 U.S. 950, 96 S.Ct. 3172, 49 L.Ed.2d 1187 (1976)
(assumed without discussion that ruling resulting from motion to suppress is
ruling on issue of "ultimate fact"); Laughlin v. United States, 344
F.2d 187, 191 (D.C.Cir.1965) (ultimate facts those which the law makes the
occasion for imposing its sanctions); State v. Doucet, 359 So.2d 1239, 1244
(La.1977) ("finding that evidence seized is the product of an unreasonable
warrantless search constitutes a finding of 'ultimate fact' "), modified
on rehearing on related ground, 359 So.2d 1245 (La.1978). But cf. 3 W.R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment s 11.2(g), at 530, 532 (1978) ("certainly
not beyond dispute" that fact determined in course of ruling on motion to
suppress is "ultimate fact").
(FNB.) Mass.Adv.Sh. (1978) 355, 359.
(FN5.) The Supreme Court in Ashe v. Swenson,
397 U.S. 436, 442‑443, 90 S.Ct. 1189, 1193‑94, 25 L.Ed.2d 469
(1970), did not affirmatively adopt collateral estoppel as a due process
requirement; but it did not foreclose such a requirement either, for it could
be argued that the Ashe result cast some doubt on the rule of Hoag v. New
Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958) (defendant tried and
acquitted on three separate indictments for robbery of three persons on same
occasion could later be tried and convicted of robbing fourth person during
same incident without violating due process clause), where prior litigation has
decided an issue of ultimate fact between the State and the same defendant.
(FN6.) See note 1 supra.
(FNC.) Mass.Adv.Sh. (1978) 2810, 2814‑2815.
(FN7.) As of July 1, 1979, rulings on motions
to suppress in the District Courts are appealable by the Commonwealth. G.L. c. 278, s 28E, as appearing in St.1979,
c. 344, s 45. See Mass.R.Crim.P.
15(a)(2), ‑‑‑ Mass. ‑‑‑ (effective July 1,
1979).
(FN8.) We do not view the possibility of
review of interlocutory decisions under G.L. c. 211, s 3, according to the
"exceptional circumstances" standard of Gilday v. Commonwealth, 360
Mass. 170, 171, 274 N.E.2d 589 (1971), and its progeny, as a right of appeal
for purposes of collateral estoppel. Cf.
Commonwealth v. Frado, 372 Mass. 866, 362 N.E.2d 206 (1977); Restatement
(Second) of Judgments s 68.1 and comment on cl.
(a) (Tent. Draft No. 4,
1977). Nor do we consider, as the
defendant urges, the Commonwealth's "right to appeal" to the grand
jury after a District Court finding of no probable cause (see Burke v.
Commonwealth, 373 Mass. 157, 159‑162, 365 N.E.2d 811 (1977)), a right to
appeal an adverse suppression ruling for purposes of collateral estoppel.
(FN9.) See State v. Doucet, supra at 1245,
1248 (on rehearing), where the Supreme Court of Louisiana rejected the
DiGiangiemo dictum. The court concluded
that its exercise of supervisory jurisdiction, coupled with the double jeopardy
protection accorded under Ashe v. Swenson, supra, was sufficient to prevent
prosecutorial abuse. As for concern over
the waste of effort involved in relitigating a matter already determined, the
court concluded that judicial efficiency did not justify the possible
perpetuation of erroneous rulings that frustrate, rather than advance,
justice. See also United States ex rel.
Hubbard v. Hatrak, 588 F.2d 414, 419 (3d Cir. 1978), cert. denied, 440 U.S.
974, 99 S.Ct. 1541, 59 L.Ed.2d 792 (1979) (DiGiangiemo dictum noted but neither
approved nor disapproved).
(FN10.) Commonwealth v. Hall, 366 Mass. 790,
791, 323 N.E.2d 319, 320 (1975), is not to the contrary. There we held that a warrant authorizing a
search of "certain rooms in the 2nd fl apt 2nd fl of 21/2 wooden dwelling
house" did not cover a search of a totally distinct third floor
apartment. We noted, however, that we
did not intend "to lay down a rule that the description in a warrant of
the location and area to be searched may never be construed more liberally than
in the present case. For example, the
evidence when the warrant is executed may show that the illegal activities
spill over into a directly adjacent or contiguous area under the same control,
in which case a liberalized reading of the warrant may be proper." Id. at 800 n. 11. Such is the case before us.
(FND.) Mass.Adv.Sh. (1978) 1241, 1246‑1248.
(FNE.) Mass.Adv.Sh. (1979) 1646, 1652.
(FN11.) Contrary to the defendant's claim,
there is evidence in the record connecting him with the Malden apartment. At the time of the search, one of the
occupants named in the warrant indicated to police officers that a particular
bedroom was "Frank's room," referring to the defendant. In addition, the defendant acknowledged the
apartment as his residence in both the motion to suppress and the affidavit in
support thereof, where the apartment is referred to as "my apartment"
and the "defendant's home."
There is also testimony contradicting the contention that the seized
drugs were not in plain view. On the
other hand, the record is utterly barren of any information relative to the
defendant's control over the drugs found in the attic.
(FNF.) Mass.Adv.Sh. (1978) 1241, 1246‑1247.