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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. Taglieri, 378
Supreme Judicial Court of Massachusetts,
Argued
Decided
Bernard Manning, Asst. Atty. Gen., for the Com.
Margaret Hayman,
Before [378
WILKINS, Justice.
We granted
further appellate review in this case to consider whether there was sufficient
information contained in an affidavit in support of a search warrant to constitute
probable cause. The
We
summarize the affidavit. A State police
officer, who had experience in gathering information concerning gambling and
organized crime, by affidavit presented certain facts on personal
knowledge. In May, 1974, pursuant to
court order, an electronic interceptor of telephone calls had been authorized
concerning two telephones at an address in
Two
telephone calls were made from the
On August
1, 1974, the police entered and searched the Revere premises. They seized various items, including papers
with notations indicating number pool play and horse bets. The defendant was charged with the use of a
telephone for the purpose of accepting or placing wagers and with being present
in a place with betting apparatus. The
defendant was convicted in a District Court and appealed to the Superior
Court. He filed a motion to suppress the
evidence, which was denied. He was then
convicted in a jury‑waived trial in the Superior Court and given
concurrent sentences to a house of correction.
A Justice of the Appeals Court granted a stay of execution pending
appeal.
[1] The
Commonwealth argues that the judge issuing the search warrant could use his
experience to determine the significance of the facts set forth in the
affidavit. We have recently acknowledged
that a judge or magistrate may apply common knowledge and may draw reasonable
inferences from the facts before him.
See Commonwealth v.
Alessio, ‑‑‑ Mass. ‑‑‑‑, ‑‑‑‑
([FNB]),384 N.E.2d 638 (1979). See also
G.L. c. 271, s 27. This is consistent with
the view that "affidavits for search warrants . . . must be tested and interpreted by magistrates
and courts in a commonsense and realistic fashion." United States v. Ventresca, 380 U.S. 102,
108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).
We would not, however, accept an argument that the peculiar experience
and knowledge of an issuing judge or magistrate would support the issuance of a
warrant. The [378 Mass. 199] result
should not turn on who the magistrate is or how much special knowledge he may have. We would accept only inferences which an
experienced magistrate could draw as a commonsense conclusion from the
information set forth in the affidavit.
See 1 W.R. LaFave, Search and Seizure 463 (1978). Although some courts have sometimes spoken broadly
of the deference to be accorded the expertise of an issuing magistrate, a close
examination of the cases reveals no willingness to defer to inferences which do
not follow as a matter of common sense from the affidavit. See, e. g., United States v. Berry, 150
U.S.App.D.C. 187, 463 F.2d 1278, 1285 (1972).
Although weight should be given to the judgment and experience of a
judge or magistrate who issued a warrant, with the result that its issuance
will be upheld if there was a reasonable basis for finding probable cause
(Rosencranz v. United States, 356 F.2d 310, 314 (1st Cir. 1966)), the affidavit
"must set forth the basis for the magistrate's inferences with enough
precision" for the determination to be scrutinized at a subsequent hearing
on a motion to suppress or on appeal from a decision on a motion to suppress
(Id. at 317).
[2] We
agree with the Commonwealth that weight must be given to the special experience
of a law enforcement officer who has executed an affidavit. For example, where such an officer states
that he has drawn inferences from facts which an inexperienced person might not
draw from those facts, the magistrate may rely on those inferences. Consequently, if a seemingly minor fact has
particular significance to an expert, not apparent from common knowledge and
experience, because of the method by which criminal operations are conducted,
the affidavit should disclose its significance.
See 1 W.R. LaFave, Search and Seizure 463 (1978).
[3]
Although there were facts constituting probable cause to believe that gaming
operations were carried on at the East Boston address, the facts in the
affidavit concerning the Revere address showed only that (1) on one occasion a
person at the Revere address received a telephone call [378 Mass. 200] and
placed two bets, and (2), fifteen days later, a person at the Revere address
received the results of a horse race.
These two facts do not constitute probable cause to believe that gaming
operations were conducted at the Revere address, even when coupled with the
fact that the telephone calls were made by a convicted gambler from premises
where it reasonably appeared gaming operations were conducted.
The
Commonwealth argues, however, that an inference could be drawn from the facts
about the gambling operation which would support the conclusion that the
defendant accepted wagers from street bookies at the Revere address and dealt
with other bookies at a "central" office at the East Boston
premises. The Commonwealth suggests that
the call from East Boston during which a bet was placed by a person at the
Revere address was to collect lay‑off bets from a bookie at the Revere
address. ([FN1]) As to the second telephone call, the
Commonwealth suggests that the information concerning the results of the first
race at Suffolk Downs advised a confederate at the Revere address to take no
further bets and permitted the confederate to balance his books by crediting
and debiting his customers' accounts.
The Commonwealth argues generally that the issuing judge could have
concluded from common knowledge and experience . that bookies do not call
customers to receive bets and to disclose race results. Hence, the calls from East Boston to Revere
must have been from one part of the gambling operation to another. ([FN2])
[378 Mass. 201] We reject any suggestion that a judge or magistrate could
reasonably draw these conclusions from the limited facts presented in the
affidavit. The experienced officer who
signed the affidavit did not state that he drew any inferences of the sort the
Commonwealth now advances in support of the search. The affidavit did not disclose the length or
contents of the telephone calls, beyond what has been described above. For example, it did not disclose the size of
the bets placed in the first telephone call, which might have a significant
bearing on the Commonwealth's claim that the transaction involved lay‑off
bets. The inferences which the
Commonwealth argues support the issuance of the warrant are not ones which
could have been drawn reasonably as a matter of common knowledge by the issuing
judge. ([FN3])
We agree
with the determination of the Appeals Court that the two telephone
conversations referred to in the affidavit in support of the search warrant
were the only specific facts on which probable cause concerning the Revere
premises could have been based and that those conversations, coupled with any
inferences which might reasonably be drawn from the circumstances, did not
"establish a probability that the premises sought to be searched contained
equipment for registering bets or conducting other gaming
operations." Commonwealth v.
Taglieri, ‑‑‑ Mass.App. ‑‑‑‑, ‑‑‑‑
([FNC]), 381 N.E.2d 1118, 1119 (1978).
Judgments
of the Superior Court reversed.
FNa. Mass.App.Ct.Adv.Sh. (1978) 1022.
FNb.
Mass.Adv.Sh. (1979) 95, 102.
(FN1.)
In one form of more socially acceptable risk taking, this process of lay‑off
bets would be called reinsurance.
(FN2.)
No argument based on inferences concerning the nature of the gambling
operations was made at the hearing on the motion to suppress or in the
Commonwealth's brief on appeal. The
claim first was advanced in the Commonwealth's application for further
appellate review. If these inferences
were so apparent to experienced observers, it is surprising that the
Commonwealth did not argue them at the earliest stages of this case.
(FN3.)
The Commonwealth argues that the issuing judge had information from other
affidavits submitted simultaneously in support of other warrant requests which
justified a finding of probable cause in this case. If there were affidavits submitted in support
of other applications for search warrants, they should have been incorporated
by reference or attached to the affidavit, or at least presented at the time of
the hearing on the motion to suppress.
See Commonwealth v. Saville, 353 Mass. 458, 460, 233 N.E.2d 9 (1968);
United States v. Nolan, 413 F.2d 850, 853 (6th Cir. 1969). They do not appear in the record before us.
FNc.
Mass.App.Ct.Adv.Sh. (1978) 1022.