Commonwealth v. Muto

The defendant was found guilty by a judge of the Third District Court of Eastern Mid-dlesex on two charges of violating G. L. c. 271: (1) under § 7 of being concerned with setting up a lottery; and (2) under § 17 of registering bets. Before trial the defendant’s motion for the suppression of evidence was denied. On October 30, 1963, before the effective date of St. 1964, e. 557, a police officer, whose affidavit containing no recital of underlying facts was presented to the magistrate for the issue of the search warrant, also offered a written statement reading: “I . . . have probable cause to believe that the wooden frame, 2 story dwelling house, located at 57 Walnut St. Framingham, is being used for the purpose of registering bets and of setting up and promoting a lottery.” No important facts in amplification of the affidavit appear in testimony before the issuing clerk. The official issuing the warrant did not have before him “basic facts suf785 fieient to permit him to determine for himself whether probable cause existed.” Commonwealth v. Owens, ante, 633, 635. There was not a compliance with G. L. c. 271, § 23. Commonwealth v. Dias, 349 Mass. 583, 584. There also was no compliance with the Fourth Amendment to the Constitution of the United States. Aguilar v. Texas, 378 U. S. 108, 114. See Commonwealth v. Rossetti, 349 Mass. 626, 631. Herbert A. Black, II, for the defendant. Balph F. Champa, Jr., Assistant District Attorney (Buth I. Abrams, Assistant District 'Attorney, with him), for the Commonwealth. Exceptions sustained. Judgment for the defendant.