Commonwealth v. Sheppard

Massachusetts Appeals Court

Commonwealth v. Sheppard

358 N.E.2d 480, 5 Mass. App. Ct. 765, 1977 Mass. App. LEXIS 712

CourtMassachusetts Appeals Court

DecidedJanuary 5, 1977

StatusPublished

Cited by6 cases

This text of 358 N.E.2d 480 (Commonwealth v. Sheppard) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commonwealth v. Sheppard, 358 N.E.2d 480, 5 Mass. App. Ct. 765, 1977 Mass. App. LEXIS 712 (Mass. Ct. App. 1977).

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Opinion

1. There was no error in the admission of either of the items of evidence objected to at the pre-trial hearing on the defendant’s motion to suppress. The defendant had demonstrated the existence of a misstatment of fact in that portion of the affidavit forming a part of the application for the search warrant which was addressed to the credibility or reliability of the affiant’s informant (see Commonwealth v. Snow, 363 Mass. 778, 782-783 [1973]; Commonwealth v. Vynorius, 369 Mass. 17, 20, 21 [1975]), and both items of evidence were relevant to and admissible on the question whether the misstatement had resulted (a) from deliberate (see Commonwealth v. Perez, 357 Mass. 290, 301 [1970]; Commonwealth v. Murray, 359 Mass. 541, 547-548 [1971]; Commonwealth v. Kinnitt, 2 Mass. App. Ct. 810 [1974]; Commonwealth v. Gill, 2 Mass. App. Ct. 653, 655, n.2 [1974]) or reckless (see Commonwealth v. Rugaber, 369 Mass. 765, 767, 769 [1976]) action on the part of the affiant or (b) from an inadvertency on his part which was unrelated to any intention to deceive the magistrate (see Commonwealth v. Gallinaro, 360 Mass. 868, 869 [1971]). 2. The judge did not err in denying the motion to suppress. His findings that the misstatement was (a) “not a deliberate falsehood, but rather an honest mistake,” (b) “ [the]- result of negligence” (see Commonwealth v. Rugaber, 369 Mass. at 767), and (c) “not intentional” were amply supported by the evidence. Compare Commonwealth v. Gallinaro, 360 Mass. at 869. The misstatement did not go to the integrity of the affidavit as a whole or destroy probable cause for a search (Commonwealth v. Murray, 359 Mass. at 548), and we concur in the judge’s opinion that “the prophylactic value of excluding evidence in this case ... [would he] nil.” See Commonwealth v. Rugaber, 369 Mass. at 769. Compare United States v. Belculfine, 508 F. 2d 58, 61-62 (1st Cir. 1974), which was cited by the judge. 3. As was conceded at the oral argument, none of the remaining assignments of error has been “argued” within the meaning of Rule 1:13 of this court, as amended effective February 27, 1975, 3 Mass. App. Ct. 801 (1975). There is no assignment of error addressed to the sufficiency of the affidavit on its face.

Judgment affirmed.

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1. There was no error in the admission of either of the items of evidence objected to at the pre-trial hearing on the defendant’s motion to suppress. The defendant had demonstrated the existence of a misstatment of fact in that portion of the affidavit forming a part of the application for the search warrant which was addressed to the credibility or reliability of the affiant’s informant (see Commonwealth v. Snow, 363 Mass. 778, 782-783 [1973]; Commonwealth v. Vynorius, 369 Mass. 17, 20, 21 [1975]), and both items of evidence were relevant to and admissible on the question whether the misstatement had resulted (a) from deliberate (see Commonwealth v. Perez, 357 Mass. 290, 301 [1970]; Commonwealth v. Murray, 359 Mass. 541, 547-548 [1971]; Commonwealth v. Kinnitt, 2 Mass. App. Ct. 810 [1974]; Commonwealth v. Gill, 2 Mass. App. Ct. 653, 655, n.2 [1974]) or reckless (see Commonwealth v. Rugaber, 369 Mass. 765, 767, 769 [1976]) action on the part of the affiant or (b) from an inadvertency on his part which was unrelated to any intention to deceive the magistrate (see Commonwealth v. Gallinaro, 360 Mass. 868, 869 [1971]). 2. The judge did not err in denying the motion to suppress. His findings that the misstatement was (a) “not a deliberate falsehood, but rather an honest mistake,” (b) “ [the]- result of negligence” (see Commonwealth v. Rugaber, 369 Mass. at 767), and (c) “not intentional” were amply supported by the evidence. Compare Commonwealth v. Gallinaro, 360 Mass. at 869. The misstatement did not go to the integrity of the affidavit as a whole or destroy probable cause for a search (Commonwealth v. Murray, 359 Mass. at 548), and we concur in the judge’s opinion that “the prophylactic value of excluding evidence in this case ... [would he] nil.” See Commonwealth v. Rugaber, 369 Mass. at 769. Compare United States v. Belculfine, 508 F. 2d 58, 61-62 (1st Cir. 1974), which was cited by the judge. 3. As was conceded at the oral argument, none of the remaining assignments of error has been “argued” within the meaning of Rule 1:13 of this court, as amended effective February 27, 1975, 3 Mass. App. Ct. 801 (1975). There is no assignment of error addressed to the sufficiency of the affidavit on its face.

Judgment affirmed.

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358 N.E.2d 480, 5 Mass. App. Ct. 765, 1977 Mass. App. LEXIS 712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-sheppard-massappct-1977.

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