Home JOSEPH MARTINEZ & others vs. STATE RACING COMMISSION.

10 Mass. App. Ct. 909

October 8, 1980

It is forbidden to administer a drug to a race horse for the purpose of affecting its speed. G. L. c. 128A, Section 13B. The State Racing Commission (Commission) enacted rule 515, promulgated as 205 Code Mass. Regs. 4.41(3) (1978), pursuant to its statutory rule making power (G. L. c. 128A, Section 9) for the purpose of creating a procedure to enforce Section 13B. Rule 515 provided in material part (its amendment on January 7, 1980, is not material to this case) that urine specimens collected from horses "shall be tested by the Racing Chemist at the State Police Laboratory who is hereby designated as the official chemist" of the Commission. The plaintiffs are licensed trainers of race horses who were found by the Commission after a hearing to have administered drugs illegally to horses who were entered in races. They were suspended for nine months. A judge of the Superior Court, to which the plaintiffs appealed (G. L. c. 30A, Section 14), annulled the Commission's action. The judge erred. The cardinal issue is the propriety vel non of the Commission's action in giving any weight to the urine tests conducted by persons other than the racing chemist in places other than the State police laboratory. The Commission interpreted rule 515 as permitting the consideration of the tests performed in this case at the Illinois Racing Board Laboratory and at a proprietary laboratory because the State police laboratory did not have the sophisticated equipment necessary to detect the presence of fentanyl, a proscribed drug which was found in the urine of the horses involved in this case. We agree with the Commission that the results of the tests referred to constituted "substantial evidence," as that term is defined in G. L. c. 30A, Section 1(6), and that nothing in rule 515 precluded its consideration of such evidence. The judgment is reversed, and a new judgment is to be entered which upholds the decision of the Commission.

So ordered.

Home COMMONWEALTH vs. EMELIO J. DELLICOLLI.

10 Mass. App. Ct. 909

October 8, 1980

1. The judge erred in allowing the defendant's motion to suppress. The affidavit of the State police officer was replete with facts from which probable cause to issue a search warrant could be found, not the least of which were the two telephone conversations initiated by the officer to the defendant's premises during which the informer placed several bets on horse races. See

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Spinelli v. United States, 393 U.S. 410, 416 (1969); Commonwealth v. Alessio, 377 Mass. 76 , 82 (1979). The observations of the premises over a considerable period of time, and countless telephone calls which revealed a "busy line" within a few minutes before posttime for the first race at local race tracks, buttressed the foundation of probable cause. See Commonwealth v. Lotfy, 8 Mass. App. Ct. 126 , 130-132 (1979). Contrast Commonwealth v. Taglieri, 378 Mass. 196 , 200 (1979). An informant's tip, though inadequate in itself, may be successfully fortified through corroboration of its elements by means of police observations and investigation. Commonwealth v. Kaufman, 381 Mass. 301 , 302 (1980).

2. The defendant's argument that the Commonwealth's appeal is fatally tardy is without merit. The judge, in effect, allowed a late appeal by the Commonwealth (see Mass.R.Crim.P. 15[a][2] & [3], 378 Mass. 882 & 883 [1979]) when he denied the defendant's "Motion to Nullify the Commonwealth's Purported Authorization for Appeal and Claim of Appeal." With an eye toward removing any obscurity lurking in the judge's action, we have allowed the Commonwealth's motion for late filing of its claim of appeal. See Mass.R.App.P. 14(b), 365 Mass. 859 (1974). Equally unpersuasive is the defendant's claim that the authorization for appeal (Mass.R. Crim.P. 15[a][3][B], 378 Mass. 883 [1979]) was improperly executed because it was signed by an assistant district attorney and not by the district attorney. The term "district attorney" includes assistant district attorneys. Mass.R.Crim.P. 2(b)(6), 378 Mass. 845 (1979).

Order allowing motion to suppress evidence reversed.