5 Mass. App. Ct. 865

September 14, 1977

The Commonwealth has appealed (G. L. c. 278, Section 28E) from the allowance of the defendant's motion to suppress evidence seized from the defendant's apartment and automobile pursuant to a search warrant, supported only by a document, purporting to be an affidavit, on which the jurat was unsigned. The document was inadequate as a basis for the warrant; the motion to suppress was properly allowed. From the face of the document (see Commonwealth v. Monosson, 351 Mass. 327 , 328-329 [1966]; Commonwealth v. Penta, 352 Mass. 271 , 274-275 [1967]) it could not be determined that it was an affidavit sworn to before a "Justice or Special Justice, Clerk or Assistant Clerk," as required by G. L. c. 276, Section 2B, as amended by St. 1965, c. 384. [Note 1] Indeed the Commonwealth concedes in its brief that "[t]he affidavit did not

Page 866

indicate who[m the affiant] swore in front of, if anyone." Commonwealth v. Snow, 363 Mass. 778 , 784-786 (1973), and Commonwealth v. Hanscom, 2 Mass. App. Ct. 840 (1974), are not to the contrary. In those cases the place in the jurat for the name of the affiant was left blank; but his identity was clear from other parts of the affidavit. He had signed the affidavit and the jurat was signed by a court clerk. "The only possible reasonable conclusion which [could] be drawn from a reading of the . . . affidavit" was that the affiant "as required by Section 2B, as amended, appeared before the court clerk and swore that the allegations by him subscribed were true." Commonwealth v. Snow, 363 Mass. at 785-786. Such is not the case with the warrant application before us.

Order allowing motion to suppress evidence affirmed.


[Note 1] This statute changed the form for the jurat to provide that it be executed by one of those officials instead of by a notary public. (We note that the form for affidavit used in this case erroneously calls for acknowledgment before a notary public.)