1. The defendant's argument that the plaintiffs' tenancy terminated at the end of May, 1975, that a new tenancy by other persons began at that time, and that the notice received by the defendant on behalf of the plaintiffs on August 1, 1975, was therefore without legal standing, is predicated on assertions of fact not substantiated by the record. The judge did not make such findings, and the record does not establish that he was required to make them. 2. On the basis of the facts of the case as found by him, the judge was correct in ruling that the defendant's failure to execute and deliver a lease to the plaintiffs resulted in their being tenants at will. G. L. c. 183, Section 3. See Chase v. Aetna Rubber Co., 321 Mass. 721 , 724 (1947); Chester A. Baker, Inc. v. Shea Dry Cleaners, Inc., 322 Mass. 311 , 312 (1948). 3. There was evidence to support the judge's finding (implicit in his acceptance of paragraph 7 of the complaint) that the plaintiffs gave timely written notice of their intent to terminate the tenancy. The record indicates that the rent day was the first day of the month (contrast Connors v. Wick, 317 Mass. 628 , 631 ) and that the notice of termination was received on August 1, 1975, to take effect, implicitly, at the end of August. The notice so given was in compliance with the requirements of G. L. c. 186, Section 12, because the notice period was not less than the interval between rent days, Walker v. Sharpe, 14 Allen 43 , 45 (1867), U-Dryvit Auto Rental Co., v. Shaw, 319 Mass. 684 , 685-686 (1946), and was not less than thirty days.
The defendant argues that it was error to permit the introduction in evidence of a firearm discovered through a "pat-down" of his person either just before (as the judge found) or just after (as the defendant contends) his arrest. The defendant concedes, as he must, that the police officer had probable cause to believe that the defendant and his companions had attempted to steal a wheel from a parked motor vehicle, and he further concedes that their arrest would be valid for that reason, apart from the firearm. His contention seems to be that the second paragraph of G. L. c. 276, Section 1, as appearing in St. 1974, c. 508, makes inadmissible any evidence seized in a search incident to an arrest other than evidence related to the crime which justified the arrest. At
least, he contends, Section 1 is ambiguous, the interpretation he suggests is a possible interpretation, and he is entitled to the benefit of that interpretation as it is the one most favorable to defendants. We reject the contention because we are of the opinion that Section 1 is not capable of such a construction. On its face, Section 1 makes inadmissible only "[p]roperty seized as a result of a search in violation of the provision of [the second] paragraph . . . ." Even if we accept the version of the facts posed by the defendant, the pat-down or search was not in violation of those provisions, as the defendant in his brief expressly concedes. The uncertainty which the statute may generate will not be the result of ambiguity but rather of the statute's apparent subjective test the lawfulness of the search seeming to turn on the subjective purpose of the searching officer. See Weinreb, New Statute on "Searches," 3 Mass. Lawyers Weekly 35 (1974); compare Fiftieth Report of the Judicial Council, Pub. Doc. No. 144, at 118-123 (1974). Here there is no basis for rejecting the judge's finding that the officer's purpose was to search for concealed weapons, and it is conceded that the search was not excessive in scope. As the purpose of the search was within the terms of the statute, the evidence it produced was admissible, regardless of the purpose for which the alleged prior arrest may have been made. No contention is (or could be) made that the search exceeded constitutional bounds. See Terry v. Ohio, 392 U.S. 1 (1968); United States v. Robinson, 414 U.S. 218 (1973); Gustafson v. Florida, 414 U.S. 260 (1973).