COMMONWEALTH vs. ANGELO ROSSETTI (and a companion case).

CUTTER, J. On July 31, 1964, a Boston police captain made written applications for two warrants to search premises at 37-41 Rutland Street, Boston. The information furnished in the application for one warrant to search for gaming implements (G. L. c. 271, Section 23, as amended through

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St. 1953, c. 319, Section 30) [Note 1] and the facts stated in the application for the other warrant (G. L. c. 276, Section 2B, inserted by St. 1964, c. 557, Section 3) [Note 2] are set out in the margin.

After obtaining these warrants, the captain and other officers "went to . . . 37-41 Rutland Street. These premises consisted of the offices of a newspaper . . . company . . . owned and operated by . . . Shibley [a defendant in the companion case]. Two officers went to . . . [No.] 41. The remaining officers, including [the] [c]aptain . . ., went to . . . [No.] 37. As the two officers approached the door numbered 41, they observed through an open window a man sitting at a table with a telephone in his hand. . . . Without announcing their authority or purpose the two officers, using a [b]attering [r]am, forced the door and entered the premises."

The defendant Rossetti, "who was sitting at the table, turned and faced the police officers. . . . [O]n the table at which he was sitting, were seven telephones and numerous sheets of paper." Writings on the papers indicated racing results, wagers on horse races, and lottery bets. "Rossetti was ordered away from the table; and the telephones . . . were monitored for in-coming phone calls," which revealed inquiries concerning racing results.

"Shibley . . . identified himself as the owner and operator of the . . . [c]ompany, and indicated that he was in control of the premises. The police officers seized . . . various articles and papers," which are "the subject matters of . . . [m]otion[s] to [s]uppress," mentioned below.

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In the Municipal Court, Rossetti was convicted of transmitting racing information during the running of a race, knowing that it was to be used for unlawful gaming. He appealed to the Superior Court. On October 9, 1964, Rossetti and Shibley were indicted for conspiracy to transmit such information in furtherance of unlawful gaming. Rossetti and Shibley then each filed in each case a motion to suppress the evidence seized and for its return on the ground that it was taken "without a valid search warrant."

The captain testified, at the hearing on the motions to suppress that, prior to entering the premises, he knew that Rossetti had a criminal record as a bookmaker and for violations of the Federal tax stamp wagering law; that he "had been under rendition proceedings from . . . Florida in connection with a racing wire service"; and that he "had been named in a Crime Commission [r]eport . . . [as important] in race wire dissemination."

A "police officer . . . [who] forced the door . . . testified . . . that his decision [not] to . . . announce his presence, purpose, or authority was based upon his desire to prevent any attempt to destroy evidence. In fact, there were no circumstances to indicate that an attempt was made to destroy evidence."

Each motion was denied. The trial judge then, under G. L. c. 278, Section 30A, made an interlocutory report of two questions of law, viz. (1) "[w]hether . . . the search and seizure . . . was legal," and (2) whether G. L. c. 271, Section 31A (inserted by St. 1964, c. 330) is [Note 3] "[c]onstitutional."

1. The defendants contend that the applications did not set forth facts adequate to show reasonable grounds for a search and that consequently the warrants were improperly

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issued. They also assert that, because of the invalidity of the warrants, the evidence obtained by their use was illegally seized, and thus must be suppressed.

In only a few Massachusetts cases decided since Mapp v. Ohio, 367 U.S. 643, 655-660, has this court considered whether a warrant was improperly issued and whether evidence procured by its use was illegally obtained. In Commonwealth v. Lepore, ante, 121, 122-123, it was held that adequate grounds for issuing a search warrant had been presented to the judge who issued it. There had been a more complete statement to the judge than appears in the present cases. In Commonwealth v. Lillis, ante, 422, 423-424, we held adequate very full recitals of underlying facts, concerning (a) identifications of the suspects, (b) three bullets recovered near places where identified suspects had been, and (c) ballistic tests of these bullets. [Note 4] We have recently held in Commonwealth v. Dias, ante, 583, 584, following decisions of the Supreme Court of the United States mentioned below, that an application is inadequate if based merely upon the affiant's belief, without statement of the facts supporting that belief. See Commonwealth v. Laudate, 345 Mass. 169, 171. See also Commonwealth v. Jacobs, 346 Mass. 300, 303, 307-308.

The Supreme Court of the United States has held that the Fourth Amendment's "proscriptions [against unreasonable searches and seizures] are enforced against the States through the Fourteenth Amendment" and that "the standard of reasonableness is the same under the Fourth and Fourteenth Amendments." See Ker v. California, 374 U.S. 23, 33. Although the Ker case did not involve a

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search under a warrant, the decision has made it necessary for the State courts, in the adjudication of criminal cases, to apply the "fundamental criteria" of the Fourth Amendment in determining whether particular searches and seizures are reasonable.

In Aguilar v. Texas, 378 U.S. 108, the Supreme Court reviewed a State search warrant issued upon an application stating merely that the applicants "have received reliable information from a credible person and do believe that . . . narcotics . . . are being kept at the . . . described premises for the purpose of sale and use contrary to . . . law." The court held (at pp. 115-116) "that the search warrant should not have been issued because the affidavit did not provide a sufficient basis for a finding of probable cause and that the evidence obtained as a result of the search warrant was inadmissible."

In reaching this conclusion, the opinion said (at pp. 113-114), "Here the `mere conclusion' that [the] petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit . . . not only `contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,' it does not even contain an `affirmative allegation' that the affiant's unidentified source `spoke with personal knowledge.' For all that appears, the source here merely suspected, believed or concluded that there were narcotics in [the] petitioner's possession. The magistrate here certainly could not `judge for himself the persuasiveness of the facts relied on . . . to show probable cause.' He necessarily accepted `without question' the informant's `suspicion,' `belief,' or `mere conclusion.' Although an affidavit may be based on hearsay . . . and need not reflect . . . direct personal observations of the affiant . . . the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and . . . from which the officer concluded that the informant, whose identity need not be disclosed . . . was `credible' or his information `reliable.'"

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On the other hand, in United States v. Ventresca, 380 U.S. 102, 109-112, the court sustained [Note 5] the propriety of a warrant issued upon a careful application and affidavit set out in full (at pp. 112-116). The affidavit described surveillance of various persons and the premises searched over a period of nine or more days and various incidents observed suggesting criminal conduct. The affidavit was stated to be based on observation of the affiant and reports made to him by other Internal Revenue Service investigators. See Giordenello v. United States, 357 U.S. 480, 486. Cf. Chin Kay v. United States, 311 F. 2d 317, 320-322 (9th Cir.).

The foregoing decisions establish the necessity of including in the application for a warrant the underlying facts which show probable cause, and not simply general conclusions inferred from those facts. Each of the applications before us (fns. 1, 2) reveals that it is based in major part upon a hearsay report from an F.B.I. agent. Even if the reference to that agency might be sufficient to establish the reliability of the informant, the applications contain no indication of the basis (a) of the F.B.I. agent's knowledge of the facts reported by him, or (b) of his conclusion that racing information was being transmitted, or (c) of the applicant's knowledge of the then current activities of Rossetti and his employee. There is no description of any surveillance of Rossetti or his associates by the applicant or others. The applications do not place before the issuing magistrate basic facts sufficient to permit him to determine for himself whether probable cause existed.

A majority of the court are of opinion that the applications,

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although somewhat more informative than those in the Aguilar case, do not meet the standards laid down by the Supreme Court of the United States. [Note 6] This is so even if (as reviewing courts should do where there has been police effort, in good faith, to comply with procedural requirements) we disregard insubstantial errors and make every reasonable allowance for the difficulties and pressures under which law enforcement officers must work. See the Ker case, 374 U.S. 23, 33-34, and the Ventresca case, 380 U. S. 102, 109 (fn. 5).

2. The Commonwealth contends that the search and seizure were incidental to an arrest (see United States v. Rabinowitz, 339 U.S. 56, 60; Abel v. United States, 362 U.S. 217, 234-238) for a felony, [Note 7] for which arrest without a warrant was authorized if the arresting officer had reasonable cause to believe that the person arrested had committed a felony. See Commonwealth v. Holmes, 344 Mass. 524, 525. In considering whether probable cause existed, we may take into account the facts shown by the record to have been known to the arresting captain when the search warrants were served in addition to those stated in the applications for the warrants. These additional facts amount to little more than knowledge that Rossetti had a criminal record and a reputation of being involved in gaming activities. These facts may be significant in connection with other basic facts but, standing alone, are of slight importance in establishing probable cause. As to the officers' observations of Rossetti before they entered to search the premises,

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the record shows merely that the police observed a man sitting at a table holding a telephone.

In the aggregate, all the circumstances set out in the report do not amount to probable cause for arrest, nor do they show that the officers knew basic facts sufficient to permit them reasonably to conclude that Rossetti was or had been violating G. L. c. 271, Section 31A, on some specific occasion or occasions. Indeed, the record suggests, not that the search was incident to a lawful arrest, but rather that the arrest was incident to a search under invalid warrants. See Johnson v. United States, 333 U.S. 10, 15-17. Cf. United States v. Harris, 321 F. 2d 739, 741-742 (6th Cir.). [Note 8]

3. There is no occasion for us to consider whether there was an illegal search for the additional reason, urged by the defendants, that entrance to the searched premises was made by force without prior announcement of the existence of the warrants and of the purpose of the search. See Ker v. California, 374 U.S. 23, 37-41, 44-46, 47. [Note 9] See also Miller v. United States, 357 U.S. 301, 306-310; Masiello v. United States, 304 F. 2d 399, 401 (Ct. App. D. C.). As to the significance of the fear of destruction of evidence as justifying omission of any warning before a forcible entry, see People v. Maddox, 46 Cal. 2d 301, 304-307; Blakey, The Rule of Announcement and Unlawful Entry, 112 U. of Pa. L. Rev. 499.

4. Rossetti has been indicted for conspiracy with Shibley to transmit racing information unlawfully. The record warrants the conclusion that Shibley owned the searched premises. There is no suggestion that Rossetti was a trespasser

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on the premises when the search was made. On the contrary, the most reasonable inference is that he was there as Shibley's agent or as a joint venturer with Shibley. Accordingly, he had sufficient standing, at least because claiming through Shibley and in Shibley's interest, to invoke the protection of the Fourth Amendment against an unlawful search of Shibley's premises. Jones v. United States, 362 U.S. 257, 261-267. See Ker v. California, 374 U.S. 23, 34. See also People v. Martin, 45 Cal. 2d 755, 760-761.

5. At the arguments, counsel for the defendants in effect waived any contention that G. L. c. 271, Section 31A (fn. 3), is invalid because of the exemption from its penal provisions of newspapers and other news media. The concession by counsel was proper. The exemption of the ordinary transmission of news for general public consumption from these penal provisions is a reasonable legislative classification of substantially differing types of communication and conduct. If applied in this case, Section 31A would not deny to defendants the equal protection of the law. Lindsley v. Natural Carbonic Gas Co. 220 U.S. 61, 78-79. Ferguson v. Skrupa, 372 U.S. 726, 732-733. See Telephone News Sys. Inc. v. Illinois Bell Tel. Co. 220 F. Supp. 621, 638-640 (N. D. Ill.), affd. 376 U.S. 782; United States v. Borgese, 235 F. Supp. 286, 295-296 (S.D. N.Y.). See also Kelly v. Illinois Bell Tel. Co. 325 F. 2d 148, 151-153 (7th Cir.); Parkes v. Judge of Recorder's Court, 236 Mich. 460, 467-469, where a somewhat similar statute containing no exemption of news media was held invalid largely because of the absence of such an exemption.

6. The questions raised by the report are to be answered: First, upon the reported facts the search in these cases was based upon improperly issued warrants and was illegal. Second, General Laws c. 271, Section 31A, if applied to communications of the type indicated by the present record as having been made by the defendants, would not deny to persons in the defendants' position the equal protection of the laws.

So ordered.