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09/14/77 COMMONWEALTH v. JAMES DOZIER

September 14, 1977

COMMONWEALTH
v.
JAMES DOZIER



The Commonwealth has appealed (G. L. c. 278, § 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, § 2B, as amended by St. 1965, c. 384. *fn1 Indeed the Commonwealth concedes in its brief that "he affidavit did not 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 be drawn from a reading of the . . . affidavit" was that the affiant "as required by § 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.


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