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05/03/78 COMMONWEALTH v. HENRY R. MUOLLO.

May 3, 1978

COMMONWEALTH
v.
HENRY R. MUOLLO.



A warrant was issued authorizing the immediate search of certain specified premises "occupied by [the defendant] and of any person present who may be found to have such property in his possession or under his control or to whom such property may have been delivered." The warrant stated "that there is probable cause for believing that: illegal gaming . . . has been and is continuing to be carried on by [the defendant]" at the premises. The warrant was executed, and the premises were searched, but neither the defendant nor anyone else was present at the time of the search. 1. The defendant challenges on appeal the validity of the "any person present" clause in the premises search warrant. See Commonwealth v. Smith, 370 Mass. 335, 346-347 (Kaplan, J., Dissenting), cert. denied, 429 U.S. 944 (1976). Although warrants containing such clauses are not favored in our law (see Commonwealth v. Smith, supra at 341 & n.7), we discern no error requiring reversal. As neither the defendant nor anyone else was present at the time of the search, any Discussion of the defendant's constitutional argument on this point would be merely academic. 2. The other issues raised by the defendant's assignments of error are equally devoid of merit, and no Discussion of any of them is necessary.

Judgment affirmed.

19780503

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