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05/10/78 COMMONWEALTH v. JAMES C. BOND

May 10, 1978

COMMONWEALTH
v.
JAMES C. BOND



Middlesex.

Hennessey, C.j., Quirico, Kaplan, Wilkins, & Abrams, JJ.

SYLLABUS BY THE COURT

Search and Seizure. Constitutional Law, Search and seizure.

The opinion of the court was delivered by: Kaplan

A search warrant was properly issued on the basis of an application by a security representative of a telephone company and his supporting affidavit where an assistant attorney general was present in person with him, thus giving clear official sponsorship to the application. [204-206]

A seizure by police of articles not described in a search warrant but discovered while the police were properly executing the warrant was valid where the articles were either contraband or instrumentalities of committing a crime. [206-209]

The burden of proof was properly placed on a defendant challenging the validity of a search warrant on the ground that it was obtained by an improper applicant. [210]

In the circumstances and setting of a defendant's possession of a handgun, the defendant was not exempted from the requirement that he have a firearm identification card for the weapon by the fact that he held a Federal firearms dealer's license. [210]

Complaints received and sworn to in the Second District Court of Eastern Middlesex, one on August 29, 1974 and two on October 21, 1974.

Indictments found and returned in the Superior Court on September 6, 1974.

A pretrial motion to suppress evidence was heard in the Superior Court by Leen, J., and the cases were heard by him.

After review was sought in the Appeals Court, the Supreme Judicial Court on its own initiative, ordered direct appellate review.

Convicted in District Court on complaints for possession of an instrument designed for obtaining telecommunication service fraudulently (G. L. c. 166, § 42B), possession of marihuana, a controlled substance (c. 94C, § 34) *fn1 and possession of a firearm without obtaining a firearm identification card (c. 140, § 129C), the defendant took his appeals to the Superior Court for trial de novo. The defendant had also been indicted for possessing unlawfully intercepting devices (c. 272, § 99 C 5), and possessing burglarous implements (c. 266, § 49). Trial of these indictments was joined with the appeals. The Judge, trying jury waived, found the defendant guilty of all five offenses. He fined the defendant a total of $1,562.50 on the three complaints, and on the indictments imposed concurrent sentences of one year's imprisonment in a house of correction suspended for three years, with probation for an equivalent period.

On the present review in this court of the judgments of conviction, the defendant centers his attack on the trial Judge's denial of his motion to suppress materials seized by the Commonwealth. He contends that there was irregularity in the issuance of the warrant initiating the search by which the Commonwealth obtained these articles. But if the warrant was properly issued, the defendant urges that the seizure exceeded the authority of the warrant, and that the Judge in all events erroneously cast the burden of proving illegality on the defendant. Besides raising these issues about the search, the defendant says with regard to the firearm conviction that he was exempted from the ...


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