Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Commonwealth v. O'Donnell

Appeals Court of Massachusetts, Bristol

September 21, 2017

COMMONWEALTH
v.
MICHAEL W. O'DONNELL.

          Heard: February 14, 2017.

         Complaint received and sworn to in the Taunton Division of the District Court Department on August 8, 2012.

         A pretrial motion to suppress evidence was heard by Mary E. Heffernan, J., and the case was tried before Thomas L. Finigan, J.

          Jane D. Prince for the defendant.

          Yul-mi Cho, Assistant District Attorney, for the Commonwealth.

          Present: Maldonado, Massing, & Henry, JJ.

          MALDONADO, J.

         After a jury trial, the defendant was convicted of fraudulent use of electricity, under G. L. c. 164, § 127. On appeal, the defendant contends that the motion judge erred in denying his motion to suppress evidence recovered during a search on his property conducted pursuant to the execution of an administrative inspection warrant. Because we conclude that the authorities exceeded the bounds of the administrative warrant in searching for and seizing evidence of a crime, we reverse.

         Background.

         The defendant, who was representing himself, filed a motion to suppress certain evidence. The motion judge first considered the four corners of the administrative warrant application and determined that the warrant was validly issued. The motion judge then heard testimony from Dennis Machado, the building commissioner for the town of Raynham (town), and Sergeant David LaPlante of the Raynham police, both of whom were present when the administrative warrant was executed. The motion judge made no findings of fact; however, consistent with his denial of the motion, we assume the judge credited the testimony of Machado and Sergeant LaPlante, see Commonwealth v. Houle, 35 Mass.App.Ct. 474, 475 (1993), and therefore, we recite the following facts from their testimony.

         The defendant had received citations from the town for keeping trash and "junk" on a property located at 320 Titicut Road. On July 31, 2012, Machado applied for and obtained an administrative warrant to inspect the property and ensure that it was in compliance with local by-laws and the Massachusetts Sanitary Code. Machado testified that he had been advised by the town's attorney not to contact the owners of the property prior to seeking the warrant. Sergeant LaPlante, nevertheless, visited the property sometime between July 31 and August 1. He unsuccessfully attempted to notify the defendant that the property would be inspected.

         On August 1, 2012, Machado visited the property, along with Sergeant LaPlante and a representative from the Raynham board of health, to execute the administrative warrant. Sergeant LaPlante was there solely "to keep the peace, " and he followed the town officials as they walked around the property.

         As the men were inspecting the property, they noticed there were air conditioners running even though, to their knowledge, electricity to the property had been cut off. The air conditioners were in the rear of the property and were not visible from the street. The men did not observe a generator or other power source. They found "wires just pushed into plugs" outside the house. Machado believed that something illegal might be happening and wanted to investigate further. He contacted the town's electrical inspector and asked the inspector to contact the power company, Taunton Municipal Lighting Plant (TMLP). Sergeant LaPlante also had the police department place a call to the TMLP.

         The three men waited for the electrical inspector to arrive. The inspector came onto the property. He examined the wires and opined that the electrical wires presented a safety hazard; however, the connection point for the wires was not immediately visible. After further inspection, the TMLP representative detected the wires connected to a telephone pole and disconnected the power supply. Machado took photographs of the wires and their ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.