Heard: February 14, 2017.
received and sworn to in the Taunton Division of the District
Court Department on August 8, 2012.
pretrial motion to suppress evidence was heard by Mary E.
Heffernan, J., and the case was tried before Thomas
L. Finigan, J.
D. Prince for the defendant.
Cho, Assistant District Attorney, for the Commonwealth.
Present: Maldonado, Massing, & Henry, JJ.
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
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.
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
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
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
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 ...