# Petition — Massachusetts v. Taglieri

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 937

## Text

‘Gupreme Court, U. ‘7
FILED

areee 4 1973
CMIBUABL ROUAK, JR., GLERK

IN THE
SUPREME COURT OF THE UNITED
October Term, 1978

79-36)

COMMONWEALTH OF MASSACHUSETTS,
Petitioner,

Ve

HENRY L. TAGLIERI,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME JUDICIAL COURT OF THE
COMMONWEALTH OF MASSACHUSETTS.

FRANCIS X. BELLOTTI,
Attorney General

BARBARA A. H. SMITH,
Chief, Criminal Appellate
Division

BERNARD MANNING,

Assistant Attorney General
Criminal Bureau

One Ashburton Place

Boston, Massachusetts 02108
Tel. (617) 727-2240

TABLE OF CONTENTS
Page

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I. WHERE AN AFFIDAVIT
STATES FACTS DEMONSTRABLY
RELIABLE AND THIS INFORMATION
IS RELEVANT AND MATERIAL, THE
ISSUING MAGISTRATE'S
DETERMINATION OF PROBABLE
CAUSE IS CONCLUSIVE AND NOT
SUBJECT TO FURTHER REVIEW.....8

II. TO ENCOURAGE CONSISTENCY
IN THE JUDICIAL PROCESS, A
| STANDARD FOR REVIEWING THE
ISSUING MAGISTRATE'S
DETERMINATION OF PROBABLE
CAUSE IS NECESSARY...........12

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TABLE OF AUTHORITIES - iv-
Cases

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Irby v. United States,

Page 314 F. 2d 251 (pC Cir.
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Bastida v. Henderson, Mapp v. Warden,
487 F. 2d 860, 863 (CA5 ook FF. Ze 1167, Li72 (CAZ
Ph yp | RE errr ee rer es : 3g) 6 eer ee ne rr
Commonwealth v. Alessio, Payne v. United States,
1979 Mass. Adv. Sh.95, 508 F. 2d 1391, 1393 (CA5
96-99 wcccccccccccccccccccccccrccccceehl | te | arr ea en re a eee ore y
Considine v. United States, Ramirez v. United States,
434 U.S. at9 F.. 24 Fiz. Fis (CAZ
Ne a a a bw ee A Per re eres re eer ee ee eee eee
Gracie v. United States, Sagansky v. United States,
15 F. 2d 644, 646 (CAl 358 F. 2d 195, 198-201 (CAl1

| Re a rrr eer es 7. Pe A BT 2s 6 ccs 6 bk Oe OS be 600 664.080 6 Oe RE

Spinelli v. United States,
393 U. S. 410, 419
CLOSES) 6 ccadeccedenewestvend eee Gas beetu ee

United States v. Berry,
463 F. 24 1278, 1265 (BC Cir.
O72) os chon 6b tR bead oe SROs OCRNS ee CkOEE

United States v. Bowers,
534 F. 2d 186, 188-189 (CA9

1976) 0.00.000406008886 500 e eee eee seebea?

United States v. Brinklow,
560 F. 2d 1003, 1006 (CA1O
LOTT) « cccntveavéeweecueewelseeueeeeneaet

United States v. Flotkin,
550 F. 2d 693, 695 n. 1 (CA1
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——e

United States v. Follette,
379 F. 2d 846, 848 (CA2
PDS obs cheat eas a «bea

baw 6s eb ebeebew see

United States v. Fried,
576 F. 2d 787, 791 (CA9
a

ieenecauer

United States v. Fuller,
441 F. 2d 755, 759 (CA4

Ce ee

United States v. Giacalone,
541 F. 2d 508, 513 (CA6
RT os Cb WA Oa es 6050 6 6O SO 6 Os or oe acca teke

United States v. Gomez Landano,
553 F. 2d 805, 810 (CA2
0 3 GSR IO CA ea ar a

cae teneee

oasis

United States v. Gosser,
339 F. 2d 102, 111 (CA6

DS «nak ne es 66K Eee Ch eeeeSe ROOD e Raat

United States v. Jordan,
349 F. 2d 107, 108 (CA6

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United States v. Lewis,
goa ¥. 26 377, 380 (CA2

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United States v. McNally,
338 F. Supp. 341, 346 (ED Pa.

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United States v. Melvin,
419 F. 2d 136, 142 (CA4

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United States v. Neal,
500 F. 2d 305, 308 (CA10

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United States v. Olsen,
487 F. 2d 77, 82 (CA8

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United States v. Rahn,
511 F. 2d 290, 292 (CA10

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United States v. Santarpio,
360 F. 2d 448, 454 (CA1
ROTTS 65.40 68d RAE OER OS che Kee es eee

United States v. Sevier,
539 F. 2d 599, 603 (CA6

SOTO ba 6 oN b4 60d Me ehh ee Okeke eb Cesenbaaed

United States v. Swihart,
554 F. 2d 264, 270 (CA6

ft taj POPE PTenT Per rer rT tree ree. te

United States v. Taylor,
334 F. Supp. 1050, 1053 (ED Pa.

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United States v. Ventresca,
380 U. S. 102, 109
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Warden v. Hayden,
387 U. S. 294
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Statutes.

Federal

28 U. S. C.
CESSF UF occ cadev veedéus een ce eensesseenee aan

Pew ee

IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1978

No.

COMMONWEALTH OF MASSACHUSETTS,
Petitioner,

Vv.

HENRY L. TAGLIERI,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME JUDICIAL COURT OF THE
COMMONWEALTH OF MASSACHUSETTS.

Opinion Below.

The opinion of the court below (App.
A.) is reported at 1979 Mass. Adv. Sh.
1405, 390 N. E. 2d 727.

Jurisdiction.

The decision of the court below was
entered on June 4, 1979. The jurisdiction

oa

of this court is invoked under 28 U.S.C.
§1257(3).

Questions Presented.

1. Whether the magistrate's issuance
of a search warrant is definitive on the
question of probable cause?

2. Whether a magistrate's
determination that facts alleged in an
affidavit are sufficient to constitute
probable cause for the issuance of a search
warrant, absent arbitrariness, is
conclusive and not subject to further
judicial review?

Constitutional Provisions Involved.

Fourth Amendment.

"The right of the people to be secure
in their persons, houses, papers, and
effects, against unreasonable searches and
seizures, shall not be violated, and no
warrants shall issue, but upon probable

it

" iy’,

Ah een a Pionaneis e I: Sita e DA Sat a

a

cause, supported by oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be
seized."

Statement of the Case.

Prior Proceedings.

On August 1, 1974, Henry L. Taglieri
was arrested at his home, 123 Larkin
Street, Revere, Massachusetts. The
foliowing day.he was charged in two
criminal complaints with violations of the
gambling law by using a telephone for
wagering and being found with apparatus for
registering bets.

In September, 1974, defendant moved to
suppress all .vidence seized under the
search warrant. After hearing, argument,
and the submissions of briefs by the
parties, the District Court Judge denied
the motion. Defendant was put to trial on
the complaints and found guilty.

aga

Defendant appealed to the Superior
Court for a jury trial de novo. He then
again moved to suppress all evidence seized
under the search warrant. After hearing,
argument, and the submission of briefs by
the parties, the Superior Court judge again
denied the motion. On May 18, 1976, after
a jury waived trial before the hearing
judge, defendant was again found guilty on
both criminal complaints. He was sentenced
to a term of imprisonment but incarceration
was stayed pending appeal.

On October 19, 1978, the Massachusetts
Appeals Court found that the affidavit
executed in support of the application for
the issuance of the warrant did not
“provide the magistrate with a substantial
basis for concluding that any of such
articles was probably present on the
premises sought to be searched." (App. B)
reported at 1978 Mass. App. Ct. Adv. Sh.
1022, 381 N. E. 2d 1118.

The Commonwealth sought and was granted
further appellate review. The
Massachusetts Supreme Judicial Court after

ae ere ee

=-5=

argument reversed the judgments of the
Superior Court. On June 27, 1979 the
Supreme Judicial Court denied the
Commonwealth's request for a rehearing.

Statement of Facts.

The facts as reported by the Supreme
Judicial Court, are as follows:

A State Police officer, who had
experience in gathering information
concerning gambling and organized crime, by
affidavit (App. C) presented certain facts
on personal knowledge. In May, 1974,
pursuant to court order, an electronic
interceptor of telephone calls had been
authorized concerning two telephones at an
address in East Boston. In late May and in
the first part of June, 1974, State Police
officers intercepted and recorded various
telephone conversations made to and from
the telephones at the East Boston address.
The substance of these conversations showed
that several individuals were using these
telephones to conduct an illegal gambling

o6=

Operation. The police officer was able to
identify who these individuals were. Each
had been convicted of gambling violations.
(App. A, p. 25)

Two telephone calls were made from the
East Boston adéeress to a telephone listed
to the 4efendant and installed at the
Revere premises for which the search
warrant was sought. On May 29, 1974, at
approximately 3:25 P.M. one of the
identified individuals called the Revere
telephone number and spoke to a man he
called "Butch". During this telephone
call, "Butch" placed two bets with the
caller from East Boston. More than two
weeks later, at approximately 1:51 P.M. on
June 13, 1974, the same individual called
the Revere number from the East Boston
address, spoke to a man named "Henry" and
told “Henry" the results of the first race
at Suffolk Downs race track. [in East
Boston] Based on this information and his
personal knowledge, the police officer
represented that there was probable cause
to believe that certain gaming materials

6 bitttne on Peer ery

=,

and devices could be found in the Revere
house. A judge of the Superior Court
issued a warrant to search the Revere
premises. (App. A, p. 26)

On August 1, 1974, the police entered
and searched the Revere premises. They
seized various items, including papers with
notations indicating number pool play and
horse bets. (App. A, p. 26)

Reasons for Granting the Writ.

The petition presents an issue of law
that demands resolution by this Court to
alleviate confusion, create a uniform
practice among the circuits, and establish
a standard to guide state courts reviewing
a Fourth Amendment mandate .2/

1/the standards for reviewing a
magistrate's determination of probable
cause for the issuance of a search warrant,
differ among the circuits and are not
uniformly applied within the same circuit.

»Z-

Argument.

I. WHERE AN AFFIDAVIT STATES FACTS
DEMONSTRABLY RELIABLE AND THIS
INFORMATION IS RELEVANT AND
MATERIAL, THE ISSUING MAGISTRATE'S
DETERMINATION OF PROBABLE CAUSE IS
CONCLUSIVE AND NOT SUBJECT TO
FURTHER REVIEW.

Here, an experienced judge of the
Superior Court after reviewing an

Footnote No. 1 continued.
First Circuit.

In Gracie v. United States, 15 F. 2d
644, 646 (CAl 1966) cert. denied, 373 U. S.
748, the First Circuit initially
promulgated the rule that the magistrate's
determination of probable cause is
conclusive unless arbitrarily exercised.

No other First Circuit cases were found

-9-

affidavit, executed by a specially trained
police officer found probable cause and
issued a search warrant. The magistrate's
initial determination was subsequently
affirmed by trial justices of the District
and Superior Court levels. More than four
years after the fact, three appellate
judges sat in review of the magistrate's
judgment. They found the affidavit did not
“provide the magistrate with a substantial
basis for concluding that any of such
materials was probably present". (App. B)

Footnote No. 1 continued.
that considered the identical issue.
Notwithstanding its lack of continuous
recognition in the First Circuit, Gracie
has been extensively cited and regarded as
precedent in a number of other circuits.

Second Circuit.
Ramirez v. United States, 279 F. 2d
712, 716 (CA2 1960), regards the
magistrate's finding as a "substantial

-10-

The Supreme Judicial Court in rendering
its decision upon a federal constitutional
question imposed an unduly restrictive
standard of review upon the magistrate's
authority described in the Fourth Amendment.

Where, as here, the reliability of the
information is not in issue and some
relevant and material facts are stated in
the affidavit, a finding of probable cause

Footnote No. 1 continued.
factor tending to uphold the validity of
the warrant." Although the "substantial
factor concept" is cited in a subsequent
Second Circuit case, United States v.
Follette, 379 F. 2d 846, 848 (CA 2 1967) a
year later its effect was lessened by
reducing the forcefulness of the phrase
and to be considered as an "important
factor", United States v. Lewis, 392 F. 2d
377, 380 (CA2 1968) cert. denied, 393 U. S.
891 more current cases in that circuit
appear to adopt idea that "deference" will
be given to the magistrate's determination.

-11l-

by the magistrate should be deemed
conclusive and not subject to further
judicial review. Both public necessity and
the interests of justice demand that a
factual determination by an experienced
judae made in the exercise of his wisdom be
given great deference. Although
differences of opinion may continue to
exist among reasonable men, the
Constitution is not well served by
subjecting a finding a probable cause to
successive levels of judicial scrutiny
until overturned. The mandate of the
Fourth Amendment is met once the imprimatur

Footnote No. 1 continued.
Mapp v. Warden, 531 F. 2d 1167, 1172 (CA2
1976) cert. denied, 494 U. S. 983; United
States v. Gomez Londano, 553 F. 2d 805, 810
(CA2 1977).

Third Circuit.
The courts of this circuit invoke the
"great deference” standard as promulgated
by Spinelli v. United States, 393 U. S.

=}2-

of an impartial and reasonable magistrate
is interposed between the investigating
officer and his quarry.

II. TO ENCOURAGE CONSISTENCY
IN THE JUDICIAL PROCESS, A
STANDARD FOR REVIEWING THE
ISSUING MAGISTRATE'S
DETERMINATION OF PROBABLE CAUSE
IS NECESSARY.

The magistrate's determination of
probable cause is restricted to facts
stated in the affidavit and reasonable
inferences that he may draw from that
information. According to present
procedure, the court, when in sitting in

Footnote No. 1 continued.
410, 419 (1969). See "Great Deference"
United States v. McNally, 338 F. Supp.
341, 346 (E. D. Pa. 1972), reversed on

«1 3<

review of the magistrate's judgment, has
the same facts to scrutinize but the
inferences the reviewer makes may differ
based upon his education, training,
background, and experience. This does not
imply that inferences should not be made,
rather it suggests that inferences should
not be made subject to unlimited review.
The idea of according a magistrate's
determination conclusive should not be
considered anomalous when compared to
similar practices designed to minimize
judicial speculation. In a criminal appeal,

Foctnote No. 1 continued.
other grounds, 473 F. 2d 934 (CA3 1973)
affirmed (without opinion) 491 F. 2d 751
(CA3 1973),cert. denied, 417 U. S. 948,
(1974) and United States v. Taylor, 334 F.
Supp. 1050, 1053 (E. D. Pa. 1971). affirmed
469 F. 2d 284 (CA3 1972).
Fourth Circuit.

Here, the courts accord a "substantial

basis" and "great weight" to the

-l4-

the court views the evidence in a light
most favorable to the government. A
statute is endowed with a presumption of
constitutionality - if a statement of facts
could exist which would justify the
legislation, it is presumed to have existed
when the statute was passed.

Footnote No. 1 continued.
magistrate's judgment. United States v.
Fuller, 441 F. 2d 755, 759 (CA4 1971),
cert. denied, 404 U. S. 830, (1971); United
States v. Melvin, 419 F. 2d 136, 142 (CA4
1969).

Fifth and Sixth Circuits.

The courts of the Fifth Circuit
specifically adhere to the rule of
conclusiveness in the absence of
arbitrariness, Bastida v. Henderson, 487 F.
2d 860, 863 (CAS 1973) and the Sixth
Circuit has consistently held the
magistrate's determination conclusive
"since the purpose of the Fourth Amendment
has been served by his review of the

@1S=

A court of review should not adopt a
more severe standard when evaluating a
probable cause finding than it employs in
matters more crucial to the rights of the
criminal defendant. To tolerate such an
untoward result is to repudiate the
teaching of United States v. Ventresca, 380
U. S. 102, 109 (1965), defy the logic of
the Fourth Amendment, encourage the
continued diversion of limited judicial
resources, and discourage resort to the
very process designed to insure a person's
security from unwarranted intrusion by law
enforcement authorities.

Footnote No. 1 continued.
affidavit." United States v. Giacalone,
541 F. 2d 508, 513 (CA6, 1976). See also
United States v. Swihart, 554 F. 2d 264,
270 (CA6, 1977); United States v. Sevier,
539 F. 2d 599, 603 (CA6, 1976); Payne v.
United States, 508 F. 2d 1391, 1393 (CAS
1975); United States v. Jordan, 349 F. 2d
107, 108 (CA6 1965); United States v.
Gosser, 339 F. 2d 102, 111 (CA6 1964).

-16-

An appropriate standard was initially
promulgated by the First Circuit in 1926
and since followed in a number of
jurisdictions. In Gracie v. United States,
15 F. 2d 644, 646 (CA 1 1926) cert. denied,
273 U. S. 748. The Court reasoned:

"Upon the determination by the
Commissioner of whether probable cause
existed for the issuance of a warrant,
he is to exercise his own judgment
whether the facts alleged in the
affidavit constitute probable cause,
and unless this judgment is arbitrarily
exercised his determination that
probable cause exists is conclusive."

Footnote No. 1 continued.
Seventh Circuit.

A search of authorities did not
disclose any cases in this circuit giving
specific consideration to the matter in
issue.

\ Eighth Circuit.
This circuit gives "considerable

-17=

The courts of the Fifth Circuit
specifically adhere to the rule of
conclusiveness in the absence of
arbitrariness. Bastida v. Henderson, 487
F.2d 860 , 863 (CA5 1973) and the Sixth
Circuit has consistently held the
magistrate's determination conclusive
"since the purpose of the
Fourth Amendment has been served by his
review of the affidavit." United States v.
Giacalone, 541 F. 2d 508, 513 (CA6 1976)

A magistrate is not required to
approach the officer's affidavit with an
attitude of disbelief and strive to
construe its meaning in every way possible
to defeat its purpose. He may, within
reason, accord substance to the fact that

Footnote No. 1 continued.

deference" to the magistrate's

determination. See: "Considerable
Deference" - United States v. Olsen, 487 F.
2d 77, 82 (CA8 1973), cert. denied, 415 U.

S. 993 (1974) rehearing denied 416 U. S.
975 (1974).

-18-

an experienced officer believes that the
items sought would be found at the location
designated. While the naked averment made
by a seasoned officer that criminal
activity was afoot, by itself, would not
support a finding of probable cause, the
experienced officer's sworn statement must
be accorded some weight.

Since on the facts, the existence of an
illegal gambling enterprise must be ™
conceded, the magistrate had reasonable

Footnote No. 1 continued.
Ninth Circuit.

Here "deference" is accorded the
magistrate's judgment but its degree
varies, "great". United States v. Fried,
576 F. 2d 787, 791 (CA9 1978) cert.
denied, U. S. » 99 &. Ce. 295 (1978)
and "substantial" United States v. Bowers,
534 F. 2d 186, 188-189 (CA9 1976) cert.
denied, 429 U. S. 942 (1976).

Tenth Circuit.

Here again the courts within the

circuit are not in harmony when determining

0 a

a atbte

-19-
basis for concluding Taglieri was
implicated. East Boston was monitored
eight days out of a twenty day period.
Revere was called on two of these days. The
telephone call of May 29, 1974, was
initiated by "Chick" who operated an
extensive illegal bookmaking operation. The
bookmakers do not ordinarily telephone the

Footnote No. 1 continued.

the value given the magistrate's judgment.
"Deference" - United States v. Brinklow,
560 F. 2d 1003, 1006 (CA10 1977), cert.
denied, 434 U. S. 1047 (1978) and United
States v. Rahn, 511 F. 2d 290, 292 (CA10
1975), cert. denied, 423 U. S. 825 (1975).
"Substantial consideration" - United States
v. Neal, 500 F. 2d 305, 308 (CA10 1974).
D. C. Circuit.

This circuit accords "a presumption of
regularity" that attends the action of the
magistrate issuing the search warrant.
Irby v. United States, 314 F. 2d 251 (DC
Cir. 1973), cert. denied, 374 U. S. 842
(1963).

-20-

gambling public to solicit wagers,
Commonwealth v. Alessio, 1979 Mass. Adv.
Sh. 95 96-99 ever when the customer is in
the habit of betting substantial sums of
money. Sagansky v. United States, 358 F.
2d 195, 198-201 (CAl 1966) cert. denied,
385 U. S. 816.

A "lay off bet" is not so esoteric a
phrase that a magistrate of experience and

affairs must claim ignorance of its import
in illegal gambling operations. United
States v. Santarpio, 360 F. 2d 448, 454
(CAl 1977), cert. denied, 434 U. S. 984;
United States v. Flotkin, 550 F. 2d 693,
695 n. 1 (CAl 1977), cert. denied, sub.
nom., Considine v. United States, 434 U. S.
820.

When consideration is given to the
telephone call of June 13, 1974, again
initiated by "Chick" to Henry, the
magistrate could reasonably infer that this
disclosure of racing intelligence may be of
some importance to an illegal gambling
operation. In addition, the disclosure
informed Henry that the first race had been

-2l1-

run thwarting "post posting" and permitting
Henry to balance his books. It would not
be reasonable for the magistrate to infer
that a bookmaker calls a bettor simply to
inform him of race results, common
experience demonstrates the converse to be
true.

Finally, it is obvious that the Revere
telephone would not only be used in
evidence against the occupant of that
household but could also provide strong
corroboration of the East Boston operators
and would be admissible against "Chick" et
al. under the mere evidence rule of Warden
v. Hayden, 387 U. S. 294 (1967).

As the Court in United States v. Berry,
463 F. 2d 1278, 1285 (D. C. Cir. 1972)
observed

"But we must take into account that a
magistrate, experienced in these
matters is entitled to draw inferences
from acts which to the uninitiated and
unskilled would be seemingly innocent
acts."

-23-
=22-

APPENDIX A

Conclusion.

COMMONWEALTH vs. HENRY L. TAGLIERI.

Setatatte te

For the reasons stated above, the
petition for writ of certiorari should be
granted.

Suffolk. March 6, 1979. -— June 4, 1979.
Present: Hennessey, C.J., Quirico, Kaplan,
Wilkins, & Abrams, JJ.

—

Respectfully submitted,
FRANCIS X. BELLOTTI
Attorney General

Search and Seizure. Probable Cause.
Complaints received and sworn to in the
District Court of Chelsea on August 2, 1974.

BARBARA A. H. SMITH
: On appeal to the Superior Court a

Assistant Attorney General
motion to suppress evidence was heard by
Chief, Criminal Appellate
Divisi DeGuglielmo, J., a judge of the Municipal
fe)
ican Court of the City of Boston sitting under
statutory authority, and the cases were
heard by him.

BERNARD MANNING,
Assistant Attorney General
Criminal Bureau

After review by the Appeals Court, the
One Ashburton Place

Supreme Judicial Court granted leave to
obtain further appellate review.

a

Boston, Massachusetts 02108
Telephone (617) 727-2240

-24-

Bernard Manning, Assistant Attorney
General, for the Commonwealth.
Margaret Hayman, for the defendant.

WILKINS, J. We granted further
appellate review in this case to consider
whether there was sufficient information
contained in an affidavit in support of a
search warrant to constitute probable
cause. The Appeals Court held that there
was not. Commonwealth v. Taglieri, Mass.
App. Ct. (1978) .2/we agree.

We summarize the affidavit. A State
Police officer, who had experience in
gathering information concerning gambling
and organized crime, by affidavit presented
certain facts on personal knowledge. In
May, 1974, pursuant to court order, an
electronic interceptor of telephone calls
had been authorized concerning two
telephones at an address in East Boston.

In late May and in the first part of June,
1974, State police officers intercepted and

2/mass. App. Ct. Adv. Sh. (1978) 1022.

aati inthe pitipadnitiels a a ee Te

owes at

-25-

recorded various telephone conversations
made to and from the telephones at the East
Boston address. The substance of these
conversations showed that several
individuals were using these telephones to
conduct an illegal gambling operation. The
police officer was able to identify who
these individuals were. Each had been
convicted of gambling violations.

Two telephone calls were made from the
East Boston address to a telephone listed
to the defendant and installed at the
Revere premises for which the search
warrant was sought. On May 29, 1974, at
approximately 3:25 P.M. one of the
identified individuals called the Revere
telephone number and spoke to a man he
called "Butch." During this telephone
call, "Butch" placed two bets with the
caller from East Boston. More than two
weeks later, at approximately 1:51 P.M. on
June 13, 1974, the same individual called
the Revere number from the East Boston
address, spoke to a man named "Henry" and
told "Henry" the results of the first race

=-26-

at Suffolk Downs race track. Based on this
information and his personal knowledge, the
police officer represented that there was
probable cause to believe that certain
gaming materials and devices could be found
in the Revere house. A judge of the
Superior Court issued a warrant to search
the Revere premises.

On August 1, 1974, the police entered
and search the Revere premises. They
seized various items, including papers with
notations indicating number pool play and
horse bets. The defendant was charged with
the use of a telephone for the purpose of
accepting or placing wagers and with being
present in a place with betting apparatus.
The defendant was convicted in a District
Court and appealed to the Superior Court.
He filed a motion to suppress the evidence,
which was denied. He was then convicted in
a jury-waived trial in the Superior Court
and given concurrent sentences to a house
of correction. A Justice of the Appeals
Court granted a stay of execution pending
appeal.

pea stn i na le ce nr i a Oa

Nona

vats asta

-27-

The Commonwealth argues that the judge
issuing the search warrant could use his
experience to determine the significance of
the facts set forth in the affidavit. We
have recently acknowledged that a judge or
magistrate may apply common’. knowledge and
may draw reasonable inferences from the
facts before him. See Commonwealth v.
Alessio, Mass. ’ (1979) .2/see also
G.L. c. 271, §27. This is consistent with
the view that "affidavits for search
warrants...must be tested and interpreted
by magistrates and courts in a commonsense
and realistic fashion." United States v.
Ventresca, 380 U. S. 102, 108 (1965). We
would not, however, accept an argument that
the peculiar experience and knowledge of an
issuing jusge or magistrate would support
the issuance of a warrant. The result
should not turn on who the magistrate is or
how much special knowledge he may have. We
would accept only inferences which an
experienced magistrate could draw as a

B/ Mass. Adv. Sh. (1979) 95, 102.

=29-

commonsense conclusion from the information
set forth in the affidavit. See 1 W.R.
LaFave, Search and Seizure 463 (1978).
Although some courts have sometimes spoken
broadly of the deference to be accorded the
expertise of an issuing magistrate, a close
examination of the cases reveals no
willingness to defer to inferences which do
not follow as a matter of common sense from
the affidavit. See, e.g., United States v.
Berry, 463 F. 2d 1278, 1285 (D.C. Cir.
1972). Although weight should be given to
the judgment and experience of a judge or
magistrate who issued a warrant, with the
result that its issuance will be upheld if
there was a reasonable basis for finding

probable cause (Rosencranz v. United
States, 356 F. 2d 310, 314 [lst Cir.
1966]), the affidavit "must set forth the
basis for the magistrate's inference with
enough precision" for the determination to
be scrutinized at a subsequent hearing on a

motion to suppress or on appeal from a
decision on a motion to suppress. (id. at
317).

a ee Sa ee

ee ee

-29-

We agree with the Commonwealth that
weight must be given to the special
experience of a law enforcement who has
executed an affidavit. For example, where
such an officer states that he has drawn
inferences from facts which an
inexperienced person might not draw from
those facts, the magistrate may rely on
those inferences. Consequently, if a
seemingly minor fact has particular
significance to an expert, not apparent
from common knowledge and experience,
because of the method by which criminal
Operations are conducted, the affidavit
should disclose its significance. See 1
W.R. LaFave, Search and Seizure 463 (1978).

Although there were facts constituting
probable cause to believe that gaming
Operations were carried on at the East
Boston address, the facts in the affidavit
concerning the Revere address showed only
that (1) on one occasion a person at the
Revere address received a telephone call
and placed two bets, and (2), fifteen days
later, a person at the Revere address

=30-

received the results of a horse race.
These two facts do not constitute probable
cause to believe that gaming operations
were conducted at the Revere address, even
when coupled with the fact that the
telephne calls were made by a convicted
gambler from premises where it reasonably
appeared gaming operations were conducted.
The Commonwealth argues, however, that
an inference could be drawn from the facts
about the gambling operation which would
support the conclusion that the defendant
accepted wagers fron street bookies at the
Revere address and dealt with other bookies
at a "central" officer at the East Boston
premises. The Commonwealth suggests that
the call from. East Boston during which a
bet was placed by a person at the Revere
address was to collect layoff bets from a
bookie at the Revere address.+/as to

1/tp one form of more socially acceptable
risk taking, this process of lay-off bets
would be called reinsurance.

«Zia

the second telephone call, the Commonwealth
Suggests that the information concerning
the results of the first race at Suffolk
Downs advised a confederate at the Revere
address to take no further bets and
permitted the confederate to balance his
books crediting and debiting his customers’
accounts. The Commonwealth argues
generally that the issuing judge could have
concluded from common knowledge and
experience that bookies do not call
customers to receive bets and to disclose
race results. Hence, the calls from East
Boston to Revere must have been from one
part of the gambling operation to

another .2/

27x argument based on inferences
concerning the nature of the gambling
operations was made at the hearing on the
motion to suppress or in the Commonwealth's
brief on appeal. The claim first was
advanced in the Commonwealth's application
for further appellate review. If these

-32-

We reject any suggestion that a judge
Or magistrate could reasonably draw these
conclusions from the limited facts
presented in the affidavit. The
experienced officer who signed the
affidavit did not state that he drew any
inferences of cne sort the Commonwealth now
advances in support of the search. The
affidavit did not disclose the length or
contents of the telephone calls, beyond
what has been described above. For
example, it did not disclose the size of
the bets placed in the first telephone
call, which might have a significant
bearing on the Commonwealth's claim that
the transaction involved lay-off bets. The

Footnote No. 2 continued.
inferences were so apparent to experienced

observers, it is surprising that the
Commonwealth did not argue them at the
earliest stages of this case.

aed Da pila IN Ala abet ge Finn Te et SO Pe

=o 330

inferences which the Commonwealth argues
support the issuance of the warrant are not
ones which could have been drawn reasonably
as a matter of common knowledge by the
issuing judge .2/
We agree with the determination of the
Appeals Court that the two telephone
conversations referred to in the affidavit

in support of the search warrant were the

3/the Commonwealth argues that the

issuing judge had information from other
affidavits submitted simultaneously in
support of other warrant requests which
justified a finding of probable cause in
this case. If there were affidavits
submitted in support of other applications
for search warrants, they should have been
incorporated by reference or attached to
the affidavit, or at least presented at the
time of the hearing on the motion to

suppress. See Commonwealth v. Saville, 353
Mass. 458, 460 (1968); United States v.
Nolan, 413 F. 2d 850, 853 (6th Cir. 1968).
They do not appear in the record before us.

=34-

only specific facts on which probable cause
concerning the Revere premises could have
been based and that these conversations,
coupled with any inferences which might
reasonably be drawn from the circumstances,
did not “establish a probability that the
premises sought to be searched contained
equipment for registering bets or
conducting other gaming operations."
Commonwealth v. Taglieri, Mass. App.

Ct. (1978) .o/

Judgments of the

Superior Court reversed.

C/wass. App.Ct. Adv. Sh. (1978) 1022.

;
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= 35

APPENDIX B

COMMONWEALTH vs. HENRY L. TAGLIERI.
October 19, 1978.

The trial judges should have allowed
the defendant's motion to suppress articles
seized under a search warrant and
introduced in evidence which resulted in
convictions under G.L. c. 271, §§17 and
17A. The affidavit, dated July 31, 1974,
in support of the application for the
warrant, also dated July 31, 1974, did not
"provide [ ] the magistrate with a
substantial basis for concluding that any
of such articles was probably present" on
the premises sought to be searched.
Commonwealth v. Stewart, 358 Mass. 747, 749
(1971) .2/The only allegations in the
affidavit with reference to those premises
were that two telephone calls had been made
to a telephone billed to the

2/mass. App. Ct. Adv. Sh. (1977) 478.

-36-

defendant at the address of the premises
(herein referred to as the defendant's
telephone), one on May 29, 1974, and one on
June 13, 1974. Both calls had been made
from a tapped telephone (G.L. c. 272, §99)
assertedly used "to conduct an illegal
gaming operation." The affidavit alleges
that during the first telephone call, made
by "Chick," a person identified as "Butch"
at the defendant's telephone "place two
horse race bets with 'Chick'." In the
second conversation, also initiated by
"Chick," he “spoke to a man he called
"Henry' [and] ...gave Henry the results of
the first race at Suffolk Downs Race
Track." No other connection between the
defendant and users of the tapped telephone
is indicated. Whatever else the
conversations may show, they cannot be said
to establish a probability that the
premises sought to be searched contained
equipment for registering bets or
conducting other gaming operations.

Compare Commonwealth v. Chagnon, 330 Mass.
278, 282-283 (1953). We need not discuss

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any of the other points argued by the
parties as to the validity of the affidavit
or of the interception under G.L. c. 272,
§99.

Judgments reversed.

Margaret Hayman, for the defendant.
Bernard Manning, Assistant Attorney
General, for the Commonwealth.

= 38-

APPENDIX C

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS. SUPERIOR COURT

AFFIDAVIT

I, John E. Conwell, being duly sworn,
depose and say:

1. I am a Trooper, duly appointed and
sworn, of the Massachusetts State Police,
assigned to the Organized Crime Section of
the Criminal Division of the Attorney
General's Office. In my capacity as a
State Police officer, I have had occasion
to gather information concerning gambling
and organized crime in Massachusetts.

2. I have information based upon
personal knowledge as follows:

On May 10, 1974, Chief Justice Walter
H. McLaughlin of the Superior Court of the
Commonwealth, issued an order authorizing
the electronic interception of telephone

= 39

calls made to and from telephones numbered:
(617) 567-3796 and (617) 567-2527 billed to
Joseph DiGiano, 310 Brandywyne Drive, East

Boston, Massachusetts.

On May 28, 29, and 30, 1974, and on
June 4, 7, 8, and 13, 1974, at various
times between the hours of 9:00 a.m. and 12
Midnight, the telephone conversations made
to and from telephone numbered (617)
567-3796, billed to Joseph DiGiano, 310
Brandywyne Drive, East Boston,
Massachusetts, were intercepted and
recorded by State Police officers.

On May 30 and 31, 1974, and June 4, 7,
8, and 13, 1974, at various times between
the hours of 9:00 a.m. and 12 Midnight the
telephone conversations made to and from
telephone numbered (617) 567-2527 billed to
Joseph DiGiano, 310 Brandywyne Drive, East
Boston, Massachusetts, were intercepted and
recorded by State Police officers.

The substance of the intercepted and
recorded by State Police officers.

Based upon physical surveillance at 310
Brandywyne Drive, East Boston, and upon the

-40-

content of the intercepted conversations, I
believe that the persons using the
telephones were:

1. Domenic Settipane, Massachusetts
Bureau of Identification No. 186644.

2. Steven Sansone, Massachusetts
Bureau of Identification No. 352685.

3. James C. Ciccarello, Massachusetts
Bureau of Identification No. 203653.

Each of these individuals has been
convicted of gaming violations.

During the course of the authorized
electronic surveillance, telephone calls
were initiated from those telephones to
various telephones in the Greater Boston
area.

One such telephone was: (617) 289-0546
billed to Henry L. Taglieri, 132 Larkin
Street, Revere, Massachusetts.

On May 29, 1974, at approximately 3:25
P.M. a man who identified himself as
"Chick" whom I believe to be James S.
Ciccarello, MBI #203653, initiated a
telephone call from telephone instrument
(617) 567-3796 to telephone instrument

-4l-

numbered (617) 289-0546 and spoke to a man
he called "Butch." During this call
"Butch" placed two horse race bets with
"Chick."

On June 13, 1974, at approximately 1:51
P.M. "Chick" using telephone instrument
numbered (617) 567-3796, initiated a
telephone call to telephone instrument
numbered (617) 289-0546, billed to Henry L.
Taglieri, 132 Larkin Street, Revere, and
spoke to a man he called "Henry." The
substance of this call was that "Chick"
gave "Henry" the results of the first race
at Suffolk Downs Race Track.

3. Based on the foregoing reliable
information and upon my personal knowledge,
there is probable cause to believe that, the
property hereinafter described may be found
in the rooms of the two story wood frame
dwelling house, color blue with white trim
situated and numbered 132 in Larkin Street
in the City of Revere, a photograph of said
building being attached to this affidavit,
and within the judicial district of said

court.

-42-

4. The property for which I seek
issuance of a search warrant is the
foliowing: Books, apparatus, and devices
used for the purpose of registering bets
upon the result of a trial or contest of
skill, speed or endurance, of a man or
beast; the buying and selling of pools;
including monies; and all illegal lottery
tickets, a share of a ticket, or any
writing, certificate, bill, token or other
device used in the furtherance of an
illegal lottery.

WHEREFORE, I respectfully request that
the Court issue a Warrant and Order of
seizure, authorizing the search of the
rooms of the two story wood frame dwelling
house, color blue with white trim, in the
City of Revere, situated and numbered 132
in Larkin Street, in the City of Revere, a
photograph of said building attached to
this Affidavit, and directing that if such
property or evidence or any part thereof be
found that it be seized and brought before
the Court altogether with such other and

-43-

further relief that the court may deem
proper.
Signed under the penalties of perjury.

JOHN E. CONWELL
State Police Officer

Then personally appeared the
above-named John E. Conwell and made oath
that the foregoing Affidavit subscribed by
him is true.

Before me this 3lst day of July, 1974.

JUSTICE OF THE SUPERIOR COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0851%3A1. Public record. Not legal advice.