Posts tagged "1112217"

Commonwealth v. O’Donnell (Lawyers Weekly No. 11-122-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   15-P-1616                                       Appeals Court   COMMONWEALTH  vs.  MICHAEL W. O’DONNELL.     No. 15-P-1616.   Bristol.     February 14, 2017. – September 21, 2017.   Present:  Maldonado, Massing, & Henry, JJ.     Search and Seizure, Expectation of privacy, Administrative inspection, Warrant.  Constitutional Law, Search and seizure, Privacy.  Practice, Criminal, Warrant, Sanitary code violation.  Electricity.  State Sanitary Code.  Municipal Corporations, Building inspector.     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.     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 […]

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Posted by Massachusetts Legal Resources - September 21, 2017 at 4:13 pm

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