Following conviction in the East Boston District Court on a charge of a gaming violation under *79 G. L. c. 271, § 17, the defendant appealed to the Superior Court. In that court, the defendant renewed a motion made in the District Court to suppress evidence. A hearing was held and the trial judge denied the motion, to which ruling the defendant duly excepted. At the ensuing trial, the evidence which the defendant had sought to suppress was admitted subject to the defendant’s exceptions. The case was tried to a jury who returned a verdict of guilty.
At the hearing on the motion to suppress, the evidence consisted of the testimony of one Frank L. Walsh of the Boston Police Department. Officer Walsh was called by the defendant and testified as follows. He “placed the . . . premises Hat which the evidence in question was discovered] under surveillance for two or three days.” During this period “he personally observed no activity of gaming.” On April 13, 1963, Officer Walsh applied to the clerk of the District Court for a warrant to search the premises. 1 “[T]he basis upon which he applied for the search warrant was information that he had received that there was gaming activity being conducted on the premises.” Between the time of the issuance of the warrant and its execution on April 14, 1963, no gaming activity was observed. Officer Walsh also testified, over the objection of the defendant, that, in 1962, “he had arrested . . . [the defendant] for having gaming books and apparatus.”
The defendant contends that Officer Walsh’s testimony “discloses” the “basis” for the issuance of the search warrant under which the questioned evidence was obtained, and shows that “the application . . . does not set forth sufficient facts for a determination of probable cause.” We do not agree that this testimony can.be so interpreted. “On a motion to suppress, the burden of establishing that evidence has been illegally obtained is on the moving party.”
Commonwealth
v.
Fancy,
The defendant also contends that G. L. c. 271, § 23, under which the warrant was issued, is unconstitutional in that it requires only that an applicant swear “that he suspects or has probable cause to suspect” violations of law. The standard for a showing of probable cause, it is urged, must be at least “belief” and not “mere suspicion.”
The words “believe” and “suspect” have been used interchangeably.
Jackson
v.
Knowlton,
The defendant’s final contention is that the warrant was “too broad in the scope of objects to be searched for by the police.” It is argued that in authorizing a search of “all the personal property, furniture and fixtures there found,” the warrant “left too much ‘to the individual judgment of . . . police officers’ and a foreseeable consequence was that an unguided, unreasonable search would ensue. . . .
Commonwealth
v.
Jacobs,
*81
In the instant case the warrant was “validly issued in the language of the statute.”
Commonwealth
v.
McDermott,
Exceptions overruled.
Notes
The warrant was issued more than a year before the effective date (June 23, 1964) of G. L. c. 276, § 2B (inserted by St. 1964, c. 657, § 3), requiring the filing of an affidavit containing the “facts, information, and circumstances” relied on to “establish sufficient grounds for the issuance of the warrant.”