5 Mass. App. Ct. 865 | Mass. App. Ct. | 1977
The Commonwealth has appealed (G. L. c. 278, § 28E) from the allowance of the defendant’s motion to suppress evidence seized from the defendant’s apartment and automobile pursuant to a search warrant, supported only by a document, purporting to be an affidavit, on which the jurat was unsigned. The document was inadequate as a basis for the warrant; the motion to suppress was properly allowed. From the face of the document (see Commonwealth v. Monosson, 351 Mass. 327, 328-329 [1966]; Commonwealth v. Penta, 352 Mass. 271, 274-275 [1967]) it could not be determined that it was an affidavit sworn to before a “Justice or Special Justice, Clerk or Assistant Clerk,” as required by G. L. c. 276, § 2B, as amended by St. 1965, c. 384.
Order allowing motion to suppress evidence affirmed.
This statute changed the form for the jurat to provide that it be executed by one of those officials instead of by a notary public. (We note that the form for affidavit used in this case erroneously calls for acknowledgment before a notary public.)