Thеse cases are before us on report of a judge in the Superior Court for determination whether on motions of each defendant 1 a pistol and a clip of ammu *423 nition therefor should be suppressed because found by the police during an allegedly illegal search under a search warrant issued by the Third District Court of Eastern Middlesex.
The warrant was for the search of “the 1st 2nd floors and the basement of the apartment numbered 106 Pleasant St. Cambridge (occupied by) Louis Nikas and of any person present who may be found to have such property [used as the means of committing a crime] in his possession or under his control or to whom such property may have been delivered, for the following property: One .32 caliber pistol and ammunition therefor used in the commissiоn of a felony . . ..”
The affidavit on which the warrant was obtained set out, in substance, the following: Clarence Anderson, on August 20,1964, had identified Nikas as the man who had fired a pistol shot at him at 634 Massachusetts Avenue, Cambridge. The next dаy a hole was found in a window in the office of one Dr.
The gun and clip were found in the course of a seаrch of the first floor apartment occupied by Nikas.
1. The affidavit supported the issuance of the warrant.
*424
While a warrant may issue only upon a finding of “prohable cause” this of course means less evidence than would justify a finding of guilt and the finding may rest upon evidencе, such as hearsay, not legally competent in a criminal trial, but there must be some support for the affiant’s belief in the credibility of the informant and the reliability of the information.
United States
v.
Ventresca,
These requirements were met. It was reasonable to conclude that, probably, the bullet found in Dr.. Thompson’s office came from a gun fired by Nikas, the bullet that wounded Pratt was fired by Lillis, and the' bullets were fired from the same gun; also that it was likely that the gun was in the apаrtment of Nikas where Lillis had been found and arrested. That the date of the attack on Anderson was not stated in the affidavit does not weaken the force of the facts alleged. The judge might infer that it had been a rеcent occurrence but, whenever it happened, the immediate association of Nikas and Lillis in thе apartment, the identity of the gun used in the respective hold ups and the fact that the hold up of Pratt had оccurred on September 14, are enough. Police officers would be derelict in their duty if they did not seek а warrant on such disclosures. The reliability of the information is patent. It is plainly inferable that the identificatiоn by Anderson and Pratt was made to the police. Victims may be mistaken in identifying those who attack them, but such identifiсation in the course of police investigation may not be disregarded and justifies search and arrest.
It is unnecessary to determine how far information had by the judge who granted the warrant, as shown at the hearing on thе motion to suppress, but not shown by the warrant, the application and the affidavit, may be considered in determining the validity of the warrant. See
Aguilar
v.
Texas,
*425
2. The warrant described the place of search with sufficient accuracy. The evidence showed that Nikas occupied the -first floor apartment and used the basemеnt to store personal property. The place to be searched was “the apartment numbered 106 Pleasant St. Cambridge (occupied by) Louis Nikas.” This was described as having “1st 2nd floors and the basement.” As, in fact, the apartment did not include the second floor the warrant did not authorize the search of the secоnd floor. The holding of
United States
v.
Hinton,
3. We do not reach the issue whether Lillis, not being an occupant of the premises at the time of thе search had no right of privacy in respect thereof and hence has no standing to object therеto. See
Jones
v.
United States,
4. The motions to suppress are to be denied.
So ordered..
Notes
The indictments were as follows: Lillis, armed robbery, assault with a dangerous weapon and armed assault with intent to murder; Nikas, accessory before the fact to these crimes; Bulger, accessory after the fact to the same crimes and unlawfully carrying a firearm.