See 2 W. LaFave, Search and Seizure § 4.5, at 78-80 (1978). See also Commonwealth v. Demogenes, 14 Mass. App. Ct. 577, 581-582 (1982); United States v. Rios, 611 F.2d 1335, 1347 (10th Cir. 1979); United States v. Santore, 290 F.2d 51, 67 (2d Cir. 1960); United States v. Parmenter, 531 F. Supp. 975, 980-981 (D. Mass. 1982). Compare Commonwealth v. Erickson, 14 Mass. App. Ct. 501 (1982).
A number of our cases stand for the principle that the executing officer's personal familiarity with the target locus of the search can make up for a deficiency or an ambiguity in the description of the premises in the warrant. See Commonwealth v. Demogenes, 14 Mass. App. Ct. 577, 581-582 (1982); Commonwealth v. Petrone, 17 Mass. App. Ct. 914, 915 (1983); Commonwealth v. Gonzalez, 39 Mass. App. Ct. 472, 475-477 (1995); Commonwealth v. Clarke, 44 Mass. App. Ct. 502, 507-508 (1998); Commonwealth v. Rodriguez, 49 Mass. App. Ct. 664, 669-671 (2000); Commonwealth v. Rise, 50 Mass. App. Ct. 836, 840 (2001). Although in all of those cases the executing officer's knowledge came from familiarity gained through prior physical surveillance of the target premises, no decision has ever restricted the knowledge of an officer which can compensate for warrant shortcomings to that gained from prior surveillance.
Therefore, the description in the warrant of the place to be searched was sufficiently particular to satisfy constitutional and statutory requirements, and we need not consider the significance of the officers' prior knowledge. It is well established that, when a description in a warrant facially contains adequate particulars, but, in application to a particular situation, the description is ambiguous, the knowledge of the executing officers may be sufficient to overcome the ambiguity. See Commonwealth v. Treadwell, supra at 359; Commonwealth v. Rugaber, supra at 768-769; Commonwealth v. Demogenes, 14 Mass. App. Ct. 577, 581-582 (1982). We need not, and do not, rely on that principle in this case, nor do we suggest whether it might be applicable.
Id. at 717. We conclude, as did the Appeals Court in Commonwealth v. Demogenes, 14 Mass. App. Ct. 577, 582 (1982), that the police in this case, proceeding on an informant's information with respect to "the" second-floor apartment, were not required to risk disclosure of their surveillance, and thereby jeopardize their investigation, by going to the second floor at 83 Franklin Street before applying for the warrant. For the same reason, we conclude that the police were not required to interview the owner or other occupants of the building or to take other steps that might disclose their interest in the premises.
The Commonwealth seeks to salvage the warrant by arguing that "the knowledge of officers on the scene eliminated any danger of a mistaken search of the wrong apartment." Although the Commonwealth correctly notes that the knowledge of the executing officers can be a relevant consideration in resolving noncrucial ambiguities in a warrant, see Commonwealth v. Rugaber, supra; Commonwealth v. Petrone, 17 Mass. App. Ct. 914 (1983); Commonwealth v. Demogenes, 14 Mass. App. Ct. 577, 581 (1982), "police may not expand the warrant beyond those facts known to them." Commonwealth v. Cefalo, 381 Mass. 319, 329 (1980).
See Commonwealth v. Scalise, 387 Mass. 413, 417-418 (1982); Commonwealth v. Cundriff, 382 Mass. 137, 140-147 (1980), cert. denied, 451 U.S. 973 (1981). Cf. Commonwealth v. Demogenes, 14 Mass. App. Ct. 577, 583 (1982). It is agreed that the search warrant did not authorize an entry without the person executing the warrant first knocking and announcing himself.
January 14, 1983.Further appellate review granted: Reported below: 14 Mass. App. Ct. 577 (1982).
The officers did nothing unreasonable which we would seek to deter from happening in the future.'" Id. at 699, quoting Commonwealth v. Demogenes, 14 Mass. App. Ct. 577, 582-583 (1982). Consequently, as in Perkins, "[t]he affidavit here did not contain sufficient particularized information to justify a search of the defendant's apartment for drug-related records, proceeds, and paraphernalia."
Consequently, they did not know that the floor above the second-story apartment was connected in any way to the apartment, and they were not required to do more to obtain information about the actual configuration, since such inquiries might have unnecessarily jeopardized the investigation. See Commonwealth v. Demogenes, 14 Mass. App. Ct. 577, 582 (1982). See also Commonwealth v. Carrasco, 405 Mass. 316, 324 (1989) ("Nothing in the record suggests that, without going into the premises and investigating the second floor, the police should have suspected and could have discovered that there were two apartments on the second floor").
There was no evidence presented that the neighborhood consisted of anything other than single-family dwellings. Page was neither "required to risk disclosure of the surveillance and jeopardize his investigation by an earlier approach to [the rear of, or inside, the dwelling]," Commonwealth v. Demogenes, 14 Mass. App. Ct. 577, 582 (1982), nor to know what an innocuous, cryptic figure, LU-104, on a document at the assessor's office meant. Having no reason to suspect the dwelling contained an interior apartment, the police had no need to conduct any further investigation into the issue.