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Opinions of The Massachusetts Supreme
Judicial Court and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Harding, 27 Mass.App.Ct.
430 (1989)
Appeals Court of Massachusetts,
Plymouth.
No. 88‑P‑674.
Argued Feb. 10, 1989.
Decided June 7, 1989.
Further Appellate Review Denied July 31, 1989.
James R. McMahon, Jr., Wareham, for defendant.
Linda M. Fleming, Asst. Dist. Atty., for Com.
Before BROWN, DREBEN and
FINE, JJ.
DREBEN, Justice.
Charged
with various offenses (FN1) arising out of three break‑ins in
After
hearing evidence, the motion judge, contrary to the recommended practice,
denied the defendant's motion to suppress without making any findings.
Commonwealth v. Parham, 390
Officer
Rogers testified to the events leading to the seizure of the
handgun. (FN2) On October 7, 1985, he and his partner,
Officer Colley, investigated a break‑in at the home of Paul Franklin
(FN3) at 8 Kelley Street in the Buttermilk Bay area of [27 Mass.App.Ct. 432] Plymouth. Stereo equipment,
video cassettes, cash, and a piggy bank had been taken from Franklin's
home. Officer Rogers observed that a
cellar window had been forced open and saw cassettes in their storage cases
strewn in the backyard. Outside the
cellar window he saw a tire iron.
After the
officers left Kelley Street, they went to the home of Robert MacDonald at a
nearby address, 80 Cypress Street, where another break‑in had been
reported. MacDonald told the officers
that a stereo receiver, a turntable unit and speakers had been stolen from his
bedroom. MacDonald also informed the
officers that John Roche, who lived near the Franklin and MacDonald homes, had
shown him some stereo equipment which he, Roche, had acquired earlier that day.
The
policemen proceeded to the Roche residence where they were shown stereo
equipment by Roche's mother and were told by Roche that he had that day
received the components from a friend, the defendant Sean Harding. After taking the equipment to Franklin, who
confirmed that it was indeed his, the officers returned to the Roche residence
and arrested the seventeen year old Roche.
He told them that he had driven with the defendant and one James Barnaby
to Franklin's house in the defendant's automobile, a light blue Chevrolet Camaro, that he had watched James Barnaby and the defendant
enter the Franklin home on Kelley Street, and that he had seen them leave the
house carrying stereo components. The
equipment was placed in the defendant's automobile and taken to Roche's
house. Barnaby corroborated Roche's
account, and he, too, was placed under arrest.
(FN4)
A warrant
issued for the defendant's arrest for the Kelley Street break‑in, and two
days later, on October 9th, he "turned himself in," telling the
police officer on duty that he was living in his automobile.
Also on
October 9, Franklin received two telephone calls from one Michael Butler, a
youth who lived in the area, informing Franklin that he knew the location of
some of Franklin's [27 Mass.App.Ct. 433]
belongings, that two of his friends would return them to Franklin's home, and
that the defendant had a shotgun and a handgun in his car. Soon thereafter, MacDonald, the victim of the
Cypress Street theft, and one Michael Allison came to Franklin's house and
unloaded equipment from the trunk of a green automobile onto the front lawn.
Earlier,
Officers Rogers and Colley had gone to Franklin's home upon being informed by
Franklin of Butler's first telephone call.
While they were there, Butler made his second call at which time he also
spoke to Officer Colley. The officers
left, but returned in time to talk to Allison and MacDonald.
Franklin,
in Officer Rogers's presence, recognized all of the equipment as his, except for
two items, a small black and white television set and a Sony stereo
speaker. MacDonald identified the stereo
speaker as the one stolen from his bedroom, and, after a check of police records,
the television set was determined to be an item stolen in a break‑in from
28 Buzzards Bay Drive a week or so prior to the Kelley Street theft.
Allison
and MacDonald informed Officers Rogers and Colley that they had received the
equipment from a Michelle Reed, the defendant's girlfriend. She resided at Gray Gables in Bourne and had
told Allison and MacDonald that she had received the items from the defendant.
Upon
returning to the station, Officer Rogers and his partner filled out police
reports, requested an arrest warrant for the two additional breaks, and tried,
unsuccessfully, to find the defendant.
Arrest warrants were not obtained.
(FN5)
On October
20, 1985, while on patrol, Officers Rogers and Colley observed the defendant's
light blue Chevrolet Camaro parked on Buzzards Bay
Drive. They asked the driver to identify
himself; it was the defendant. They arrested him for the [27 Mass.App.Ct. 434] Cypress Street and Buzzards Bay Drive break‑ins, handcuffed
him and put him in the police cruiser.
The officers then noticed a clip containing ammunition and several
shotgun shells on the console of the defendant's automobile between the two
bucket seats. They searched the vehicle,
and under the console, found a .22 caliber automatic pistol.
1. The
crucial question is whether the police officers had probable cause, to arrest
the defendant. If not, the gun was
seized as a result of an illegal arrest and should have been suppressed.
Commonwealth v. Bottari, 395 Mass. 777,
783, 785, 482 N.E.2d 321 (1985). Commonwealth v. Borges, 395 Mass. 788,
795‑797, 482 N.E.2d 314 (1985).
[1] The
defendant claims that the police did not have probable cause, as the
Commonwealth's evidence failed to meet the two prongs of the Aguilar‑Spinelli test.
(FN6) Although the United States
Supreme Court in Illinois v. Gates,
462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983),
has set forth a "totality of the circumstances" test for Fourth
Amendment purposes, the Supreme Judicial Court in Commonwealth v. Upton, 394 Mass. 363, 375, 476 N.E.2d 548 (1985),
held that to pass muster under art. 14 of the Massachusetts Declaration of
Rights, an arrest (or search) based on information from an unknown informant
must satisfy each of the two requirements of the Aguilar‑Spinelli standard:
that is, the basis of knowledge of the informer must be disclosed, and
there must be a showing that the informant is credible or that his information
is reliable. "[I]ndependent police corroboration [however] can make up for
deficiencies in either or both prongs of the Aguilar‑Spinelli
test." Id. at 376, 476 N.E.2d 548.
These are
the rules for an unidentified informant. Where, instead of an anonymous informant, a
named and identified individual is the source of information, the requirement
of reliability is relaxed. Commonwealth v. Atchue,
393 Mass. 343, 347‑348, 471 N.E.2d 91 (1984). Commonwealth v. Burt, 393
Mass. 703, 710, 473 N.E.2d 683 (1985), and cases cited. Commonwealth v. Martin, 6 Mass.App.Ct. 624, 627‑628, 381 N.E.2d 1114
(1978). "Information provided by a [27 Mass.App.Ct.
435] named informant is generally
accorded more weight." Commonwealth v. Grzembski,
393 Mass. 516, 522, 471 N.E.2d 1308 (1984).
[2] Grzembski, supra,
also involved a chain of hearsay. In the
course of investigating a burglary of a house in Sturbridge, the police sought a
warrant to search Grzembski's apartment. The affidavit in support of the warrant
relied on a signed statement obtained from one Edward
Dodge. In the statement, Dodge told of a
visit on a given date to his step‑brother Philip Livernois
at a certain address; there he saw a
color television set which Livernois admitted was
stolen. Livernois
told Dodge that a friend who lived upstairs (Grzembski)
had some stolen items such as a Sony stereo.
In addition to having Dodge's statement, the police knew that Grzembski had been on the victim's premises on the day of
the theft, and had previously been convicted of burglary and larceny. In the language set forth in the margin,
(FN7) the Supreme Judicial Court held that Livernois
was "a sufficiently reliable source" of information, and that the
police had probable cause to search Grzembski's
apartment. See also Commonwealth v. Stewart, 358 Mass. 747, 751, 267 N.E.2d 213 (1971)
(citizen informer based statement on what had been told to him by former
occupant of defendant's apartment).
We
consider that the police in this case had at least as much evidence as the
police had in Grzembski
to support a reasonable belief that the defendant had participated in criminal
activity when they arrested him for the Cypress Street and Buzzards Bay Drive
thefts. The defendant had been plainly
implicated in the Kelley Street break‑in by two participants in that
crime, [27 Mass.App.Ct.
436] Roche and Barnaby. The police had heard Michael Butler foretell the
return of Franklin's property. The call
was soon followed by the appearance of Allison and MacDonald. Included in the property returned to Kelley
Street were items stolen from the two other break‑ins. The Cypress Street and Buzzards Bay Drive
break‑ins were close in time and location to the Kelley Street theft.
In
addition, Allison and MacDonald were identified informants who were subject to
questioning by Officers Rogers and Colley.
See Commonwealth v. Atchue, 393 Mass. at 347, 471 N.E.2d 91, quoting from Commonwealth v. Fleurant,
2 Mass.App.Ct. 250, 253, 311 N.E.2d 86 (1974)
("The specificity of the information supplied, the affiant's occasion to
question the informant, and the fact that the informant was named and was not a
paid informer are all relevant circumstances in determining the informant's
credibility"); Commonwealth v. Burt, 393 Mass. at 710,
473 N.E.2d 683.
These
informants told the police that they had received the goods from the
defendant's girlfriend, Michelle Reed, who lived at Gray Gables in Bourne. Her statement, reported by Allison and
MacDonald, that she had received the goods from the defendant, was corroborated
by information from Roche, Barnaby, and Butler tying the defendant to the
property stolen from Kelley Street. Since
her information about the Kelley Street property seemed correct, her statement
as to the source of the other property included in the recovery could be given
credence.
United States v. Spach, 518 F.2d 866, 871
(7th Cir.1975) ("[i]f it can be shown that part
of the information provided by an informer is correct, this gives credibility
to the remainder of the information.
This is closely analogous to the theory that an informer may be
considered reliable if information provided by him in the past had proved to be
correct"). The judge here had a
"substantial basis" for crediting the hearsay statement of Michelle
Reed. See Commonwealth v. Stevens, 362 Mass. 24, 27, 283 N.E.2d 673 (1972);
Commonwealth v. Burt, 393 Mass. at 710‑711, 473 N.E.2d
683. See also Commonwealth v. Grzembski, 393 Mass. at
521, 471 N.E.2d 1308; United States v. Spach,
518 F.2d at 870‑871.
That the
defendant had already been arrested for the Kelley Street incident does not
require ignoring the evidence of that [27
Mass.App.Ct. 437]
theft for purposes of determining whether the police had probable cause to
arrest him for the other two thefts. The
recovery, through Allison and MacDonald, of property taken from all three
locations indicates that the crimes were connected. The items stolen in each break‑in need
not be looked at in isolation. See Commonwealth v. Atchue,
393 Mass. at 347, 471 N.E.2d 91, quoting from Commonwealth v. Stewart, 358 Mass. 747, 751, 267 N.E.2d 213 (1971)
( "sufficiency of the affidavit [in support of the search warrant] is to
be decided on the basis of a consideration of all of its allegations as a
whole, and not by first dissecting it and then subjecting each resulting
fragment to a hypertechnical test of its sufficiency
standing alone"); Commonwealth v. Burt, 393 Mass. at 715,
473 N.E.2d 683. In sum, we conclude
there was an ample showing of probable cause to arrest the defendant for the
Cypress Street and Buzzards Bay Drive break‑ins.
[3] 2.
Even if there was a lawful arrest, the defendant claims the seizure of the gun
was invalid under G.L. c. 276, § 1, set forth in the
margin. (FN8) Commonwealth v. Toole, 389
Mass. 159, 163, 448 N.E.2d 1264 (1983).
That statute allows a search incident to an arrest only for the purposes
of seizing "evidence of the crime for which the arrest has been made"
or for removing weapons which the arrestee might use "to resist arrest or
effect his escape."
In Toole, the defendant was arrested for
simple assault and battery. During a
routine "pat‑frisk" the police found an empty holster and an
ammunition clip containing .45 caliber bullets.
He was handcuffed, and while he waited with two troopers, a third
searched the cab of his truck and found a .45 caliber weapon behind the seat. In ordering the gun suppressed, the Supreme
Judicial Court explained that the Commonwealth "has not shown that, when
the search was conducted, the police [27
Mass.App.Ct. 438]
reasonably believed that there was a connection between the vehicle and any
criminal activity of the defendant, an essential element to a finding of
probable cause." Id. at 163, 448 N.E.2d 1264. The Commonwealth made no claim that the
search of the cab was made to seize evidence of the defendant's commission of
the crime of assault and battery.
"Indeed, [said the court] it is difficult to conceive of what
evidence of a simple assault and battery there could have been." Id.
at 162, 448 N.E.2d 1264.
Not so in
the present case. The defendant was arrested
for the Cypress Street and Buzzards Bay Drive incidents, and there were still unrecovered items from those thefts. The defendant had told the police that he was
living in his car. The search could
properly be made to obtain evidence of the crimes for which he was
arrested. (FN9) See
Commonwealth v. Brillante, 399 Mass. 152, 155 n.
6, 503 N.E.2d 459 (1987).
In
addition, unlike the situation in Toole,
there is here a reasonable connection between the break‑ins and the
carrying of weapons. Commonwealth v. Bond, 375 Mass. 201, 208,
375 N.E.2d 1214 (1978) (guns and ammunition can readily be linked in purpose
with equipment for break‑ins). See Commonwealth v. Ierardi,
17 Mass.App.Ct. 297, 302, 457 N.E.2d 1127
(1983). Since the police had probable
cause to arrest the defendant, they could ask him to leave the automobile and
were, therefore, lawfully in a position to see the ammunition in
plain view on the console. See Commonwealth v. Sergienko,
399 Mass. 291, 293, 503 N.E.2d 1282 (1987).
Once the officers saw the ammunition (knowing, in addition, of Butler's
statement that the defendant carried guns in his automobile), they were
justified in searching for the gun;
there was a sufficient nexus between the criminal activity for which the
defendant was arrested and the object of the search.
Judgment affirmed.
(FN1.) Three counts of breaking and entering
in the daytime, three counts of larceny, and two counts of malicious
destruction of property.
(FN2.) Although
the record appendix reproduces police reports which contain additional evidence
supporting the judge's denial of the motion to suppress, we have not relied on
those reports. Both the Commonwealth and
the defendant, in response to an inquiry of the panel, agreed that the reports
were not introduced in evidence at the hearing before the motion judge.
(FN3.) A cast
of characters may be helpful to the reader:
Rogers and Colley .. police officers
Roche and Barnaby .. admitted participants in
the Kelley St. theft
Franklin ........... victim of Kelley St.theft
Butler ............. telephone caller who stat‑
ed he knew of location of
items stolen from Kelley
St.
MacDonald .......... victim of Cypress St.
theft who, together with
Allison,
Allison ............ returned the stolen property
Michelle Reed ...... defendant's girlfriend
(FN4.) At the defendant's trial, both Roche and
Barnaby exercised their rights under the Fifth Amendment to the United States
Constitution.
(FN5.) Officer
Rogers testified that, to obtain an arrest warrant, police department procedure
required him to file three documents: a
report stating his reasons for wanting a warrant, an application for a warrant,
and a complaint application. These
documents had to be given to the department prosecutor, and it was the latter
who applied for a warrant at the courthouse.
Although Officer Rogers followed the proper procedure and made several
inquiries at the station, he did not receive the warrant. The record does not disclose whether the
application for a warrant was acted upon.
(FN6.) Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Spinelli
v. United States, 393 U.S. 410, 89 S.Ct. 584, 21
L.Ed.2d 637 (1969).
(FN7.)
"Although Dodge's statement constituted hearsay, it nevertheless had
sufficient indicia of reliability and trustworthiness to ground a finding of
probable cause. The statement was from
an identified citizen living at a known address who asserted that he had
personally learned of certain criminal activity from his step‑brother. As Dodge's relative and an apparent
participant in the criminal activity, Livernois
constituted a sufficiently reliable source of information. In his statement, Dodge stated that Livernois admitted having stolen a television with radio
similar to one known to have been stolen from the house in Sturbridge. Taken together with police knowledge from independent
sources that the defendant was on the premises on the day of the incident and
had a record of burglary and larceny, this information was sufficient to
support a reasonable belief that the defendant had committed a crime." 393 Mass. at 521‑522, 471 N.E.2d 1308.
(FN8.) The
second paragraph of G.L. c. 276, § 1, inserted by
St.1974, c. 508, provides in relevant part:
"A search conducted incident to an arrest may be made only for the
purposes of seizing fruits, instrumentalities, contraband and other evidence of
the crime for which the arrest has been made, in order to prevent its
destruction or concealment; and removing
any weapons that the arrestee might use to resist arrest or effect his escape. Property seized as a result of a search in
violation of the provisions of this paragraph shall not be admissible in
evidence in criminal proceedings."
(FN9.) The
reasons given by the police for conducting the search are not dispositive. Commonwealth v. Miller, 366 Mass. 387,
389, 318 N.E.2d 909 (1974).