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Opinions of The 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. Hason, 387
Supreme Judicial Court of Massachusetts,
Argued
Decided
Peter Grabler, Asst. Dist.
Atty. (Timothy M. Burke, Asst. Dist.
Atty., with him), for the Commonwealth.
Gerald Alch,
Before HENNESSEY, C. J., and ABRAMS, NOLAN, LYNCH
and O'CONNOR, JJ.
LYNCH, Justice.
On
The
indictments against the defendant and two others were the product of a State
police investigation into an automobile theft ring. The trial judge heard motions to suppress
evidence made by all three men, and the judge's findings on this defendant's
motion incorporated by reference his findings in the other two cases. We review the relevant facts as found by the
judge.
The auto
theft unit of the State police had been investigating an alleged automobile
theft ring for approximately three months prior to
O'Malley
reported to a Lieutenant Powers that the VIN was
reported as belonging to a Mazda automobile and not a [387 Mass. 171]
Mercedes‑Benz automobile. The
informant was contacted but could not explain the discrepancy. It appeared later that the Boston police had
entered the wrong manufacturer's name into the computer when the vehicle was
reported stolen. The judge found that an
officer with any experience with stolen cars could have ascertained that the VIN in question was in fact a Mercedes‑Benz serial
number.
By the
second week in November, 1980, the police had been able to verify and
corroborate much of the information received from the informant. On November 20, 1980, using information from
the informant as well as other information, the police obtained a warrant to
search the East Boston premises of the suspected ringleaders of the stolen car
operation. Nonetheless, because of the
Mazda/Mercedes discrepancy, the police did not apply for a warrant in the
defendant's case.
On the
evening of November 19, 1980, Powers directed State police Officer McGrail to locate a grey Mercedes‑Benz which was
suspected of having been stolen. McGrail was given a description of the car, the VIN, the defendant's name, and the locations of the
defendant's residence and place of business.
The following morning, McGrail went to the
defendant's place of business, arriving before it had opened. He waited across the street in an unmarked
car. At approximately 9:30 A.M., the
defendant appeared, driving a grey Mercedes‑Benz. McGrail approached
the defendant and identified himself as a member of a team investigating stolen
motor vehicles. After determining that
the VIN visible on the dashboard was the same as the VIN supplied by Powers, McGrail
asked the defendant for his license and registration. The defendant informed McGrail
that the registration was not available.
McGrail then stated that the vehicle was
stolen and asked to speak further with the defendant. When the defendant responded that they would
talk later, he was arrested. McGrail called the VIN into
headquarters and, when it was reported to belong to a stolen Mazda, he ordered
the vehicle towed to the Commonwealth Armory.
During a subsequent "inventory search" [387 Mass. 172] by the
auto theft unit, a small computer, later identified as stolen, was found in the
trunk of the vehicle.
The
defendant argues that the police lacked probable cause to seize the car, and
that the computer should be suppressed as the fruit of the illegal seizure of
the car. The Commonwealth maintains that
the defendant lacks "standing" under the Fourth Amendment to the
United States Constitution to challenge the legality of the warrantless
seizure and search of the Mercedes‑Benz automobile. Alternatively, the Commonwealth urges that
the car was properly seized upon probable cause and the computer was properly
seized in the course of a lawful inventory search. We assume, without deciding, that the
defendant had standing to challenge these seizures. (FN1)
We find that both the car and the computer were
lawfully seized and may be used as evidence against the defendant.
[1][2] 1. Seizure of the automobile. The Mercedes‑Benz automobile was
parked on a public street at the time it was seized. Thus, McGrail's
initial approach to the automobile entailed no "search" for the
vehicle in the Fourth Amendment sense of an intrusion into an area where the
defendant had a reasonable expectation of privacy. Sullivan v. District Court of
Hampshire, ‑‑‑ Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑, Mass.Adv.Sh. (1981) 2370, 2375‑2376, 429 N.E.2d 325. Commonwealth v. Simmons, ‑‑‑
Mass. ‑‑‑, ‑‑‑, Mass.Adv.Sh. (1981) 576, 584, 417 N.E.2d 1183. See G.
M. Leasing Corp. v. United States, 429 U.S. 338, 351, 97 S.Ct. 619, 627‑28, 56 L.Ed.2d 530 (1977);
Cardwell v. Lewis, 417 U.S. 583, 593, 94 S.Ct.
2464, 2470‑71, 41 L.Ed.2d 325 (1973) (plurality opinion). For similar reasons, we conclude that no
search occurred when first O'Malley, and then McGrail
read the VIN on the dashboard of the Mercedes‑Benz. [387
Mass. 173] The VIN
was visible through the windshield to anyone standing outside the vehicle. The officers made no intrusion into the
vehicle to locate it. The defendant
could have had no reasonable expectation of privacy in the VIN
in these circumstances. Commonwealth v. Dolan, 352 Mass. 432,
433, 225 N.E.2d 910 (1967). United States v. Wagner, 497 F.2d 249,
252 (10th Cir. 1974). 1 W. LaFave, Search and Seizure § 2.5(d), at 357‑358
(1978). See Commonwealth v. Baldwin, ‑‑‑Mass.App.
‑‑‑, ‑‑‑, Mass.App.Ct.Adv.Sh. (1981) 354, 359, 416 N.E.2d 544.
[3] The
only issue then is whether the police properly seized the Mercedes‑Benz
on November 20, 1980. (FN2) The judge found the seizure of the vehicle
illegal on the ground that "there was no probable cause to arrest Hason on the street ... and to seize the car." Taken alone, this sentence suggests that the
judge viewed the legality of the arrest as the crucial factor in determining
the legality of the seizure. At other
points, though, he found it significant that the police made "no effort
... to get a warrant," and seized the vehicle "pursuant to the plan
to make warrantless seizures." It has long been the law of this
Commonwealth that an officer may arrest a person without a warrant if he has
reasonable grounds for believing that that person has committed a felony.
Commonwealth v. Holmes, 344 Mass. 524, 525, 436 N.E.2d 279
(1962). See United States v. Watson, 423 U.S. 411, 96 S.Ct.
820, 46 L.Ed.2d 598 (1976) (finding warrantless
midday public arrest not violative of Fourth
Amendment). Contrast Payton v. New York, 445 U.S. 573, 576, 100 S.Ct.
1371, 1375, 63 L.Ed.2d 639 (1980) (finding warrantless,
nonconsensual police intrusion into home for purpose of effecting routine
felony arrest prohibited by Fourth Amendment).
Since probable cause [387
Mass. 174] alone would be enough to
validate the arrest in this case, the judge's reliance on the absence of a
warrant makes it clear that he did not view the seizure of the vehicle as in
some sense "incident" to the arrest.
Instead, he seems to have believed that the police must obtain a warrant
to seize a vehicle found on a public street which they have probable cause to
believe is stolen, unless exigent circumstances or some other exception to the warrant
requirement can be shown. We therefore
address two separate questions: (1)
whether there was probable cause to believe that the Mercedes‑Benz was
stolen, and (2) whether, assuming probable cause existed, a warrant was
required to effect a seizure. We
conclude that probable cause existed and that no warrant was required in these
circumstances.
[4]
"Probable cause exists where 'the facts and circumstances within ... [the
officers'] knowledge and of which they had reasonably trustworthy information
[are] sufficient in themselves to warrant a man of reasonable caution in the
belief that' an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175‑176,
69 S.Ct. 1302, 1310‑11, 93 L.Ed.
1879 (1949), quoting from Carroll v.
United States, 267 U.S. 132, 162, 45 S.Ct. 280,
288, 69 L.Ed. 543 (1925). Probable cause requires more than mere
suspicion but something less than evidence sufficient to warrant a conviction. Brinegar v. United States, supra. Sullivan v. District Court of Hampshire, ‑‑‑
Mass. ‑‑‑, ‑‑‑, Mass.Adv.Sh. (1981) 2370, 2378, 429 N.E.2d 325.
Commonwealth v. Bond, 375 Mass. 201, ‑‑‑, 375
Mass. 201, 210, 429 N.E.2d 335 (1978).
As the Supreme Court has emphasized, "In dealing with probable
cause ... we deal with probabilities.
These are not technical; they are
the factual and practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act." Brinegar
v. United States, supra at 175, 69 S.Ct. at 1310.
[5] The
police in this case acted on information supplied by an informant whose communications
had always proved reliable in the past.
They were told by the informant that a grey Mercedes‑Benz
automobile with a particular VIN had been stolen and
was currently in the possession of the owner of a particular business. A vehicle fitting this description [387 Mass. 175] was in fact observed parked near the named business. A computer check of the VIN
through a central police computer confirmed that it belonged to a stolen
vehicle but revealed the type of vehicle as a Mazda, not a Mercedes‑Benz. The police checked again with the informant
and he reconfirmed his information that the automobile was a Mercedes‑Benz. These facts gave the police ample reason to
believe that the Mercedes‑Benz had been stolen. Contrary to the judge's conclusion, the
Mazda/Mercedes discrepancy does not establish that probable cause was
lacking. While the computer's
designation of "Mazda" no doubt created some confusion, it was
contradicted by the informant and by O'Malley, who had found a grey Mercedes‑Benz. It is not conclusive on the issue of probable
cause that, in the judge's words, the police "made no attempt to get to
the root of this discrepancy."
Putting aside the fact that the judge also found that the discrepancy
prompted the police to check back with the informant, we think the information
available to the police created much more than a mere suspicion that the
vehicle they seized was stolen. Probable
cause does not require a showing that the police resolved all their
doubts. "What had to be shown was
more than a suspicion of criminal involvement, something definite and
substantial, but not a prima facie case of the commission of a crime, let alone
a case beyond a reasonable doubt." Commonwealth v. Bond, 375 Mass. 201, 210,
375 N.E.2d 1214 (1978).
[6][7][8]
A finding of probable cause is not precluded by McGrail's
testimony that, at the time he approached the Mercedes‑Benz, he had only
a suspicion that the vehicle was stolen.
The inquiry into probable cause is an objective one, requiring, as it does,
a determination whether the facts would warrant a "reasonable" person
in believing the action taken to be appropriate. The subjective beliefs of the police officer
are not conclusive on this issue. Commonwealth v. Gullick,
386 Mass. 278, 284, 435 N.E.2d 348 (1982) (probable cause to arrest).
Commonwealth v. Miller, 366 Mass. 387, 389, 318 N.E.2d 909 (1974)
(same). 1 W. LaFave,
Search and Seizure § 3.2(b), at 459‑461 (1978), and cases cited. We conclude that the Commonwealth met [387 Mass. 176] its burden of showing that probable cause existed. Commonwealth v. Antobenedetto,
366 Mass. 51, 57, 315 N.E.2d 530 (1974).
We turn
then to the second issue raised by the judge's ruling: whether the police, notwithstanding the
existence of probable cause to believe that the Mercedes‑Benz had been
stolen, were required to obtain a warrant before seizing the vehicle. We conclude that a warrant was not required.
[9] The
United States Supreme Court has expressly approved the warrantless
seizure of certain objects found in public places. In the recent decision in Payton v. New York, 445 U.S. 573, 586‑587, 100 S.Ct. 1371, 1380‑1381, 63 L.Ed.2d 639 (1980), the
Court found it "well settled that objects such as weapons or contraband
found in a public place may be seized by the police without a warrant. The seizure of property in plain view
involves no invasion of privacy and is presumptively reasonable, assuming that
there is probable cause to associate the property with criminal
activity." The same position is
suggested by Coolidge v. New Hampshire,
403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971),
where the Court exempted from the inadvertence requirement of the "plain
view doctrine," which allows the police to seize evidence discovered
inadvertently in the course of a lawful intrusion, objects that are
"contraband," "stolen," or "dangerous in
themselves." Id. at 471, 91 S.Ct.
at 2040. See W. E. Ringel,
Searches & Seizures, Arrests and Confessions, § 8.5(b) (2d ed. 1980). Decisions of this court have also discussed
this distinction between property possessed unlawfully and other types of
property found in plain view during a search.
See, e.g., Commonwealth v. Accaputo, 380 Mass. 435, ‑‑‑, ‑‑‑,
Mass.Adv.Sh.
(1980) 1009, 1021, 1023, 404 N.E.2d 1204; Commonwealth v. Bond, 375
Mass. 201, 207, 375 N.E.2d 1214 (1978).
As the quoted passage from Payton
v. New York, supra, indicates, the reason property possessed unlawfully may
be seized without a warrant is that its seizure in a public place
"involves no invasion of privacy."
[10][11][12]
The second assumption which the decisions discussed above reflect is that the
property itself provides no "privacy interest" sufficient to make
applicable the Fourth Amendment warrant requirement. The underlying rationale appears to be that
where probable cause to associate property
[387 Mass. 177] with criminal
activity exists, the owner's "privacy interest" in the property
itself is at best a negligible or "unreasonable" one, and police
infringement of that interest by a seizure of the property is, in the language
of Payton v. New York, supra, 445
U.S. at 587, 100 S.Ct. at 1380, "presumptively
reasonable." (FN3) This same sense of a diminished Fourth
Amendment interest in contraband or stolen goods is found in Coolidge v. New Hampshire, supra, 403
U.S. at 471, 91 S.Ct. at 2040, where the plurality
asserted that "to extend the scope of [an initially legitimate intrusion
into a private area] to the seizure of objects‑‑not contraband nor stolen nor dangerous in
themselves ‑‑which the police know in advance they will find in
plain view and intend to seize, would fly in the face of the basic rule that no
amount of probable cause can justify a warrantless
seizure" (emphasis supplied). See
also W. E. Ringel, Searches & Seizures, Arrests
and Confessions, § 8.5(b), at 8‑35 (2d ed. 1981). Thus,
Coolidge and Payton support the
proposition that when the police are in a place where they have a right to be,
they may seize without a warrant articles in plain view which they have probable
cause to believe are stolen. We believe
this is the correct view. Since the
police in this case had the requisite probable cause, they could properly seize
the Mercedes‑Benz. (FN4)
[13] 2. Seizure of the computer. The Commonwealth argues that the computer found in the trunk of the Mercedes‑Benz
was discovered in the course of a lawful inventory search. "The Supreme Court of the United States
has held that an inventory search of an impounded motor vehicle is not
unreasonable[387 Mass. 178]
under the Fourth Amendment to the Constitution of the United States if
carried out in accordance with standard procedures and if there is no
suggestion that the procedure was a pretext concealing an investigatory police
motive." Commonwealth v. Matchett,
386 Mass. 492, 509‑510, 436 N.E.2d 400 (1982), citing South Dakota v. Opperman, 428 U.S. 364,
376, 96 S.Ct. 3092, 3101, 49 L.Ed.2d 1000
(1976). If the inventory search is
conducted in accordance with standard police procedures no warrant is required. Id.
[14] The
judge ordered the computer suppressed as the fruit of an illegal seizure of the
Mercedes‑Benz. He therefore did
not reach the question whether the computer was the product of a lawful
inventory search under Commonwealth v. Matchett, supra, and cases cited therein. We therefore remand the case to the Superior
Court for findings on this issue.
We reverse
the judge's order allowing the defendant's motion to suppress and remand the
case to the Superior Court for further findings in accordance with this
opinion.
So ordered.
(FN1.) At the hearing on the motion to
suppress, the defendant appears to have relied on the "automatic
standing" rule of Jones v. United
States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697
(1960), which was overruled in United States
v. Salvucci, 448 U.S. 83, 100 S.Ct.
2547, 65 L.Ed.2d 619 (1980). On appeal,
the defendant argues only that he has standing under the new principles
articulated by the Supreme Court in Salvucci, supra, Rawlings v. Kentucky, 448 U.S. 98, 100
S.Ct. 2556, 65 L.Ed.2d 683 (1980), and Rakas v. Illinois,
439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387
(1978). His arguments do not raise any
issue under the Constitution of the Commonwealth. Our resolution of this case makes it
unnecessary for us to consider whether "we would adhere, under our State
Constitution, to the portion of Jones
giving automatic standing to [defendants charged with crimes of
possession]." Commonwealth v. Podgurski,
386 Mass. 385, 391 n.11, 436 N.E.2d 150 (1982).
(FN2.)
We do not suggest that the police needed actual physical custody of the
Mercedes‑Benz in order to charge the defendant with a violation of G.L. c. 266, § 28.
If the seizure of the Mercedes‑Benz was improper, however, the
computer found in the vehicle's trunk would have to be suppressed. We do not read United States v. Pappas, 613 F.2d 324, 330‑331 (1st Cir.
1979), as supportive of the Commonwealth's contention that the computer should
not be suppressed even if the Mercedes‑Benz were unlawfully seized.
(FN3.)
Similar reasoning can be found in cases which hold that one in possession of a
stolen vehicle has no standing under the Fourth Amendment to challenge a search
of the vehicle. See, e.g., People v. Pearson, 190 Colo. 313, 319‑20,
546 P.2d 1259 (1976); Mahar v. State,
137 Ga.App. 116, 120, 223 S.E.2d 204 (1975), cert.
denied, 429 U.S. 923, 97 S.Ct. 323, 50 L.Ed.2d 291
(1976);
State v. Hamm, 348 A.2d 268, 273 (Maine 1975); Graham v. State, 47 Md.App. 287, 291‑295, 421 A.2d 1385 (1980). See note 1, supra.
(FN4.) At trial,
of course, the Commonwealth bears the burden of proving beyond a reasonable
doubt that the defendant knew or believed, at the time he received the Mercedes‑Benz,
that it was stolen. Commonwealth v. Boris, 317 Mass. 309,
316, 58 N.E.2d 8 (1944).