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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. Killackey,
410
Supreme Judicial Court of Massachusetts,
Argued
Decided
Paul J. Caccaviello, Asst.
Dist. Atty., for the Com.
P. Keyburn Hollister,
Louis J. Oggiani, Great
Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.
WILKINS, Justice.
A judge of
the Superior Court allowed the defendants' motions to suppress evidence seized in a warrantless[410
For
several months prior to the motor vehicle search, the Berkshire County drug
task force had been investigating the alleged use of narcotics by a group of
five residents of Lee, three of whom had been arrested in Holyoke for heroin
possession. The defendant Killackey was a member of the group. The defendant Alexandrian was not. The police knew that the group met routinely
at the
All five
members of the group and Alexandrian met at the sewing center on the morning of
September 22. Shortly after 1 P.M.,
Alexandrian and Killackey left Lee headed toward the
Massachusetts turnpike in a blue Volkswagen automobile, with Alexandrian
driving. This was the first time the
police had seen the Volkswagen used by this group. They followed the vehicle. The defendants went to a tenement in
Holyoke. A Holyoke police lieutenant
advised the Berkshire County police that the tenement was a known distribution
point for heroin and cocaine. The
defendants came back to the car about twenty minutes later, and returned to the
turnpike where they headed west. They
left the turnpike at Lee and [410
Mass. 373] drove to the town common,
where the Lee District Court is located.
When Killackey left the Volkswagen and walked
toward the courthouse where he had a matter scheduled, the police moved in,
detaining each defendant and searching the car.
An officer found cocaine and heroin and drug paraphernalia under the
cover of the gear shaft assembly.
The motion
judge allowed the motions to suppress because, in his view, the police had
ample opportunity to obtain a warrant as the result of their surveillance of
the group and knowledge of their pattern of behavior. The police could not have obtained an
anticipatory warrant to search the blue Volkswagen because they had not seen it
used in any of the group's previous trips to Holyoke. The police, therefore, did not have probable
cause to search the Volkswagen before the defendants left the Holyoke tenement
and headed back toward Lee. The police
had time to obtain a warrant only while the Volkswagen was traveling back to
Lee, a period of less than an hour. We
think it is clear that there was no practical possibility of obtaining a
warrant if the warrant‑seeking process were to have commenced at the
moment the Volkswagen left Holyoke.
The
principal issue is whether constitutional principles required the police (1) to
obtain in advance an anticipatory, but rather general, warrant to search
whatever vehicle the group might use or (2) to transmit from Holyoke details to
complete an already largely prepared application for a search warrant that
might be issued before the vehicle reached Lee.
We think not. We also reject
Alexandrian's further argument that the police were obliged to detain the
vehicle at the common in Lee while they obtained a warrant to search it. See
Arkansas v. Sanders, 442 U.S. 753, 765 n. 14, 99 S.Ct.
2586, 2594 n. 14, 61 L.Ed.2d 235 (1979); Commonwealth v. Ortiz, 376 Mass. 349,
358, 380 N.E.2d 669 (1978).
The motion
judge did not have available our opinion in
Commonwealth v. Cast, 407 Mass. 891, 556 N.E.2d 69 (1990), which was
decided after he had allowed the defendants' motions to suppress. In the Cast opinion, we discussed the question
of exigent circumstances in relation to the stop and search of a motor vehicle
which the police had probable cause to believe [410 Mass. 374]
contained cocaine. Id. at 903‑906, 556 N.E.2d 69. We noted that the police are not obliged to
obtain anticipatory warrants. Id. at 906, 556 N.E.2d 69. We further commented (in understatement as
far as the Supreme Court's view of the Fourth Amendment to the United States
Constitution is concerned) that the exigency requirement is not applied to
vehicles as rigorously as it is to homes. Id. at 904, 556 N.E.2d 69. See 3 W.R. La Fave,
Search and Seizure § 7.2(b), at 39‑41 (2d ed. 1987). We cited several cases in which the warrantless search of a motor vehicle was upheld because of
the exigency that, if the police did not then stop and search the vehicle (and
waited to obtain a search warrant), the suspected contraband might never be
located.
Id. at 904‑905, 556 N.E.2d 69. We also distinguished Commonwealth v. Forde, 367 Mass. 798,
329 N.E.2d 717 (1975), in which the police had had probable cause to search the
defendant's apartment for a week, planned to get a search warrant but did not,
and thereby created their own exigency by their unreasonable delay.
Commonwealth v. Cast, supra, 407 Mass. at 905, 556 N.E.2d 69.
The
likelihood that the evidence would have been removed from the vehicle before
the police could have obtained a warrant made the circumstances exigent. See
Commonwealth v. Sergienko, 399 Mass. 291, 296,
503 N.E.2d 1282 (1987), where factors that bear on determining whether there
were exigent circumstances are listed.
The orders allowing the defendants' motions to suppress the evidence are
vacated, and orders shall be entered denying the defendants' motions to suppress.
So ordered.
(FN1.) Commonwealth vs. Eramya Alexandrian.
(FN2.)
Each defendant had been indicted for possession of heroin with the intent to
distribute and unlawful possession of a hypodermic needle and syringe.