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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. King, 35 Mass.App.Ct.
221 (1993)
Appeals Court of Massachusetts,
No. 92‑P‑57.
Argued
Decided
Further Appellate Review Denied
Edward J. Spence, III,
Michael J. Ripps,
Paul Caccaviello, Asst.
Dist. Atty., for Com.
Before DREBEN, KAPLAN and GILLERMAN, JJ.
KAPLAN, Justice.
Michael
King and Matthew Juras, codefendants, appeal from
their respective convictions of drug offenses.
(FN2) They raise only the
question whether the judge of the Superior Court was right in declining, after
pretrial hearing, [35 Mass.App.Ct. 222]
to suppress as evidence certain quantities of cocaine and various drug
accessories, the results of a warrantless police
search of their persons and an automobile which they occupied. (FN3)
The judge did not err. We affirm
the convictions.
1. The
judge made concise findings. We state
their elements in our own words.
For some
time in 1989 and early 1990, Officer Lawrence Ordyna
of the Adams police department and his colleagues acquired reason to suspect
Michael King of drug dealing in the Adams area.
In May, 1989, he had pleaded guilty to a drug charge in
An unnamed
informer, designated "No. 2," was acquainted with Juras. On April 16, 1990, Juras
told No. 2 (and No. 2 told the police) that Michael King and his brother Peter
King had collected money for a trip to New York City to buy cocaine and had
left the King residence that day at 2:00 P.M. in a white and blue Suzuki
Samurai (registered to Peter King, Massachusetts license 565‑LPM),
intending to return to Adams between 8 and 9 P.M. Ordyna set up
surveillance at the King house. The white
and blue car, occupied only by Peter King, was spotted that evening pulling
into the King driveway. That night Ordyna and another officer did a "roving"
surveillance of the house in separate unmarked cars and saw persons going in
and after short visits coming out, perhaps indicating drug purchases.
On April
30, Juras told No. 2 that the Kings were collecting
money for another trip (Juras suggested that he was
buying with or through the Kings). Then
on May 1 Juras told No. 2 that the Kings had left for
New York at 7 A.M. in the white and blue car and would be returning to Adams. Ordyna arranged for surveillance on Route 8, a common New
York‑Adams route, starting at 2 P.M.
At 2:40 P.M. the [35 Mass.App.Ct. 223]
officers sighted the car on that road, with Peter King driving and Michael King
the passenger. Later that day Juras told No. 2 he would be receiving cocaine from Michael
King and would have it for sale that night.
Juras in fact was observed coming to the King
house that night in his Pontiac Grand Am (registered to him, Massachusetts
license 339‑MDP) in company with Michael King; they entered the house, stayed a few minutes,
reentered the car, and drove off.
Within a
few days of May 1 the police superintended a "controlled buy" of
cocaine by No. 2 from Juras at a time and place
agreed between them.
The
climactic day was May 12. Juras told No. 2 that Michael King would be leaving his
residence between 1 and 1:30 P.M. to go to New York to buy cocaine; Juras would be
going along, and they would be using Juras's
Pontiac; they would return between 8 and
9 P.M. The police set up surveillance
at the King house and at 1:29 P.M. observed Juras
picking up Michael King in the Pontiac.
They headed south onto Route 8.
At 8:20 P.M. police on surveillance marked the car headed north on the
same route. Police followed the car into
Adams, stopped it, ordered Juras (the driver) and
Michael King out, and finally, upon search without warrant of the men and the
car, found the cocaine and paraphernalia above mentioned.
The
defendants conceded that the police had "probable cause" to carry out
the search of the car and the persons when it occurred. On its part, the Commonwealth conceded that
the seven‑hour interval between 1:29 and 8:20 P.M. would have allowed
time for seeking and (if justified) procuring a search warrant from a clerk‑magistrate
or other authority.
Upon his
findings of fact, which were well supported, the judge concluded as matter of
law that the warrantless search was lawful. (FN4) He cited
Commonwealth v. Cast, 407 Mass. 891, 556 N.E.2d 69 (1990), as controlling
authority.
[35 Mass.App.Ct.
224] 2. In Cast an informer, claiming acquaintance with Cast, told the police
that Cast was able to move large quantities of cocaine on short notice. The informer provided details about Cast and
his method of operation; Cast showed a
propensity to use expensive automobiles and luxury hotels in carrying out sale
transactions. The police corroborated
much of the informer's information.
(FN5)
Cast was
then approached by the informer, and he agreed to deliver two kilograms of
cocaine to the Plymouth, Massachusetts, area on July 30. Watching Cast's home in Bridgeport,
Connecticut, on that day, the police observed Cast entering a taxi at 4 P.M.,
carrying a suitcase. (The use of a taxi
was itself suggestive, as Cast had available two cars of his own.) Cast went to an auto rental agency where he
rented a new Lincoln with New York license plates. He placed the suitcase in the trunk of the
car.
The police
followed the Lincoln on its journey, losing sight of it for some periods of
time. It was seen in the vicinity of the
Merritt Parkway in Connecticut at 6:30 P.M.
A police agent, stationed at a Plymouth hotel, asked the employees there
to notify the police if Cast, speaking with a Spanish accent, should call for a
reservation. A man, dubiously qualifying
by accent, called about 10 P.M., giving the name Richard Sawicki; the police were notified. At 12:30 A.M., July 31, a trooper‑‑one
of those previously alerted and stationed along a major route from New Canaan,
Connecticut, to Plymouth‑‑saw the Lincoln and followed it toward
Plymouth. Finally the car was stopped, and search without a warrant turned
up the cocaine. (FN6)
There was
probable cause for the search when it occurred, but how explain the want of the
assumed additional constitutional[35
Mass.App.Ct. 225] requirement of a warrant? The court accepted that at that point the
circumstances were "exigent"‑‑a warrant could not be secured
in time‑‑and the so‑called "automobile exception"
would dispense with the need for a warrant. Commonwealth v. Cast, 407 Mass. at 901,
556 N.E.2d 69. But could not a warrant
have been applied for and obtained at an earlier stage in the pursuit? The court recognized the validity of
contingent or "anticipatory" warrants, issued on a showing that there
will be probable cause at the time of their ultimate execution. Id.
at 906, 556 N.E.2d 69.
The court
said, however, that the police were not obliged to seek such a warrant and
could rely in the end on the automobile exception and exigent circumstances.
Ibid. (FN7) See also Commonwealth v. Killackey,
410 Mass. 371, 373‑374, 572 N.E.2d 560 (1991). The search in Cast was held valid under the State and Federal
Constitutions. See also Commonwealth v. Wunder,
407 Mass. 909, 912‑913, 556 N.E.2d 65 (1990).
3. To
return to the present case, it is congruent in principle with Cast although different on the
facts. We are dealing with the
"automobile exception."
Perhaps it was open to the police, say just after the departure of the
Pontiac at 1:29 P.M. on May 12, to apply on the basis of probable cause for an
anticipatory warrant. But they were not
required to do so. At the time of the
search in Adams at 8:40 P.M., there was plenty of probable cause, and no
attempt had to be made to secure a warrant at that stage because the
circumstances were then exigent. The
judge said: "The police were
entitled [35 Mass.App.Ct.
226] to wait until the last piece of
probable cause had fallen into place, and to rely upon the well established
automobile exception.... [T]he exigency
was not created by the officers' own unreasonable delay." (On the latter question, see Commonwealth v. Forde,
367 Mass. 798, 329 N.E.2d 717 [1975], and Commonwealth v. Martino, 412 Mass. 267,
276‑277, 588 N.E.2d 651 [1992] ).
4. Cast still talks in terms of exigent
circumstances, and in the later case of
Commonwealth v. Bakoian, 412 Mass. 295, 305, 588
N.E.2d 667 (1992), the court said, "We do not suggest that, under
Massachusetts law, there is no requirement of exigent circumstances to justify
an immediate, warrantless search of an automobile
based on probable cause." Our
respected neighbor, the United States Court of Appeals for the First Circuit,
evidently thinks this no more than a form and holds in these automobile cases, simpliciter, that search is valid if probable cause exists
at the time. See United States v. Panitz, 907 F.2d 1267,
1271 (1st Cir.1990). (FN8)
At all
events‑‑whether "exigent circumstances" is or is not
recited‑‑justification for holding a warrant to be superfluous is
found in the mobility of automobiles and the diminished feeling of privacy people
have regarding the interiors of their cars.
See Commonwealth v. Bakoian, 412 Mass. at 303‑304, 588 N.E.2d
667. We may reflect that the former
consideration would not necessarily exclude giving a warmer reception to the
idea of the anticipatory warrant.
(Indeed, are not all warrants contingent or anticipatory? A warrant for the usual search of an
apartment does not assume that the drugs will inevitably remain in place to be
seized.) And as to privacy, the
generalization[35 Mass.App.Ct. 227] about popular sentiment may be thought too
broad to be useful: what car owner would
not think his privacy invaded by a police intrusion for the purpose of making a
search? There is value, too, in
requiring the police to get a warrant:
they must disclose what they knew and what they intended before the fact
of a successful search colors their post hoc justification of probable
cause. The law, however, has followed
another path.
Judgments affirmed.
(FN1.) Matthew Juras.
(FN2.)
The defendants were indicted for trafficking in cocaine (G.L.
c. 94C, § 32E(b )(2)). After jury‑waived trial, King was found
guilty of the trafficking, fourteen to twenty‑eight grams (G.L. c. 94C, § 32E(b
) (1)); Juras
was found guilty of possession with intent to distribute (G.L.
c. 94C, § 32A(c )).
(FN3.)
The defendants also complained that the official drug analysis certificate
carried the stamped signature rather than the handwritten signature of the
notary, but the point is foreclosed by
Commonwealth v. Johnson, 32 Mass.App.Ct. 355, 589
N.E.2d 328 (1992).
(FN4.)
"The judge's findings of fact are binding in the absence of clear error,
and we view with particular respect the conclusions of law which are based on
them." Commonwealth v. Cast, 407 Mass. 891, 897,
556 N.E.2d 69 (1990). See also Commonwealth v. Sabetti,
411 Mass. 770, 775, 585 N.E.2d 1385 (1992).
(FN5.)
We state the Cast case in abbreviated
form and omit questions about the reliability of the informer.
(FN6.)
The search, held valid for the car, was held lawful also for the contents of
the closed suitcase. See Commonwealth v. Cast, 407 Mass. at 901‑903,
556 N.E.2d 69. We have no reason in the
present case to pursue the car‑container problem, recently reconsidered
in California v. Acevedo, 500 U.S.
565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991).
(FN7.)
The court added that the possibility that police earlier have probable cause
and might then secure a warrant does not foreclose their acting later without
warrant upon the coincidence of probable cause and exigent circumstances.
Commonwealth v. Cast, 407 Mass. at 906, 556 N.E.2d 69. The court cites Cardwell v. Lewis, 417 U.S. 583, 595‑596, 94 S.Ct. 2464, 2471‑2472, 41 L.Ed.2d 325 (1974), for the
proposition that "exigency may arise at any time and in a number of
situations and the fact that police had probable cause and might have obtained
a warrant earlier 'does not negate the possibility of a current situation's
necessitating prompt police action,' since no principle would foreclose the
right of officers to search a motor vehicle on probable cause and exigent
circumstances 'if a warrant was not obtained at the first practicable
moment[.]' " Commonwealth v. Cast, 407 Mass. at 906,
556 N.E.2d 69. But see point 3 of our
text about the police creating an exigency.
(FN8.)
The approach in Panitz
may perhaps be referred to the great debate over whether the Fourth Amendment
to the United States Constitution means that a search without a warrant is per se unreasonable and
unconstitutional (subject to exceptions), or rather that a search without
probable cause is unreasonable and unconstitutional, with the words of the
Amendment about warrants being merely a limitation on their issuance. See the survey by Tomkovicz,
California v. Acevedo: The Walls Close
in on the Warrant Requirement, 29 Am.Crim.L.Rev. 1103
(1992). The author thinks the majority
in Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991), while confining its
holding to the automobile doctrine, is "on the brink of 'clarifying'
Fourth Amendment law at the expense of the warrant requirement." Tomkovicz, supra, at 1106 (footnote omitted).