|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. King, 389
Supreme Judicial Court of Massachusetts,
Argued
Decided
William M. Kunstler, New
York City (Robert J. Doyle and Edward Berkin, Boston,
with him), for defendant.
[389 Mass. 234] Phillip L. Weiner, Asst. Dist.
Atty. (Ralph K. Mulford,
Asst. Dist. Atty., with him), for the Commonwealth.
Judith H. Mizner and John Reinstein, Boston, for Civil Liberties Union of
Massachusetts, amicus curiae.
Before [389
Mass. 233] HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN
and LYNCH, JJ.
LIACOS, Justice.
On
February 17, 1982, the defendant, Christopher King, was indicted by the Bristol
County grand jury of the following offenses:
assault with intent to murder while armed (two counts); assault by means of a dangerous weapon (two
counts); concealing firearms with
obliterated numbers (four counts);
unlawful possession of a controlled substance class D; unlawful possession of a controlled substance
class B; unlawfully carrying a firearm
without a license; and unlawfully
carrying a firearm in a motor vehicle (three counts). This case comes before us on an appeal from a
ruling by a judge of the Superior Court denying the defendant's motion to
suppress evidence seized during a warrantless search
by a State trooper of his person and the automobile in which he was a
passenger. A single justice of this
court allowed the defendant's application for interlocutory appeal pursuant to Mass.R.Crim.P. 15(b)(2), 378
The
defendant argues that the judge erred in denying his motion to suppress the
evidence. He alleges that the initial
inquiry by the State trooper to the occupants of the vehicle, the order given
by the trooper to the defendant to leave the automobile, and the attempt by the
officer to frisk the defendant violated his constitutional rights. The Commonwealth argues that the judge
correctly determined the issues raised by the motion to suppress, and, further,
that the defendant lacks standing to challenge the admissibility of the
evidence seized.
[1] The
facts found by the judge are as follows.
(FN1) On February 7, 1982, in the
early morning, Officer Paul Landry, a [389
Mass. 235] State trooper assigned to
the State police barracks at Foxborough, was on
routine patrol. Trooper Landry was fully
uniformed and driving a clearly marked State police cruiser. He had been a State trooper for eight years
(FN2) and had been on this particular patrol duty for two and one‑half
years. At the time of this incident, in
the interest of public safety, and because of the hazards of winter driving,
the commanding officer of A‑Troop in Foxborough
had a policy requiring patrol officers during winter months to investigate
every stopped vehicle they encountered to determine whether the occupants, if
any, were disabled, had fallen asleep, had abandoned the vehicle, or were
otherwise in need of assistance. The policy
applied to any stopped or parked vehicle, no matter where situated.
At about 2
A.M., the trooper entered a rest area on the southbound lane of Route 95 in
North Attleborough.
(FN3) As the cruiser pulled in to
the rest area, the officer observed two parked vehicles, one van and one station
wagon. He noticed two individuals in the
front seat of the station wagon.
Pursuant to the State police troop's policy, he decided to investigate. The officer passed the vehicles, made a U‑turn,
and drove back to the station wagon in order to direct his high beam headlights
at the station wagon.
The
officer's suspicions were aroused by the fact that one of the occupants was
white and the other was black.
(FN4) Pulling[389 Mass. 236] the cruiser up at an angle to the right front
of the station wagon, the trooper alighted from his automobile and approached
the driver's side. As he approached, he
observed that the vehicle's lights were off and the engine was running. He further noticed that the occupants were
acting nervously and were looking at each other, and that the defendant had his
right hand tucked inside his jacket near his belt on the left side of his
body. Directing his flashlight into the
interior of the station wagon, he observed a small green bag on the front floor
at the defendant's feet, a duffel bag in the rear on top of the folded‑down
passenger seat, and a Doberman pinscher dog pacing back and forth in the rear.
The
officer initially inquired what the occupants were doing in the rest area and
where they were coming from. The driver
responded that they were coming from New Hampshire and were trying to get some rest. The officer then requested identifications,
licenses, and the vehicle registration.
The driver produced a class 1 New York license with his picture stapled
to it, identifying him as "Salvatore Bella." The defendant produced a class 5 New York
license with a Brooklyn address, indicating that his name was "Lester
Jordan." (FN5) There was no picture attached to the back of
the license. Aside from minor details,
(FN6) the licenses appeared valid.
At this
time the defendant removed his hand from his coat, retrieved a Massachusetts
registration from the glove compartment, and handed it to the driver, who in
turn handed it to the trooper. Before
examining it, the trooper inquired who owned the automobile. The response of the driver was that the
automobile belonged to his girl friend,
[389 Mass. 237] Lucinda Keith,
the name on the registration. Upon
inquiry by the trooper, the driver stated that he did not know his girl
friend's telephone number. Both men
appeared to the trooper to be nervous at this time.
After
asking the men to remain seated in their automobile, the officer returned to
his cruiser to check their licenses and the registration. Prior to the check, however, he repositioned
his cruiser parallel to the rear of the station wagon so that he could watch
the occupants without being observed.
The trooper testified on cross‑examination that the repositioning
of his cruiser was not normal procedure, but that he had a "gut feeling
that there was something wrong with this car." While he testified that it was not uncommon
for people to become nervous when questioned by a uniformed State trooper, he
characterized the occupants' nervousness as different from the ordinary because
it made him nervous, something that normally did not happen.
The
officer requested, by use of his radio, a "missing and wanted" check
on Salvatore Bella and Lester Jordan, as well as a registration check. The record check by the computer proved
negative. The registration check yielded
no response from the Registry of Motor Vehicles, which indicated that either
the registration was new (FN7) or no such plate was issued.
Nevertheless,
the officer was still not satisfied. He
testified that he was suspicious because it was unusual to have New York
licenses with a Massachusetts registration in a different name from both
licenses, because the occupants kept nervously looking at each other and the
trooper, and because he was concerned that the defendant might be concealing a
weapon or drugs under his jacket. The
trooper sought backup help because he had decided to approach the vehicle again
to question the occupants further, and to search the defendant to determine
what, if anything, he was concealing. On
cross‑examination the trooper acknowledged[389 Mass. 238] that his request for backup assistance was
not normal procedure. Usually if the
"missing and wanted" check and the registration check came back
negative, that would be the end of the inquiry.
Very
shortly thereafter, Officer Crosby, also a State trooper, arrived. The two State troopers approached the
passenger side. Trooper Landry observed
that the small green bag at the defendant's feet was no longer visible. He asked the defendant to step out of the
automobile, and the defendant complied.
Landry asked King what he had under his jacket and reached his hand
toward the defendant's midriff. King
pushed Landry's hand away and said that he had nothing there. Having felt what he believed to be a bullet‑proof
vest,
Trooper Landry drew his gun and ordered the defendant to put his
hands on his head. Again, the trooper
reached near the defendant's belt, and again the defendant pushed his hand
away.
At this
point, the driver jumped out of the station wagon and began crouching alongside
the station wagon back and forth, periodically popping his head up. Landry then backed the defendant up by the
collar of his coat, keeping the defendant between himself and the driver. The driver moved to the rear of the station
wagon, pointed a weapon, and fired three times.
Trooper Landry pulled the defendant down and removed a loaded nine
millimeter automatic pistol (FN8) from the defendant's belt in the same place
the trooper had observed the defendant's hand.
The defendant was handcuffed, and the trooper turned his attention
toward the station wagon. Trooper Crosby
was moving to a position to return the driver's fire. Although called upon to drop his weapon, Laaman fired two more shots and ran into the nearby
woods. Trooper Landry then dragged the
defendant, who refused to stand up, out of the line of fire. [389
Mass. 239] Several additional State
troopers arrived within minutes after Trooper Crosby radioed for
assistance. (FN9)
King was
taken to the Foxborough barracks. A search of the defendant's person at the
barracks produced (1) a bullet‑proof vest, (2) a license with a
photograph of King, bearing the name of William Gray, (3) almost $1,600 in
cash, and (4) a fully loaded ammunition clip fitting the confiscated
pistol. After the defendant was
transported to the barracks, troopers at the scene searched the vehicle. They found a large duffel bag in the rear of
the station wagon and opened it. It
contained firearms and ammunition. (FN10) A later search of the vehicle at State police
headquarters revealed the small green bag under the front passenger's
seat. It also contained weapons. (FN11)
Additional items were found in the glove compartment. (FN12)
1. Standing. We consider first the Commonwealth's
challenge to the standing of the defendant to move to suppress the evidence
seized.
[389 Mass. 240] [2] In order to have standing to contend that a search violates a
constitutionally protected interest, the defendant must show a violation of his
constitutional rights and not those of another.
See Goldstein v. United States,
316 U.S. 114, 121, 62 S.Ct. 1000, 1004, 86 L.Ed. 1312 (1942).
The judge concluded that the defendant did not have a proprietary or possessory interest in the vehicle or the objects seized,
and that he did not have a legitimate expectation of privacy with respect to
the vehicle. See Rakas v. Illinois, 439 U.S. 128, 147‑149,
99 S.Ct. 421, 432‑433, 58 L.Ed.2d 387
(1978). Therefore, the judge concluded
that the defendant did not establish the necessary interest in
the vehicle or the property subsequently seized from the vehicle and, hence,
did not have standing to seek to suppress such evidence. See
United States v. Salvucci, 448 U.S. 83, 92, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619 (1980). The Commonwealth argues that the record
warrants this finding.
[3] The
judge did not have the benefit of this court's opinion in Commonwealth v. Podgurski, 386 Mass.
385, 436 N.E.2d 150 (1982). In the wake
of the confusion created by the abolition of the "automatic standing"
rule of Jones v. United States, 362
U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), we had
to decide under what circumstances occupants of a vehicle may entertain a
legitimate expectation of privacy. (FN13) See Rakas v. Illinois, supra, 439 U.S. at 143‑144
& n. 12, 99 S.Ct. at 430‑431 & n.
12. We stated "that Rakas should
not be read to deprive a 'mere' passenger of standing to object to a search
where, but for his lack of a property interest in the vehicle, his situation is
otherwise identical to that of the owner, who has the requisite standing."
Commonwealth v. Podgurski, supra, 386
Mass. at 392, 436 N.E.2d 150. Thus, the
defendant has standing if he, as an occupant of the station wagon, had a legitimate
expectation of privacy.
While we
have recognized that an automobile affords a diminished legitimate expectation
of privacy in comparison [389 Mass.
241] to other property, we have held
that such an expectancy exists in areas otherwise free from observation except
by physical intrusion. Commonwealth v. Podgurski,
supra at 389, 436 N.E.2d 150.
"[T]hese places must include at least the
trunk, the glove compartment, closed containers in the interior, and in most
cases, the area under the seats." Id. The objects which King has been charged to
possess illegally were found in closed bags and the glove compartment. There is no claim that these objects were
contraband or evidence of criminal activity in plain view. See
Commonwealth v. Podgurski, supra at 386, 436
N.E.2d 150. We conclude that King has
standing to challenge the admissibility of the seized evidence.
[4] 2. Violation of the defendant's Fourth
Amendment rights. There is no
dispute that the defendant was seized and the car was searched. The trooper's repositioning of his cruiser
blocked the station wagon in place. Such
action constituted a show of authority and force that would lead a reasonable
person to conclude that he was not free to go. United States v. Brignoni‑Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975).
Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct.
1868, 1877, 20 L.Ed.2d 889 (1968). The
validity of the search and seizure must, therefore, be addressed. Although the parties have argued a number of
theories, we need only consider three questions to dispose of this appeal: (1) Was the policy of the State police
requiring investigatory checks of stopped vehicles during winter months
constitutional? (2) Was the scope of the
inquiry permissible? and (3) If the search was illegal, is the evidence seized
to be suppressed as the fruit of that illegality?
[5] a. The investigatory check. The investigatory check of a parked vehicle
during winter months, regardless of its limited purpose and brevity, is an
intrusion on privacy rights. Terry v. Ohio, supra at 17, 88 S.Ct. at 1877.
Thus, such a check constitutes a search within the meaning of the Fourth
Amendment and is required by the very purpose of the Fourth Amendment to be
reasonable. See Delaware v. Prouse, 440 U.S. 648, 653‑654,
99 S.Ct. 1391, 1395‑1396, 59 L.Ed.2d 660
(1979). The test for determining
reasonableness requires balancing the need to search against the invasion that
the search entails. Commonwealth v. Silva, 366
Mass. 402, 405, 318 N.E.2d 895 (1974).
See Delaware v. Prouse, supra, 440 U.S. at 654, 99 S.Ct.
at 1396.
[389 Mass. 242] [6] In most cases, the analysis depends on an initial
determination whether the stop was justified.
Here, the vehicle was stopped already, and the encounter was not
initiated in a traditional Terry
approach. Commonwealth v. Silva, supra, 366 Mass.
at 406 n. 1, 318 N.E.2d 895. The
initial inquiry here was for an entirely different purpose from the detection
or investigation of possible violations of criminal statutes or violations of
vehicle use regulations. See Marshall v. Barlow's, Inc., 436 U.S.
307, 312‑313, 98 S.Ct. 1816, 1820‑1821,
56 L.Ed.2d 305 (1978). Cf. Commonwealth v. Accaputo,
380 Mass. 435, 438, 404 N.E.2d 1204 (1980).
The purpose of the investigatory check was to determine whether there
was a need by the State trooper to render assistance or aid.
Winter
weather presents unique hazards to the driving public, e.g., carbon monoxide
poisoning from the vehicle's heater, freezing to death in a disabled vehicle,
and frozen gasoline lines or snowstorms causing disabled vehicles. The Commonwealth, through exercise of its
police power, has a strong interest in protecting the public from these
potentially life threatening hazards.
The very limited and focused inspection of a vehicle to determine
whether assistance or aid is required is a minimal intrusion on the occupant's,
or owner's, expectation of privacy. The
situation here does not involve a random stop causing concern, fright, or
anxiety. See Delaware v. Prouse, supra, 440 U.S. at
657, 99 S.Ct. at 1398. It does not involve a situation where a more
limited alternative is possible or where there is no constraint on the
discretion of the law enforcer. See United States v. Brignoni‑Ponce,
supra, 422 U.S. at 882‑883, 95 S.Ct. at
2580‑2581. The policy required
every stopped and parked car to be inspected.
(FN14) The policy limited the
intrusion only to that time period when the hazards arise.
In these
circumstances, we cannot say that the investigatory check was unreasonable or violative of the Fourth Amendment rights of the defendant.
[389 Mass. 243] b. Scope of inquiry. We must determine next whether the scope of
inquiry was permissible. See Commonwealth v. Loughlin,
385 Mass. 60, 63, 430 N.E.2d 823 (1982); Commonwealth v. Ferrara, 376 Mass. 502,
505, 381 N.E.2d 141 (1978).
[7][8][9]
An investigating officer's actions must "be based on specific and articulable facts and the specific reasonable inferences
which follow from such facts in light of the officer's experience."
Commonwealth v. Silva, supra, 366 Mass. at 406, 318 N.E.2d 895. In addition to making a stop and conducting
an inquiry, an officer may, if the facts warrant, take reasonable precautions
for his safety. Commonwealth v. Loughlin,
supra, 385 Mass. at 62, 430 N.E.2d 823.
A trained law enforcement officer may draw inferences and make
deductions that would elude a lay person.
See United States v. Cortez,
449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621
(1981). The evidence must be analyzed in
terms "understood by those versed in the field of law enforcement." Id.
at 418, 101 S.Ct. at 695. Cf.
Commonwealth v. Thibeau, 384 Mass. 762, ‑‑‑,
Mass.Adv.Sh.
(1981) 2401, 2403, 429 N.E.2d 1009.
Nevertheless, the standard is an objective one. Commonwealth v. Silva, supra. A mere hunch or "a gut feeling that
there was something definitely wrong" on the part of the officer is
insufficient to satisfy the requirement of specific and articulable
facts. The question is whether a reasonable
person in the trooper's position would be justified by some objective
manifestation to suspect that the defendant was, or was about to be, engaged in
criminal activity or would be warranted in the belief that his safety or the
safety of others was endangered. See United States v. Cortez, supra, 449
U.S. at 417, 101 S.Ct. at 694; Commonwealth v. Almeida,
373 Mass. 266, 271, 366 N.E.2d 756 (1977); Commonwealth v. Silva, supra.
[10] We
have no doubt that the trooper was permitted to ask for an explanation of the
defendant's presence under the circumstances.
The justification of his actions terminated, however, upon the driver's
responses. Resting in a parked vehicle
is the purpose for which the public highways provide a rest area. The response that the driver and the
defendant were coming from New Hampshire is appropriate, considering that the
rest area was on a major interstate highway connecting New Hampshire and
Massachusetts. [389 Mass. 244] Although we may assume that the trooper acted properly within the
limits of the investigatory check in asking for licenses and registration,
(FN15) it is not extraordinary for an individual licensed in one State to
borrow a car registered in another State.
The licenses were valid except for the expiration date, a fact to which
the trooper attached no significance.
The negative response to the "missing and wanted" check
supported the defendant's answers. The
trooper acknowledged that a new registration would not get a response from the
Registry. Thus, all we have are the
trooper's observations of a white man and a black man seated at 2 A.M. in a
station wagon in a rest area designated for travelers, parked on a cold
winter's night with the lights out and the engine running to provide heat. These facts were insufficient to justify a
further intrusion on the rights of the occupants of the vehicle. See
United States v. Cortez, supra, 449 U.S. at 417, 101 S.Ct.
at 694;
Commonwealth v. Loughlin, supra; Commonwealth
v. Ferrara, supra, 376 Mass. at 504‑505, 381 N.E.2d 141;
Commonwealth v. Silva, supra.
Once King
and the driver produced their licenses and a registration and the documents had
been verified as much as possible by the "missing and wanted" check
and the Registry check, any justifiable investigation was ended. There was no reasonable ground for further
investigation or precautions. Commonwealth v. Loughlin,
supra. See Commonwealth v. McCleery, 345 Mass. 151,
153, 186 N.E.2d 469 (1962).
[11] 3. Independent and intervening acts. Having concluded that the investigatory
inquiry was constitutional but that [389
Mass. 245] the troopers exceeded the
limited scope of proper inquiry, we turn next to consider whether the evidence
seized must be suppressed as the fruits of an unlawful seizure. See
Commonwealth v. Loughlin, supra, 385 Mass. at 63,
430 N.E.2d 823.
The judge
concluded that the evidence should not be suppressed because he decided that
the search was not unlawful. We reach
the same result, but on different grounds.
The judge based his conclusion on his ruling that the exit order and the
pat‑frisk were within the scope of the initial inquiry, a ruling with
which we have disagreed. We note that,
had this been a different situation in which the driver had not attacked the
investigating troopers, the evidence would be inadmissible as fruit of the
poisonous tree. What distinguishes this
case from cases such as Commonwealth v. Loughlin, supra, and
Commonwealth v. Ferrara, supra, is the driver's independent and intervening
action of attacking the troopers. These
acts broke the chain of causation and dissipated the taint of the prior
illegality. "Even if one assumes
the illegality ... there is no showing that the evidence sought to be
suppressed is an 'exploitation' of the primary illegality. There is no simplistic 'but for' analysis that
applies in this area of the law.... What
is present here is simply an attempt to suppress evidence which is a result of
allegedly wilful acts of misconduct" by the
driver of the vehicle. Commonwealth v. Saia,
372 Mass. 53, 58, 360 N.E.2d 329 (1977).
Accord People v. Townes, 41 N.Y.2d 97, 102, 390 N.Y.S.2d 893, 359 N.E.2d
402 (1976).
The attack
by the driver rendered the troopers' subsequent actions appropriate. The chain between the evidence seized and the
illegal scope of inquiry was broken by the driver's wrongful actions. Up to the occurrence of those actions, no
evidence had been discovered or seized.
The evidence was not discovered as a result of police misconduct, but
rather as the result of the driver's assault on the officers. After the driver shot at the troopers, a new
situation arose creating probable cause to arrest the defendant (and the
driver) and to conduct a search of the defendant incident to that arrest. There was probable cause to believe that the [389 Mass. 246] defendant was in possession of a weapon when the driver began to
fire at the troopers. It would be
reasonable for the troopers to conclude that the defendant was a part of the
attack and was armed also. Thus, the
arrest of the defendant was valid, and the search of his person incident to the
arrest was justified under both Federal and State law. Chimel
v. California, 395 U.S. 752, 756, 89 S.Ct. 2034,
2036, 23 L.Ed.2d 685 (1969). Commonwealth v. Bowden, 379 Mass. 472,
477, 399 N.E.2d 482 (1980). G.L. c. 276, § 1.
Cf. Commonwealth v. Saia, supra, 372 Mass. at 57, 360 N.E.2d 329.
[12]
Additionally, there were probable cause and exigent circumstances justifying a warrantless search of the vehicle. See
Commonwealth v. Antobenedetto, 366 Mass. 51, 57,
315 N.E.2d 530 (1974). Cf. Commonwealth v. Marchione,
384 Mass. 8, ‑‑‑, ‑‑‑, 422 N.E.2d 1362
(1981). (FN16) Warrantless
searches of automobiles are permissible when exigent circumstances exist and
the law enforcement officers have probable cause. See
Chambers v. Maroney, 399 U.S. 42, 50‑51, 90
S.Ct. 1975, 1980‑1981, 26 L.Ed.2d 419 (1970);
Carroll v. United States, 267 U.S. 132, 155, 45 S.Ct.
280, 286, 69 L.Ed. 543 (1925). See
Commonwealth v. Haefeli, 361 Mass. 271, 277‑278,
279 N.E.2d 915 (1972); Haefeli v. Chernoff, 526 F.2d 1314, 1316‑1318 (1st
Cir.1975). When the armed driver emerged
from the vehicle and commenced firing at the troopers, and when the defendant
had to be dragged out of the line of fire, and then, upon arrest, the defendant
was found to be armed, we conclude that there was probable cause to believe
that contraband or firearms were [389
Mass. 247] located in the
vehicle. The troopers at the scene were
thus faced with a vehicle containing an agitated Doberman pinscher dog, an
armed driver who fled into the woods and could not be found, and an
uncooperative defendant who had been armed.
It was somewhere between 2 and 3 A.M., in a rest area of a major
interstate highway. There was not only
probable cause to search the vehicle, but also ample showing of exigent
circumstances to justify an immediate, warrantless
search under the authority of Chambers v.
Maroney, supra, and Carroll v. United States, supra.
Furthermore,
as the United States Supreme Court has recently made clear, a search of the
vehicle and its contents, including the green bag and the duffel bag, was
within the proper scope of the search. "If probable cause justifies the
search of a lawfully stopped vehicle, it justifies the search of every part of
the vehicle and its contents that may conceal the object of the search."
United States v. Ross, 456 U.S. 798, 825, 102 S.Ct.
2157, 2172, 72 L.Ed.2d 572 (1982). The
fact that part of the search of the vehicle occurred at the scene, and part of
the search occurred at police headquarters, is immaterial. Chambers v. Maroney,
supra. Cf. Cady v. Dombrowski, 413 U.S. 433, 447,
93 S.Ct. 2523, 2531, 37 L.Ed.2d 706 (1973).
Commonwealth v. Matchett, 386 Mass. 492,
509‑510, 436 N.E.2d 400 (1982).
We conclude
that, when the gunfight began, the troopers had probable cause to believe that
the defendant also had a weapon, that the vehicle probably contained firearms
or contraband, and, further, that there was the requisite nexus between the
items seized in the vehicle and the criminal conduct of the driver.
"Although
we must be vigilant to protect Fourth Amendment rights, the privileges of the
police in the specific circumstances of these cases should not be measured on
too fine a scale. The risk to the public
safety is a significant factor." Commonwealth v. Saia,
supra.
The ruling
of the trial judge denying the motion to suppress is affirmed. The case is remanded to the Superior Court
for further proceedings.
So ordered.
(FN1.) The evidence before the motion judge
was exclusively oral testimony. In such
circumstance, we will not substitute our judgment for the judge's findings of
fact absent clear error. See Commonwealth v. Moon, 380 Mass. 751,
755‑756, 405 N.E.2d 947 (1980).
There was no error in the judge's findings of fact in this case. We consider only the conclusions that he drew
from them and the correctness of his rulings of law.
(FN2.)
Prior to his appointment as a State trooper, the officer had been a town police
officer for four years.
(FN3.)
The judge found that the rest area is the only one located on the southbound
lane of Route 95 and is heavily used.
The rest area has been the subject of numerous complaints concerning
homosexual activities, larcenies, stolen cars, and harassment of persons using
the rest area. The officer personally
had made arrests at the rest area for disorderly conduct, operating under the
influence, operating after suspension of a driver's license, possession of
drugs, and possession of a dangerous weapon.
(FN4.)
The officer testified that he had very seldom seen black people in that rest
area during the last two and one‑half years. In fact, he testified that, of the few blacks
that he had seen, he had stopped and questioned one or two. He was unclear exactly when he noticed the
racial composition of the occupants of the station wagon.
(FN5.)
Subsequently, the defendant was identified as Christopher King. The driver was later identified as Jaan Laaman.
(FN6.)
The small print on the New York licenses indicated that a class 5 license did
not require a photograph. The officer
erroneously believed that all New York licenses had pictures. He apparently did not realize that the most
common class 5 New York license does not require a photograph. The license issued in the name of Salvatore
Bella had expired two weeks earlier. The
trooper attached no significance to this fact since he had not observed the
driver actually operating the vehicle.
(FN7.)
The defendant claims that this is the most likely explanation because the
registration was dated only nine days earlier.
(FN8.)
When the trooper subsequently examined the pistol, he found that it had one
live round in the chamber and thirteen live rounds in the magazine. The serial number had been obliterated from
the weapon.
(FN9.)
The two shots hit and penetrated each trooper's cruiser. One of the troopers fired twice in the
direction the driver was running. Other
officers searched the woods but never found the driver. He has not been apprehended.
(FN10.)
The blue duffel bag contained (1) a .45 caliber volunteer semi‑automatic
carbine with a magazine containing thirty live .45 caliber rounds, (2) a 12‑gauge
Ithaca 37 featherlight shotgun, pump action,
containing seven 12‑gauge live rounds in the magazine and one live round
in the chamber, and (3) sixteen 12‑gauge shotgun shells. The serial numbers of the firearms had been
obliterated.
(FN11.) The contents of the green bag were (1)
a .38 caliber Browning semi‑automatic pistol with two magazines, both
containing thirteen live cartridges and a live cartridge in the chamber, (2)
eleven loose .38 caliber cartridges, (3) a double‑edged dirk knife, (4) a
bag of a substance suspected of being marihuana (it was not), and (5) numerous
photo identifications of the driver with various names and a social security
card bearing the same name as one of the photographic identifications. The serial number on the Browning was also
obliterated.
(FN12.) The record compiled by the parties
does not contain the police report inventorying the items. Nevertheless, the parties stipulated that the
ruling by the judge will apply to all evidence seized from the vehicle, whether
or not specifically mentioned in the hearing or in the police report.
(FN13.)
It was not necessary in Commonwealth v. Podgurski, 386 Mass. 385, 436 N.E.2d 150 (1982), to
determine whether we should adhere under our State Constitution to the
"automatic standing" rule of
Jones v. United States, 362 U.S. 257, 80 S.Ct.
725, 4 L.Ed.2d 697 (1960). Id., 386 Mass. at 391 n. 11, 436 N.E.2d
150. The legitimate expectation of
privacy principle set forth in Rakas v. Illinois, supra, answers the dilemma
here. See Commonwealth v. Podgurski, supra.
(FN14.) The trooper had checked every parked
or stopped car that he had come upon during his patrol on that particular
night. He had no opportunity to check
the van before it left the rest area.
(FN15.) See
Commonwealth v. Loughlin, 385 Mass. 60, 62, 430
N.E.2d 823 (1982) (justifiable inquiry complete on production of valid license
and registration); Commonwealth v. Thibeau,
384 Mass. 762, ‑‑‑ ‑ ‑‑‑, Mass.Adv.Sh. (1981)
2401, 2402‑2403, 429 N.E.2d 1009 (no threshold inquiry creating
reasonable suspicion); Commonwealth v. Bacon, 381 Mass. 642,
644, 411 N.E.2d 772 (1980) (if valid stop, may check license and registration);
Commonwealth v. Ferrara, 376 Mass. 502, 505, 381 N.E.2d 141 (1978)
(if valid stop, no basis for further investigation if valid license and
registration are produced); Commonwealth v. Almeida, 373 Mass. 266,
270, 366 N.E.2d 756 (1977) (legitimacy of initial inquiry); Commonwealth v. Riggins,
366 Mass. 81, 87, 315 N.E.2d 525 (1974) (questioning disclosed occupants had no
identification); Commonwealth v. McCleery,
345 Mass. 151, 153, 186 N.E.2d 469 (1962) (license and registration
verification only are justifiable during routine check).
(FN16.) We do not rely on the concept of a
search incident to an arrest in our determination of the validity of the warrantless automobile search. See
Commonwealth v. Toole, 389 Mass. 159, 448 N.E.2d 1264 (1983), holding that,
under G.L. c. 276, § 1, a warrantless
search of a vehicle incident to the arrest of the occupant cannot be justified,
although such a search may be valid under Federal law. We note also that Toole, supra, could be distinguished by the failure of the
Commonwealth in that case to establish probable cause to search the
vehicle. See Commonwealth v. Moon, 380 Mass. 751, 760, 405 N.E.2d 947
(1980). As stated in the text, the case
at bar involves not only probable cause to arrest the defendant, and to search
his person incident to that arrest, but also independent probable cause to
search the vehicle and exigent circumstances justifying a warrantless
search of the vehicle. In short, on
these facts, even if there had been no arrest (e.g., if the defendant, like his
companion, escaped apprehension), the search of the vehicle would be valid.