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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. Ling, 370
Supreme Judicial Court of Massachusetts,
Argued
Decided
Kenneth D. Weiss,
Helen M. Doona, Asst.
Dist. Atty., for the Commonwealth.
Before [370
REARDON, Justice.
The
defendant Kenneth H. Ling was found guilty, in a case subject to G.L. c. 278, ss 33A‑‑33G,
of possession of burglarious instruments and attempting to break and enter in
the nighttime. The defendant John E. Ransett was convicted of the same two crimes and also of
operating a motor vehicle without a license.
The issue before us is whether the trial judge was in error in denying
the defendants' motions to strike the admission in evidence of a crowbar and
two screwdrivers seized after police officers made an investigatory stop of a
motor vehicle in which the defendants were riding, and conducted a flashlight
examination of the vehicle which revealed the tools lying in plain view on the
floor of the car.
We recite
the pertinent facts which the jury could have found. On April 18, 1972, aabout
3 A.M., Brockton police officers John P. DeChellis
and James J. Casey had commenced a patrol in their police cruiser when they
received a radio call from a police sergeant reporting the sounding of the
burglar alarm at a cafe where the front
door appeared to have been forced open.
The sergeant sought assistance.
While on their way to, and approximately one mile from, the cafe the officers observed a motor vehicle headed
in a direction opposite to that in which they were traveling. DeChellis
recognized the vehicle as the black Chevrolet station wagon owned by a woman
known to him, and noted that the driver was a blond‑haired male. In the belief that it was stolen, the police
made a quick U‑turn and pursued the station wagon. When the defendants refused to stop, a chase
ensued for about a quarter of a mile, which terminated when the station wagon
made a sharp righthand turn into a dead‑end
area. The driver leapt from the car and
tried to escape but was apprehended by Officer DeChellis. DeChellis
recognized the driver as the defendant[370
Mass. 240] Ransett and, having
previous knowledge that he had no driver's license, asked him if he now had
one, to which question he received a negative response. He returned with Ransett
to the station wagon, having placed him under arrest. He then asked the defendant Ling, and a third
defendant not a party to this appeal, David Moore, to get out of the car, which
they did. Officer DeChellis
next shone his flashlight into the interior of the car and saw a two‑foot
crowbar and two large yellow screwdrivers on the floor of the front seat of the
car. Recalling that the report of the
attempted burglary indicated that the front door of the cafe had been 'forced outward,' he seized these
tools. There was no further search of
the station wagon. On request, the
defendants then accompanied the officers to the cafe where Officer DeChellis
found marks on the door jamb matching the size and shape of the tools he had
found. Samples of the paint chips on the
jamb were subsequently analyzed by a State chemist who testified that they were
miscroscopically consistent with paint chips found on
the crowbar and the screwdrivers. The
denial of the trial judge of the defendants' motions to strike evidence was
based on G.L. c. 41, s 98, and the doctrine of 'plain
view.'
[1]
1. As to the stopping of the car in
which the defendants were riding, we have referred frequently to the rubric which
governs the validity of such an intrusion.
'(T)he police officer must be able to point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.' Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). The Terry case indicated that the assessment
of the intrusion in light of the Fourth Amendment is based on the answer to the
question, '(W)ould the facts available to the officer
at the moment of the seizure or the search 'warrant a man of reasonable caution
in the belief' that the action taken was appropriate.' Id. at 21‑‑22, 88 S.Ct. at 1880.
General Laws c. 41, s 98, as amended by St.1967, c. 368, s 1, provides
in part that police officers 'may examine all persons abroad whom they have
reason to suspect of unlawful design, and may demand of them their business
abroad and whither they are going.' In
the [370 Mass. 241] leading case of Commonwealth v. Lehan, 347 Mass. 197, 204, 196 N.E.2d 840 (1964), we held
this section to permit constitutionally a brief threshold inquiry where
suspicious conduct gives an officer reason to suspect that an individual has
committed, is committing, or is about to commit a crime. The justification for initiating, and the
reasonableness of the scope of, a threshold inquiry are factors to be analyzed
in each case on its facts. The
principles applicable to the case at hand have been delineated further in
Commonwealth v. Silva, ‑‑‑ Mass. ‑‑‑, 318
N.E.2d 895 (1974), (FNa) with cases cited, and
require no further definition here. It
suffices to say that the receipt of information by the officers of a reported
break, the observation of the station wagon heading away from the scene of the
reported break, the recognition by Officer DeChellis
of the station wagon, the knowledge of DeChellis that
the owner of the station wagon was a woman of his acquaintance, the observation
that the driver of the wagon was a man, and the further knowledge of DeChellis to which he testified that the ignition system of
this particular make of station wagon was easy to hot‑wire combined to
satisfy the requirements of the Terry case, as well as to bring the intrusion
of the officers under the appropriate statutory language of G.L.
c. 41, s 98. There can be no
constitutional complaint with respect to the action of the police officers in
stopping this vehicle in light of the foregoing facts.
[2]
2. Nor was there error committed in the
admission of the result of the flashlight examination. As we said in Commonwealth v. Cavanaugh, ‑‑‑
Mass. ‑‑‑, 317 N.E.2d 480 (1974), (FNb)
'Like many other courts, we have held that the use of a flashlight to look into
the interior of a car in . . . ('threshold inquiry') situations does not amount
to a search at all.' See Commonwealth v.
Haefeli, 361 Mass. 271, 280, 279 N.E.2d 915 (1972)
vacated sub nom. Haefeli
v. Chernoff, 394 F.Supp.
1079 (D.Mass.), rev'd 526
F.2d 1314 (1st Cir. 1975); Commonwealth v. LaBossiere,
347 Mass. 384, 385‑‑386, 198 N.E.2d 405 (1964). In Commonwealth v. Cavanaugh, supra, ‑‑‑
Mass. at ‑‑‑, 317 N.E.2d at 484, (FNc)
we referred to a boltcutter and hundreds of quarter‑size
slugs discovered on the seat and floor of an automobile at nighttime during [370 Mass. 242] a flashlight examination of the vehicle, stating that they hardly
qualified as "personal effects, which the Fourth Amendment traditionally
has been deemed to protect," quoting from Cardwell v. Lewis, 417 U.S. 583,
591, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). In our view the crowbar and the screwdrivers
observed by Officer DeChellis in this case have the
same status. They qualify for seizure
under the 'plain view' doctrine. DeChellis had a prior justification for the intrusion which
brought the crowbar and the screwdrivers into plain view, and in these
circumstances it was permissible for him to seize those tools as incriminating
evidence. Coolidge v. New Hampshire, 403
U.S. 443, 464‑‑473, 91 S.Ct. 2022, 29
L.Ed.2d 564 (1971).
Commonwealth v. Anderson, ‑‑‑ Mass. ‑‑‑,
318 N.E.2d 834 (1974). (FNd)
3. Since we are of opinion that the stopping of
the car, the flashlight surveillance, and the seizure of the burglarious tools
were proper in light of the considerations just discussed, we do not discuss
the alternative question whether probable cause existed to search the car and
whether there were exigent circumstances, except to note that in our view both
did exist.
[3]
4. Finally, the defendant Ransett asserts that his admission to Officer DeChellis that he did not possess a driver's license should
have been suppressed or struck as the 'poisoned fruit' of illegal police
activity, namely the stop of the car Ransett was
driving. The record does not reveal any
exception by Ransett to the admission of this
evidence. Therefore this issue is not
properly before us on appeal. See
Commonwealth v. Underwood, 358 Mass. 506, 509‑‑510, 265 N.E.2d 577
(1970), and cases cited. We simply note
that in light of our holding that the stop of the car was proper the defendant Ransett's position is without merit.
Judgments
affirmed.
FNa. Mass.Adv.Sh. (1974)
2163, 2167‑‑2168.
FNb. Mass.Adv.Sh. (1974) 1473, 1477.
FNc. Mass.Adv.Sh. (1974) at 1478.
FNd. Mass.Adv.Sh. (1974) 2151, 2162.