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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. Loughlin, 385
Supreme Judicial Court of Massachusetts, Worcester.
Argued
Decided
Lynn Morrill Turcotte,
Asst. Dist. Atty., for the Commonwealth.
Michael F. Natola,
Everett, for defendants.
Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.
WILKINS, Justice.
We
consider again the propriety of a police search of a motor vehicle. The defendants were convicted of possession
of a controlled substance (marihuana) with intent to distribute. In their appeals, they challenge the denial [385
On the
defendants' postconviction appeal, the
We
summarize the evidence presented at the hearing on the motions to
suppress. Shortly before 1 a. m. on
November 16, 1977, a State police trooper observed a vehicle with its distress
signals flashing in the breakdown lane of Route 86, a six‑lane divided
highway in a poorly lit, deserted area of Sturbridge. He pulled his cruiser up behind the vehicle,
a Chevrolet El Camino with a flatbed instead of a rear seat. The flatbed was covered by a canvas, loose at
one corner. The defendant Loughlin was standing at the right rear of the vehicle and,
as the cruiser stopped, Loughlin walked quickly
toward the open passenger door and entered the vehicle. The defendant Searles,
who was sitting in the driver's seat, quickly ducked out of sight. He then jumped from the vehicle and came
rapidly toward the trooper. Searles gave the trooper his license and registration and,
at the officer's[385 Mass. 62]
bidding, returned to his seat.
The trooper asked Loughlin for
identification. He gave his name and
address but did not produce other identification. The trooper looked around outside the
vehicle. He then ordered Loughlin from the vehicle and "pat‑frisked"
him. In response to questioning, Loughlin said that bulges in his pockets were
cigarettes. The "cigarettes"
turned out to be wads of money. The
trooper then ordered Searles out of the car and
commanded the two men to lean "spread eagle" over the front of the
vehicle. He asked if there were any
weapons in the vehicle. Searles said, "No weapons. You can check." The trooper searched the inside of the
vehicle and found no weapons. He then
asked if there were weapons in the back of the vehicle. Searles said,
"No, you can check." In the
course of a search, the marihuana was found.
The
principles expressed in Commonwealth v. Ferrara, 376 Mass. 502, 505, 381 N.E.2d
141 (1978), are controlling, as the Appeals Court ruled. We have no doubt that the trooper was
entitled to make an initial inquiry in the circumstances. He was entitled as well, if the facts
warranted a reasonable person to believe that the defendants were armed and
presently dangerous, to take reasonable precautions for his safety. However, once Searles
had produced a valid license and registration and Loughlin
had identified himself, any justifiable investigation was complete. "(T)here was no basis for further
interrogation and no need for further protective precautions.... (T)he record suggests no purpose in ordering
(the) occupants out of the car ... (and) no reason appears why they should not
have been permitted to continue on their way." Id.
See Commonwealth v. McCleery, 345 Mass. 151,
153, 186 N.E.2d 469 (1962). Compare
Commonwealth v. Farmer, ‑‑‑ Mass.App.
‑‑‑, Mass.App.Ct.Adv.Sh. (1981) 1794, 428 N.E.2d 143 (exit order held
proper because it occurred before justified threshold inquiry). ([FN3])
[385 Mass. 63] Because the evidence in issue was traceable to the illegal pat‑frisk
of Loughlin and the illegal orders that the defendants leave
the car, it must in these circumstances be suppressed as the "fruit of the
poisonous tree." See Commonwealth
v. Ferrara, supra, 376 Mass. at 505, 381 N.E.2d 141. The record does not show sufficient
attenuation of the illegal search of Loughlin and the
illegal seizure of each defendant to warrant a finding that Searles's
consent was an act of free will, unaffected by the taint of the
illegality. See Brown v. Illinois, 422
U.S. 590, 603‑604, 95 S.Ct. 2254, 2261‑2262,
45 L.Ed.2d 416 (1975). ([FN4]) The trooper did not advise Searles of his right to
[385 Mass. 64] refuse to consent
to the search. No significant time
elapsed between the illegality and the "consent." No intervening event occurred that dissipated
the effect of the illegality.
The
findings of the trial judge are set aside, the judgments are reversed, and
judgments shall be entered for the defendants.
([FN5])
So
ordered.
HENNESSEY,
Chief Justice (concurring).
In light
of the careful analysis in the opinion of the court, this concurring opinion
would be surplusage if it were not for the expression
of the dissenters that the court here unnecessarily expands the protection of
the Fourth Amendment. This is not so;
the result reached by this court follows the careful limits mandated by the
Supreme Court of the United States.
Probably most judges share the dissenters' disappointment and
frustration in cases like this, when evidence procured by police "hunch"
or intuition must be suppressed.
Nevertheless, responsive to the clear teachings of the Supreme Court, we
should observe that the Fourth Amendment protects not only the defendants in
this case but also the many other persons who that evening stopped their
vehicles at the side of high‑speed highways with distress lights flashing
and, unlike the defendants, had no contraband concealed in their vehicles.
Several
principles arise out of the Fourth Amendment, as construed by the United States
Supreme Court. "Probable
cause" is the pivotal principle.
Only if there is probable cause for the police to believe that the
defendant has committed[385 Mass. 65]
or is committing an offense may a search warrant be issued or, in some
instances, may a search be conducted without a warrant. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Commonwealth v. Haas, 373 Mass. 545, 555, 369
N.E.2d 692 (1977), and cases cited. See Chimel v. California, 395 U.S. 752, 89 S.Ct.
2034, 23 L.Ed.2d 685 (1969); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). If probable cause does not appear, but there
are "articulable facts" of a suspicious
nature which permit the police to stop and question a person, the police may do
a "pat‑down" search during the questioning. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879‑1880, 20 L.Ed.2d 889 (1968). This pat‑down is solely for the
protection of police during the confrontation, and is directed solely toward
concealed weapons.
The
Commonwealth does not contend, nor could it reasonably contend, that probable
cause was shown in the early stages of this confrontation. Nevertheless, as the opinion of the court
here demonstrates, the police procedure, early on, was not merely for the
protection of the officer during the questioning of the two men, but was
clearly a search for evidence.
Commonwealth v. Almeida, 373 Mass. 266, 366 N.E.2d 756 (1977), upon
which the dissenting Justices rely, is markedly distinguishable from this
case. In the sequence of events in that
case the officer was not exceeding his limited self‑protection privileges
when he discovered the contraband. Our
opinion in Commonwealth v. Silva, 366 Mass. 402, 318 N.E.2d 895 (1974), upon
which the dissenters also rely, likewise emphasizes the limited self‑protection
aspect of a "pat‑down" search in the absence of probable cause
to arrest. I think it is clear from
Almeida and Silva, and related cases, that the court is vitally concerned with
preserving the right of policemen to stop and frisk for weapons in order to
ensure their safety. It is just as plain
that the stop and frisk privileges must not be used as a pretext to justify
full searches, in the absence of probable cause and contrary to the Fourth
Amendment.
Finally,
the dissenters express their conviction that illegally obtained evidence should
not be suppressed, but rather that the overreaching police should be
disciplined. This thought relates to a
debate of long‑standing, and many
[385 Mass. 66] persons, probably
including many judges, agree with the dissenters' point of view. Nevertheless, once more, this court has no
option; the exclusion of evidence in such cases has been mandated by the
Supreme Court.
NOLAN,
Justice (dissenting, with whom LYNCH, Justice, joins).
Because I
believe that the trial judge correctly denied the defendants' motions to
suppress evidence, I dissent from the opinion of the court.
I do not
agree that Commonwealth v. Ferrara, 376 Mass. 502, 381 N.E.2d 141 (1978), is dispositive of the case.
The actions of the defendant in Ferrara, prior to the time the police
stopped his vehicle, were considerably less suspicious than those actions
involved here. In Ferrara, the defendant
went three times into a cleaning establishment that was under police surveillance
and then he drove away in his automobile.
The police followed closely in an unmarked automobile and an occupant of
the defendant's vehicle looked back at them.
When the defendant made a sharp turn on the street, the police stopped
the vehicle. That was the extent of the
defendant's suspicious activity. This
court held that once the defendant had produced a valid license and
registration there was no basis for further interrogation and no need for
further protective precautions. Id. at
505, 381 N.E.2d 141. The majority also
enlist support from Commonwealth v. McCleery, 345
Mass. 151, 186 N.E.2d 469 (1962). That
case is inapposite because the vehicle in McCleery
was stopped for a routine check.
The
defendants' actions in the present case were more suspicious than those
involved in Ferrara or McCleery and invited more
scrutiny. It was about 1 a. m. when the
vehicle was observed in the breakdown lane of a highway, with its distress
signals flashing, in a deserted section of Sturbridge. As the State police cruiser approached, the
defendant Loughlin, who had been standing at the right
rear of the vehicle, walked quickly to the passenger door and got into the
vehicle. The defendant Searles, who was sitting in the driver's seat, quickly
ducked out of sight. He then jumped [385 Mass. 67] from the vehicle and came rapidly toward the State police
trooper. I think it is clear that these
movements could reasonably have led the trooper to suspect criminal activity on
the part of the defendants. A case closer
to the mark is Commonwealth v. Almeida, 373 Mass. 266, 366 N.E.2d 756
(1977). In Almeida this court held that
the police were warranted in searching the defendant's vehicle for weapons
because the defendant was sitting in an automobile parked in a high crime
district late at night with the car engine running and the headlights turned
off.
We have
consistently sustained the right of the police to make a threshold inquiry
where suspicious conduct gives the police reasonable ground to suspect criminal
activity on the part of a defendant. See
Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895 (1974), and cases
cited. We have also held consistently
that, once a "stop" has been effected, a limited protective search
for weapons is justified if the circumstances support the reasonable belief of
the police that their safety is threatened during the "stop." Commonwealth v. Almeida, supra 373 Mass. at
272, 366 N.E.2d 756; Commonwealth v. Silva, supra 366 Mass. at 405, 318 N.E.2d
895, and cases cited.
In the
case before us, the lateness of the hour, the deserted area, and the erratic
behavior of the defendants justified the trooper's belief that his safety might
be threatened. The court lays great
stress on the importance of the order of events. It seems to conclude that whatever suspicion
was engendered by the defendant's walking hurriedly to his vehicle's open
passenger door as soon as the police cruiser stopped and by Searle's peculiar
conduct wound down to nothing once the defendant gave the trooper his name and
address. Apparently, the court rules
that this gesture of identification by the defendant (though unsupported by any
written verification and coming as it did only seconds after the suspicious
behavior) acts as a catharsis. This
"order of events" approach does not square with reality. The trooper's impression of suspicious
conduct by the defendant before the defendant furnished his name and address
has a continuing effect. It perdured to that point in time when the trooper [385 Mass. 68] issued his order to exit the vehicle. It was not necessarily dissipated by a rite
of passage such as responding orally with a name and address. The court suggests that this identification
has the talismanic effect of removing all need for "protective precaution." This approach does not ring true in the real
world of a trooper faced with two men acting suspiciously at 1 a. m. See Pennsylvania v. Mimms,
434 U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331
(1977). Accordingly, in these
circumstances he was justified in ordering Loughlin
out of the vehicle and pat‑frisking him to determine whether he was
armed. Terry v. Ohio, 392 U.S. 1, 27, 88
S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968). Upon discovering a large sum of money in
large and small denominations on Loughlin, the
trooper suspected that a robbery had been committed, which justified an inquiry
about the possible existence of weapons in the vehicle. When the trooper inquired if there were
weapons in the vehicle, Searles said, "No
weapons. You can check." By extending this permission to search, Searles validly consented to the ensuing search of the
vehicle. See Commonwealth v. Cantalupo, 380 Mass. 173, ‑‑‑, Mass.Adv.Sh. (1980)
741, 745, 402 N.E.2d 1040. The trial
judge found that the search was consensual.
That finding is supported by the evidence presented at the hearing on
the motion to suppress.
I maintain
that the initial "stop," the ordering of the defendants out of the
vehicle, and the subsequent pat‑down of the defendants did not infringe
on any of the defendants' constitutional rights but, instead, were justified by
the trooper's reasonable appraisal of the situation. I further hold that the subsequent search of
the vehicle for weapons was conducted with valid consent. Therefore the judge correctly denied suppression of the fruits of
that search. I would affirm the
defendants' convictions.
I cannot
resist adding an epilogue. For twenty
years, State courts have been required to accommodate their jurisprudence to an
exclusionary rule which was fashioned with the hope that more scrupulous
attention would be paid to the precious rights of the Fourth Amendment to the
United States Constitution. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct.
1684, 1691, 6 L.Ed.2d 1081 (1961). We
can only applaud the zeal with which these
[385 Mass. 69] rights are
protected. However, the wisdom of a rule
excluding evidence instead of punishing the violator of these rights is, at the
very least, questionable. State courts
are bound to follow this rule but we are not required to expand it as the court
in this case is doing.
(FN1.) Commonwealth v. Thomas R. Searles.
(FN2.)
In argument before us, the Commonwealth conceded that, if the motions to
suppress were allowed, the defendants would be entitled to judgments in their
favor. For this reason, unlike the
Appeals Court where the concession apparently was not made, we order judgments
for the defendants rather than simply reversing the judgments and setting aside
the judge's findings.
(FN3.)
On the basis of the suspiciousness of the defendants' actions, the dissent
argues that the officer's exit orders were proper. The propriety of those orders, however, does
not rise and fall with the level of suspiciousness; no amount of suspicion
short of probable cause could save an exit order that follows the justifiable
threshold inquiry. The relevant
distinction between the Almeida and Ferrara cases is not in degree of
suspiciousness. It is in the order of
events.
We note
further that had the exit orders preceded the inquiry, we would have had to
remand the matter for further findings of fact regarding such issues as the
reasonableness of the trooper's suspicions and his need for precautions, before
validating the search. The dissent
shortcuts this procedure by making findings, favorable to the Commonwealth, on
these issues. Moreover, it decides
without discussion other points raised in the defendants' appeals.
Contrary
to the views of the dissent, the suspicions of criminal activity in the Ferrara
case were at least as warranted as those in this case. The decision in this case involves no
expansion of the exclusionary rule but rather its evenhanded application. Doubt about the wisdom of the views of the
Supreme Court of the United States on the subject of illegal searches and
seizures, expressed in the last paragraph of the dissent, hardly justifies
ignoring those views when Fourth Amendment issues are raised in this court.
(FN4.) The principles governing the
admissibility of a confession given after an illegal arrest are appropriately
applied to determine the validity of "consent" given after an illegal
search or seizure. See, e.g., United
States v. Perez‑Esparza, 609 F.2d 1284, 1288‑1291 (9th Cir. 1979)
(suppressed); United States v. McCaleb, 552 F.2d 717,
721 (6th Cir. 1977) (suppressed); United States v. Bazinet,
462 F.2d 982, 989‑990 (8th Cir.), cert. denied sub nom. Knox v. United
States, 409 U.S. 1010, 93 S.Ct. 453, 34 L.Ed.2d 303
(1972) (remanded with instructions to trial court to consider what have since become
some of the Brown factors); State v. Wrightson, 391
A.2d 227, 229 (Del.Super.Ct.1978) (suppressed); State v. Mitchell, 360 So.2d
189, 191 (La.1978) (suppressed) (4‑3 opinion); Commonwealth v. Collini, 264 Pa.Super.Ct. 36, 46‑48,
398 A.2d 1044 (1979) (suppressed). See
also 2 W. LaFave, Search and Seizure s 8.2(d) (1978
and Supp.1981); 3 W. LaFave, s 11.4(d), at 644; W. Ringel, Searches and Seizures, Arrests and Confessions, s
9.3(b)(6) (2d ed. 1980).
(FN5.) At the hearing on the motions to
suppress, the Commonwealth did not challenge the standing of the defendant Loughlin, the passenger, to object to the search of the
vehicle. Presumably, the parties assumed
automatic standing under Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Where the issue of standing was not raised at
the trial court level, we decline to give retroactive effect to opinions of the
United States Supreme Court that have established new principles governing
standing for Federal constitutional purposes.
See Rawlings v. Kentucky, 448 U.S. 98, 105‑106, 100 S.Ct. 2556, 2561‑2562, 65 L.Ed.2d 633 (1980); United
States v. Salvucci, 448 U.S. 83, 95, 100 S.Ct. 2547, 2554‑2555, 65 L.Ed.2d 619 (1980).