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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. Mamacos, 409
Supreme Judicial Court of Massachusetts, Essex.
Argued
Decided
S. Jane Haggerty, Asst. Dist. Atty., for Com.
Hugh Samson,
Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY,
JJ.
O'CONNOR, Justice.
A criminal
complaint issued against the defendant charging him with two counts of homicide
by negligent operation of a motor vehicle in violation of G.L.
c. 90,[409 Mass. 636]
§ 24G (1988 ed.), and one count of operating a motor vehicle negligently
so as to endanger in violation of G.L. c. 90, § 24
(1988 ed.). The complaint also charged
the defendant with certain civil infractions, namely operating a motor vehicle
without an inspection sticker in violation of G.L. c.
90, § 20 (1988 ed.), operating a motor vehicle with defective brakes and
handbrake in violation of G.L. c. 90, § 7 (1988 ed.),
and altering the height of a motor vehicle in violation of G.L.
c. 90, § 7P (1988 ed.). After two
mistrials, the defendant filed a motion to suppress the results of tests done
to his vehicle and all items removed from his vehicle on the ground that that
evidence was obtained without a search warrant.
A judge allowed the defendant's motion.
A single justice of this court allowed the Commonwealth's application
for interlocutory appeal. The case was
then entered in the
We summarize
the facts stipulated in connection with the suppression hearing as
follows. On
On October
19 or 20, the defendant requested that his truck be returned to him. On October 20, after that request had been
made, Streeter conducted an external examination of the truck's braking system. After doing so, he instructed an employee of
Amesbury Coach to tow the truck with all four wheels on the road surface so
that he could test the braking system.
Following that, he instructed the employee to elevate the front wheels
so that only the rear wheels were [409
Mass. 637] touching the road
surface, and he again tested the truck's braking system.
Next,
between October 20 and 22, Streeter returned to the scene of the accident with
the defendant's truck and the scooter that had been involved in the
accident. He placed the vehicles
together as closely as he could to the way he had found them. Streeter then attached the entire mass to a Chitilin Scale and towed it down the road in an effort to
discover the force necessary to overcome the friction with the road surface.
On October
22, after examining the exterior of the defendant's truck visually, Streeter
asked a mechanic for the town of Amesbury to drive the vehicle and test the
braking system with the vehicle operating on its own power. Streeter and the mechanic then removed the
wheels from the truck and dismantled the braking system. Then, for the first time, Streeter obtained a
search warrant to retain the pieces of the braking system that he had
dismantled.
[1] The
Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized." The defendant contends that the tests
conducted on his truck before a search warrant was issued violated his Fourth
Amendment rights as well as his rights under art. 14 of the Massachusetts
Declaration of Rights. He does not argue
separately with respect to the Federal and State Constitutions, and therefore
we confine our discussion to the Fourth Amendment. Our first question, the answer to which
resolves this case, is whether the testing of the truck's brakes constituted a "search"
in the Fourth Amendment sense. Maryland v. Macon, 472 U.S. 463, 468‑469,
105 S.Ct. 2778, 2781, 86 L.Ed.2d 370 (1985).
Commonwealth v. Pina, 406 Mass. 540, 544,
549 N.E.2d 106, cert. denied, 498 U.S. 832, 111 S.Ct.
96, 112 L.Ed.2d 67 (1990). Commonwealth v. D'Onofrio,
396 Mass. 711, 714, 488 N.E.2d 410 (1986).
To determine whether Streeter's actions constituted a search, we [409 Mass. 638] must consider whether his actions intruded on the defendant's
reasonable expectation of privacy. California v. Ciraola,
476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d
210 (1986). Rawlings v. Kentucky, 448 U.S. 98, 104‑106,
100 S.Ct. 2556, 2560‑62, 65 L.Ed.2d 633 (1980). Rakas v. Illinois, 439 U.S. 128, 143, 143‑144 n.
12, 99 S.Ct. 421, 430‑31 n. 12, 58 L.Ed.2d 387
(1978).
Katz v. United States, 389 U.S. 347, 360‑361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J.,
concurring). Commonwealth v. Pina,
supra, 406 Mass. at 544, 549 N.E.2d 106. Commonwealth v. Chappee,
397 Mass. 508, 512, 492 N.E.2d 719 (1986).
The question is really twofold:
Did the defendant have a subjective expectation of privacy in his
truck's brakes and, if he did, was that expectation one that society is
prepared to recognize as objectively reasonable. California v. Ciraola, supra, 476 U.S. at 211, 106 S.Ct. at 1811. Oliver v. United States, 466 U.S. 170,
177, 104 S.Ct. 1735, 1740, 80 L.Ed.2d 214 (1984).
Commonwealth v. Panetti, 406 Mass. 230,
231, 547 N.E.2d 46 (1989). Commonwealth v. D'Onofrio,
supra, 396 Mass. at 714, 488 N.E.2d 410.
The defendant bears the burden of proving that he had a subjective and
objectively reasonable expectation of privacy. Rawlings v. Kentucky, supra,
448 U.S. at 104, 100 S.Ct. at 2561.
Commonwealth v. Chappee, supra, 397 Mass.
at 512, 492 N.E.2d 719.
[2] We
have no doubt that the Amesbury police were in rightful possession of the
defendant's truck after the accident.
Although no statute expressly gives police officers the power to tow a
motor vehicle from the scene of an accident and to place it in storage, the
police do have the statutory authority to tow motor vehicles in other circumstances. For example, G.L.
c. 40, § 22D (1988 ed. & Supp.1989), provides that "the city council
or board of selectmen ... may adopt ... rules and regulations ... authorizing
the ... police department ... to remove ... any vehicle parked or standing on
any part of any way under the control of a municipality in such a manner as to
obstruct any curb ramp designed for use by handicapped persons as means of
egress to a street or public way ... or to impede in any way the removal or
plowing of snow or ice." General
Laws c. 85, § 2C (1988 ed.), provides that "[t]he department [of public
works] ... may authorize [certain police officials] to remove, to some
convenient place ... any vehicle ... parked or standing on any part of a state
highway in such a manner as to impede in any way the removal or plowing of snow
or ice or parked or [409 Mass. 639] standing in violation of any rule or
regulation adopted under section two...."
In addition, G.L. c. 255, § 39A (1988 ed.), at
least implies that members of a municipal police department have the power to
remove motor vehicles from the scene of an accident. Section 39A says that "[a]ny motor vehicle removed from the scene of an accident and
placed for storage in the care of a garage ... by a member of the state police
force, by a member of the metropolitan district police, [or] by a member of the
police force of any city or town ... shall be so stored at the prevailing
rates." Lastly, the United States
Supreme Court has stated that, "[i]n the
interests of public safety ... automobiles are frequently taken into police
custody. Vehicle accidents present one
such occasion. To permit the
uninterrupted flow of traffic and in some circumstances to preserve evidence,
disabled or damaged vehicles will often be removed from the highways or streets
at the behest of police engaged solely in caretaking and traffic‑control
activities.... The authority of police
to seize and remove from the streets vehicles impeding traffic or threatening
public safety and convenience is beyond challenge." South Dakota v. Opperman, 428 U.S. 364, 368‑369, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000 (1976). We are satisfied that the Amesbury police
department had a right to remove the defendant's truck from the scene of the
accident and to hold it in storage for a reasonable time, which was not shown
to have been exceeded in this case.
[3] It is
unclear whether the defendant had a subjective expectation of privacy with
respect to the truck's brakes. However,
we assume in his favor that he did, and we turn immediately to the question
whether society is prepared to recognize such an expectation as reasonable.
The
Registrar of Motor Vehicles has the statutory authority to "investigate
the cause of any accident in which any motor vehicle is involved." G.L. c. 90, § 29
(1988 ed. & Supp.1989). Section 29
requires that local police departments "notify the registrar ... of the
particulars of every accident [in which any person is killed or injured] which
happens within the limits of [its] city, town or jurisdiction." In addition, § 29 provides that, "[w]henever the death of any [409 Mass. 640] person
results from any such accident, the registrar shall suspend forthwith the
license or right to operate of the person operating the motor vehicle in said
accident, and shall order the said license to be delivered to him, unless a
preliminary investigation indicates that the operator may not have been at
fault...." We set out these
portions of the statute not because Sergeant Streeter was necessarily
conducting the kind of investigation of which the statute speaks, but to
illustrate the legislative determination that society places great importance
on learning all the circumstances of any motor vehicle accident resulting in
death, and expects that, as part of its investigation, a police department may
find it necessary to conduct the kind of tests that Streeter conducted on the
braking mechanism of a vehicle in its lawful possession. We think that it would stretch the Fourth
Amendment's protections too far to say that society is prepared to recognize as
objectively reasonable an expectation of privacy in the braking mechanism of a
motor vehicle that has come into police possession following the death of a motorist
on the highway.
Motor
vehicles registered in this Commonwealth are subject to extensive regulation and inspection. See G.L. c. 90, §
7A (1988 ed.); 540 Code Mass.Regs. §§ 4.03, 4.04 (1988). Such requirements tend to reduce a vehicle
owner's reasonable expectation of privacy with respect to the safety equipment
on his or her vehicle even without the happening of an accident. All the more so, after an accident resulting
in a death, particularly in view of G.L. c. 90, § 29,
quoted above, there can be no reasonable expectation of privacy in the
equipment and safety features of an involved vehicle in the rightful possession
of the police. We conclude that the
defendant did not have an objectively reasonable expectation of privacy in the
brakes of his truck after the truck was involved in the fatal accident and was
removed from the highway by the police.
We therefore conclude also that Sergeant Streeter's examination and
testing of the brakes, even though conducted after the defendant's request that
his vehicle be returned to him, was not a search within the meaning of the
Fourth Amendment. Maryland v. Macon, supra, 472 U.S. at
469, 105 S.Ct. at 2782. [409 Mass. 641] Commonwealth v. D'Onofrio,
supra, 396 Mass. at 714, 488 N.E.2d 410.
Therefore, we vacate the order allowing the defendant's motion to
suppress the results of the tests done on his truck and the items removed from
it, and we remand the case to the District Court for further proceedings.
So ordered.