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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. McCaffery, 49 Mass.App.Ct.
713 (2000)
Appeals Court of Massachusetts,
Middlesex.
No. 97‑P‑1958.
Argued
Decided
Edward E. Eliot, Committee for Public Counsel
Service, for the defendant.
William S. Landay,
Assistant District Attorney, for the Commonwealth.
Present: GREENBERG, GILLERMAN,
& RAPOZA, JJ.
RAPOZA, J.
The defendant was found guilty in a District
Court jury‑waived trial of breaking and entering in the nighttime with
the intent to commit a felony, larceny of property valued at $250 or less, and
receiving stolen property valued at $250 or less. (FN1) On appeal, he claims error in the
denial of his motion to suppress a wallet that belonged to the victim but was
found on the defendant's person. Additionally,
he challenges the sufficiency of the evidence, and further claims that his
convictions for both larceny and receiving stolen property are legally
inconsistent.
The
Commonwealth's witnesses at the hearing on the motion to suppress testified as
follows. On
Officer
Dunn pulled his vehicle alongside the defendant, and lowered the driver's side
window. The defendant approached the
officer's vehicle. Officer Dunn asked
him where he was going, and if he had seen anyone else in the area. The defendant stated that he was going from
his girlfriend's house to his aunt's house, and that he had not seen
anyone. During this brief conversation,
Officer Dunn noticed that the defendant appeared intoxicated, and smelled of
liquor. Nonetheless, Officer Dunn left
the defendant and drove to the home that had been burglarized.
In the
driveway, Officer Dunn met and spoke with Lieutenant James Moran, also of the
Lieutenant
Moran asked the defendant if he had been drinking, and the defendant stated
that he had. The officers then asked him
to perform some field sobriety tests, which he agreed to do. The defendant performed adequately on the
tests, but the officers, nonetheless, concluded that he was intoxicated.
While
performing the "one‑legged stand" test, the defendant raised
his arms by his side for balance. When
the defendant did so, Lieutenant Moran noticed a man's wallet tucked into the
defendant's waistband. (FN3) He asked
the defendant about the wallet, (FN4) at which time the defendant attempted to
flee. The police officers apprehended
the defendant, took the wallet, and opened it. The wallet belonged to the victim of the break‑in.
1. The motion to suppress. The defendant's primary argument pertaining
to his motion to suppress is that the police were not permitted to ask him to
perform the field sobriety tests that resulted in the discovery of the victim's
wallet. The defendant argues, correctly,
that if the field sobriety tests were impermissible, evidence seized as a
result thereof should be suppressed. See Florida v. Bostick,
501 U.S. 429, 433‑434, 111 S.Ct. 2382, 115
L.Ed.2d 389 (1991); Commonwealth v.
Torres, 424 Mass. 153, 163, 674 N.E.2d 638 (1997).
As applied
to motor vehicle stops, "requiring a person to perform the [field
sobriety] tests constitutes a search or seizure and therefore is subject to the
strictures of the Fourth Amendment and art. 14." Commonwealth v. Blais, 428 Mass. 294, 297, 701 N.E.2d 314 (1998). Because the tests constitute a search or
seizure, it must then be determined what degree of suspicion the police must
have in order to request that a citizen perform the tests. Observing that reasonableness, objectively
determined from the totality of the circumstances, is the "touchstone of
the Fourth Amendment," the court in Blais held that, to request the performance of a field
sobriety test, a police officer need have only reasonable suspicion, as opposed
to probable cause, to believe that an individual is operating a motor vehicle
while under the influence of drugs or alcohol.
See id. at 297‑298, 701
N.E.2d 314, quoting from Ohio v.
Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136
L.Ed.2d 347 (1996). In so ruling, the
court noted that "brief, scarcely burdensome steps [are] involved in
administering these tests." Blais, 428
Mass. at 298, 701 N.E.2d 314.
The
reasonable suspicion standard is also appropriate to G.L.
c. 111B, § 8, the protective custody statute.
Pursuant to that law, the police may take an individual into protective
custody if they determine that the person is "incapacitated." G.L. c. 111B, §
8. "Incapacitated" is defined
as "the condition of an intoxicated person who, by reason of the
consumption of intoxicating liquor is (1) unconscious, (2) in need of medical
attention, (3) likely to suffer or cause physical harm or damage property, or
(4) disorderly." G.L. c. 111B, § 3.
Section 8 further states that, in order to determine whether or not such
person is intoxicated, "the police officer may request the person to
submit to reasonable tests of coordination, coherency of speech, and
breath." G.L.
c. 111B, § 8. Thus, the Commonwealth argues
that the police officers were acting in accordance with the protective custody
statute which authorized them to administer a field sobriety test to the
defendant to determine if he was intoxicated.
The
defendant asserts that it is irrelevant that the police were trying to
determine whether or not he was intoxicated.
He argues that the police had no right to ask him to perform field
sobriety tests unless they first had reason to believe that he was
incapacitated within the meaning of G.L. c. 111B, § 3. (FN5) We agree with the defendant's
contention, but find that reasonable suspicion existed on these facts.
Officer
Dunn had noticed the smell of liquor on the defendant's breath during the
initial encounter. When Officer Dunn and
Lieutenant Moran approached the defendant the second time, and asked the
defendant if he had been drinking, the defendant admitted that he had. Moreover, Officer Dunn had seen the defendant
walking, apparently intoxicated, in the middle of the road, shortly after 3:00
A.M. These facts supported a reasonable belief that the defendant was
"likely to suffer ... physical harm."
G.L. c. 111B, § 3. On these facts, it was reasonable for the
officers to ask the defendant to perform sobriety tests.
Nor is it
critical that Officer Dunn did not place the defendant in protective custody
after he first chanced upon him in the middle of the road. At that point, Officer Dunn was responding to
a report of a break‑in. It would
have been entirely reasonable for the officer to consider the break‑in a
more pressing matter than the defendant's possible incapacity.
The
defendant also argues that the officers, in conducting the field sobriety
tests, were motivated by a desire to unearth evidence regarding the
burglary. It appears unlikely that such
was indeed the officers' intent. It
would require clairvoyance of the highest order for the officers to expect to
uncover evidence of a burglary through the performance of field sobriety tests. But more importantly, "police conduct is
to be judged 'under a standard of objective reasonableness without regard to
the underlying intent or motivation of the officers involved.' "
Commonwealth v. Ceria, 13 Mass.App.Ct.
230, 235, 431 N.E.2d 608 (1982), quoting from Scott v. United States, 436 U.S. 128, 138, 98 S.Ct.
1717, 56 L.Ed.2d 168 (1978). See Commonwealth v. Tremblay, 48 Mass.App.Ct. 454, 460‑462, 722 N.E.2d 34 (2000). Put another way, "the fact that the
officer does not have the state of mind which is hypothecated by the reasons
which provide the legal justification for the officer's action does not
invalidate the action taken as long as the circumstances, viewed objectively,
justify that action." Scott v. United States, 436 U.S. at 138,
quoted with approval in Commonwealth v. Blais, 428 Mass. at 296‑297, 701 N.E.2d 314. Therefore, regardless of what evidence the
officers may have hoped to unveil, their actions were reasonable.
Because
the field sobriety tests were reasonable, the next inquiry is whether the
police had probable cause to confiscate the wallet and open it. That the defendant attempted to flee after he
was asked about the wallet, coupled with his presence, in the dead of night,
near the scene of a recent burglary in which a wallet had been stolen, was
sufficient to give the police probable cause.
The defendant does not seriously contend to the contrary. The motion to suppress was properly denied.
2. Sufficiency of the evidence. The defendant asserts that the evidence was
insufficient, as matter of law, to convict him of breaking and entering in the
nighttime with the intent to commit a felony.
See generally G.L. c. 266, § 16. This argument is without merit. There is no question that the victim's home
was broken into and that his wallet was stolen.
That this item was found on the defendant's person, together with the
fact that the defendant was found walking in the street near the victim's home,
with no other pedestrians in the area, at approximately 3:00 A.M., shortly
after the break‑in occurred, and the fact that the defendant fled when
questioned about the wallet, is sufficient to establish that the defendant is
the person who broke into the victim's home and stole the wallet and keys. See
Commonwealth v. MacLeod, 9 Mass.App.Ct. 934, 935,
405 N.E.2d 160 (1980) (possession of stolen property, together with evidence of
consciousness of guilt, sufficient to establish breaking and entering with the
intent to commit larceny). Cf. Commonwealth v. Nadworny,
396 Mass. 342, 354, 486 N.E.2d 675 (1985) (circumstantial evidence is competent
to establish guilt beyond a reasonable doubt), cert. denied, 477 U.S. 904, 106 S.Ct. 3274, 91 L.Ed.2d 564 (1986).
3. Consistency of convictions. The defendant's final argument is that he
should not have been convicted of both larceny and receiving stolen
property. The Commonwealth concedes that
these two convictions are indeed inconsistent.
See Commonwealth v. Nascimento, 421 Mass. 677, 682, 659 N.E.2d 745
(1996). The only remaining question
pertains to the proper remedy.
The
defendant argues that his case should be remanded for a determination of which
conviction should be dismissed. The only
rationale the defendant offers for his proposed remedy is that there is no
direct evidence of larceny, or of receiving stolen property. But it makes no difference whether there was
conclusive, direct evidence; the circumstantial evidence was sufficient to
support either of the convictions.
"Where
the evidence has warranted a finding beyond a reasonable doubt of each element
of a crime involving larceny, we see no reason to burden the judicial system
with a new trial just because ... the defendant [was found] guilty of receiving
the same stolen property. Dismissal of
the receiving stolen property count would give the defendant all that he was
entitled to.... This is the rule...."
Commonwealth v. Nascimento, 421 Mass. at 684‑685,
659 N.E.2d 745, and authorities cited. Commonwealth v. Hinckley, 422 Mass. 261,
262 n. 1, 661 N.E.2d 1317 (1996).
Moreover, the defendant received identical sentences, to run concurrently,
for each conviction. Thus, he is not in
any way prejudiced by dismissal of the receiving stolen property conviction.
In sum,
the convictions for larceny and breaking and entering in the nighttime with the
intent to commit a felony are affirmed.
The conviction for receiving stolen property is to be vacated, and that
count of the complaint is to be dismissed.
So ordered.
(FN1.) After waiving his right to a jury
trial, the defendant agreed that the case could be decided on the facts recited
into the record by the prosecutor, although he did not concede either their
accuracy or their sufficiency for purposes of conviction.
(FN2.)
From the record, it is unclear how far the defendant was from the home that had
been burglarized when he first encountered Officer Dunn. Similarly, it is unclear how far from the
home Officer Dunn and Lieutenant Moran had traveled before they came upon the
defendant and administered the field sobriety tests. It appears that the officers drove to the
junior high school parking lot, stepped out of their vehicles, and approached
the defendant on foot. Whatever the case
may be, we do not regard these details as critical to our analysis.
(FN3.)
The precise manner in which the defendant's performance of the "one‑legged
stand" test disclosed the wallet in his waistband is unclear from the
record on the motion to suppress. At
trial, the record indicated that the shirt that the defendant was holding in
his hand had concealed the wallet.
Apparently, when he raised his arms for balance during the "one‑legged
stand" test, the wallet was revealed.
Whatever the mechanism of the wallet's disclosure, it is clear that it
would not have been observed by the officers but for the defendant's
performance of the test.
(FN4.)
The testimony offered at the hearing on the defendant's motion to suppress did
not make clear the precise wording of the officer's question.
(FN5.)
Because the statute defines "incapacitated" as the status of "an
intoxicated person who, by reason of the consumption of intoxicating
liquor" suffers certain enumerated conditions, it would not have been
possible for the officers reasonably to believe the defendant was incapacitated
without first determining that the defendant had consumed alcohol to the point
of intoxication. We understand the
defendant's argument to be that the officers were required to have reason to
believe that the defendant, beyond being intoxicated, also met one or more of
the criteria enumerated in the statutory definition of "incapacitated." See G.L. c. 111B, §
3.