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Opinions of The and the Court of Appeals To be used in
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Commonwealth v. Miller, 366
Supreme Judicial Court of Massachusetts, Hampshire.
Argued
Decided
John M. Callahan, Dist. Atty. (Stephen R. Kaplan, Asst. Dist. Atty., with
him), for the Commonwealth.
Richard C. Whittier,
Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.
REARDON, Justice.
The
Commonwealth appeals under G.L. c. 278, s 28E, from
an order allowing in part the defendant's motion to suppress evidence in cases
involving narcotic charges. The trial judge made findings of fact in part
as follows. A special officer of the
Amherst police department, acting on the possibility that a Ford Econoline van was not properly registered, stopped it as it
pulled away from the curb in an Amherst street.
On request the operator handed the officer the registration of the van
and alighted from the van, at which time the officer observed a 'clear plastic packet
containing a green substance protruding about an [366
[1] [2]
The allowance of the motion was erroneous.
If at the moment of the arrest the officer had probable cause to search
the van it is indisputable that the resulting search was proper. Commonwealth v. Rand, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNa),
296 N.E.2d 200 (1973); Chambers v. Maroney, 399 U.S.
42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Coolidge v. New Hampshire, 403 U.S. 443, 463,
91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). The difficulty seems to be that the trial
judge found 'that at the time the search bagan the
officer had no probable cause to believe that there was other contraband
present.' It is [366 Mass. 389] argued
that this precludes our determination as to whether there was probable cause
and that the Chambers case is therefore inapplicable. But the judge's conclusion on probable cause
is a conclusion of law and not a finding of fact. The very purpose of our review under G.L. c. 278, s 28E, is to assess the judge's conclusion on
probable cause or its absence on the facts found. This becomes obvious when a reverse decision
is made as to whether there were sufficient facts to support the judge's
finding that there was probable cause.
See COMMONWEALTH V. ANTOBENEDETTO, ‑‑‑
MASS. ‑‑‑ , 315 N.E.2D 530 (1974)(FNB). Thus the judge's conclusion of probable cause
or no probable cause cannot foreclose our inquiry into its existence.
[3] In
this instance one of the occupants of the van had said on the approach of the
special officer, 'Let's go, here come the cops.' The officer thereupon observed marihuana in
the pocket of the driver. It seems clear
that probable cause existed to believe that further drugs might be found in the
van. There are numerous Federal cases in
which it has been found that the observation of contraband in a vehicle or on
the person of an occupant of a vehicle provides probable cause for a complete
search for more contraband. United
States v. Bourassa, 411 F.2d 69, 72 (10th Cir. 1969), cert. den., 396 U.S. 915,
90 S.Ct. 235, 24 L.Ed.2d 192 (1969); Meade v. Cox,
438 F.2d 323 (4th Cir. 1971), cert. den. sub nom., Meade v. Slayton, 404 U.S.
910, 92 S.Ct. 234, 30 L.Ed.2d 182 (1971); United
States v. Ragsdale, 470 F.2d 24, 28‑‑30 (5th Cir. 1972); United
States v. Henderson, 472 F.2d 157 (6th Cir. 1973). (FN1)
[4]
Furthermore, as was said in White v. United States, 448 F.2d 250, 254 (8th Cir.
1971): 'Nor does the fact that at the time of the search, the officers did not
completely and correctly articulate their grounds for the search invalidate it,
if in fact from an objective standpoint probable cause existed. 'The test of probable cause is not the
articulation of the policeman's subjective theory but the objective view of the
facts. '' Commonwealth v. Lawton, 348 Mass. 129, 202
N.E.2d 824 [366 Mass. 390] (1964); Sirimarco
v. United States, 315 F.2d 699, 702 (10th Cir. 1963), cert. den., 374 U.S. 807,
83 S.Ct. 1696, 10 L.Ed.2d 1032 (1963); Smith v.
United States, 402 F.2d 771 (9th Cir. 1968); Klingler
v. United States, 409 F.2d 299, 304 (8th Cir. 1969), cert. den., 396 U.S. 859, 90 S.Ct.
127, 24 L.Ed.2d 110 (1969); Dodd v. Beto, 435 F.2d
868, 870 (5th Cir. 1970).
It follows
that the order of the trial judge to the extent that it allowed the defendant's
motion to suppress is reversed, and the case is remanded to the Superior Court
for further proceedings consistent with this opinion.
So ordered.
HENNESSEY,
Justice (dissenting, with whom KAPLAN and WILKINS, JJ.,
join).
I
dissent. I believe that the Superior
Court judge was right in his rulings and that he should be affirmed. The judge's findings of fact require that
conclusion.
The search
of the vehicle was unreasonable under the Fourth Amendment. The majority opinion properly does not
sustain the search as a search incident to a lawful arrest. The occupants of the vehicle had been placed
in custody and removed from the scene before the search took place. Even if they were still present in the
vicinity, a search pursuant to the arrest would be narrowly restricted by
law. See Chimel
v. California, 395 U.S. 752, 89 S.Ct. 2034, 23
L.Ed.2d 685 (1969).
A warrantless search of an automobile must be based on
probable cause related to the vehicle.
See Carroll v. United States, 267 U.S. 132, 45 S.Ct.
280, 69 L.Ed.2d 543 (1925); Brinegar v. United
States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Preston v. United States, 376 U.S. 364,
84 S.Ct. 881, 11 L.Ed.2d 777 (1964). See also COMMONWEALTH V. HAEFELI,
‑‑‑ 279 N.E.2D 915
(1972)(FNB) MASS. ‑‑‑, (FNA); COMMONWEALTH V. ANTOBENEDETTO,
‑‑‑ MASS. ‑‑‑ , 315 N.E.2D 530 (1974)(FNB). Probable cause
was not shown here.
The
vehicle was observed by a police officer at approximately 9:40 P.M. A person was seen entering the vehicle
carrying a small dog. The police officer
quickly learned that his suspicions concerning the registration of the vehicle
were unfounded. A majority of the
Justices of this court obviously infer probable cause solely from the small
quantity[366 Mass. 391]
of marihuana found on the person of the operator, together with the
words of an occupant, 'Let's go, here come the cops.' (FN1)
The findings of the judge make it clear that there were no other facts
supportive of the search of the vehicle.
The two
facts taken together do not constitute probable cause. A small quantity of marihuana found on the
person, together with the words which were equivocal at best, does not show a
probability that a cache of contraband might be found in the vehicle. The existence of probable cause depends on
whether the facts and circumstances within the officer's knowledge at the time
of making the search or seizure were sufficient to warrant a prudent man in
believing that the defendant had committed, or was committing, an offense. Commonwealth v. Stevens, ‑‑‑
Mass. ‑‑‑, ‑‑‑, (FNc)
283 N.E.2d 673 (1972); Commonwealth v. Mitchell, 353 Mass. 426, 428, 233 N.E.2d
205 (1967). Beck v. Ohio, 379 U.S. 89,
91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). In any case involving a warrantless
automobile search, the issue of probable cause relating the vehicle to the
crime must be similarly weighed. A
'hunch' on the part of the police officer is not sufficient. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Judicial interpretation of the Fourth
Amendment requires the recognition of the boundary between mere suspicion and
probable cause. Admittedly, the
protection of the constitutional principle may be a painful judicial experience
(particularly in a case like this one where hard drugs were found in the
search) since Fourth Amendment claims 'rarely bear on innocence.' See Cardwell v. Lewis, 417 U.S. 583, ‑‑‑,
94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (Powell, J.,
concurring).
The
principal cases relied on by the majority do not support their conclusion. All of those cases are substantially stronger
than the case before us in the supporting
[366 Mass. 392] facts and the
nexus of those facts to the vehicle.
None deals with the search of a vehicle based exclusively in the
discovery of incriminating evidence found on the person of one standing outside
the vehicle.
In United
States v. Henderson, 472 F.2d 157 (6th Cir. 1973), an unauthorized car was
stopped going the wrong way down a one‑way street inside a naval
base. The two occupants, not servicement, could provide no credentials explaining their
presence on base and yet the base police saw navy clothing in plain view on the
back seat. These factors taken together
were held to justify the issuance of a search warrant for the vehicle.
In Meade
v. Cox, 438 F.2d 323 (4th Cir. 1971), cert. den. sub nom., Meade v. Slayton,
404 U.S. 910, 92 S.Ct. 234, 30 L.Ed.2d 182 (1971),
the officers had a report that the driver was trying to dispose of a gun, and
had tried to sell it at a pawn shop.
They also had probable cause to believe that the vehicle was
stolen. Before they searched the vehicle
they had much corroborative evidence that the vehicle was a stolen one. At that point they clearly had a right to
search in the vehicle for evidence of car theft. Moreover, they had found a gun in the
pocketbook of the defendant's wife, in a lawful 'stop and frisk.' A second gun was discovered in the glove
compartment as a result of the search of the vehicle.
The
defendant in United States v. Ragsdale, 470 F.2d 24 (5th Cir. 1972), was taken into custody after driving at ninety miles an
hour within the city limits. He appeared
to have been driving under the influence of alcohol or drugs and was
arrested. When he was ordered to get out
of his car one of the two officers saw a gun in plain view on the floor of the
vehicle. After the defendant was secured
a warrantless search of the vehicle disclosed two
guns and money.
United
States v. Bourassa, 411 F.2d 69 (10th Cir. 1969), cert. den., 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969), is not apposite to the
facts of the instant case. That case did
not involve a search of the defendant's vehicle. Rather, it concerned the seizure of a
counterfeit coin which had fallen out of the defendant's clothing while he was
in a police vehicle, having been lawfully arrested.
[366 Mass. 393] In at least one respect I agree with the reasoning of the
majority. The court concludes that, once
probable cause was shown, a warrantless search of the
vehicle was valid in the circumstances of the instant case. In this reasoning I agree, although I do not
agree that probable cause existed. As a
general rule, the Fourth Amendment requires the judgment of a detached and
neutral magistrate. There are, however,
certain narrowly defined exceptions where, in the exigencies of particular
circumstances, a search may be permissible without a warrant. It was established in Carroll v. United
States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), that such an exigency may justify a warrantless search of an automobile in a public place.
It can be
argued that there was no exigency here where the occupants of the vehicle were under
arrest and the car was within police control.
However, in Chambers v. Maroney, 399 U.S. 42,
90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), as in the
instant case, there was no reasonable likelihood that the automobile would or
could be moved, and nevertheless a warrantless search
of the vehicle was upheld. The
dissenting Justices in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct.
2464, 41 L.Ed.2d 325 (1974), would hold that, even where probable cause is
shown, the vehicle may be searched only with a valid warrant in any case where
there is no reasonable fear that evidence might be destroyed while the warrant
is being sought. See Preston v. United
States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777
(1964).
In my
view, the more pertinent reasoning‑‑and the reasoning which, given
probable cause, would support a warrantless search of
the vehicle in this case‑‑is that which examines the extent to
which a warrantless search sacrifices Fourth
Amendment values. In the circumstances
of this case, if probable cause had been shown, the intrusion of a warrantless search was probably less extensive, almost
certainly no more extensive, than the intrusion that would accompany the delay
and the more elaborate prelude to the procuring of a warrant and a subsequent
search. 'For constitutional purposes, we
see no difference between on the one hand seizing and holding a car before
presenting the probable cause issue to a magistrate and on the other hand [366 Mass. 394] carrying out an immediate search without a warrant. Given probable cause to search, either course
is reasonable under the Fourth Amendment.'
Chambers v. Maroney, supar,
399 U.S. at 52, 90 S.Ct. at 1981.
FNa. Mass.Adv.Sh. (1973)
729, 732‑‑734.
FNb. Mass.Adv.Sh. (1974) (decided July 25, 1974).
FN1.
We do not see that St.1974, c. 508, 'An Act regulating searches
conducted incident to an arrest,' amending G.L. c.
276, s 1, is applicable in this instance.
FNa. Mass.Adv.Sh. (1972) 423.
FNb. Mass.Adv.Sh. (1974) (decided July 25, 1974).
FN1.
The majority opinion may be read as indicating that the statement
immediately preceded the observation of the marihuana in the driver's
pocket. The trial judge's findings show,
however, that the statement was made when the occupants of the van first
noticed the officer walking down the street.
As such, the statement is not directly connected to the observation of
the marihuana which occurred only after the officer signalled
the van to stop, asked for the driver's license and registration, and spoke to
the driver who had at that point exited from the van, thereby allowing the
officer to observe the marihuana on his person.
FNc. Mass.Adv.Sh. (1972) 1095, 1097.