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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. Motta, 424
Supreme Judicial Court of Massachusetts,
Argued
Decided
John E. Bradley, Assistant District Attorney, for
the Commonwealth.
Jane Larmon White,
Charles H. Robson,
Before WILKINS, C.J., and
ABRAMS, LYNCH, GREANEY and FRIED, JJ.
LYNCH, Judge.
On
The judge
found the following facts. (FN5) Serverino was under
police surveillance during the early part of 1994 because he was suspected of selling
heroin in the
The
Brockton police had planned in advance to arrest [424 Mass. 119] Serverino on March 4, 1994.
In preparation for his arrest, Sergeant Kevin O'Connell of the Brockton
police department obtained four separate search warrants, one for each of three
apartments in the building where Serverino resided
and one for his automobile, a gray 1983 Datsun. Later that day, the Brockton police also
obtained a search warrant for another automobile. (FN6)
The
Federal Drug Enforcement Agency (DEA), which was also
investigating Serverino, planned to buy a large
amount of heroin from Serverino on March 4. (FN7)
That same day, a DEA agent notified Sergeant Mario Diliddo of the Brockton police force, as he was riding in
an undercover vehicle with Sergeant O'Connell, that Serverino
was en route from Lynn to Brockton and would be driving a gray Mercury Cougar,
an automobile heretofore unknown to the Brockton police. O'Connell was told that the DEA had arranged a meeting with Serverino
at a Purity Supreme market in Brockton.
(FN8) Diliddo
and O'Connell drove in the direction of the Purity Supreme and spotted Serverino driving a Mercury Cougar. They followed the vehicle at a distance of
about one‑quarter mile. They then
instructed marked police units in the area to stop the vehicle and arrest Serverino.
The
vehicle was pulled over at the intersection of East Ashland and North Carey
Streets. Serverino
was the driver of the vehicle and Motta was seated in
the passenger seat. The two defendants
were taken from the automobile, handcuffed, searched,
and arrested. A small quantity of marihuana
was found in plain view in a tape cassette holder between the two front bucket
seats.
[424 Mass. 120] The police did not search the automobile at the scene. O'Connell drove the automobile to the police
station and parked it in a secured area.
He arranged for the automobile to be "sniffed" by a "drug
dog" for narcotics. The canine unit
arrived within five to ten minutes, and as a result of the canine search, the
police discovered a bag of heroin which was zipped into the back of the front
passenger seat out of plain view. (FN9)
The
Commonwealth argues, and the judge found, that there was probable cause to
search the automobile. The Commonwealth
also argues, however, that exigent circumstances should no longer be required
to invoke the automobile exception and that, even if we conclude that an
exigency requirement is still required, the judge erred in finding that there
were no exigent circumstances justifying a warrantless
search of the automobile. In short, the
Commonwealth alleges that the search of the defendants' automobile did not
violate the defendants' right to be free of unreasonable searches and seizures
under the Fourth Amendment to the United States Constitution and art. 14 of the
Massachusetts Declaration of Rights.
[1][2][3]
1. Probable cause. Probable cause existed if police officers
had enough knowledge "to warrant a person of reasonable caution in
believing" the defendants were trafficking in heroin and the circumstances
were such that this particular vehicle contained heroin. Commonwealth v. Cast, 407
Mass. 891, 895, 556 N.E.2d 69 (1990), quoting Commonwealth v. Gullick, 386 Mass. 278,
283, 435 N.E.2d 348 (1982). See Carroll v. United States, 267 U.S. 132,
161, 45 S.Ct. 280, 288, 69 L.Ed.
543 (1925); Commonwealth v. Wunder,
407 Mass. 909, 912, 556 N.E.2d 65 (1990).
"In dealing with probable cause ... as the very name implies, we
deal with probabilities. These are not
technical; they are the factual and
practical considerations of everyday life on which reasonable and prudent men,
not legal technicians, act." Commonwealth v. Cast, supra, quoting Draper v. United States, 358 U.S. 307,
313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959). [424
Mass. 121] The judge found that Serverino had sold heroin to an undercover detective on seven
prior occasions and that another such sale was arranged for March 4, 1994. The judge reasoned that "[t]he pre‑arranged
drug deal provided probable cause to believe that [Serverino
was] on the way to the meeting and that there was heroin in the car. The police therefore had probable cause to
stop the vehicle and to search it."
(FN10)
Serverino argues that the testimony at best established
that the Brockton police had ordered heroin but had not arranged a meeting time
and location, and that the DEA agents had ordered
heroin and had been instructed by unknown persons to meet him at the Purity
Supreme, but that there was no evidence the transaction was to take place at
that time. Thus, he argues that the
judge's conclusion that there was probable cause based on his factual finding that there was a
"pre‑arranged drug deal" had no foundation in the evidence and
was erroneous.
[4] We
accept a judge's findings of fact, in the absence of clear error, and grant
substantial deference to the conclusions of law based thereon.
Commonwealth v. Bakoian, 412 Mass. 295,
297‑298, 588 N.E.2d 667 (1992).
The judge found that the Brockton police, who in the past had purchased
heroin from Serverino, ordered heroin from Serverino on March 4. Furthermore, the judge found that DEA agents had ordered heroin from Serverino
and had arranged to meet him on March 4 at the Purity Supreme in Brockton. Finally, the judge found that the DEA had learned that Serverino
had left Lynn and was en route to Brockton.
The judge concluded that, "[g]iven the
prior seven drug deals to McClaren and the sale
arranged for March 4, 1994," there was sufficient probable cause to search
the automobile. We agree.
[424 Mass. 122] Although the judge may have misinterpreted the testimony of
O'Connell that the DEA had arranged a meeting to
purchase heroin from Serverino, (FN11) this
misinterpretation was not crucial to his finding of probable cause.
The
officers knew of the seven prior drug sales, that a request for an additional
purchase had been made, and that Serverino was
traveling by automobile from Lynn to Brockton after talking with DEA agents about another purchase. Furthermore, when the police first saw Serverino in Brockton, he was in the vicinity of the Purity
Supreme where the police were told the rendezvous would take place. In addition, based on O'Connell's and McClaren's testimony, the judge reasonably inferred that a
prearranged drug deal was to take place.
See Commonwealth v. Santaliz, 413 Mass. 238, 241, 596 N.E.2d 337
(1992). Based on such an inference and
the prior drug sales, it is reasonable to conclude, as the judge did, that the
requisite probable cause existed. We
conclude that the judge was warranted in finding that the police officers had
probable cause to search the automobile.
2. Exigency. As the automobile exception to the warrant
requirement of the Fourth Amendment and art. 14 was originally formulated, a
search warrant was not required "when police have probable cause to
believe that a motor vehicle on a public way contains contraband or evidence of
a crime and exigent circumstances make obtaining a warrant impracticable."
Commonwealth v. Cast, 407 Mass. 891, 901, 556 N.E.2d 69 (1990). See
Carroll v. United States, 267 U.S. 132, 153‑154, 45 S.Ct. 280, 285, 69 L.Ed. 543
(1925). The United States Supreme Court
has eliminated the requirement of exigent circumstances to justify the warrantless search of a motor vehicle stopped in transit or
seized or searched in a public place. Pennsylvania v. Labron,
518 U.S. 938, ‑‑‑‑, 116 S.Ct.
2485, 2487, 135 L.Ed.2d 1031 (1996). The
Commonwealth urges us to abandon our similar rule in construing art. 14.
In
eliminating the requirement of exigent circumstances [424 Mass. 123] from
the automobile exception, the Supreme Court has emphasized both that the
inherent mobility of an automobile in and of itself constitutes a sufficient
exigency and that an individual has a lesser expectation of privacy in an
automobile. Id. We too have recognized that the
"inherent mobility of an automobile can supply the exigency required to
justify a warrantless search and seizure on probable
cause." Commonwealth v. A Juvenile (No. 2), 411
Mass. 157, 163, 580 N.E.2d 1014 (1991).
See Commonwealth v. Cast, supra
at 904, 556 N.E.2d 69; Commonwealth v. Cavanaugh, 366 Mass. 277,
282, 317 N.E.2d 480 (1974). Thus, we
have long recognized that "less stringent warrant requirements have been
applied to vehicles." Commonwealth v. Cavanaugh, supra. See
Commonwealth v. Cast, supra; Commonwealth v. Ortiz, 376
Mass. 349, 357, 380 N.E.2d 669 (1978).
This is so because the inherent mobility of an automobile "creates
an exigency that they, and the contraband there is probable cause to believe
they contain, can quickly be moved away while a warrant is being sought."
Commonwealth v. Cast, supra.
In
addition to recognizing that the inherent mobility of an automobile is a
sufficient exigency to justify a warrantless search
of an automobile in transit or in a public place, we have also noted that
"[m]otor vehicles registered in this
Commonwealth are subject to extensive regulation and inspection.... Such requirements tend to reduce a vehicle
owner's reasonable expectation of privacy" in a vehicle. (Citations omitted.) Commonwealth v. Mamacos, 409 Mass. 635, 640, 568 N.E.2d 1139
(1991). See Commonwealth v. A Juvenile (No. 2), supra at 165, 580 N.E.2d 1014,
quoting Commonwealth v. Hall, 366
Mass. 790, 803‑804 n. 17, 323 N.E.2d 319 (1975) ("[t]he leeway now
allowed the police to conduct immediate searches of automobiles in lieu of
holding them pending a warrant ... is based on Supreme Court cases emphasizing
the special nature of automobiles and the lesser expectation of privacy one may
have with respect to them"); Commonwealth v. Cavanaugh, supra at 282,
317 N.E.2d 480.
Given that
we have recognized that the inherent mobility of an automobile is an exigency
that can justify a warrantless search especially in
view of the vehicle owner's lesser expectation of privacy, it is difficult to
perceive what more is needed. See Commonwealth v. King, 35 Mass.App.Ct. 221, 226, 617 N.E.2d 1036 (1993)
("whether 'exigent circumstances' is or is not recited‑‑justification
for holding a warrant to be superfluous is found in the mobility of automobiles
and the diminished feeling[424 Mass.
124]
of privacy people have regarding the interiors of their
cars"). Indeed, while it is true
that we have at times concluded that art. 14 provides more protection than the
Fourth Amendment, we have also followed the Supreme Court in the area of the
automobile exception. See Commonwealth v. Cast, supra at 901‑902,
556 N.E.2d 69 (following Supreme Court's decision in United States v. Ross, 456 U.S. 798, 102 S.Ct.
2157, 72 L.Ed.2d 572 [1982], holding that lawful warrantless
search of motor vehicle extends to all containers, open or closed, found
within);
Commonwealth v. Markou, 391 Mass. 27, 29‑30,
459 N.E.2d 1225 (1984) (following Supreme Court's decision in Chambers v. Maroney,
399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 [1970],
upholding warrantless search of automobile conducted
at police station following seizure of automobile); Commonwealth v. Ortiz, supra
at 355, 357 n. 7, 380 N.E.2d 669 (following
Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct.
280, 285, 69 L.Ed. 543 [1925], upholding warrantless search of automobile where automobile was
readily mobile). Moreover, Serverino has advanced no compelling reason why the
automobile exception should "come within this special category where art.
14 and Fourth Amendment law diverge." Commonwealth v. Cast, supra at 907, 556
N.E.2d 69.
[5] We
therefore conclude that, when an automobile is stopped in a public place with
probable cause, no more exigent circumstances are required by art. 14 beyond
the inherent mobility of an automobile itself to justify a warrantless
search of the vehicle.
[6] Nor
does the concept of inherent mobility of an automobile as a justification for
the search change because the vehicle is moved to a secure location. We have consistently held that the
determination of exigency must be made with reference to the time of the
stop. See Commonwealth v. Markou, supra at 29‑30,
459 N.E.2d 1225; Commonwealth v. Rand, 363 Mass. 554, 559,
296 N.E.2d 200 (1973). Thus, "given
probable cause, and exigent circumstances ... either a warrantless
search on the highway or removal to the police station and immediate search
there is constitutionally permissible." Commonwealth v. Markou,
supra at 30, 459 N.E.2d 1225. See Commonwealth v. Lara, 39 Mass.App.Ct. 546, 548, 658 N.E.2d 692 (1995) ("if a
search is constitutionally permissible on the street, with attendant risks
[attempts to interfere with search, exposure to traffic] and awkwardness [tools
not at hand, obstruction of traffic], the occupants of the car are no worse off
[i.e., suffer no greater intrusion] if the search is continued in the
secure setting of the police station").
[7][8][9]
Here the judge's findings demonstrated that the automobile [424 Mass. 125] was
seized at the intersection of two public streets in Brockton in the early
afternoon in the vicinity of a well‑known supermarket. It is beyond challenge that a vehicle
impeding traffic or threatening public safety and convenience may be removed
from the street. Commonwealth v. Mamacos,
409 Mass. 635, 639, 568 N.E.2d 1139 (1991), citing South Dakota v. Opperman, 428 U.S. 364,
368‑369, 96 S.Ct. 3092, 3096‑3097, 49
L.Ed.2d 1000 (1976). We conclude that
this is "just the sort of situation where the police should be able to
move the automobile and the defendant to a location where the search may be
conducted with more safety." Commonwealth v. Markou,
supra at 31, 459 N.E.2d 1225. In
short the police could not have been expected to leave an automobile they had
probable cause to believe contained heroin at the intersection of two public
roads, nor were they required to guard the vehicle until a warrant could be
obtained.
Commonwealth v. Bakoian, 412 Mass. 295,
304, 588 N.E.2d 667 (1992). While we
have indicated our approval of the proposition that an unreasonable delay at
the police station will render invalid an otherwise valid search, here there
was no such delay. See Commonwealth v. Markou,
supra at 30‑31, 459 N.E.2d 1225.
The police officer testified and the judge found that, after driving the
automobile to a secured area, O'Connell called the canine officer. The canine unit arrived within five to ten
minutes and the automobile was searched.
Merely because the police officer testified that he could have obtained
a warrant does not mean that he was obligated to do so. "[T]hat such a step might have been
feasible or even preferable in the long run, does not of itself condemn the
reasonable procedure that was in fact followed." Commonwealth v. Young, 382
Mass. 448, 460, 416 N.E.2d 944 (1981).
Because we
conclude that the existence of probable cause and the inherent mobility of the
defendants' vehicle provided a sufficient basis for the warrantless
search in the circumstances of this case, the motions to suppress should have
been denied.
So ordered.
(FN1.) Seven indictments against Emilio Serverino.
(FN2.)
Serverino was also charged with distribution of a
Class A substance in violation of G.L. c. 94C, § 32,
and distribution of a class A substance in a drug free school zone in violation
of G.L. c. 94C, § 32J.
(FN3.)
In his findings, the motion judge referred only to the Fourth Amendment to the
United States Constitution. It is clear,
however, that the judge concluded that the exigent circumstances requirement,
while no longer part of the automobile exception under the Fourth Amendment,
remained part of the automobile exception under art. 14 of the Massachusetts
Declaration of Rights and excluded the heroin on that basis.
(FN4.)
Rule 15(b)(2) of the Massachusetts Rules of Criminal Procedure has since been amended,
effective, March 1, 1996, as appearing in 422 Mass. 1501 (1996). Interlocutory appeals such as the one in this
case are now brought pursuant to rule 15(a)(2).
(FN5.)
Where the defendants argue that a particular finding is erroneous, we shall so
indicate.
(FN6.)
Serverino asserts that there was no evidence that any
search warrants were obtained prior to the arrest of the defendants and the
search and seizure of the vehicle he was driving. A review of the record, however, leads us to
conclude that the judge was warranted in finding that the search warrants were
obtained prior to stopping the defendants.
It is not true, as Serverino argues, that the
Commonwealth has conceded that the evidence did not support the judge's finding
that the four search warrants were obtained in preparation for (and therefore
prior to) the arrest of the defendants.
(FN7.)
Serverino argues that, while there was evidence that
the DEA agents had placed an order with him for
heroin and had been instructed to meet him at the Purity Supreme, there was no
evidence at the hearing that the DEA had arranged for
the purchase of heroin from Serverino at the Purity
Supreme.
(FN8.)
No DEA agent testified at the hearing.
(FN9.) Because the city of Brockton had no
written inventory policy, the Commonwealth did not argue that heroin, which was
zipped into the back of the seat, created a bulge that was in plain view and
properly examined pursuant to the inventory exception to the warrant
requirement. In addition, the
Commonwealth does not argue, nor do we consider, whether the search was lawful
as incident to Serverino's valid arrest for previous
alleged sales of heroin. In view of the
fact that the search of the automobile was neither contemporaneous with the
arrest nor for the purpose of protecting the safety of the officers, it is
doubtful whether the search could be justified on that basis.
Commonwealth v. Alvarado, 420 Mass. 542, 554, 651 N.E.2d 824 (1995).
(FN10.) The judge noted in a footnote that
marihuana found on the console, which may also have provided probable cause to
search the vehicle, was found after the stop and arrest of the defendants. This discovery would appear to provide an
independent basis to justify the search of the defendants' vehicle. See
Commonwealth v. Allain, 36 Mass.App.Ct.
595, 602, 634 N.E.2d 579 (1994), rev'd on other
grounds sub nom. Commonwealth v. Cormier, 41 Mass.App.Ct. 76, 668 N.E.2d 1326 (1996);
Commonwealth v. Skea, 18 Mass.App.Ct. 685, 690 n. 8, 470 N.E.2d 385 (1984). Cf.
Commonwealth v. White, 374 Mass. 132, 140, 371 N.E.2d 777 (1977), aff'd. by an equally divided Court, 439 U.S. 280, 99 S.Ct. 712, 58 L.Ed.2d 519 (1978). We do not, however, rely on it because it was
not the basis of the judge's decision nor was the issue extensively briefed by
the Commonwealth.
(FN11.) O'Connell testified that the DEA had telephoned the Brockton police "to give us
warning that they had just been instructed to meet Serverino
... at the Purity Supreme Market at East Ashland and North Carey Street in
Brockton."
McClaren testified that "the DEA
can tell you exactly when they made their phone call but they also ordered up a
large amount of heroin. The DEA knew that ... Serverino, was
in Lynn at the time.... [A]nd he said ... 'They're going to meet us at Purity Supreme
in about five minutes.' "