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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. Navarro, 39 Mass.App.Ct. 161 (1995)
Appeals Court of Massachusetts,
Argued
Decided
Alfred Paul Farese, Everett, for defendant.
John T. McDonough, Special Asst. Dist. Atty., for
the Commonwealth.
Before [2
Mass.App.Ct. 214] HALE, C.J., and
GRANT and ARMSTRONG, JJ.
ARMSTRONG, Justice.
The
defendant was indicted for possession of burglar tools (No. 11283), unlawfully
carrying a firearm under his control in a vehicle (No. 11286), breaking and entering
in the night time with intent to commit a felony (No. 11287), and unlawful
possession of firearm ammunition (No. 11288).
He was tried, subject to G.L. c. 278, ss 33A‑‑33G, by a
jury, was found guilty on all indictments, and was sentenced to various terms
at the Massachusetts Correctional Institution, Walpole, to be served
concurrently. The day after the
sentences were imposed, the trial judge vacated the sentence imposed on
indictment No. 11288, and substituted a fine of $100. The case is here on the defendant's appeal
with assignment of errors.
There was
evidence that in the early morning hours of March 18, 1971, a cafe on Woodlawn
Avenue in Pittsfield was broken into and an outer door to a safe was pried
open. (An inner door remained intact, and
the contents of the safe were undisturbed).
Police arrived at the scene at 3:30 A.M.
One officer followed footprints in the snow from the rear of the cafe in
a westerly direction through a parking lot, across a street, through back yards [2 Mass.App.Ct. 216] and across two more streets into a
back yard, where he saw a codefendant, Tosi, sitting on the back steps of a
house, panting, perspiring and exhausted.
There was dust on Tosi's trousers, similar in color to that found by the
police in front of the safe at the cafe.
His heels bore distinctive marks first noticed in the footprints. He was arrested, and searched; his wallet
contained an automobile registration in his name. Officers in the field were instructed by
radio bulletin to be on the lookout for Tosi's 1968 black Buick. Tosi was also traced to a motel on the
Pittsfield‑Lenox road, where he had checked in on March 16 with another
man. An officer testified that the motel
proprietor told him that the car in which Tosi had arrived was not a black 1968
Buick, but rather a very dirty white 1969 Buick. Following that conversation with the motel
proprietor, a second police radio transmission instructed officers to disregard
the first transmission and to look out for a vehicle of the new description
from the Boston area. At about 5:45 or
6:00 A.M. an officer in a cruiser who had heard the transmission noticed a very
dirty white 1970 Buick hardtop parked on Woodlawn Avenue about seventy‑five
feet from the cafe, among about fifty other parked cars. (There was a General Electric Company factory
nearby which employed a night shift).
The officer testified that through the window he saw on the front seat
what appeared to be, and what turned out to be, a blank Connecticut driver's
license protruding from an envelope; that he opened the
driver's door, which was unlocked; that his purpose in entering the car was to
see if it was from the Boston area; that he leaned across the seat to look at
the back of the inspection sticker; and that in doing so he saw a handgun on
the seat. He also examined the envelope
from which the license protruded and saw that it contained several blank
Connecticut licenses, and a completed New Jersey driver's license and a blank
New Jersey driver's license bearing the same license number as the completed
one. The car was [2 Mass.App.Ct. 217]
towed to the police station, was identified by the motel proprietor and was
thoroughly searched. The trunk contained
burglar tools and another handgun, and the glove compartment contained the
defendant Navarro's driver's license.
Fingerprints from the handgun which was found on the driver's seat and
from an empty cigarette package found in the cafe were identified as those of
Navarro.
1. Navarro assigns as error the admission in
evidence of the various items taken from the automobile, arguing that these are
the product of a warrantless, unlawful search in violation of his rights under
the Fourth and Fourteenth Amendments to the Constitution of the United States. After a voir dire the judge ruled that the
initial entry into the car, which led to the discovery of the handgun and the
examination of the envelope of Connecticut and New Jersey licenses, was not a
search; and that the seizure of the car and the subsequent search of it were
grounded on probable cause and were valid.
Later in the trial, testimony by one witness seemed to contradict some
of the testimony given at the voir dire, and the judge permitted a second voir
dire to inquire into the discrepancies.
The judge accepted the testimony by the police at the second voir dire,
stating that it reinforced his findings and conclusions based on the first voir
dire.
The
evidence offered at the two voir dires amply supports the findings of the judge
and his ruling that the contents of the automobile were admissible, although we
reach that result by reasoning different from his.
A
distinction is made in several Federal cases (the issue appears not to have
arisen yet in a case in the Supreme Judicial Court) between an examination of a
vehicle for the purpose of identifying it, and a search of the vehicle for its
contents. See, e.g., Cotton v. United
States, 371 F.2d 385, 393 (9th Cir. 1967); United States v. Powers, 439 F.2d
373, 375 (4th Cir. 1971), cert. den. 402 U.S. 1011, 91 S.Ct. 2198, 29 L.Ed.2d
434 (1971). See also United States v.
Dadurian, 450 [2 Mass.App.Ct. 218] F.2d 22, 24‑‑25, and n. 2
(1st Cir. 1971). Numerous Federal cases
have held that examination of motor vehicles for the purpose of identifying
them may be conducted within certain limits by police officers having
legitimate grounds for doing so, not amounting to probable cause, without
violating Fourth Amendment rights. See,
in addition to the three cases last cited, United States v. Self, 410 F.2d 984,
986 (10th Cir. 1969); United States v. Polk, 433 F.2d 644, 646‑‑648
(5th Cir. 1970); United States v. Brown, 470 F.2d 1120, 1122‑‑1123
(9th Cir. 1972); United States v. Squires, 456 F.2d 967, 969‑‑970
(2d Cir. 1972); and United States v. Ware, 457 F.2d 828, 829 (7th Cir. 1972),
cert. den. 409 U.S. 888, 93 S.Ct. 139, 34 L.Ed.2d 145 (1972). See also Simpson v. United States, 346 F.2d
291, 296‑‑297 (10th Cir. 1965, dissenting opinion of Pickett,
J.). Some of those cases have been
decided on the theory that an examination of a mark like the vehicle
identification number, although necessitating an opening of the door, is not a
search at all. (See, e.g., the Cotton
case and the dissent in the Simpson case).
Others hold that such an entry is a search, but one justified (because
of the limited intrusion and the quasi‑public nature of the mark of
identification) by a 'legitimate reason' amounting to something less than
probable cause. United States v. Powers,
supra.
[1]
Although Fourth Amendment requirements have been held to apply to automobile searches (Preston v. United States, 376 U.S.
364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), Coolidge v. New Hampshire, 403 U.S.
443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)), the United States Supreme Court has
long distinguished between searches of automobiles and searches of
buildings. Carroll v. United States, 267
U.S. 132, 147, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Cooper v. California, 386 U.S. 58, 59, 87
S.Ct. 788, 17 L.Ed.2d 730 (1967). '(F)or
the purposes of the Fourth Amendment there is a constitutional difference
between houses and cars.' Chambers v.
Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1982, 26 L.Ed.2d 419 (1970). The distinction is grounded on the mobility
of automobiles, which results in their frequent use as instruments of crime,
and a lesser expectation of [2
Mass.App.Ct. 219] privacy, which
results from their being out on public ways, open in large measure to visual
inspection by the public at large, and subject under many conditions to minor
but valid police intrusions in the administration of the motor vehicle
laws. Cady v. Dombrowski, 413 U.S. 433,
440‑‑442, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).
The latter
factor‑‑expectation of privacy‑‑applies with varying
force to different parts of an automobile.
'Thus, warrantless searches of the trunk, the glove compartment, the
console or similar areas have been approved only within strict limitations,
such as a requirement of probable cause (FN1) to search the car, Chambers v.
Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), or a search
incident to a lawful arrest, Preston v. United States, 376 U.S. 364, 84 S.Ct.
881, 11 L.Ed.2d 777 (1964), or a showing the car itself was contraband, Cooper
v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).' United States v. Powers, 439 F.2d 373, 375
(4th Cir. 1971).
'Inspection
of a car's identification number differs from a search of a vehicle and seizure
of its contents in one important aspect.
The occupants of the car cannot harbor an expectation of privacy concerning
the identification of the vehicle. The
state requires manufacturers to identify vehicles by affixing identification
numbers which are also recorded in registries where the police and any
interested person may inspect them.
Since identification numbers are, at the least, quasi‑public
information, a search of that part of the car displaying the number is but a
minimal invasion of a person's privacy.
A police officer, therefore, should be freer to inspect the [2 Mass.App.Ct. 220] numbers without a warrant than he is
to search a car for purely private property.'
United States v. Powers, supra, at 375.
(FN2)
[2] The
principle is equally applicable to the case before us. The object of the entry into the vehicle was
not to search the vehicle for its contents.
Rather, it was to find out where the vehicle was from, and to determine
if it was the vehicle which was the subject of the second radio bulletin. There could scarcely be a more appropriate
case for a finding of a legitimate reason for identifying a motor vehicle. The police had apprehended the codefendant
Tosi by footprints in the snow leading directly from the scene of the crime to
a place where Tosi had no right or good reason to be. Yet he did not have in his possession, nor
was there any indication that he had discarded along the way, tools which might have enabled him to force open the
outer door of the safe. These facts
obviously suggested the existence of an accomplice. The proprietor of the motel where Tosi had
stayed indicated that he had in fact arrived with another man. A vehicle‑‑presumably belonging
to or at least in the possession of the other man‑‑was described by
make, year, color and the fact that it was very dirty. Lacking a registration number, the
description could fit more than one car.
Thus, when the police officer came upon the vehicle in question, he
could not be sure whether it was the vehicle the police were seeking. By radio transmission he had been told that
the latter vehicle was 'from the Boston area.'
Had a driver been in the car, he could have been asked to produce his
license and registration. Because the
car was parked, with no driver in sight, the police officer must choose either
to stake out the car, which might have been that of a General Electric worker
from the Pittsfield area, abandoning further search for a [2 Mass.App.Ct. 221]
vehicle from the Boston area, or to attempt to identify the origin of the car
from markings. (FN3) The officer testified that he hoped to be
able to make an identification from decals or stickers. In fact, he discovered the gun when leaning
across the front seat to examine the back of the inspection sticker, which was
glued to the lower right corner of the front windshield in accordance with
State law, and which would be expected to identify the issuing inspection
station on the reverse side, not visible from the exterior of the car.
[3] We see
no essential difference between the opening of an unlocked vehicle in order to
identify it through the vehicle identification number on the doorpost and the
opening of an unlocked vehicle in order to identify its general place of origin
through the inspection station named on the rear of the inspection
sticker. The degree of intrusion is
minimal in either case. So long as the
inspection is justified, and is not a pretext for an exploratory search, it is
well within the concept of reasonableness which defines the essential boundary
within which the government is confined by the Fourth Amendment. See COMMONWEALTH V. HAEFELI, MASS. (1972),
279 N.E.2D 915(FNA).
[4] In the
view we take of this case, we do not find it necessary to inquire whether the
officer's viewing of the blank Connecticut driver's license on the front seat,
when coupled with the fact that the vehicle matched four elements of the
broadcast description, and the fact of its proximity to the scene of the crime,
constituted probable cause justifying a search of the vehicle. Police examination of identifying plates or
stickers required by law to be carried on motor vehicles need not be justified
by probable cause. United States v.
Powers, 439 F.2d 373, 376 (4th Cir. 1971).
Rather, the test of the validity of such minimal intrusions is set forth
in Terry v. Ohio,392 U.S. 1, 21‑‑22, 88 S.Ct. 1868, 1880, 20
L.Ed.2d 889 (1968): '(W)ould the facts available to [2 Mass.App.Ct. 222]
the officer at the moment of the seizure or the search 'warrant a man of
reasonable caution of the belief' that the action taken was appropriate? ' We
hold that that standard was met in the case before us. See Commonwealth v. Matthews, 355 Mass. 378,
380‑‑381, 244 N.E.2d 908 (1969).
[5] [6]
The seizures and searches that followed were clearly justified on familiar
principles. The discovery of the loaded
handgun in plain view on the front seat followed a lawful entry for the limited
purpose of identification, and it, together with facts previously known to the
police, constituted probable cause justifying a search of the vehicle. Commonwealth v. Wilson, Mass. (1971), (FNb) 276 N.E.2d 283. COMMONWEALTH V. ROSS, MASS. (1972),
282 N.E.2D 70.(FNC) COMMONWEALTH
V. VENTOLA, MASS.APP.CT. (1973), 300 N.E.2D 918.(FND) The likelihood that there was an accomplice
in the area capable of moving the vehicle constituted an 'exigent circumstance'
justifying proceeding without a search warrant.
'Carroll (v. United States, 267
U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)) . . . holds a search warrant
unnecessary where there is probable cause to search an automobile stopped on
the highway; the car is movable, the occupants are alerted, and the car's
contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally
permissible.' Chambers v. Maroney, 399
U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970). See also Commonwealth v. Avery, Mass. (1974), 309 N.E.2d 497. Since the police were empowered to make an
immediate search of the car, they were empowered alternatively to seize the car
and make the search at the station house.
Chambers v. Maroney, supra, 399 U.S. at 51‑‑52, 90 S.Ct.
1975.
The judge
was correct in denying the motion to suppress the contents of the vehicle.
[7]
2. The judge admitted in evidence two
items of clothing: a pair of gloves, said to be soft and pliable, found sixty‑five
feet or so from the cafe along the path of footprints which led to the
codefendant Tosi, and Tosi's trousers showing dust like that found in the cafe
in front of the safe. The defendant
Navarro took exceptions to [2
Mass.App.Ct. 223] their admission in
evidence. Those items of evidence were
clearly linked to Tosi and to the cafe break.
Commonwealth v. Lewis, 346 Mass. 373, 382, 191 N.E.2d 753 (1963). Navarro was sufficiently linked to the break
through his fingerprint on the cigarette carton found in the cafe and through
the evidence tending to show that Tosi had arrived by automobile at the motel
the previous evening in the company of Navarro.
We are of the opinion that there was no error in admitting the evidence
generally.
[8] [9]
3. The judge acted properly, within his
sound discretion, in refusing to declare a mistrial when it appeared that there
was a violation of his order for the sequestration of witnesses. Holder v. United States, 150 U.S. 91, 92, 14
S.Ct. 10, 37 L.Ed. 1010 (1893).
Commonwealth v. Crowley,168 Mass. 121, 128, 46 N.E. 415 (1897). Wigmore on Evidence (3d ed.), s 1842. The grant or revocation of an order of
sequestration like other orders relating to the course of the trial, is
discretionary with the trial judge.
COMMONWEALTH V. PARRY, MASS.APP.
(1974), 306 N.E.2D 855(FNE) and
cases cited. The judge said that he felt
that the violation was 'not malevolent'; but even in a case where a violation
of a sequestration order is wilful a trial judge might for good reason prefer
to invoke contempt proceedings rather than declare a mistrial. Holder v. United States, supra. Ann. 14 A.L.R.3d 16, 107‑‑111.
[10]
4. There was a sufficient basis for the
judge's finding that Officer Mason was qualified to testify as an expert in
fingerprint work. 'Such infirmities as
were shown in the knowledge and skill of the witness did not put his testimony
out of the case, although it might have affected its weight.' Commonwealth v. Shea, 356 Mass. 358, 361, 252
N.E.2d 336, 338 (1969). The judge allowed
defense counsel ample scope in cross‑examining the witness, and acted
within his discretion in excluding the question, 'Is there a possibility you
made a mistake here?'
[11]
5. There was no error in denying
Navarro's motion for a directed verdict. The evidence that Tosi was traveling with
another person, that he had arrived in the
[2 Mass.App.Ct. 224] area in a
vehicle registered to Navarro's brother and containing Navarro's own driver's
license and, that Navarro's fingerprint was found on a cigarette package in the
cafe, was sufficient basis for submitting to the jury the question whether
Navarro participated in the break. That
evidence justified the inference that Navarro was in the Pittsfield area, and
was using the car; and there inferences warranted the jury in concluding that
Navarro was in possession of the burglar tools and the firearm ammunition, and
had been unlawfully carrying the firearm under his control in the car. Commonwealth v. Fancy, 349 Mass. 196, 204,
207 N.E.2d 276 (1965).
[12]
6. The day after concurrent prison
sentences were imposed on the four indictments, the judge recalled the
defendant, and, in the absence of defense counsel (the basis of the sole
objection argued), vacated the sentence of two and one half to three years for
unlawful possession of firearm ammunition and instead imposed a sentence of
$100. See District Attorney for the No.
Dist. v. Superior Court, 342 Mass. 119, 126‑‑128, 172 N.E.2d 245
(1961); G.L. c. 278, s 29C. We are of
the opinion that the defendant should have had an opportunity to have defense
counsel present. See Townsend v. Burke,
334 U.S. 736, 738‑‑741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), and
Mempa v. Rhay, 389 U.S. 128, 133‑‑137, 88 S.Ct. 254, 19 L.Ed.2d 336
(1967). For this reason the sentence on
indictment No. 11288 must be vacated, and the defendant must be sentenced again
on the verdict.
7. We have considered each of the other
assignments of error and find no merit in them.
They do not warrant discussion.
The
sentence on indictment No. 11288 is vacated, and the defendant is to be
resentenced on that indictment. The
judgments on indictments No. 11283, 11286 and 11287 are affirmed.
So
ordered.
FN1. And in addition, as Chambers v. Maroney and
Coolidge v. New Hampshire, both supra, appear to have decided, something
constituting 'exigent circumstances' justifying dispensing with the procedures
for issuance of a warrant. Whether the
requirement of 'exigent circumstances' has application to a vehicle out on a
public way is subject to some doubt. See
Commonwealth v. Haefeli, Mass., (1972), 279 N.E.2d 915. Such cases may be distinguished from Coolidge
v. New Hampshire, supra, and United States v. Squires, 456 F.2d 967 (2d Cir.
1972), in each of which the automobile was parked in a private driveway.
FN2.
The Powers case has been commented on with apparent approval in the
First Circuit. See United States v.
Dadurian, 450 F.2d 22, 25, and n. 2 (1st Cir. 1971).
FN3.
There was testimony to the effect that the present vehicle identification
computer system had not yet come into operation.
FNa.
Mass.Adv.Sh. (1972) 423, 431.
FNb.
Mass.Adv.Sh. (1971) 1731, 1733.
FNc.
Mass.Adv.Sh. (1972) 873, 888.
FNd.
Mass.App.Ct.Adv.Sh. (1973) 545,
549.
FNe.
Mass.App.Ct.Adv.Sh. (1974) 95,
100.