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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. Oreto, 20 Mass.App.Ct.
581 (1985)
Appeals Court of Massachusetts, Essex.
Argued
Decided
Further Appellate Review Denied
Robert H. Scarino,
Asst. Dist. Atty., for the Com.
Linda E. Giles,
Before GREANEY, C.J., and ROSE and SMITH, JJ.
GREANEY, Chief Justice.
The
Commonwealth appeals, see Mass.R.Crim.P. 15(a)(2),
378 Mass. 882‑883 (1979), from the allowance by a District Court judge of
the defendants' motions to [20 Mass.App.Ct. 582]
suppress a "roach," a quantity of marihuana in a plastic bag, a pipe
containing marihuana, and a 9 mm. semiautomatic handgun. The contraband was seized from an automobile
driven by the defendant Oreto in which the defendant Boozang was a passenger.
(FN2)
The
facts found by the judge, supplemented slightly from undisputed evidence, are
as follows. On
As he
followed the automobile, Trooper Coleman noticed two men in the front seat (Oreto was later identified as the driver and Boozang as the passenger) making suspicious hand movements
back and forth. Deciding to investigate
further, the trooper pulled his cruiser into the passing lane alongside the
Mercedes, slowed to the Mercedes' speed of approximately thirty miles per hour,
and turned on the cruiser's alley lights.
(FN3) The alley lights enabled
the trooper to see the interior of the vehicle, a view which revealed that Oreto and Boozang were passing a
"very small" brownish pipe back and forth to each other.
Trooper
Coleman dropped back behind the Mercedes and turned on his blue flashing bar
light to signal for a stop. The [20 Mass.App.Ct. 583] Mercedes continued for approximately 200
yards before stopping. During the period
between slowdown and stop, Oreto and Boozang were observed "moving around inside the
vehicle." As the trooper
approached the driver's side of the automobile, he noticed a "roach"
(FN4) in the ashtray and smelled a strong odor of what he believed to be
marihuana. Both Oreto
and Boozang were told to step outside the
automobile; Oreto
did first and appeared "rather nervous." The small brownish pipe was on the floor on
the driver's side and, when retrieved, was seen to contain green vegetable
matter which the trooper suspected was marihuana. (FN5) Oreto and Boozang were placed
under arrest for possession of marihuana and the Mercedes was impounded.
By
this time Trooper David A. Webber of the Massachusetts State police had arrived
at the scene in response to a communication from Trooper Coleman. Trooper Webber handcuffed Boozang
and placed him in the rear seat of his police cruiser. A towing service was called to remove the
impounded Mercedes. There was evidence
that, as part of State police policy, all impounded vehicles are subjected to
an inventory search before they are towed to protect any valuables that might
be in the vehicle. Trooper Webber
conducted the inventory search and Trooper Coleman completed an inventory form
required by State police procedure to report and record the search. In the course of examining the front interior
of the automobile, Trooper Webber opened the unlocked glove compartment and
there found and seized a 9 mm. semiautomatic handgun. Finally, after transporting Boozang to the State police barracks, Trooper Webber
noticed in the police cruiser a plastic bag approximately six inches long
containing brownish‑colored vegetable matter. The bag was on the rear seat directly beneath
where Boozang had been seated. The bag was also seized. Laboratory analysis of the material in the
bag revealed it to be marihuana, which led to Boozang's
being charged with possession of marihuana with intent to distribute.
[1][2]
[20 Mass.App.Ct. 584] 1. It was agreed (correctly we
think) that until the alley lights were engaged to disclose that Oreto and Boozang had been
passing a very small pipe between them, Trooper Coleman had no basis in fact to
stop the Mercedes, as no traffic or other law was being violated. The District Court judge, in his
conscientiously prepared memorandum of decision, recognized the established
principle that the use of artificial light to illuminate the open interior of
an automobile does not constitute a search.
(FN6) The judge thought, however,
that because the cases discussing the principle involved automobiles which had
been either parked or lawfully stopped, see, e.g., Commonwealth v. Haefeli, 361 Mass. 271,
273‑275, 280, 279 N.E.2d 915 (1972); Commonwealth v. Cavanaugh, 366 Mass. 277,
278, 281‑283, 317 N.E.2d 480 (1974); Commonwealth v. Ling, 370 Mass. 238, 346
N.E.2d 703 (1976), the principle was confined to the examination of the
interiors of stationary automobiles. So
the judge reasoned that "[i]n the case at hand,
[since] the [defendants'] vehicle was not parked or lawfully stopped ... the
trooper did not have sufficient cause to pull alongside the ... vehicle and
illuminate the interior to see a small, brown pipe being passed."
The
fault in the judge's analysis lies in his restriction of the principle to a
situation where the vehicle whose open interior was examined by artificial
light was either parked or lawfully stopped.
The threshold question is not whether the vehicle was stopped or moving
but whether the investigating police officer had the right to be in a position
to view the interior of the automobile.
If he was rightfully in such a position, then the officer could,
permissibly within the requirements of the Federal[20 Mass.App.Ct.
585] and State constitutions, use
artificial light to illuminate its interior.
The law on the subject was recently explained in Commonwealth v. Pietrass, 392 Mass. 892,
901, n. 12, 467 N.E.2d 1368 (1984), a case involving police use of a flashlight
to look from a porch through a window of a house:
"If the police were rightfully on
the porch, it does not matter that they saw the evidence by looking through a
window. As long as the officer had a
right to be where he was, he had a right to notice whatever was in plain view,
even through a window. Commonwealth v. Hason,
387 Mass. 169, 176 [439 N.E.2d 251] (1982).
See Nordskog
v. Wainwright, 546 F.2d 69, 72 (5th Cir.1977) (police could look through proch with sliding glass door). See also
People v. Willard, 238 Cal.App.2d 292, 297 [47 Cal.Rptr.
734] (1965) ( 'looking through a window does not constitute an unreasonable
search').
"Nor does the fact that the officers
used a flashlight affect the legitimacy of their view of the evidence. This court has said that 'the use of a
flashlight to look into the interior of a car ... does not amount to a search
at all.'
Commonwealth v. Cavanaugh, 366 Mass. 277, 281 [317 N.E.2d 480]
(1974). Although the search of a house
is different from a search of a car, the reasoning of the court in Marshall v. United States, 422 F.2d
185, 189 (5th Cir.1970), is appropriate:
'The mere use of a flashlight ... does not magically transmute a non‑accusatory
visual encounter into a Fourth Amendment search. When the circumstances of a particular case
are such that the police officer's observation would not have constituted a
search had it occurred in daylight, then the fact that the officer used a
flashlight to pierce the nighttime darkness does not transform his observation
into a search.' See United States v. Wright, 449 F.2d 1355 (D.C.Cir.1971) (looking
through partially open garage with aid of flashlight does not constitute a
search);
People v. Wheeler, 28 Cal.App.3d 1065 [105 Cal.Rptr.
56] (1972) (same)."
There is no doubt that Trooper Coleman
had the right to pull his police cruiser alongside the defendants' vehicle as
the two [20 Mass.App.Ct. 586] automobiles travelled on Route 1, a public way. The trooper's observations through the
driver's window of the small pipe being passed between Oreto
and Boozang would not have constituted a search if
they had occurred in daylight. Alley
lights, while undoubtedly more probing than a flashlight, are no different from
the latter in a case involving a lawful police investigation. It follows, in this somewhat unusual case,
that the use of the alley lights at 3:50 A.M. to make the same observations
that could have been made in the daylight did not intrude on the defendants'
constitutional rights.
[3][4][5] 2. The balance of the case
presents no difficulty. Trooper Coleman
could (and did) infer, based on his experience and his observations of the
extremely slow speed of the vehicle and the passing of the small pipe between
the two men in the front seat, that Oreto and Boozang were probably smoking marihuana. This, in turn, justified stopping the vehicle
for further investigation, as the trooper had a reasonable basis in fact to suspect
that a crime was being committed. See Commonwealth v. Silva, 366 Mass. 402,
405, 318 N.E.2d 895 (1974), and cases cited.
The trooper's plain view observation of the roach in the ashtray of the
stopped vehicle and his smelling of the characteristic burning odor of
marihuana provided a basis for seizing the roach and investigating for the
presence of other controlled substances.
See Commonwealth v. Skea, 18 Mass.App. 685, 688,
470 N.E.2d 385 (1984), and cases cited.
The discovery of the pipe which Oreto and Boozang had been passing, with what the trooper believed
was marihuana in it, together with the trooper's earlier observations, provided
probable cause to arrest both men for violation of the controlled substances
laws. The handgun found in the glove
compartment was thereafter properly seized pursuant to a lawful inventory
search. See South Dakota v. Opperman, 428 U.S. 364,
372‑376, 96 S.Ct. 3092, 3098‑3100, 49
L.Ed.2d 1000 (1976); Commonwealth v. Matchett,
386 Mass. 492, 508‑511, 436 N.E.2d 400 (1982). Cf.
Commonwealth v. Ford, 394 Mass. 421, 424‑425, 476 N.E.2d 560
(1985). The plastic bag of marihuana,
apparently abandoned by Boozang on the rear seat of
Trooper Webber's cruiser, was also lawfully seized. Since the police conduct at each critical
stage of investigation [20 Mass.App.Ct. 587] was
lawful, the order allowing the defendants' motion to suppress evidence is
erroneous and is reversed.
So
ordered.
(FN1.) Two cases are against Michael S. Boozang and one is against Frank P. Oreto,
Jr.
(FN2.) As a result of the seizure, complaints
issued against Oreto charging him with the unlawful
possession of marihuana, G.L. c. 94C, § 34, and the
unlawful carrying of a handgun, G.L. c. 269, § 10(a ), and against Boozang
charging him with unlawful possession of marihuana with intent to distribute, G.L. c. 94C, § 32(a
), and the unlawful carrying of a handgun.
(FN3.) The alley lights are mounted on the
right side of the cruiser's blue bar light.
Although the alley lights illuminated the interior of the defendants'
automobile, they apparently did not pose a safety hazard, at least in the road
conditions prevailing at the early hour involved here.
(FN4.) A "roach" was described as a
"very small portion of a marihuana cigarette."
(FN5.) Later laboratory testing confirmed that
the roach and the vegetable matter in the pipe were marihuana.
(FN6.) The principle was stated in Texas v. Brown, 460 U.S. 730, 739‑740,
103 S.Ct. 1535, 1541‑42, 75 L.Ed.2d 502 (1983),
a case involving a lawful stop of an automobile for a license check, in these
terms:
"It is likewise beyond dispute
that [the police officer's action] in shining his flashlight to illuminate the
interior of [the defendant's] car trenched upon no right secured to the latter
by the Fourth Amendment. The Court said
in United States v. Lee, 274 U.S.
559, 563 [47 S.Ct. 746, 748, 71 L.Ed.
1202] (1927): '[The] use of a
searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution.' Numerous other courts have agreed that the
use of artificial means to illuminate a darkened area simply does not
constitute a search, and thus triggers no Fourth Amendment protection."