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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.
Supreme Judicial Court of Massachusetts,
Argued
Decided
Klari Neuwelt,
John P. Connor, Jr., Asst. Dist. Atty., for the
Commonwealth.
Before [363
TAURO, Chief Justice.
The
defendant George T. Rand, Sr., appeals under G.L. c.
278, ss 33A‑‑33G, from convictions on
indictments for manslaughter, and for leaving the scene of an accident after
causing personal injuries. The defendant
assigns as error: (1) the failure to suppress evidence which the police
gathered as a result of an alleged illegal search and seizure of an automobile
which the defendant was operating at the time of his arrest for an unrelated
offence; (2) the judge's denial of his motions for directed verdicts; and (3)
the judge's denial of his motions for a new trial.
From the
pre‑trial hearing on the motion to suppress, the following evidence
pertinent to the first assignment of error appears: On
At 10:50
P.M. that same evening, Officers DiLorenzo and
MacDonald investigated a two car collision in which the defendant was
involved. The defendant was arrested at
that time on charges, stemming from this two car collision,[363 Mass. 556] of operating so as to
endanger, operating under the influence of intoxicating liquor, and
drunkenness. During his investigation of
this second accident, Registry Inspector MacDonald observed the vehicle
operated by the defendant while it was suspended on a tow truck under a street
light. The inspector made the following
observations: (1) the two car collision took place only 600 feet away from the
scene of the prior hit‑and‑run accident on the same street; (2) in
addition to the damage caused by the second accident to the side and rear of
the defendant's car, there was damage to the car's front which was consistent
in all respects with the hit‑and‑run accident; (3) there was a
string‑like material dangling from the headlight and a glass‑like
object in the automobile's vent cowling; and (4) the car's appearance matched
the eyewitness's description of the hit‑and‑run vehicle.
In light
of these observations, the police towed the vehicle to the police station to
examine the car more closely in reference to the hit‑and‑run accident. Relying entirely on an exterior examination
of the vehicle, the police found after an hour's investigation an earring,
retaining clip, clothing fibers, and fiber impressions (paint samples were also
taken), all of which tended to establish the vehicle as the hit‑and‑run
automobile. After this examination was
completed, the defendant was charged with manslaughter, leaving the scene after
causing personal injuries and operating to endanger. The defendant contends there was error in the
denial of his pre‑trial motion to suppress all of this evidence on the
ground that it was the product of an illegal search and seizure. We disagree.
1. The police had no warrant to search the
vehicle and the Commonwealth conceded in argument before this court that the
examination of the vehicle at the police station was not incidental to the
defendant's initial arrest for charges stemming from an incident, namely the
second accident, unrelated to the search.
'Thus narrowed, our consideration must focus on whether there were
exigent circumstances which permitted . . . (the police) [363 Mass. 557] to
search the automobile without a warrant.'
Commonwealth v. Haefeli, Mass.,[FNa] 279 N.E.2d 915, 918.
The
Commonwealth contends that there was no search of the vehicle at the police
station because the police restricted their observations to what was in plain
sight. However, the United States
Supreme Court has indicated repeatedly that the fact that evidence is in plain
view is not by itself legally significant.
'It is well established that under certain circumstances the police may
seize evidence in plain view without a warrant.
But it is important to keep in mind that, in the vast majority of cases,
any evidence seized by the police will be in plain view, at least at the moment
of seizure. The problem with the 'plain
view' doctrine has been to identify the circumstances in which plain view has
legal significance rather than by being simply the normal concomitant of any
search, legal or illegal. . . . What the 'plain view' cases have in common is
that the police officer in each of them had a prior justification for an
intrusion in the course of which he came inadvertently (emphasis supplied)
across a piece of evidence incriminating the accused.' Coolidge v. New Hampshire, 403 U.S. 443, 465‑‑466,
91 S.Ct. 2022, 2037‑‑2038, 29 L.Ed.2d
564.
The facts
of the instant case indicate that the police made some initial observations of
the defendant's vehicle at the scene of the two car collision which aroused
their suspicions about the vehicle's possible involvement in the hit and
run. If the police had seized any
evidence at that time which was in plain sight, the 'plain view' doctrine would
justify the seizure because the police had a prior justification for their
intrusion, namely the two car collision and the defendant's arrest in the course
of which they had inadvertently come across a piece of incriminating evidence.
[1]
However, in the instant case, some of the incriminating evidence ([FN1]) (e.g., earring, retaining clip, fiber
impressions)[363 Mass. 558]
did not come into 'plain view' until the police had made an hour long
examination of the vehicle at the police station. Their suspicions aroused, the police had
taken the vehicle to the station to look for evidence connecting it to the
prior hit‑and‑run accident.
Thus, their discovery of such evidence at the station was anything but
inadvertent. ([FN2]) Therefore, we conclude that the 'plain view'
rule does not justify the police's deliberate search at the police station for
evidence connecting the automobile to the hit and run.
However,
the Supreme Court's decision in Chambers v. Maroney,
399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, provides
authority for the police's warrantless search of the
automobile in the instant case. The
court noted that '(o)nly in exigent circumstances
will the judgment of the police as to probable cause serve as a sufficient
authorization for a search. Carroll,
supra (Carroll v. United States, 267 U.S. 132, 45 S.Ct.
280, 69 L.Ed. 543), 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.' P. 51, 90 S.Ct. p. 1981.
However, in the Chambers case, the police made the search at the station
house instead of on the highway where the car was stopped. The court held that [363 Mass. 559] if
probable cause to search and exigent circumstances initially existed when the
car was stopped, there was no valid constitutional reason which prevented the
police from conducting the search at the station house instead of on the public
highway. '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
carrying out an immediate search without a warrant.' P. 52, 90 S.Ct. p.
1981.
The
Supreme Court's subsequent decision in the Coolidge case, supra, indicated
'that the Justices of the United States Supreme Court were in seemingly
irreconcilable disarray as to what the law was or ought to be with reference to
the warrantless search of an automobile.' Commonwealth v. Haefeli,
supra,[FNb] 279 N.E.2d at 919. However, all of the Supreme Court Justices agreed
that the Chambers case supported at the very least the proposition that 'given
a justified initial intrusion, there is little difference between a search on
the open highway and a later search at the station.' Coolidge v. New Hampshire, supra, 403 U.S. at
463, 91 S.Ct. at 2036, fn. 20. Moreover, the majority opinion in the
Coolidge case conceded that in determining whether the initial intrusion by the
police was justified by exigent circumstances as well as probable cause to
search, the proper test was to examine the exigent circumstances at the time
the car was stopped and not at the time the car was actually searched at the
police station. 'It is true that the
actual search of the automobile in Chambers was made at the police station many
hours after the car had been stopped on the highway, when the car was no longer
movable, any 'exigent circumstances' had passed, and, for all the record shows,
there was a magistrate easily available.'
Id. at 463, 91 S.Ct. at 2036, fn. 20. Thus, the proper test is whether, at the time
a car was stopped, there was probable cause to search the vehicle and there
were exigent circumstances such as 'the fleeting opportunity to search'
justifying an immediate search at that time.
'Chambers . . . held only that, where the police may stop and search an
automobile[363 Mass. 560]
under Carroll, they may also seize it and search it later at the police
station.' Id. at 463, 91 S.Ct. at 2036.
Unlike the
situation in the Coolidge case where the police 'had known for some time of the
probable role of the Pontiac car in the crime' and had ample opportunity to get
a search warrant before the night of the defendant's arrest, ([FN3]) the police
in the instant case, as in the Chambers, Carroll, and Haefeli
cases, supra, had no opportunity prior to the initial stopping of the vehicle
to obtain a search warrant.
[2] In the
instant case, probable cause to search for evidence connecting the car to the
hit‑and‑run accident resulted inadvertently from the police's
legitimate investigation of the damage caused by the two car collision for
which the defendant had been arrested.
The automobile's color, its location, and the nature and extent of the
damage to its front end came into the officers' plain view through inadvertence
in the course of routine police work.
Commonwealth v. Ross, Mass.,[FNc] 282 N.E.2d
70. Westover v. United States, 394 F.2d
164 (9th Cir.). The physical appearance
of the car, its proximity to the scene of the hit and run, and the damage to
its front end which was consistent with the type of damage expected to the hit‑and‑run
vehicle provided sufficient nexus between the incriminating evidence in plain
view and the hit‑and‑run accident to constitute probable cause to
search the automobile for further evidence of the hit and run. See Commonwealth v. Gizicki,
358 Mass. 291, 295, 264 N.E.2d 672.
[3] As in
the Chambers and Haefeli cases, the vehicle was
stopped on a public highway at the time probable cause to search it first
arose. Moreover, the police were dealing
with a vehicle of unascertained ownership that could have been moved out of the
jurisdiction at the owner's direction.
([FN4]) See Commonwealth v. Haefeli, at[FNd] 279 N.E.2d
915. Therefore, we are of the opinion
that there [363 Mass. 561] were sufficient exigent circumstances
justifying an immediate warrantless search of the
automobile which the police had probable cause to believe was involved in the
hit‑and‑run accident.
Commonwealth v. Gizicki, supra. The police could make that search at the
police station because the facts constituting probable cause to make the search
continued to exist. Commonwealth v. Gizicki, supra, 358 Mass. at 295, 264 N.E.2d
672. The Chambers case, supra.
2. The defendant's second assignment of error
concerns the judge's denial of his motions for directed verdicts on both
indictments. The defendant concedes that
there was sufficient evidence to warrant a finding that he had possession of
the automobile prior to the hit‑and‑run accident. But he contends that the circumstantial
evidence introduced by the Commonwealth to show that he was the driver of the
vehicle at the time it struck the victim was insufficient to warrant submission
to the jury because it was based on vague conjecture and speculation that could
not possibly 'produce a moral certainty of guilt, and . . . exclude any other
reasonable hypothesis.' Commonwealth v. Russ,
232 Mass. 58, 68, 122 N.E. 176, 180.
Commonwealth v. Shea, 324 Mass. 710, 88 N.E.2d
645. We cannot agree.
Our
holding in the Shea case (relied on by the defendant)
that a directed verdict should have been granted for the defendant was based on
the fact that the Commonwealth failed to introduce any evidence placing the
defendant in the hit‑and‑run vehicle on the date of the offence
either before or after the accident.
Moreover, there was evidence in that case that another unknown person
had been seen operating the vehicle less than three hours before the
accident. This court concluded that
". . . (a) careful examination of the record discloses nothing more than
speculation, conjecture or surmise upon which such a (guilty) finding could be
based. This is insufficient to sustain
the burden resting upon the Commonwealth.'
Commonwealth v. Albert, 310 Mass. 811, 816‑‑817, 40 N.E.2d
21, 25.' The Shea
case, at 714, 88 N.E.2d at 647.
[363 Mass. 562] [4] However, the circumstantial evidence in the instant case
placed the defendant behind the wheel of the vehicle on the same street where
the hit‑and‑run accident occurred a half hour later. Moreover, there was evidence of the
defendant's opportunity to operate the vehicle at the time of the hit‑and‑run
accident, that he had authorized no one else to use the car and that he had
sole possession of the keys to the ignition.
Thus, we do not have a case where the evidence before the jury 'tends
equally to sustain either of two inconsistent propositions (the guilt or
innocence of the defendant).' Commonwealth
v. Shea, 324 Mass. 710, 713, 88 N.E.2d 645, 647. Our review of the record leads us to conclude
that the jury were warranted in finding that the defendant was the operator of
the automobile at the time of the accident.
See Commonwealth v. Swartz, 343 Mass. 709, 180 N.E.2d 685; Commonwealth
v. Medeiros, 354 Mass. 193, 236, N.E.2d 642.
The
defendant argues that even if there were sufficient evidence to prove he was
the operator of the hit‑and‑run vehicle, his motion for a directed
verdict on the manslaughter charge should have been granted because there was
insufficient evidence to warrant a finding that his conduct was wanton and
reckless. We disagree. See Commonwealth v. Welansky,
316 Mass. 383, 399, 55 N.E.2d 902, 910.
'Wanton or reckless conduct amounts to what has been variously described
as indifference to or disregard of probable consequences to that other.' See also Commonwealth v. Scott, Mass.,[FNe] 269 N.E.2d 454; Commonwealth v. LaFrance,
Mass.,[FNf] 278 N.E.2d 394; M. & M. Transp. Co. v.
Cochran, 100 F.2d 207, 209 (1st Cir.).
[5] We
think the evidence supports a finding that the defendant could have seen the
victim for a substantial distance before the impact and that he failed to slow
down, turn toward the open road, or even sound a warning signal. Testimony by investigating police officers
indicated that visibility conditions were good ([FN5]) as the [363 Mass. 563] road
was clear and illuminated by mercury vapor lamps. The evidence was sufficient to support a
finding that the operator could have seen the victim for a substantial distance
prior to hitting her, and, in the circumstances, the jury were justified in
finding wilful, wanton, and reckless conduct on the
defendant's part. ([FN6]) Commonwealth v. Arone,
265 Mass. 128, 163 N.E. 758. Therefore,
the judge correctly denied the defendant's motion for a directed verdict on the
manslaughter charge.
3. The defendant argues on his motions for a new
trial, that his conviction on the charge of manslaughter should not be allowed
to stand because it is legally inconsistent with his acquittal on the charge of
operating a motor vehicle so as to endanger the public. Since the lesser crime of driving to
endanger, G.L. c. 90, s 24(2)(a), only requires proof
of ordinary negligence, whereas manslaughter requires proof of reckless and
wanton conduct, Commonwealth v. Welansky, 316 Mass.
383, 55 N.E.2d 902, the defendant contends that his acquittal on the lesser
charge precluded the verdict of manslaughter.
[6]
However, our examination of the judge's instructions, to which the defendant
did not object, leads us to conclude that these verdicts were not
inconsistent. The instructions ([FN7]) suggested to the jury that operating
so as to [363 Mass. 564] endanger was the less serious of the
alleged offences and that manslaughter was the more serious. The jury could have believed from these
instructions that they had to decide between one of the two crimes if they
found the defendant guilty. If the
defendant was only negligent, he was guilty of operating to endanger. The instructions given by the judge, '(i)f otherwise . . . he is to be found not guilty' (see fn.
7), could have suggested to the jury that if they considered the defendant's
conduct to be reckless and wanton, they had to find him not guilty of the
lesser crime of operating to endanger and guilty of the more serious crime of
manslaughter. The judge's instructions
make it clear that manslaughter is a more serious charge but nowhere do they
indicate that a finding of guilty on the more serious charge mandates a guilty
verdict for the lesser crime of operating so as to endanger.
Thus, we
are faced with a situation like that in Commonwealth v. Peach, 239 Mass. 575,
132 N.E. 351, where the court expressly instructed the jury to choose between
the two crimes. Since the unchallenged judge's
instructions ([FN8]) in this case render the jury's verdicts consistent with
each other, the judge correctly denied the defendant's motions for a new
trial. Commonwealth v. Peach, supra, 581,
132 N.E. 351.
Judgments
affirmed.
FNa. Mass.Adv.Sh. (1972) 423, 426.
(FN1.)
The dent on the vehicle's front end and the 'piece of string' dangling
over one of the headlights were in plain view.
See Commonwealth v. LaBossiere, 347 Mass. 384,
386, 198 N.E.2d 405; Commonwealth v. Campbell, 352 Mass. 387, 402, 226 N.E.2d
211. However, the earring was not in
plain view. Although the officer noticed
'an object in the vent, the cowling vent of the car,' which turned out to be an
earring, it was not 'immediately apparent to the police that they . . . (had)
evidence before them.' Coolidge v. New
Hampshire, supra 403 U.S. at 466, 91 S.Ct. at
2038. In fact, the officer testified
that 'I didn't recognize (the piece of glass) as being an earring at that time. I thought it was a piece of glass or
something like that.'
(FN2.)
The Supreme Court was careful to point out that the original
justification for the seizure of evidence in plain view cannot be extended to
support such a deliberate general exploratory search. 'Of course, the extension of the original
justification is legitimate only where it is immediately apparent to the police
that they have evidence before them; the 'plain view' doctrine may not be used
to extend a general exploratory search from one object to another until
something incriminating at last emerges' (emphasis supplied). The Coolidge case, supra, 403 U.S. at 466, 91
S.Ct. at 2038.
See Commonwealth v. Wojcik, 358 Mass. 623, 626‑‑630,
266 N.E.2d 645; Commonwealth v. Haefeli, (Mass.Adv.Sh. (1972)
at 433), 279 N.E.2d 915; Commonwealth v. Ross.
(Mass.Adv.Sh. (1972) 873, 888), 282 N.E.2d 72.
FNb. Mass.Adv.Sh. (1972)
at 429‑‑430.
(FN3.)
'Since the police knew of the presence of the automobile and planned all
along to seize it, there . . . (were) no 'exigent circumstance(s)' to justify
their failure to obtain a warrant.' Id.
at 478, 91 S.Ct. at 2044.
FNc. Mass.Adv.Sh. (1972)
at 888.
(FN4.)
The defendant had borrowed the automobile from its owner.
FNd. Mass.Adv.Sh. (1972)
at 434.
FNe. Mass.Adv.Sh. (1971)
747, 750.
FNf. Mass.Adv.Sh. (1972)
177.
(FN5.)
Officer DiLorenzo testified that as he drove
toward the accident scene in the northbound lane, he could see two automobiles
parked by the victim's body from a distance of 400 feet.
(FN6.)
The jury had other evidence of the defendant's reckless conduct before
them. The defendant had two drinks a few
hours before the accident and was seen driving without headlights past the
scene of the accident one‑half hour after it occurred. There was no evidence of tire marks at the
scene of the hit‑and‑run accident to indicate that the operator had
tried to avoid the accident by using his brakes or swerving toward the open
road. Further evidence is found in the
damage to the front end of the car and the driver's failure to stop after
hitting the victim.
(FN7.)
'Now, in relation to the offenses charged and taking them in the
category of their seriousness, there is the offense charged of driving on a
public way negligently so that the lives and safety of the public might be
endangered. . . . (I)f the operation of the car was negligently
performed, he can be found guilty of this charge. 'If otherwise you find, he is to be found not
guilty' (emphasis supplied).
On the charge
to the jury on manslaughter, the judge noted that it was a more serious crime
which the prosecution must establish by proof of a 'death caused by wanton or
reckless conduct. The distinction here
is the proof of wanton and reckless conduct as distinguished from ordinary
negligence. The mere showing of ordinary
negligence is not enough to prove criminal liability.'
(FN8.)
The correctness of such instructions is not before us. Since there were no objections to them, they
constituted the law of the case.