|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Reed, 23 Mass.App.Ct.
294 (1986)
Appeals Court of Massachusetts, Hampden.
Argued
Decided
William R. Hill, Jr., Committee for Public Counsel
Services,
Ariane D. Vuono,
Asst. Dist. Atty., for the Com.
Before GREANEY, C.J., and QUIRICO KASS, JJ..
GREANEY, Chief Justice.
A
complaint was issued against the defendant for receiving stolen property having
a value of over $100 (various[23 Mass.App.Ct. 295] items of clothing from a J.C. Penney Store in
[1] 1. The
judge did not make findings of fact on the motion to suppress, as he should
have. This oversight unnecessarily
complicates appellate review.
Shortly
before
Two
Springfield detectives, in an unmarked car, had heard the first radio call and
had started to drive towards the shopping mall.
Just after they heard the second broadcast, they saw a red van. The police were driving south on Tapley Street in Springfield towards the intersection of Tapley and Bay Streets.
The van was proceeding west on Bay Street and crossed Tapley Street directly in front of the detectives'
car. The passenger side of the van faced
the police car.
One of the
detectives inside the police car testified that a sliding door on the passenger
side of the van was open, allowing both officers to see inside. That was a plausible circumstance, as the day
was very hot. Through the open van door
the officers observed several black men, as well as hubcaps and clothing [23 Mass.App.Ct.
296] with price tags attached. Based on those observations, the officers
decided to stop the van. They turned
right onto Bay Street, activated their siren and flashed their headlights,
pulled around the van and turned in front of it, forcing it to stop. At about the same time, another unmarked
police car, which had also seen the van, pulled behind it, boxing it in. At least one of the detectives from the lead
police car got out and approached the van.
He asked the driver, later identified as the defendant, for "some
paperwork." While the defendant
was "fumbling around" to satisfy this request, the passengers in the
back of the van suddenly jumped out and ran.
The officer gave chase. A
policeman from the other car approached the van. As he did, he also saw the hubcaps and the
clothes with price tags through the open door of the van. The defendant was placed under arrest and the
hubcaps and clothes were seized.
The
defendant concedes (as he must) that the principles stated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), allow the stopping of a
motor vehicle and preliminary inquiry of its occupants if there exists
reasonable grounds for inquiry. Commonwealth v. Riggins, 366 Mass. 81,
86, 315 N.E.2d 525 (1974), and cases cited.
He argues, however, that the police lacked a reasonable factual basis to
stop the red van. Relying on Commonwealth v. Antobenedetto,
366 Mass. 51, 315 N.E.2d 530 (1974), he claims that the lack of corroborative
information to support the reliability of the anonymous tip renders the stop of
the van and the seizure of property from it unconstitutional.
[2] The
argument misconceives the holding of the Antobenedetto decision, as well as the precise sequence
of events in this case. The officers
here were clearly "able to point to specific and articulable
facts which, taken together with rational inferences from those facts,
reasonably warrant[ed]" the stop.
See Terry v. Ohio, 392 U.S. at
21, 88 S.Ct. at 1879. We need not decide whether the anonymous
report could alone justify the stop.
See, e.g., Aguilar v. Texas,
378 U.S. 108, 113, 84 S.Ct. 1509, 1513, 12 L.Ed.2d
723 (1964); Spinelli v. United
States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21
L.Ed.2d 637 (1969); Commonwealth v. Antobenedetto,
366 Mass. at 56, 315 N.E.2d 530.
However, when considered with the evidence from the investigating
officer which tended to corroborate the report, the close resemblance of the
van and [23 Mass.App.Ct.
297] its occupants to the
descriptions in that report, and, most important, the hubcaps in the back of
the van open fully to view by passersby, including the police; the facts " 'warrant[ed] a man of
reasonable caution in the belief' that the action taken was appropriate."
Terry v. Ohio, 392 U.S. at 22, 88 S.Ct. at
1880. "The officers did not act on
unsupported intuition or hunch, which would have been insufficient
justification to stop the vehicle....
Rather, they acted on concrete facts which supported the reasonable
inference that the red [van] might be the vehicle involved in the [theft]. There was thus a proper basis in a
constitutional, as well as a practical, sense for stopping the vehicle in
order to conduct an inquiry. Commonwealth v. Breen, 357 Mass. 441,
446[ 258 N.E.2d 543] (1970). Commonwealth v. Wilson, 360 Mass. 557,
560[ 276 N.E.2d 283] (1971)." Commonwealth v. Riggins, 366 Mass. at 87,
315 N.E.2d 525.
While the
police were making preliminary inquiry of the defendant, the passengers in the
van suddenly jumped out and fled. This
added fact certainly gave rise to probable cause to examine the van for
possible stolen merchandise. Thus, the
presence of concrete facts corroborating the anonymous information, and the
observation of likely stolen property in plain view prior to the stop of the
vehicle, distinguish this case from the Antobenedetto decision, and the more recent decision in Commonwealth v. Bottari,
395 Mass. 777, 482 N.E.2d 321 (1985), in which police action was
invalidated. In the latter cases,
anonymous information had not been adequately verified prior to the making of
an actual arrest, or a search or seizure of property. The probable cause necessary for an arrest,
search, or seizure was thus absent.
Here, there was a reasonable basis, under Terry principles, to stop the van for initial inquiry. The boxing in of the van with the police
cruisers did not by itself constitute an arrest. See
Commonwealth v. Fitzgibbons, 23 Mass.App.Ct. 301,
502 N.E.2d 142 (1986), decided the same day as this case. The overall intrusion was dictated by, and
consistent with, the circumstances.
Compare Commonwealth v. Sanderson,
398 Mass. 761, 766‑767, 500 N.E.2d 1337 (1986). If probable cause did not already exist prior
to the stop (as it most likely did), the flight of the passengers and the
closer plain view observations of the van's contents shortly [23 Mass.App.Ct.
298] after the stop gave the police
probable cause to seize the hubcaps and articles of clothing. The motion to suppress was correctly denied.
2. The
prosecutor called as a witness at trial the operations manager of the J.C.
Penney store to which the clothing (five pairs of red and white shorts and
pants) belonged. Relying upon a computer
printout, the manager testified that the store had received six pairs of this
style of shorts and pants eighty‑two days before July 5 (the day he was
asked to check the merchandise to see if it had been stolen) and that none had
been sold. A physical inventory of that
part of the store where this type of merchandise was kept disclosed one pair
remaining on the sales floor and five pairs unaccounted for. As previously indicated, the clothing
contained J.C. Penney price tags and other identifying store information.
[3] The
defendant argues that allowing the manager to use the printout, an out‑of‑court
document presented for the truth of its contents, constituted the use of
inadmissible hearsay. The printout
itself was not admitted in evidence.
Although the printout was hearsay and not a record made by the manager
reflecting matters of his personal knowledge, we think the information in the
printout qualified as a business record.
(FN1)
A record
is admissible as a business record if it "was made in good faith in the
regular course of business and before the beginning of the civil or criminal
proceeding ... and [if] it was the regular course of such business to make such
memorandum or record at the time of such act ... or within a reasonable time
thereafter." G.L.
c. 233, § 78, as appearing in St. 1954, c. 442, § 1. The manager's testimony established the
existence of all four factors.
(FN2) The record involved entries
made
into [23 Mass.App.Ct. 299]
inventory when goods were received, and then reports made of sales, with
corresponding debits from inventory. The
fact that these records were kept on a computer rather than in ledgers does not
make the information reported less reliable.
[4][5] The
defendant argues that reliance on the report and the manager's lack of
knowledge about the operation of the computer system deprived him of meaningful
cross‑examination. General Laws c.
233, § 78, does not require personal knowledge by the witness of the facts in a
business record as a condition of admissibility. See
Sawyer & Co. v. Southern Pac. Co., 354 Mass. 481, 484, 238 N.E.2d 357
(1968). The fact that the manager was
unaware of how the system worked is also irrelevant to admissibility, although
that point could pertain to the weight to be given the evidence by the fact
finder. See Commonwealth v. Hogan, 7 Mass.App.Ct. at
251, 387 N.E.2d 158. See also Commonwealth v. Baker, 368 Mass. 58,
84, 330 N.E.2d 794 (1975). The manager
knew and supervised the reporting system on which the printout was based. The reliability of the system could be
inferred from the reliance placed on it by the store in the regular course of
business. See United States v. De Georgia, 420 F.2d 889, 893 n. 11 (9th
Cir.1969); Commonwealth v. Hogan, 7 Mass.App.Ct. at 251, n. 15, 387 N.E.2d 158.
We note
also that the defendant's trial counsel cross‑examined extensively on
possible inaccuracies in the information contained in the printout, drawing out
facts to be evaluated on the issue of the weight to be given the evidence. She perhaps could have probed more deeply on
the printout's foundation (asking, for example, about what type of information
was included in the printout, how reliable similar printouts had been in the
past, and what specific procedures had been used to gather and tabulate the
information). Her decision not to do [23 Mass.App.Ct.
300] so appears to have been a tactical
choice. In any event, we conclude that
the information qualified as a business record and that the defects argued on
appeal went to weight.
Judgment affirmed.
(FN1.) It is not significant that the trial
judge may not have considered the printout a business record if the information
on it is otherwise admissible as such.
We think this is a case in which the judge's ruling can be sustained if
it is correct for any reason, even if the reason was not one advanced before
the judge. The foundation requirements
are clearly present in the manager's testimony.
(FN2.)
"The fact that the computer printout introduced in evidence was produced
from the stored electromagnetic records at a time after 'the beginning of the
... criminal proceeding' does not affect the admissibility of the
printout. The electromagnetic record
itself was stored in the regular course of business long before this proceeding
began; and the translation of the
computer language ... to a form usable by the court does not make the printout
inadmissible." Commonwealth v. Hogan, 7 Mass.App.Ct. 236, 252, 387 N.E.2d 158 (1979), S.C., 379 Mass. 190, 396 N.E.2d 978
(1979).