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Opinions of The and the Court of Appeals To be used in conjunction
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CPS Commonwealth
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Commonwealth v.
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Edward DeAngelo, Asst. Dist. Atty., for Com.
James W. McCarthy, II, Cherilyn M. Richard, with him, for defendant.
Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.
LIACOS, Chief Justice.
The
defendant was indicted for trafficking in cocaine. Before trial, he filed a motion to suppress
the cocaine, which had been seized from underneath the front seat of his automobile. Following an evidentiary hearing, a judge of
the Superior Court allowed the motion.
The judge ruled that the search of the automobile exceeded the scope of
a warrant, which the police had obtained, to search the defendant's apartment
and his person. The judge also ruled
that the search was not valid as a warrantless search
either incident to arrest or based on probable cause and exigent circumstances
(the so‑called "automobile exception"). The Commonwealth sought and obtained leave
from a single justice of this court, pursuant to Mass.R.Crim.P.
15(b)(2), 378 Mass. 882 (1979), to pursue an interlocutory appeal. The single justice directed the appeal to the
The
relevant facts are as follows.
(FN2) On
At
approximately 6:30 P.M. on September 22, 1989, Linehan
and other Cambridge police officers went to Windsor Street to execute the
warrant. As the officers waited in
unmarked vehicles, the defendant drove up in a 1984 Oldsmobile automobile and
parked it on the street in front of 169 Windsor Street. (FN4) Linehan radioed to the other officers to "take
him" and "effectuate the search warrant." The officers then converged on the
defendant's automobile. At the motion hearing,
Linehan testified that he saw the defendant open the
driver's side door of his vehicle, begin to step out, and then bend
forward. Linehan
claimed that he believed the defendant had either placed something underneath
the driver's seat or had removed something from there. Detective Joseph Castagno
testified that he saw the defendant's shoulders move forward and down before he
got out of the automobile.
After the
defendant was out of his automobile, Linehan
"grabbed him" and announced that he had a warrant to search the
defendant's apartment and his person. As
Linehan [410
Mass. 740] began to escort the
defendant away from the vehicle, he instructed Castagno
to search underneath the driver's seat of the vehicle. Linehan told Castagno that he thought he saw the defendant place
something under the automobile seat or remove something from that location. Linehan then
brought the defendant into the apartment.
Castagno searched underneath the driver's seat and saw a
brown paper bag. He seized the bag,
opened it, and looked inside. The bag
contained a plastic bag which, in turn, contained white powder (subsequently
tested and found to be cocaine). Castagno radioed to Linehan what
he had found. Linehan
went outside and inspected the bags and powder.
He then returned to the apartment and placed the defendant under arrest. A subsequent search of the apartment produced
no incriminating evidence. A search of
the defendant's person yielded a "beeper" device and $160 in cash. (FN5)
[1] 1.
Search pursuant to warrant.
The Commonwealth argues that the search of the defendant's automobile
was justifiable under the portion of the warrant which authorized the police to
search the defendant's apartment. We
disagree.
In Commonwealth v. Signorine,
404 Mass. 400, 403‑404, 535 N.E.2d 601 (1989), we acknowledged the well‑settled
principle "under both Federal law and the law of other jurisdictions that
the scope of a warrant authorizing the search of a particularly described
premises, includes automobiles owned or controlled by the owner thereof, which
are found on the premises." We
held that the same principle applies under art. 14 of the Massachusetts
Declaration of Rights. Id. at 404‑405, 535 N.E.2d
601. We upheld a search of the
automobile of the defendant's wife. We
so ruled even though the police lacked independent probable [410 Mass. 741] cause
to search the automobile, because the police had obtained a warrant based on
probable cause to search the defendant's residence generally, and since the
automobile was parked within the curtilage of the
premises at the time the warrant was executed.
The
critical difference between Signorine and the case at bar is that, here, the
defendant's automobile was parked on a public street and not on private
property constituting the curtilage of the premises
described in the warrant. The
Commonwealth argues that the street should be treated as if it were part of the
curtilage, because the premises at 169 Windsor Street
did not include a private driveway or other off‑street parking area. We are not persuaded by this argument. The Commonwealth has not cited any case,
State or Federal, in which a court has held that a public street, or any other
public property for that matter, may be treated as if it is part of the curtilage.
(FN6) We decline to expand the
definition of curtilage (FN7) or to extend the
holding in Signorine
so as to justify, in this context, the search of an automobile parked on a
public street.
[2] The
Commonwealth also argues that the search of the automobile was reasonable under
the portion of the warrant which authorized a search of the defendant's
person. Again we disagree.
The
Commonwealth reads the portion of the warrant which authorized the search of
the defendant's person as being separate and independent from the portion which
authorized the search of the apartment.
In other words, in the Commonwealth's view, the search of the
defendant's person [410 Mass. 742] could have taken place whenever and
wherever the defendant was found‑‑on a public street, at a place of
business, or in someone else's home‑‑and was not necessarily tied
to the search of the apartment. We have
never construed a warrant's authorization to search a person so broadly, and we
need not do so in the case at bar.
The
warrant by its terms authorized the police to search for cocaine and
paraphernalia "on the person or in the possession of" the
defendant. In other contexts, the word
"possession" has been taken to imply "control and power." See, e.g., Commonwealth v. Harvard, 356 Mass. 452, 458, 253 N.E.2d 346
(1969);
Commonwealth v. Deagle, 10 Mass.App.Ct. 563, 567, 409 N.E.2d 1347 (1980). In the case at bar, by the time the police
searched the defendant's person he no longer had possession of the
automobile. He had parked the automobile
before the police approached him. He had
gotten out of the vehicle before the officers apprehended him. And, most significantly, he had been taken
inside his apartment before the seizure of the contraband from the
vehicle. The automobile was not within
his "control and power" when he or it was searched.
[3] 2.
Search incident to arrest.
The Commonwealth next argues that, even if the search of the automobile
exceeded the scope of the warrant, it was nevertheless permissible as a warrantless search incident to arrest. The Commonwealth only marginally raised this
issue before the motion judge. The
judge, however, sufficiently addressed the issue to warrant our consideration.
At the
outset, we note that the judge was incorrect in his ruling that there could be
no search incident to an arrest where the search preceded the arrest. "The fact that a search precedes a
formal arrest is not important, as long as probable cause [to arrest] existed
independent of the results of the search." Commonwealth v. Brillante, 399 Mass. 152, 154‑155 n. 5, 503 N.E.2d
459 (1987), citing United States v. Elsoffer, 671 F.2d 1294, 1298 n. 8 (11th Cir.1982).
[4]
Assuming, without deciding, the officers had probable cause to arrest the
defendant when they arrived at his apartment, the search of the defendant's car
was not valid as a [410 Mass. 743] search incident to a lawful
arrest. The purpose, long established,
of a search incident to an arrest is to prevent an individual from destroying
or concealing evidence of the crime for which the police have probable cause to
arrest, or to prevent an individual from acquiring a weapon to resist arrest or
to facilitate an escape. A search
incident to arrest, similar to the search of a person pursuant to a warrant,
generally is limited for purposes of both the Fourth Amendment to the United
States Constitution and art. 14 of the Massachusetts Declaration of Rights, to
the body of the person arrested and the area and items within his or her
immediate possession and control at the time.
See New York v. Belton, 453
U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Commonwealth v. Madera, 402
Mass. 156, 158, 521 N.E.2d 738 (1988).
See also G.L. c. 276, § 1 (1990 ed.). (FN8)
In the case at bar, the defendant already had left his automobile by the
time the officers approached and apprehended him. He was taken inside his apartment before the
seizure of the contraband from his automobile.
The automobile was no longer within the defendant's immediate control. There obviously was no danger that
he could draw a weapon from the vehicle or attempt to conceal or destroy
contraband which remained in it. The
automobile was well out of his reach at the time. See
Coolidge v. New Hampshire, 403 U.S. 443, 456‑457, 91 S.Ct. 2022, 2032‑2033, 29 L.Ed.2d 564 (1971). Contrast
Commonwealth v. Brillante, supra 399 Mass. at
155, 503 N.E.2d 459, and Commonwealth v. Bongarzone, 390 Mass. 326, 351‑352, 455 N.E.2d
1183 (1983), in [410 Mass. 744] which the defendants were standing
immediately outside their vehicles at the time the vehicles were searched. (FN9)
[5][6] 3.
Search pursuant to automobile exception. Finally, the Commonwealth argues that the
search of the automobile was valid as a warrantless
search under the "automobile exception." See
Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). On this theory the Commonwealth had the
burden of proving the existence of both probable cause to believe that the
automobile contained contraband and of exigent circumstances to justify
proceeding without a warrant. Commonwealth v. Ortiz, 376 Mass. 349,
353, 380 N.E.2d 669 (1978). Commonwealth v. Antobenedetto,
366 Mass. 51, 57, 315 N.E.2d 530 (1974).
Nothing in the confidential informant's information pertained to the
defendant's vehicle. The police had
information that a shipment of cocaine would be arriving at the defendant's
apartment, but there was no information as to who would deliver the shipment or
exactly when and how it would arrive.
The motion judge expressly found and ruled that the Commonwealth had
failed to establish that the police had probable cause. See
Commonwealth v. Cast, 407 Mass. 891, 897, 556 N.E.2d 69 (1990).
In
reaching his conclusion the judge credited Linehan's
and Castagno's testimony at the motion hearing
regarding the movement they saw the defendant make as he was in the process of
getting out of his automobile. However,
the judge rejected Linehan's description of the
movement as being, in essence, furtive or suspicious. We have reviewed the entire transcript of the
motion hearing. We cannot say that the
judge's approach‑‑accepting part of the officers' testimony and
rejecting part of it‑‑was clearly erroneous.
Linehan testified on direct examination that he saw the
defendant reach down beneath the driver's seat.
He thought that the defendant was either placing something under the [410 Mass. 745] seat or retrieving something.
On cross‑examination, Linehan admitted
that the only movement he actually saw was the defendant "lean
forward" or "bend forward" as he was getting out of the
vehicle. Linehan
admitted that he did not actually see the defendant reach underneath the seat.
Castagno testified on direct examination that he saw the
defendant "make motions" and "drop his shoulders" forward
and down. Unlike Linehan,
Castagno did not testify that he believed the
defendant had placed something under the seat or had retrieved something. Castagno admitted
on cross‑examination that he only saw the defendant's shoulders; he did not see the defendant's hands.
Given the
inconsistency in Linehan's testimony, and the lack of
detail in both Linehan's and Castagno's
descriptions of what they actually saw, it was within the motion judge's
province to conclude that what they actually saw was not a reasonable basis for
them to conclude that the defendant was acting furtively or in a suspicious
fashion. A mere leaning or bending
motion when exiting an automobile is not necessarily suspicious. It was within the judge's role as fact finder
to assess Linehan's credibility and ability to
observe, and to reject the portion of his testimony wherein Linehan
stated that he thought the defendant was placing something underneath the
seat. We will not disrupt the judge's
findings on this evidence.
Order allowing motion to suppress affirmed.
(FN1.) The defendant's trial has been stayed
pending appeal.
(FN2.)
These facts are drawn from the motion judge's findings and from the uncontroverted and undisputed portions of the evidence
adduced at the hearing on the motion to suppress.
(FN3.)
In sum, Linehan had learned from the informant
that: the defendant had been selling
cocaine from his first‑floor apartment at 169 Windsor Street; the informant had been inside the apartment
at least two times within the preceding ten days; the informant had observed a large quantity
of cocaine both inside the apartment and on the defendant's person as well as
sizable amounts of cash on the defendant's person. The informant stated to Linehan
that the defendant had said that a large shipment of cocaine would be arriving
at the apartment within three days of September 21, 1989. Linehan's affidavit
alleged that, on prior occasions, the informant's information had led to
several arrests, the seizure of large quantities of cocaine, and at least one
conviction for trafficking. Linehan also stated that he had learned from other sources
that the defendant was a drug dealer, and that the defendant had been arrested
on cocaine charges twice within the preceding four months.
(FN4.)
Linehan testified at the motion hearing that he was
familiar with the 1984 Oldsmobile and had seen the defendant in it many times
before September 22, 1989. The defendant
has conceded both in his appellate brief and at oral argument that the
automobile was his. Linehan's
affidavit made no mention of this automobile;
neither did the search warrant.
(FN5.)
The testimony at the motion hearing was ambiguous as to whether Castagno's search of the automobile occurred before or
after Linehan's search of the defendant's
person. The motion judge found that the
search of the automobile occurred first.
The Commonwealth does not argue that that finding was clearly erroneous,
so we accept it as true. The testimony
clearly established that the arrest and the search of the apartment did not
take place until after the search of the automobile and the discovery of the
cocaine.
(FN6.)
In Signorine,
we gave numerous examples of Federal cases and cases from other jurisdictions
in which the courts held that a vehicle parked within the curtilage
of the premises described in a warrant was within the scope of the warrant's
authorization to search the premises generally. Id. at 403‑404, 535
N.E.2d 601. In each of those cases the
"curtilage" referred to was private
property belonging to the premises described in the warrant.
(FN7.)
Exactly what constitutes "curtilage" has
been the subject of many decisions from this court and the Appeals Court. For purposes of this appeal, suffice it to
say that neither this court nor the Appeals Court has ever held that curtilage includes a public street or other public
property.
(FN8.)
General Laws c. 276, § 1 (1990 ed.), provides, in part: "A search conducted incident to an
arrest may be made only for the purposes of seizing fruits, instrumentalities,
contraband and other evidence of the crime for which the arrest has been made,
in order to prevent its destruction or concealment; and removing any weapons that the arrestee
might use to resist arrest or effect his escape. Property seized as a result of a search in
violation of the provisions of this paragraph shall not be admissible in
evidence in criminal proceedings."
In the
circumstances of this case, application of the search incident to arrest
rationale strains common sense and logic when the police, presumably concerned
that the defendant might destroy or conceal contraband or acquire a weapon,
searched the defendant's car before searching his person, the area undisputedly
within his immediate control.
(FN9.) This case is unlike Commonwealth v. Robbins, 407 Mass. 147, 552 N.E.2d 77 (1990). There, following a routine stop, two State
troopers arrested the driver of an automobile on an outstanding warrant. A passenger remained in the car. We upheld the validity of the State trooper's
protective search of the car where he could see, in plain view, the handle of a
knife wedged between the cushions of the passenger's seat and the driver's
seat.