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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Skea, 18 Mass.App.Ct.
685 (1984)
Appeals Court of Massachusetts, Hampden.
Argued
Decided
James J. Pieri,
John C. Bryson, Jr., Asst. Dist. Atty., for the
Commonwealth.
Before GREANEY, C.J., and ARMSTRONG and SMITH, JJ.
ARMSTRONG, Justice.
The
defendant appeals from a conviction of receiving stolen goods. The stolen goods, diamonds, were found when a
police officer searched the defendant's person;
and the validity of that search is the sole issue in this appeal.
[1] The
search took place in
At that
point the driver, the defendant Skea, returned to the
vehicle. He also was well known to the
officers, having been arrested many times in the past. The officers asked him if the joint was his. Skea replied,
"Give me a break." The
officers searched Skea's pockets looking for further
marihuana or other controlled substances.
In a zippered breast pocket of Skea's jacket
was a cellophane envelope. It contained
what appeared to be four diamonds.
(FN2) Skea
asserted that he had purchased them two weeks before for fifty dollars. He was asked if he had a bill of sale, to
which he replied no. He was asked whom
he bought the diamonds from, and he answered that he did not know his name.
[2] The
police retained the packet of diamonds for further investigation with Skea's consent.
(FN3) The officers also decided not
to [18 Mass.App.Ct.
687] arrest Skea
and Thurston for possession of marihuana, and instead they destroyed the joint
and the roaches by trampling them on the ground. This was in accordance with their informal
policy not to arrest for possession of small amounts of marihuana unless a
search revealed further or more serious drugs.
Further investigation revealed that the diamonds were in fact stolen,
(FN4) and Skea was arrested several weeks later. (FN5)
The
defendant filed a pretrial motion to suppress evidence of the diamonds,
contending that the search was without a warrant, that it did not fall within
any recognized exception to the warrant requirement, and that it was not
justified by stop and frisk principles enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968). The judge
denied the motion, ruling that the police had probable cause to arrest Skea for possession of marihuana (G.L.
c. 94C, §§ 34, 41[c] ), that his
detention for purposes of interrogation and search constituted an arrest by
objective standards (the officers had testified that they did not put Skea [18 Mass.App.Ct. 688]
under arrest, but they also testified that he was not "free to leave"
until they had searched him), and that the search was therefore valid as a
search incident to a lawful arrest. This
analysis is faulty, the defendant contends, for two reasons: first, that there was in fact no arrest at
the time of the search; and second, that
even if there was, it was not based on probable cause.
[3][4][5]
The second point is without merit. The
policemen's observations through the windows of the automobile, in a public
parking lot, by themselves involved no search. Commonwealth v. Cavanaugh,
366 Mass. 277, 281, 317 N.E.2d 480 (1974).
Commonwealth v. Ortiz, 376 Mass.
349, 353, 380 N.E.2d 669 (1978). An
officer seeing contraband items, or what reasonably may be thought contraband
items, through the window may legitimately seize them. Texas v. Brown, 460 U.S.
730, 741‑744, 103 S.Ct. 1535, 1542‑1544,
75 L.Ed.2d 502 (1983). (FN6)
Commonwealth v. Irwin, 391 Mass. 765, 770‑771, 463 N.E.2d 1178
(1984).
Commonwealth v. Cosme, 15 Mass.App. 448, 453, 446 N.E.2d 123 (1983). It has been generally held that an officer
with experience or training in narcotics, seeing in plain view a handrolled cigarette with pinched ends which his experience
teaches him is likely to be marihuana, has probable cause (although he does not
then smell the characteristic burning odor) to seize the cigarette, examine it,
and investigate for the presence of other controlled substances. See, e.g.,
People v. Anderson, 266 Cal.App.2d 125, 132‑133, 71 Cal.Rptr. 827 (1968); People v. Poole, 48 Cal.App.3d 881, 885‑886,
122 Cal.Rptr. 87 (1975); Keating v. State, 141 Ga.App. 377, 378‑379, 233 S.E.2d 456 (1977);
State v. Knowles, 438 So.2d 648, 651‑652 (La.App.1983); In
re State in Interest of A.C., 115 N.J.Super. 77, 278 A.2d 225, 227 (N.J.App.1971);
State v. Tillett, 50 N.C.App.
520, 524‑525, 274 S.E.2d 361 (1981).
(FN7) See also State
[18 Mass.App.Ct. 689] v. Pearson, 15 Or.App. 1, 514 P.2d
884, 888 (1973), and State v. Mahon,
17 Or.App. 177, 521 P.2d 37, 38 (1974). "The seizure of property in plain view
involves no invasion of privacy and is
presumptively reasonable, assuming that there is probable cause to associate
the property with criminal activity (emphasis original)."
Texas v. Brown, 460 U.S. at 741‑742, 103 S.Ct.
at 1542 quoting from Payton v. New York,
445 U.S. 573, 587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639
(1980).
Sullivan v. District Court of Hampshire, 384 Mass. 736, 742‑743,
429 N.E.2d 335 (1981). Probable cause
"is a flexible, common‑sense standard, [which] merely requires that
the facts available to the officer would 'warrant a man of reasonable caution
in the belief', Carroll v. United States,
267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), that certain items may be contraband
...; it does not demand any showing that
such a belief be correct or more likely true than false."
Texas v. Brown, supra 460 U.S. at 742, 103 S.Ct.
at 1543.
Sullivan v. District Court of Hampshire, 384 Mass. at 743‑744,
429 N.E.2d 335.
[6] Under
those governing principles, the panel are in agreement that the seizure and
examination of the marihuana cigarette lying on the console of the automobile
was constitutionally valid. The
examination confirmed that it was marihuana.
Thurston's denial of ownership, the fact that Skea
was the only other person to whom the cigarette could plausibly belong, and his
(Skea's) statement, "Give me a break,"
which could properly be taken as an admission of ownership, all combined to
give the police probable cause both to arrest Skea
(see G.L. [18
Mass.App.Ct. 690]
c. 94C, § 41) and to search him for additional marihuana or other controlled
substances. (FN8)
[7][8][9][10]
The defendant is correct, however, in arguing that the search‑incident‑to‑arrest
rationale does not fit with the fact that the defendant was released after the
search and was not taken into police custody until several weeks
thereafter. Detentions for frisking,
questioning, routine traffic stops, and the like, where the detainee is
released after the police business is transacted, are treated as "
'seizures' of the person", subject to Fourth Amendment scrutiny (see Terry v. Ohio, 392 U.S. at 16‑17,
88 S.Ct. at 1877‑1878; Cupp
v. Murphy, 412 U.S. 291, 294, 93 S.Ct. 2000,
2003, 36 L.Ed.2d 900 [1973] ), but are differentiated from "formal",
or "custodial", arrests, the custodial aspect of which serves as the theoretical justification for the incident
search.
United States v. Robinson, 414 U.S. 218, 234‑235, 94 S.Ct. 467, 476‑477, 38 L.Ed.2d 427 (1973). (FN9)
The minimal detention necessary to effect a search of a person is not
itself an arrest for purposes of search‑incident‑to‑arrest
analysis. If it were, there could be no
involuntary search of a person without an arrest, and the concept of an arrest,
which has hitherto been held to depend on certain objective criteria, (FN10)
would become functionally indistinguishable[18
Mass.App.Ct. 691] from limited detentions of the type
sanctioned in the Terry v. Ohio line
of cases. See Commonwealth v. Cavanaugh, 366 Mass. 277, 280‑281, 317
N.E.2d 480 (1974). The case of Commonwealth v. Avery, 365 Mass. 59,
65, 309 N.E.2d 497 (1974), on which the Commonwealth relies, turned on quite
different principles, the search in that case being contemporaneous with a
formal, custodial arrest. In the same
vein it was held in Rawlings v. Kentucky,
448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d
633 (1980), that "[w]here the formal arrest followed quickly on the heels
of the challenged search of [the defendant's] person, [it is not] particularly
important that the search preceded the arrest rather than vice versa." See discussion by Harlan, J., concurring in Sibron v. New
York, 392 U.S. 40, 76‑77, 88 S.Ct. 1889,
1908‑1909, 20 L.Ed.2d 917 (1968).
By contrast, a search cannot be justified as one incident to an arrest
occurring at a substantially different time and place. United States v. Chadwick,
433 U.S. 1, 15, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538
(1977).
The
defendant argues that this should be the end of the matter. The search, he argues, being warrantless, was presumptively unconstitutional, Mincey v.
Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412,
57 L.Ed.2d 290 (1978), and it does not appear to fall within any of the other
common exceptions to the warrant requirement:
automobile search, plain view, inventory search, etc. See
Katz v. United States, 389 U.S. 347, 357, 88 S.Ct.
507, 514, 19 L.Ed.2d 576 (1967).
That
result, however, is disturbing because of the fact that the police officers
seem to have acted throughout the episode with both reasonableness and
restraint. Their actions were restrained
in that they were willing to overlook simple possession of a small amount of
marihuana, and again in that they withheld arrest until they ascertained that
the diamonds were in fact stolen property.
Their actions were reasonable in the sense that they acted on probable
cause and exigent circumstances in making the search for additional
marihuana. The circumstances were
"exigent" in the accepted sense of that word: there was a real "likelihood of imminent
loss of the evidence," Commonwealth
v. Tarver, 369 Mass. 302, 308, 345 N.E.2d 671 (1975); for if the officers had adjourned to get a
search warrant, any other marihuana or [18
Mass.App.Ct. 692]
other controlled substances on the persons of Skea
and Thurston would, in all likelihood, have vanished before execution of the
warrant. Obviously, the officers could
not have anticipated that this situation would arise and sought a warrant in
advance.
Commonwealth v. Blatz, 9 Mass.App. 603, 604‑605, 403 N.E.2d 945 (1980). Compare
Commonwealth v. Boswell, 374 Mass. 263, 269‑270, 372 N.E.2d 237
(1978);
contrast Commonwealth v. Huffman, 385 Mass. 122, 124‑126, 430 N.E.2d
1190 (1982).
Must we,
then, conclude that, despite having probable cause to believe Skea was in possession of contraband, and despite the
unanticipated exigency, the police violated Skea's
constitutional right of privacy by searching to recover any hidden contraband? Katz
v. United States, supra, relied on heavily by Skea,
is frequently read as suggesting that probable cause and exigency may not be
enough to justify a warrantless search: that, in addition, the search must fall
within one of several enumerated groups or classes to avoid Fourth Amendment
invalidity. "[S]earches
conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth Amendment‑‑subject
only to a few specifically established and well‑delineated
exceptions" of which three were there listed. (FN11)
389 U.S. at 357, 88 S.Ct. at 514 (footnotes
omitted). Cases prior to Katz had not adopted such a
"closed book" formulation: McDonald v. United States, 335 U.S. 451,
456, 69 S.Ct. 191, 193, 93 L.Ed.
153 (1948), for example, simply stated that "those who seek exemption from
the constitutional mandate [of a warrant must show] that the exigencies of the
situation made that course imperative."
The Katz language has been
quoted often, but more recent decisions of the Supreme Court have tended to
express the Katz principle without
implying that there exists a frozen list of exceptions into which any warrantless search must fit as a condition of validity.
Texas v. Brown, 460 U.S. at 735, 103 S.Ct.
at 1539, for example, states, "Our cases hold that procedure by [18 Mass.App.Ct.
693] way of a warrant is preferred,
although in a wide range of diverse situations we have recognized flexible,
common‑sense exceptions to this requirement." (FN12)
Intuitively, we are reluctant to
acknowledge that there may be situations where the police are unable to act
validly despite having probable cause and exigent circumstances. So far as we can ascertain, at least in the
range of cases where the exigency is not itself the product of police delay,
(FN13) the Supreme Court has never suggested that the police would be powerless
in such a situation. To the contrary,[18 Mass.App.Ct.
694]
the Supreme Court has recently emphasized that the question is not
foreclosed by its prior decisions. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 3473 n. 1, 77 L.Ed.2d 1201 (1983) (also
Brennan, J., dissenting 103 S.Ct. at 3485 n. 4). Moreover, in Roaden v. Kentucky, 413 U.S. 496, 505,
93 S.Ct. 2796, 2802, 37 L.Ed.2d 757 (1973), the Chief
Justice, writing for the majority, implied precisely the opposite: "Where there are exigent circumstances
in which police action literally must be 'now or never' to preserve the
evidence of the crime, it is reasonable to permit action without prior judicial
evaluation" (footnote omitted). To
hold that the police, despite having probable cause and exigent circumstances,
were nevertheless not empowered to search Skea's
person for additional marihuana or other controlled substances would thus go
beyond what has been settled by the Supreme Court's own cases and would
seemingly be at variance with that Court's formulation in Roaden.
It is suggested
that the police were not caught in such a dilemma: that, having probable cause to arrest Skea, they could have effected a valid search of his person
by simply placing him under arrest.
Doubtless that would have been the legally safer course. The suggestion is nonetheless odious, because
it counsels a greater intrusion on the suspect's liberty, a formal arrest, to
justify the lesser intrusion of a search, see 2 LaFave,
Search and Seizure § 5.4, at 344 (1978), and thus distorts the intended protections
of the Fourth Amendment into an instrument of oppression. (FN14)
A requirement of a validating arrest cannot [18 Mass.App.Ct. 695] plausibly be thought to serve the purpose of deterring searches,
where it is settled (by the Rawlings
case, supra ) that the search
incident to an arrest may validly precede the arrest. Under that principle, it cannot be said that Skea's constitutional rights were violated when he was
first searched; if he had been arrested
immediately afterwards (if not on probable cause with respect to the diamonds
then on the basis of the single marihuana cigarette), no question could now
arise as to the constitutional validity of the search. It is thus apparent that the defendant is
contending for a nonsense proposition:
that his constitutional rights were violated at the moment when the
police decided not to arrest him and instead let him go.
[11] The
possibility of a validating arrest, moreover, would not resolve the dilemma in
every case. It is doubtless usual that
the same information that constitutes probable cause to search also establishes
probable cause to arrest; but there is
no necessary correlation between the two.
For example, the facts known to the police officers may indicate that an
innocent person has been given
counterfeit bills in his change or may have purchased stolen merchandise from
an antique dealer. A shoplifter or
pickpocket, suspecting he is under surveillance, may stash the loot in an
innocent person's pocket or purse, or a child or person known to the police not
to be responsible for his actions may be thought to be in possession of
narcotics or other contraband. In each
of these cases the police would lack probable cause to arrest (i.e., to think
the person guilty of a crime) but would have probable cause to search for the
contraband.
[12][13]
It has never been doubted that probable cause and exigent circumstances give
constitutional justification for a warrantless search
of a residence. The principle is
recognized in such cases as Johnson v.
United States, 333 U.S. 10, 14‑15, 68 S.Ct.
367, 369‑370, 92 L.Ed. 436 (1948), McDonald v. United States, 335 U.S. at
454‑456, 69 S.Ct. at 192‑193; Vale
v. Louisiana, 399 U.S. 30, 34‑35, 90 S.Ct.
1969, 1971‑1972, 26 L.Ed.2d 409 (1970), Commonwealth v. Hall, 366 Mass. 790, 800‑804, 323 N.E.2d 319
(1975), Commonwealth v. Forde, 367 Mass. 798, 804‑805, 329 N.E.2d 717
(1975), Commonwealth v. Huffman, 385
Mass. at 124‑126, 430 N.E.2d 1190 (1982), Commonwealth v. Pietrass, 392 Mass. 892,
898, 467 N.E.2d 1368 (1984), and
Commonwealth v. Amaral, 16 Mass.App.
230, 233, 450 N.E.2d 656 (1983), although in each of those [18 Mass.App.Ct. 696] cases, except the last, the circumstances were held not
sufficiently exigent to excuse getting a warrant. A search of a home is surely not subject to
lesser Fourth Amendment concern than a search of a person. See
Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091,
2097, 80 L.Ed.2d 732 (1984) ("[P]hysical entry
of the home is the chief evil against which the wording of the Fourth Amendment
is directed," quoting from United
States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 [1972] );
Payton v. New York, 445 U.S. 573, 589‑590, 100 S.Ct. 1371, 1381‑1382, 63 L.Ed.2d 639 (1980). We think it can be said generally, if not
categorically, that a limited search of a man's person is a lesser invasion of
his privacy than a search of his home and papers.
[14][15]
It may reasonably be objected that, if probable cause and exigent
circumstances, without an arrest, may justify the search of a person, then such
an exception would by now have found articulation in the Federal cases. To this objection there are two answers. First, the situation rarely arises in which
the rationale of probable cause and exigent circumstances must be pressed into
service. As has been observed, the same
probable cause that justifies a search normally justifies an arrest as
well. Where contraband is found, an
arrest will generally follow. Where it
is not, the suspect is either released to go on his way, nothing more being
heard of the matter; or, if he is
arrested, no issue is later made of the search precisely because it uncovered
no contraband or other matter to be offered in evidence. In either case, the validity of the search
can be raised in a private civil action, see
United States v. Ross, 456 U.S. 798, 823 n. 32, 102 S.Ct.
2157, 2172 n. 32, 72 L.Ed.2d 572 (1982), citing Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), (FN15) but the unlikelihood
of that occurring was one of the [18
Mass.App.Ct. 697]
original reasons for the adoption of the exclusionary rule. See
Wolf v. Colorado, 338 U.S. 25, 41‑44, 69 S.Ct.
1359, 1368‑1370, 93 L.Ed. 1782 (1949) (Murphy,
J., dissenting); Mapp v. Ohio,
367 U.S. 643, 652‑653, 81 S.Ct. 1684, 1690‑1691,
6 L.Ed.2d 1081 (1961). It is the rare
case where the officer searches, finds something incriminating, and, as here,
does not follow up with an arrest.
(FN16)
[16] The
second answer is that, in those rare cases that have arisen, the validity of
the search has in fact been upheld on exigency analysis. In Cupp v. Murphy, 412 U.S. 291, 93 S.Ct.
2000, 36 L.Ed.2d 900 (1973), where the police had probable cause to believe
Murphy had strangled his wife, their act of scraping his fingernails for
evidence of blood and skin was held proper despite the fact that they did not
arrest him for nearly another month. The
analytical significance of there having been no formal arrest was that "a
full Chimel
[v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ] search would [not] have
been justified"; but the police
were held "justified ... in subjecting [Murphy] to the very limited search
necessary to preserve the highly evanescent evidence they found under his
fingernails ...." Id. at 296, 93 S.Ct.
at 2004. We read Cupp v. Murphy as authorizing a search
of the person, without arrest, for evidence which the police have probable
cause to believe is on his person, so long as the search does not exceed in
scope that which is justified by probable cause and necessitated by
exigency. The evidence in Cupp, to be
sure, was "highly evanescent";
but no less so is any evidence which an alerted suspect can dispose of
if the police should wait to act until they have obtained a warrant. 2 LaFave, supra § 5.4, at 341. [18
Mass.App.Ct. 698]
In United States v. Hand, 516 F.2d
472, 474‑476 (5th Cir.1975), cert. denied, 424 U.S. 953, 96 S.Ct. 1427, 47 L.Ed.2d 359 (1976), the court sanctioned the
search of an embezzler's handbags which were about to be removed from her
office. There was no arrest, but the
search was held justified, on analogy to automobile searches, by probable cause
and exigent circumstances. So also in United States v. Juarez, 573 F.2d 267,
274‑276 (5th Cir.), cert. denied, 439 U.S. 915, 99 S.Ct.
289, 58 L.Ed.2d 262 (1978), where a drug trafficker was searched for marked
bills without an arrest; in United States v. Rizzo, 583 F.2d 907,
910 (7th Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct.
1216, 59 L.Ed.2d 456 (1979), where a tape cassette was seized from a person
engaged in unlawful wiretapping without an arrest; and in
State v. Badger, 141 Vt. 430, 445‑447, 450 A.2d 336 (1982), where the
police in the course of a homicide investigation seized blood‑stained
sneakers without effecting an arrest of the person who wore them. The same rationale was adopted in United States v. Blair, 366 F.Supp. 1036, 1039‑1040 (S.D.1973), and Dixon v. State, 343 So.2d 1345, 1347‑1348
(Fla.App.1977), where, however, an arrest followed the contested search for
narcotics. (It was not then settled that
a search prior to an arrest could be treated as an incident search.) The same result, but with somewhat different
reasoning, was employed in United States
v. Riggs, 474 F.2d 699, 704 (2d Cir.), cert. denied, 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 53 (1973), in which Friendly, C.J., adopted the approach of Traynor,
J., in People v. Simon, 45 Cal.2d
645, 648, 290 P.2d 531 (1955) (see note 14,
supra ), in analyzing a search and seizure as one justified by probable
cause to arrest. See also United States v. Jenkins, 496 F.2d 57,
72‑73 (2d Cir.1974), cert. denied 420 U.S. 925, 95 S.Ct.
1119, 43 L.Ed.2d 394 (1975), following the rationale of Riggs.
Substantially
the same rationale has been adopted in recent narcotics cases involving luggage
seizures. In United States v. Place, 462 U.S. 696, 103 S.Ct.
2637, 77 L.Ed.2d 110 (1983), it was held that police officers may briefly
detain luggage on Terry‑type
reasonable suspicion, in order to subject it to a sniffing test by a dog
trained to alert at the odor of drugs. Id., 103 S.Ct.
at 2642. The sniffing test is not
regarded as a search. Id. at 2644‑2645. Anything longer than a brief detention,
unless consensual, was held to be a seizure which cannot be valid unless
justified by probable [18 Mass.App.Ct. 699]
cause. "Where law enforcement
authorities have probable cause to believe that a container holds contraband or
evidence of a crime, but have not secured a warrant, the Court has interpreted
the [Fourth] Amendment to permit seizure of the property, pending issuance of a
warrant to examine its contents, if the exigencies of the circumstances demand
it or some other recognized exception to the warrant requirement is
present." Id. at 2641. The suggestion that a warrant may be
necessary to search inside the container is the outgrowth of a separate line of
cases, beginning with United States v.
Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d
538 (1977), which held that the opening of a footlocker (as opposed to its
initial seizure (FN17)) demanded separate showing of exigency in order to
justify a search without a warrant. For
present purposes, however, the significant fact is that seizure of the luggage
from a person who was not placed under arrest was held justified by probable
cause to believe it contained contraband, coupled with exigent circumstances,
inherent in the fact that the luggage was mobile and its owner was not under
arrest. A warrantless
seizure of a suitcase, based on probable cause, from a person not placed under
arrest has since been held valid in
United States v. Jodoin, 672 F.2d 232 (1st
Cir.1982). Compare United States v. West, 731 F.2d 90 (1st Cir.1984), in which a
detention of luggage was held brief enough to qualify as a mere detention
supportable on Terry principles. In the present case, of course, because no
container is involved, there could be no possibility of a seizure without a
warrant and a later search based on a warrant.
The police officers' choices were limited to two: search now or never.
[17]
Concededly, the examples are few of cases where searches of or seizures from
persons have been justified on the basis of
[18 Mass.App.Ct. 700] probable cause and exigent circumstances. The likely reason is, as explained above,
that in the great majority of cases the police either find nothing or effect an
arrest. But the general principle is
implicitly recognized in numerous decisions, almost in passing. See, e.g.,
Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct.
1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion of White, J.): "[I]t is unquestioned that without a
warrant to search Royer's luggageand in the absence of
probable cause and exigent circumstances, the validity of the search
depended on Royer's purported consent" (emphasis added);
United States v. Ross, 456 U.S. at 807, 102 S.Ct.
at 2163 ("the general rule that '[i]n cases
where the securing of a warrant is reasonably practicable, it must be used,'
" quoting from Carroll v. United
States, 267 U.S. at 156, 45 S.Ct. at 286); Roaden v. Kentucky, quoted above at 393. See also
Johnson v. United States, 333 U.S. 10, 14‑15, 68 S.Ct.
367, 369‑370, 92 L.Ed. 436 supra (1948). Where the
Supreme Court has never held that probable cause and exigent circumstances
alone cannot justify a search of a person;
where it has expressed the view that its own prior decisions do not
foreclose that rationale for a search (see
Michigan v. Long, 103 S.Ct. at 3473 n. 1); where a contrary view would have no
significant impact in curtailing searches but rather a tendency to increase
arrests; and where the facts of the
present case preclude sustaining the validity of the search on any more widely
accepted basis; we must proceed on what
we regard to be the sound rule. We
therefore hold that the search of Skea's person was
constitutionally justified by probable cause to believe he carried marihuana or
other controlled substances, coupled with exigent circumstances, inherent in
the fact that any contraband he carried would be unavailable to the police
unless it were then taken into their control.
(FN18)
[18] [18 Mass.App.Ct.
701] On general principles, a search
justified by probable cause to search and exigent circumstances must be limited
in scope to those areas of the person and his clothing which could reasonably
be thought to contain the items sought.
See Chimel
v. California, 395 U.S. at 762, 89 S.Ct. at 2039,
quoting from Terry v. Ohio, 392 U.S.
at 19, 88 S.Ct. at 1879. See also
Commonwealth v. Sumerlin, 393 Mass. 127, 130, 469
N.E.2d 826 (1984). Such a search thus
differs from one made incident to an arrest, which, under the holding of United States v. Robinson, 414 U.S. at
235, 94 S.Ct. at 477, justifies a full body search
even in the absence of probable cause to think that it may uncover weapons,
contraband, or evidence. Indeed, the
incident search may, under New York v.
Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864,
69 L.Ed.2d 768 (1981), apparently extend to the entire passenger compartment of
an automobile. Where there is no arrest,
the special dangers encountered by an arresting officer are not present. The search must, in consequence, be
appropriately limited.
[19][20][21]
Here, because search was for marihuana or other controlled substances, its
permissible scope was necessarily broad. Commonwealth v. Cantalupo,
380 Mass. 173, 179, 402 N.E.2d 1040 (1980).
It certainly included Skea's pockets and the
examination of the contents of the cellophane envelope. As the search was constitutionally
permissible in objective and scope, the diamonds were admissible in evidence
although their discovery was wholly unanticipated. (FN19) United States v. Wysocki, 457
F.2d 1155, 1160 [18 Mass.App.Ct. 702]
(5th Cir.), cert. denied, 409 U.S. 859, 93 S.Ct. 145,
34 L.Ed.2d 105 (1972); United States v. Gorman, 637 F.2d 352,
353‑354 (5th Cir.1981) (per curiam);
United States v. Marbury, 732 F.2d 390,
399 n. 12 (5th Cir.1984).
Judgment affirmed.
(FN1.) Neither the testimony nor the judge's
findings indicate whether the officer first saw the roaches before or after
reaching into the automobile to take the joint.
From the fact that the ashtray was in plain view on the console next to
("six or eight inches from") the joint, the finder of fact could
properly draw an inference that the roaches were visible to the officer from
the outset.
(FN2.)
Three were in fact diamonds. One turned
out to be a rhinestone.
(FN3.)
Skea does not contest the validity of the retention
of the diamonds, as opposed to the validity of the search that disclosed
them. The judge found that Skea had consented to the police keeping the diamonds for
inquiry, and there was evidence that warranted that finding. Alternatively, it could have been found that
the police had probable cause to believe the diamonds may have been
stolen. There was testimony that the
previous evening one of the two officers had been dispatcher; that there had been a mugging in which a
diamond ring was stolen; that Skea's companion, Thurston, had been in the vicinity of the
mugging and had been bought to the victim for identification (without, so far
as the record discloses, a positive result);
and that there was another unsolved diamond theft from two days
before. These facts, coupled with the
unusualness of a young man casually carrying around diamonds in his pocket, the
fact that Skea could produce no bill of sale or
identify the person from whom he claimed to have bought them, and the potential
connection between youthful drug use and thievery, all would combine "to
warrant a person of reasonable caution in believing that the defendant had
committed ... a crime ...." Commonwealth v. Gullick,
386 Mass. 278, 283, 435 N.E.2d 348 (1982).
(FN4.)
The packet of diamonds did not include the one from the ring stolen in the
mugging the night before. Rather, the
entire packet with its contents had been stolen in a housebreak earlier in the
day of the search. Four diamonds had
been given to the victim's husband by his employer in recognition of forty
years of service. The victim had lost
one diamond when she accidentally spilled the contents of the packet. Without knowing for certain what it was, the
victim had also added the rhinestone (readily differentiated because of its
gilt base) intending to bring all to a jeweler for appraisal and sale.
(FN5.)
The record does not disclose whether Thurston was later arrested or charged in
connection with the diamonds.
(FN6.) Texas v. Brown, supra, was a plurality
decision, but there was no disagreement on the Court as to the propriety of the
seizure of the suspected contraband (there, tied, deflated balloons containing
heroin). See id., 460 U.S. at 746‑747, 103 S.Ct.
at 1545‑1546 (Powell, J., concurring, joined by Blackmun,
J.) and 750, 103 S.Ct. 1547 (Stevens, J., concurring,
joined by Brennan and Marshall, JJ.). All other Justices joined in the plurality
decision.
(FN7.) Thomas v. Superior Court, 22 Cal.App.3d
972, 976‑977, 99 Cal.Rptr. 647 (1972), which
reversed a finding of probable cause, has been limited by subsequent cases to
instances where the evidence fails to indicate a basis in training or
experience for the officer's suspicion that the possibly innocent object may in
fact be contraband. See People v. Huntsman, 152 Cal.App.3d
1073, 200 Cal.Rptr. 89, 96‑98 (1984);
People v. Walls, 34 Cal.App.3d 94, 96‑97, 109 Cal.Rptr. 708 (1973).
The same distinction is drawn in
People v. Wright, 80 Ill.App.3d 927, 931, 36 Ill.Dec.
311, 400 N.E.2d 731 (1980), People v.
Barker, 72 Ill.App.3d 466, 471, 29 Ill.Dec. 55,
391 N.E.2d 214 (1979), and State v. Ball,
124 N.H. 226, 471 A.2d 347, 354 (1983). The latter case also explicitly rejected the
plurality decision in Texas v. Brown,
supra, as a guide to interpreting the unreasonable search provision of New
Hampshire's State constitution (id.
471 A.2d at 353). United States v. Anderson, 401 F.Supp. 996, 1000 (E.D.Tenn.1975), which struck down a
search in these circumstances, seems contrary to the weight of authority. In this case the officers had prior
experience in narcotics investigation, but we do not necessarily hold that that
experience was crucial to a finding of probable cause. See
Sullivan v. District Court of Hampshire, 384 Mass. 736, 743‑744, 429
N.E.2d 335 (1981).
(FN8.)
It is widely accepted that the discovery of some controlled substances gives
probable cause to search for additional controlled substances in the
vicinity. See, e.g., Commonwealth v. Blatz, 9 Mass.App. 603, 604‑605, 403 N.E.2d 945 (1980);
United States v. Faulkner, 547 F.2d 870, 871 (5th Cir.1977) (per curiam); United States v. Vigil, 561 F.2d 1316,
1319 (9th Cir.1977) (per curiam); Wimberly
v. Superior Court, 16 Cal.3d 557, 564, 128 Cal.Rptr.
641, 547 P.2d 417 (1976); Cooper v. Commonwealth, 577 S.W.2d 34, 37
(Ky.App.1979).
(FN9.) "It is scarcely open to doubt that
the danger to an officer is far greater in the case of the extended exposure
which follows the taking of a suspect into custody and transporting him to the
police station than in the case of the relatively fleeting contact resulting
from the typical Terry‑type stop. This is an adequate basis for treating all
custodial arrests alike for purposes of search justification .... [W]e hold that in the case of a lawful
custodial arrest a full search of the person is not only an exception to the
warrant requirement of the Fourth Amendment, but is also a 'reasonable' search
under that Amendment." Ibid.
(FN10.) "To constitute an arrest, '[1]
there must be an actual or constructive seizure or detention of the person, [2]
performed with the intention to effect an arrest and [3] so understood by the
person detained ....' " Massachusetts Gen. Hosp. v. Revere, 385
Mass. 772, 778, 434 N.E.2d 185 (1982) (rev'd on other
grounds, 463 U.S. 239, 103 S.Ct. 2979, 77 L.Ed.2d 605
[1983] ), quoting from Hicks v. United
States, 382 F.2d 158, 161 (D.C.Cir.1967), which in turn quotes from a long
line of Federal cases. Smith, Criminal
Practice and Procedure § 69 (1983).
(FN11.) The
Katz case did not state what the specifically established exceptions were,
but cited to cases sustaining warrantless searches of
cars stopped on the open highway, a house entered in hot pursuit of a fleeing
felon, and a person placed under arrest. Id. 389 U.S. at 357 n. 19, 88 S.Ct. at 514 n. 19.
(FN12.)
Texas v. Brown, supra, 460 U.S. at 735‑736, 103 S.Ct.
at 1539‑1540, listed ten exceptions to the warrant requirement: hot pursuit (Warden v. Hayden, 387 U.S. 294, 87 S.Ct.
1642, 18 L.Ed.2d 782 [1967] ); exigent
circumstances in house search (United
States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 [1951] );
automobile search (United States
v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d
572 [1982] ); search of person and
surrounding area incident to arrest (Chimel v. California,
395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 [1969];
United States v. Robinson, 414 U.S. 218, 94 S.Ct.
467, 38 L.Ed.2d 427 [1973]; New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 [1981] ); search at border or "functional
equivalent" (Almeida‑Sanchez
v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37
L.Ed.2d 596 [1973] ); consent (Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477 [1946]
); stop and frisk (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,
20 L.Ed.2d 889 [1968] ); seizure for
questioning (United States v. Brignoni‑Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 [1975] ); roadblock (Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 [1979] ); and "plain view" (Coolidge v. New Hampshire, 403 U.S. 443,
91 S.Ct. 2022, 29 L.Ed.2d 564 [1971] ). Others that might have been listed
include: administrative searches (Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 [1981] ); abandoned property (Abel v. United States, 362 U.S. 217, 80 S.Ct.
683, 4 L.Ed.2d 668 [1960] ); search or
seizure to prevent the destruction of evidence (Johnson v. United States, 333 U.S. 10, 68 S.Ct.
367, 92 L.Ed. 436 [1948]; United States v. Jeffers,
supra; Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 [1966]; Cupp
v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36
L.Ed.2d 900 [1973]; Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 [1978] ); emergencies (McDonald v. United States, 335 U.S. 451, 69 S.Ct.
191, 93 L.Ed. 153 [1948]; United States v. Jeffers,
supra; Michigan v. Tyler, 436 U.S. 499, 98 S.Ct.
1942, 56 L.Ed.2d 486 [1978]; and Mincey v.
Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d
290 [1978] ); inventory search of
arrestee (United States v. Edwards,
415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 [1974];
Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct.
2605, 77 L.Ed.2d 65 [1983]; inventory of
impounded automobile (South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct.
3092, 49 L.Ed.2d 1000 [1976] ); public
safety (Cady v. Dombrowski,
413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 [1973]
); search or seizure to prevent the
removal of evidence from the jurisdiction (Johnson
v. United States, supra; Trupiano v. United States,
334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed.
1663 [1948]; United States v. Jeffers, supra; Chapman v.
United States, 365 U.S. 610, 81 S.Ct. 776, 5
L.Ed.2d 828 [1961]; and Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 [1983] ); and seizure of residents while search warrant
of home is executed (Michigan v. Summers,
452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 [1981]
).
(FN13.)
See Trupiano v.
United States, 334 U.S. 699, 706‑710, 68 S.Ct.
1229, 1233‑1235, 92 L.Ed. 1663 (1948);
McDonald v. United States, 335 U.S. 451, 454‑456, 69 S.Ct. 191, 192‑194, 93 L.Ed.
153 (1948); Vale v. Louisiana, 399 U.S. 30, 35, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409 (1970);
Commonwealth v. Forde, 367 Mass. 798, 803,
808‑809, 329 N.E.2d 717 (1975) (Hennessey, J., concurring);
Commonwealth v. Boswell, 374 Mass. 263, 269, 372 N.E.2d 237 (1978).
(FN14.) In
People v. Simon, 45 Cal.2d 645, 648, 290 P.2d 531 (1955) (quoted in 2 LaFave, Search and Seizure § 5.34, at 338 [1978], Traynor, J. (later
Chief Justice), stated:
"Thus,
if the officer is entitled to make an arrest on the basis of information
available to him before he searches, and as an incident to that arrest is
entitled to make a reasonable search of the person arrested ..., there is
nothing unreasonable in his conduct if he makes the search before instead of
after the arrest. In fact, if the person
searched is innocent and the search convinces the officer that his reasonable
belief to the contrary is erroneous, it is to the advantage of the person
searched not to be arrested. On the
other hand, if he is not innocent or the search does not establish his innocence,
the security of his person, house, papers, or effects suffers no more from a
search preceding his arrest than it would from the same search following
it."
(FN15.) The possibility of a civil action for
damages highlights the conceptual problems inherent in the view that probable
cause without an arrest cannot justify a warrantless
search of a person. If a police officer
has probable cause to believe a suspect on the street is carrying, say, heroin,
it is clear from Rawlings that he is
not required first to arrest, then to search.
He may instead begin with the search (see Sibron v. New York, 392 U.S. at 77, 88 S.Ct. at 1909, Harlan, J., concurring), and, on finding the
heroin, arrest. See Ybarra v. Illinois, 444 U.S. 85, 105, 100 S.Ct.
338, 349, 62 L.Ed.2d 238 (1979) (Rehnquist, J., dissenting). If he fails to find heroin, however, he
should not be permitted to make an arrest, because probable cause no longer
exists. Being deprived of the power to
make a valid arrest, is the officer then exposed to civil liability because he
cannot justify the search as one incident to an arrest? The answer to the dilemma should be found in
the well‑established principle that the validity of a search does not
turn on what it in fact uncovers, or fails to uncover, but rather on the facts
known to the officer at its inception. United States v. DiRe,
332 U.S. 581, 595, 68 S.Ct. 222, 228, 92 L.Ed. 210 (1948); Bumper v. North Carolina, 391 U.S. 543,
548 n. 10, 88 S.Ct. 1788, 1791 n. 10, 20 L.Ed.2d 797
(1968);
Whiteley v. Warden, 401 U.S. 560, 567 n.
11, 91 S.Ct. 1031, 1036 n. 11, 28 L.Ed.2d 306
(1971). Viewed from its inception, the
search would be valid simply because it was based on probable cause and exigent
circumstances.
(FN16.) One such case was Commonwealth v. Cantalupo, 380 Mass.
173, 402 N.E.2d 1040 (1980). There the
court (per Hennessey, C.J.) suggested that the search
of a person might have been justified by probable cause and exigent
circumstances but that, on the particular facts, there was no probable cause. Id.
at 175, 402 N.E.2d 1040.
(FN17.) In the Chadwick case itself the constitutional justification for the
seizure of the footlocker was not in issue because its owners were arrested and
the footlocker seized incident to the arrests.
433 U.S. at 13‑15, 97 S.Ct. at 2484‑2486. The opening of the footlocker could not be
so justified, however, because it occurred hours later. In
United States v. Johnson, 467 F.2d 630, 639 (2d Cir.1972), cert. denied sub
nom.
White v. United States, 410 U.S. 932, 93 S.Ct.
1382, 35 L.Ed.2d 595 (1973), the opening and search of a sealed container was
held justified by exigent circumstances and probable cause, although the owner
had been arrested at another time and place.
(FN18.)
We have found only one case which, on comparable facts, reached a contrary result. In
People v. Evans, 43 N.Y.2d 160 at 165, 400 N.Y.S.2d 810, 371 N.E.2d 528
(1977), the court reasoned: "An
arrest is an essential requisite to a search incident, otherwise once probable
cause existed a potential arrestee would be fair game for any intrusions the
police deem appropriate for however long they allow him to remain at
large." That is a valid
theoretical objection to basing a power to search on probable cause to arrest
(without an actual arrest), but it is not a valid objection to a search based
on probable cause to believe a person carries contraband (i.e., probable cause
to search), coupled with exigent circumstances.
If the police had not searched Skea in the
parking lot when they spotted the marihuana cigarette, but had waited to a
later time, without added facts probable cause and exigent circumstances would
have dissipated. Our disagreement with
the Evans case is not with its
holding (that the search could not be justified as incident to an arrest that
was not made) but with its failure to examine whether the search could be
independently justified by probable cause to search and exigent circumstances.
People v. Evans is analyzed and criticized in LaFave,supra, § 5.4, at 340 n. 12.
(FN19.) Correctly, the defendant does not argue
that the diamonds were inadmissible under G.L. c.
276, § 1. That statute was enacted in
response to United States v. Robinson,
supra, which established that a search incident to a valid custodial arrest
was not limited by probable cause to believe the search would uncover weapons,
contraband, or evidence of the crime which furnished the basis for the arrest.
Commonwealth v. Wilson, 389 Mass. 115, 118, 448 N.E.2d 1130
(1983). Given broad statutory power to
arrest for traffic offenses (G.L. c. 90, § 21) and
various misdemeanors (see e.g., G.L. c. 276, §
28; G.L. c.
272, §§ 54, 59, 60), pretext searches, not based on genuine and reasonable
concern for concealed weapons or destruction of evidence, were the evil
intended to be curbed. Where there is
probable cause to search a person (i.e., reasonable grounds to think that
person may be carrying weapons, contraband, or evidence of crime), the concern
that led to the enactment of the statute is not implicated. The validity of such a search, as we have
held, does not turn on its having been incidental to arrest. If a search has a constitutionally
permissible basis other than search incident to arrest, it falls outside the
provisions of G.L. c. 276, § 1. Commonwealth v. Toole, 389
Mass. 159, 162, 448 N.E.2d 1264 (1983). Commonwealth v. King, 389 Mass. 233, 246
n. 16, 449 N.E.2d 1217 (1983).