|
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. Sumerlin, 393
Supreme Judicial Court of Massachusetts,
Argued
Decided
Michael J. Traft, Asst. Dist. Atty. (James M. Larkin, Asst. Dist. Atty., with
him), for the Commonwealth.
Richard A. Cutter,
Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS,
NOLAN, LYNCH and O'CONNOR, JJ.
ABRAMS, Justice.
The
defendant was indicted by a grand jury for unlawfully carrying a pistol on his
person. G.L. c. 140, §§ 129C, 131, 131F,
131G. After a hearing, a judge of the
Superior Court allowed the defendant's motion to suppress as evidence the
pistol seized by police. A single
justice of this court allowed the Commonwealth's application for leave to take
an interlocutory[393
We
summarize the judge's findings of fact.
On
The
officer continued toward the automobile, opened the right front door, observed
the defendant, and saw the colored bag on the floor between the defendant's
feet. The officer seized the bag and, in
so doing, felt the form of a gun. He
then opened the bag and found a loaded automatic pistol.
[1][2][3]
The sole issue before us is whether the defendant's rights under the Fourth
Amendment to the United States Constitution were violated by the police
officer's seizure of a gun concealed in a bag inside the car into which the
defendant had entered. (FN1) [393
Mass. 129] The question to be
decided is whether the facts, as found by the judge,
(FN2) rendered the officer's seizure of the bag "a reasonable search for
weapons for the protection of the police officer." Terry v. Ohio, 392 U.S. 1,
27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968). Michigan v. Long, 463 U.S. 1032,
103 S.Ct. 3469, 3480, 77 L.Ed.2d 1201 (1983).
(FN3) We conclude that the
officer's seizure of the gun was reasonable and, therefore, we reverse.
The United
States Supreme Court has decided that "the search of the passenger
compartment of an automobile, limited to those areas in which a weapon may be
placed or hidden, is permissible if the police officer possesses a reasonable
belief based on 'specific and articulable facts which, taken together with the
rational inferences from those facts, reasonably warrant' the officer in
believing that the suspect is dangerous and the suspect may gain immediate
control of weapons.... '[T]he issue is
whether a reasonably prudent man in the circumstances would be warranted in the
belief that his safety or that of others was in danger.' "
Michigan v. Long, supra, 103 S.Ct., at 3480‑3481, quoting Terry v. Ohio, supra, 392 U.S., at 21,
27, 88 S.Ct. at 1879, 1883.
We believe
the circumstances justified the officer's actions. The officer had a duty to investigate an
illegally parked automobile in a high crime area where shootings had
occurred. The automobile was parked with
its lights out on the wrong side of the street with its left wheels on the
sidewalk. The person seated in the
driver's seat had "his head resting back on top of the driver's
seat." When the person seated on
the driver's side was joined by the defendant, the officer, who had thirteen
years of experience, was within ten yards of the automobile. He was approaching the automobile to
investigate an obvious violation of the law.
The officer had no more than a few seconds in which to assess the
extent, if any, of the danger, and to ascertain the most effective and least
intrusive [393 Mass. 130] means of protecting himself. The officer could reasonably have taken into
account the "inordinate risk confronting an officer as he approaches a
person seated in an automobile." Pennsylvania v. Mimms, 434 U.S. 106, 110,
98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977).
See Adams v. Williams, 407
U.S. 143, 148 n. 3, 92 S.Ct. 1921, 1924 n. 3, 32 L.Ed.2d 612 (1972). "To all of these facts the officer [was]
entitled to apply [his] police experience." Commonwealth v. Silva, 366
Mass. 402, 407, 318 N.E.2d 895 (1974).
"The
sole justification of the search in the present situation is the protection of
the police officer and others nearby, and it must therefore be confined in
scope to an intrusion reasonably designed to discover guns, knives, clubs, or
other hidden instruments for the assault of the police officer." Id.
at 407‑408, 318 N.E.2d 895, quoting
Terry v. Ohio, supra, 392 U.S., at 29, 88 S.Ct. at 1884. In
Commonwealth v. Silva, we noted that there were two parts to the inquiry in
"stop and frisk" cases:
"first, whether the initiation of the investigation by the police
was permissible in the circumstances, and, second, whether the scope of the
search was justified by the circumstances." 366 Mass. at 405, 318 N.E.2d 895. The first part of the test was clearly met
here. The only question that remains is
whether the search of the bag in the automobile exceeded the proper scope. As we said in Silva, "a Terry
type of search may extend into the interior of an automobile so long as it is
limited in scope to a protective end." Id. at 408, 318 N.E.2d 895. In this case, the officer limited the search
to the bag which was within reach of the two men in the car and then opened it
only when he felt the weapon inside. The
officer's conduct comports with the standard articulated in Michigan v. Long, supra, and thus is not in violation of
Federal constitutional standards.
[4] The
parties argue (FN4) the suspicious or nonsuspicious behavior of the defendant
to support their positions on the appropriateness of the search. Even if the defendant had not walked to the car
and entered it, the officer would still have had cause to [393 Mass. 131]
investigate the automobile and its driver.
The fact, therefore, that the defendant entered the automobile is
relevant on the issue of the increased threat of danger to the officer because
the automobile now had two occupants.
The officer could consider all the circumstances. He was not limited solely to the defendant's
conduct in entering the automobile.
Thus, the defendant's reliance on
Commonwealth v. Loughlin, 385 Mass. 60, 430 N.E.2d 823 (1982), to support
his argument that his behavior was not suspicious enough to warrant a
protective search, is misplaced. In Loughlin, "the police procedure,
early on, was not merely for the protection of the officer during the
questioning of the two men, but was clearly a search for evidence." Id.
at 65, 430 N.E.2d 823 (Hennessey, C.J., concurring). Because we conclude that in this case the
officer's decision to open the right front door of the automobile and pat down
the colored bag for weapons was a reasonable, protective search, it is not
violative of the Fourth Amendment to the United States Constitution.
We note
that, in sharp contrast with cases in which we have held that police stops were
not justified, and that subsequent searches were therefore unwarranted, see,
e.g., Commonwealth v. Thibeau, 384
Mass. 762, 429 N.E.2d 1009 (1981); Commonwealth v. Bacon, 381 Mass. 642, 411
N.E.2d 772 (1980), the instant case presents a situation in which the officer
was under a duty to investigate the illegally parked automobile. There is no element here of a fishing
expedition for evidence or of harassment of individuals whom the police
subjectively found to be suspicious in appearance. Contrast
Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 1860, 75 L.Ed.2d 903
(1983);
United States v. Magda, 409 F.Supp. 734 (S.D.N.Y.1976). The order of the judge suppressing the pistol
as evidence is reversed. The case is
remanded to the Superior Court for further proceedings.
So ordered.
(FN1.) The defendant has not raised any State
constitutional or statutory claims in this appeal, and therefore we shall
address only the Federal constitutional claim.
The Commonwealth concedes that the defendant has standing to raise the
Fourth Amendment issues. See Commonwealth v. Podgurski, 386 Mass.
385, 391‑392, 436 N.E.2d 150 (1982).
The Commonwealth admits that the search was without a warrant. Thus, the burden of proof is on the
Commonwealth to establish the reasonableness of the search. See
Commonwealth v. Antobenedetto, 366 Mass. 51, 57, 315 N.E.2d 530 (1974).
(FN2.)
We will accept the subsidiary findings of fact made by the judge, absent clear
error.
Commonwealth v. Moon, 380 Mass. 751, 755‑756, 405 N.E.2d 947
(1980). We find no such error here.
(FN3.)
Here, the judge's ruling on the motion to suppress predated the Supreme Court's
decision in Michigan v. Long.
(FN4.)
The Commonwealth argues that the fact that the defendant disappeared from the
officer's sight for a moment was a "furtive" movement justifying the
officer's decision to make a threshold inquiry.
The short answer is that the judge did not find any furtive movement on
the part of the defendant. "The
determination of the weight and credibility of the testimony is the function
and responsibility of the judge who saw and heard the witnesses, and not of
this court." Commonwealth v. Moon, 380 Mass. 751, 756,
405 N.E.2d 947 (1980).