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Opinions of
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and the Massachusetts
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Commonwealth
v. Woodman, 11 Mass.App.Ct.
965 (1981)
Appeals Court of Massachusetts,
Middlesex.
Argued Feb.
10, 1981.
Decided March
9, 1981.
William T. Kennedy, Asst.
Dist. Atty., for Commonwealth
James J. Brady, Framingham, for defendant.
Before GRANT, BROWN and GREANEY,
JJ.
RESCRIPT.
The indictments are for rape and for assault and battery
with a dangerous weapon (a "spring release" knife). The case is here on an interlocutory appeal
by the Commonwealth from an order of the Superior Court allowing the
defendant's pretrial motion to suppress a switchblade knife which was seized by
the police during the course of a warrantless search
of the van which the defendant had been driving when he was stopped and
arrested. G.L. c. 278, s 28E, as appearing in
St.1979, c. 344, s 45. Mass.R.Crim.P. 15(b)(2), 378 Mass.
--- (1979). No weapon was found on the
defendant's person when he was searched at the time of his arrest; he was taken
to the police station, booked, and subsequently released on bail. The van was not searched at the scene of the
arrest; it was transported to the station, where it was locked and parked in a
restricted area for a period of approximately forty-eight hours. At the expiration of that period the van was
unlocked by an officer who searched it without the defendant's consent and
without a warrant; the search was commenced at or about the time the District
Court opened for business in the same building in which the police station is
located. The officer found a switchblade
knife in the lower left pocket of a leather jacket which was hanging behind the
driver's seat; he did not search the pockets of any of the other clothing which
was found in the van. The van was
released and returned to the defendant two days later. The defendant "stipulated" at the
hearing on the motion that his arrest had been valid, that the police had had
[11 Mass.App.Ct. 966] probable cause to
believe that the van had been the scene of the alleged rape, and that the van
had been lawfully impounded by the police.
1. The motion judge suppressed the knife because at the time of the
search there had been no exigent circumstances which excused the police from
securing a warrant. That ruling was
required by the rationale of and the holdings in United States v. Chadwick, 433
U.S. 1, 3-5, 13-16, 97 S.Ct. 2476, 2479-80, 2484-86,
53 L.Ed.2d 538 (1977), and Arkansas v. Sanders, 442 U.S. 753, 755, 761-766, 99 S.Ct. 2586, 2588, 2591-94, 61 L.Ed.2d 235 (1979). Contrast Chambers v. Maroney,
399 U.S. 42, 44-45, 51-52, 90 S.Ct. 1975, 1977-78,
1981-82, 26 L.Ed.2d 419 (1970). 2. The
judge warrantably found (on the explicit testimony of
the searching officer) that he (the officer) had "unlocked and entered the van
with the intention of conducting both an inventory search as well as looking
for the missing knife ...." The judge was correct in ruling that the
"search did not constitute a valid inventory search as the search was made
in the context of a criminal investigation and not pursuant to a non-criminal
inquiry." See
Commonwealth v. Moon, 8 Mass.App. ---, ---, ([FNA]) 394 N.E.2d 984 (1979), reversed on other grounds, ---
Mass. ---,[FNb] 405 N.E.2d 947 (1980).
The police reliance on South Dakota v. Opperman, 428 U.S.
364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and
Commonwealth v. Tisserand, 5 Mass.App.
383, 384-387, 363 N.E.2d 530 (1977), was badly misplaced.
Order allowing motion to suppress affirmed.
(FNA.) Mass.App.Ct.Adv.Sh. (1979) 1870, 1877.
FNb. Mass.Adv.Sh. (1980) 1337.