Commonwealth v. Antobenedetto

315 N.E.2d 530, 366 Mass. 51, 1974 Mass. LEXIS 693

• Court: Massachusetts Supreme Judicial Court
• Decided: July 25, 1974
• Status: Published

Opinions

Reardon, J.

Two criminal complaints were issued against the defendant charging him with unlawful possession of narcotic drugs. G. L. c. 94, § 205, repealed by St. 1971, c. 1071, § 2. The case was tried without jury in the Superior Court, and on April 20, 1972, the defendant was found guilty. The case is before us on the defendant’s exceptions to the denial of motions to suppress evidence and for a new trial.

The evidence presented at trial and at the hearing on the motion to suppress may be summarized as follows. On the afternoon of June 9, 1971, the defendant was driving on Concord Street in Framingham in a red Plymouth automobile which he had borrowed from an acquaintance earlier in the day. Seated beside the defendant in the front seat was a friend, Stephen Gwinn. Also on Concord Street at this time was an unmarked police car manned by Lt. Robert M. Keefe and Sgt. Thomas Cobb of the Framingham police department. These officers had received a radio communication from police headquarters informing them that two young men had attempted to pass a bad check at the Framingham Trust Company and that they were headed south on Concord Street in a red compact automobile, Massachusetts registration 227-18L. The policemen were instructed to investigate the car and its occupants. They then pulled off the road to wait. Moments later they saw the car driven by the defendant which matched the description they had received, and recognized the occupants as “known drug users and suspected bad check passers.” Sgt. Cobb walked to the center of the road and shouted at the car to stop, which it did. The occupants were ordered out of the car and Lt. Keefe entered it and searched under the seat, finding nothing. He then opened the glove compartment and discovered a small plastic container in which there was a cellophane-wrapped package which turned out to be marihuana, a foil-wrapped package which later was shown to be hashish, and a corncob pipe with foil. The defendant and Gwinn were then handcuffed and taken to the police station.

The defendant moved to suppress the evidence found in Lt. Keefe’s search of the automobile, and after a hearing the motion was denied and the defendant claimed an exception. The trial judge stated that “|t]he radio message received by the police officers describing the attempted crime and the description of the car the men alleged to have committed the crime were riding in, together with the recognition by the officers of the occupants as bad check passers — afforded the officers probable cause to stop the car and arrest the occupants. These are circumstances justifying the arrest and also furnishing probable cause for the search.”

The constitutional law respecting searches of automobiles under the Fourth Amendment to the United States Constitution is a topic which has received extended attention both in this court and in the Supreme Court of the United States. Chiefly because of the inherent mobility of automobiles these searches have been deemed in certain circumstances to constitute an exception to the necessity of a search warrant. This idea was first articulated in Carroll v. United States, 267 U. S. 132 (1925), in which the Supreme Court held that a warrantless search of an automobile stopped on the highway was reasonable if probable cause existed to support the search. The rule has been restated many times. See, e.g., Chambers v. Maroney, 399 U. S. 42 (1970); Coolidge v. New Hampshire, 403 U. S. 443, 458-460 (1971); Cady v. Dombrowski, 413 U. S. 433, 442 (1973); Commonwealth v. Haefeli, 361 Mass. 271 (1972). The rationale for the rule was stated in the Chambers case: “[TJhe car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.” 399 U. S. at 51.

This court has noted that with regard to many aspects of the law of automobile search “the Justices of the United States Supreme Court were in seemingly irreconcilable disarray.” Commonwealth v. Haefeli, 361 Mass. 271, 278 (1972). That confusion, however, is largely centered upon the circumstances in which the risk of movement of the car is deemed sufficient to justify a warrantless search. There appears to be complete agreement that when as here an automobile is stopped on the highway by investigating officers the exigencies are such that a warrantless search may be reasonable given the existence of probable cause. “If... [the police officer] left the automobile while he tried to obtain a search warrant, he could not be sure that it would be there when he returned.” Id. at 281. See the opinions in Coolidge v. New Hampshire, supra, at 460 (opinion of the court by Stewart, J., joined by Douglas, Brennan, and Marshall, JJ.); at 504 (Black, J., joined by Blackmun, J., concurring and dissenting); and at 524 (White, J., joined by Burger, C.J., concurring and dissenting). See Cady v. Dombrowski, 413 U. S. 433, 440-442 (opinion of the court); at 451 (Brennan, J., dissenting).

The parties argue extensively the question whether a lawful arrest occurred prior to the search. Limited searches incident to an arrest are another exception to the general rule that warrantless searches are unreasonable and thus unconstitutional. Commonwealth v. Wilbur, 353 Mass. 376, 379 (1967), cert. den. 390 U. S. 1010 (1968). Chimel v. California, 395 U. S. 752 (1969). Since, however, the rule discussed above concerning warrantless searches of automobiles is independent of any right to arrest, Commonwealth v. Haefeli, 361 Mass. 271, 276 (1972); Carroll v. United States, 267 U. S. 132, 158 (1925); Chambers v. Maroney, 399 U. S. 42, 49 (1970), the occurrence of such an arrest makes little difference in determining the legitimacy of the search. If probable cause existed to search the car for evidence of a crime then there is no need to justify the search by reference to a lawful arrest. If, on the other hand, the facts in this case did not provide the officers with probable cause to search then neither was there probable cause to arrest, and the search cannot be considered incident to a lawful arrest. Commonwealth v. Mitchell, 353 Mass. 426, 428 (1967), quoting from Beck v. Ohio, 379 U. S. 89, 91 (1964). The critical issue therefore is the presence or absence of “ ‘reasonable or probable cause’ to believe . . . [the officers would] find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search.” Dyke v. Taylor Implement Mfg. Co. Inc. 391 U. S. 216, 221 (1968).

The facts provided to the judge in the hearing on the motion to suppress did not disclose sufficient information to support a finding that probable cause existed for the search. This conclusion is compelled by the decision of the Supreme Court of the United States in Whiteley v. Warden, Wyo. State Penitentiary, 401 U. S. 560 (1971). In that case a warrantless arrest was declared unlawful as lacking probable cause. The arresting officers had relied on a police radio bulletin which gave detailed data describing the suspected perpetrators of a crime as well as the automobile in which they were thought to be driving. Two persons fitting the description driving a car which also matched the description given were arrested. The court held the arrest constitutionally defective since the radio bulletin was not itself supported by probable cause. The bulletin alone was not enough to give probable cause to the arresting officers. Id. at 564-569. “We do not, of course, question that the . . . police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information required to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.”¹ Id. at 568. See United States v. King, 472 F. 2d 1, 7 (9th Cir. 1973); United States v. Wilson, 479 F. 2d 936 (7th Cir. 1973).

It is clear from the Whiteley case that to support a finding of probable cause, evidence must be adduced demonstrating that the police officer responsible for issuing the radio communication had reliable information that a crime had occurred and that the instrumentalities or evidence of that crime would be found in the vehicle described in the broadcast. The record of the evidence presented at the hearing on the motion to suppress is utterly barren of any information relative to the. purported attempt to pass a bad check at the Framingham Trust Company which was the subject of the radio message. Since the reliability of that message was not established by the Commonwealth, probable cause was not shown to exist for the challenged search.* ²

We recognize that this holding may represent a departure from statements in a number of our prior cases. This court has frequently stated the general rule that on a motion to suppress the burden of establishing that evidence has been illegally obtained is on the moving party. See, e.g., Commonwealth v. Fancy, 349 Mass. 196, 202-203 (1965). This rule has been applied even to cases where the moving party has shown that a search was conducted without a warrant. See Commonwealth v. Roy, 349 Mass. 224, 229 (1965); Commonwealth v. LePage, 352 Mass. 403, 411 (1967); Commonwealth v. Hanger, 357 Mass. 464, 468 (1970); Commonwealth v. Andrews, 358 Mass. 721, 722-723 (1971) ; Commonwealth v. Colella, 360 Mass. 144, 151 (1971); Commonwealth v. Pignone, 361 Mass. 566, 568-569 (1972) . While the general rule cited is, we believe, a correct statement of the law and we reaffirm it, on reexamination we believe its application to warrantless searches was misplaced. We are convinced of this view by a reading of numerous cases of the Supreme Court of the United States. These cases indicate that under the Fourth Amendment searches conducted without valid warrants are presumed in the first instance to be unreasonable. It is then up to the government to show that a particular search falls within a narrow class of permissible exceptions. The Supreme Court has said, “LTJhe general requirement that a search warrant be obtained is not lightly to be dispensed with, and ‘the burden is on those seeking [an] exemption [from the requirement] to show the need for it. . ..’ United States v. Jeffers, 342 U. S. 48, 51.” Chimel v. California, 395 U. S. 752, 762 (1969). See Recznik v. Lorain, 393 U. S. 166 (1968); Vale v. Louisiana, 399 U. S. 30, 34 (1970).³ It is our conclusion that where, as here, the search is without a warrant the burden of establishing its reasonableness is on the Commonwealth. In this case it was for the Commonwealth to show that probable cause existed and that the search was therefore proper under the rule of Carroll v. United States, 267 U. S. 132 (1925). To the extent that the Massachusetts cases cited above are at odds with this holding we do not follow them.

The nub of this holding does not in any sense, nor is it intended to, inhibit or cut off the prompt and effective police work evident in the apprehension of this defendant. It is designed to lead the prosecution to present at the proper time the evidence that the originator of the radio communication, on the basis of which the intercepting police acted, had reliable advice on the occurrence of a crime.

As was stated by Mr. Justice Harlan in the Whiteley case, 401 U. S. at 568 (1971), the police are clearly entitled to act “on the strength of the radio bulletin.” This is definitely not an incident where “the constable has blundered.” In fact, the reverse is true. What is lacking is the presentation at hearing by the Commonwealth of a link of evidence easy to supply if it exists. Since that link was omitted here the defendant’s exception must be sustained.

We turn to the defendant’s second ground of exception: that it was error for the trial judge to deny his motion for a new trial. The basis for that motion was that the Commonwealth had failed to prove the element of scienter. This court has indicated that knowledge by the defendant is not required for a conviction under the relevant statute. Commonwealth v. Lee, 331 Mass. 166 (1954). While it might be appropriate to reconsider that holding in the light of Commonwealth v. Buckley, 354 Mass. 508 (1968), in a proper case, in the instant case the defendant did not raise the issue at trial. Therefore the trial judge did not err by refusing to consider it on a motion for a new trial. It was open to the defendant to raise the legal issue of the necessary elements of the crime at trial by way of a request for rulings. Commonwealth v. Albert, 307 Mass. 239, 244 (1940). Commonwealth v. Hoff, 315 Mass. 551 (1944). Commonwealth v. Goldberg, 316 Mass. 563, 564 (1944). “[T]he defendant’s resort to a motion for a new trial cannot operate to reverse or to relieve him from the position in which he had placed himself by failure to save exceptions which he could have saved at the trial.” Commonwealth v. Underwood, 358 Mass. 506, 511 (1970). Commonwealth v. Richardson, 361 Mass. 661 (1972). Like the defendant in the Underwood case, the defendant here seeks to find a distinction from this general rule in that his new trial motion is based on alleged prejudicial constitutional error. He cites dicta in Earl v. Commonwealth, 356 Mass. 181,184 (1969), to the effect that a trial judge has no discretion to deny such a motion. The Underwood case makes clear, however, that the general rule is not altered by framing the reserved question of law in constitutional terms. Furthermore, like the Underwood case and unlike the Earl case, this was not a situation in which the defendant did not learn of facts on which the alleged error was based until after the trial. Commonwealth v. Underwood, supra, at 511-512 (1970). Here the motion was based on a purely legal contention which was available to the defendant at all times. This exception must be overruled.

Exceptions sustained.

1 The Whiteley case dealt specifically with probable cause for an arrest but the court indicated that the principles involved applied to probable cause for searches as well. 401 U. S. at 564. In general these standards have been regarded as identical. Commonwealth v. Stevens, 362 Mass. 24, 27 (1972), and cases cited. Henry v. United States, 361 U. S. 98,100 (1959).

2 The missing element of probable cause is not supplied in this case by Lt. Keefe’s statement that the defendant and Gwinn were “known drug users and suspected bad check passers.” The foundation of probable cause must be specific data, the reliability of which could be judged by a magistrate. Here we have “a bald and unilluminating assertion of suspicion that is entitled to no weight in appraising the magistrate’s decision. Nathanson v. United States, 290 U. S. 41, 46 (1933).” Spinelli v. United States, 393 U. S. 410, 414 (1969). Lt. Keefe provided no facts supporting his claim as to the reputations of the defendant and Gwinn. See Commonwealth v. Stevens, 362 Mass. 24,28-29 (1972).

3 This is the well established rule in the Federal courts in both warrantless searches and searches based on claimed consent. See Wright, Federal Practice & Procedure, § 675 (1969); United States v. Johnson, 425 F. 2d 630 (9th Cir. 1970), cert. dism. 404 U. S. 802.