Commonwealth v. Loughlin

430 N.E.2d 823, 385 Mass. 60, 1982 Mass. LEXIS 1230

• Court: Massachusetts Supreme Judicial Court
• Decided: January 13, 1982
• Status: Published

Opinions

Wilkins, J.

We consider again the propriety of a police search of a motor vehicle. The defendants were convicted of possession of a controlled substance (marihuana) with intent to distribute. In their appeals, they challenge the denial of their motions to suppress evidence seized in the search of the rear area of the vehicle on an interstate highway in Sturbridge. The trial judge made no detailed findings of fact but ruled from the bench, at the close of the hearing on the motions to suppress, that the search was consensual.

On the defendants’ postconviction appeal, the Appeals Court reversed the judgments. See Commonwealth v. Loughlin, 11 Mass. App. Ct. 1040 (1980). In a brief accompanying order, that court stated that “the motions to suppress were improperly denied (Commonwealth v. Ferrara, 376 Mass. 502, 505 [1978]).” The Appeals Court further stated that “the evidence which was not subject to [the] motions was such as to make inappropriate the entry of a judgment for either defendant at this time (contrast Commonwealth v. Spofford, 343 Mass. 703, 707-708 [1962]).” We granted the Commonwealth’s application for further review. We agree that the motions to suppress should have been allowed.²

We summarize the evidence presented at the hearing on the motions to suppress. Shortly before 1a.m. on November 16, 1977, a State police trooper observed a vehicle with its distress signals flashing in the breakdown lane of Route 86, a six-lane divided highway in a poorly lit, deserted area of Sturbridge. He pulled his cruiser up behind the vehicle, a Chevrolet El Camino with a flatbed instead of a rear seat. The flatbed was covered by a canvas, loose at one corner. The defendant Loughlin was standing at the right rear of the vehicle and, as the cruiser stopped, Loughlin walked quickly toward the open passenger door and entered the vehicle. The defendant Searles, who was sitting in the driver’s seat, quickly ducked out of sight. He then jumped from the vehicle and came rapidly toward the trooper. Searles gave the trooper his license and registration and, at the officer’s bidding, returned to his seat. The trooper asked Loughlin for identification. He gave his name and address but did not produce other identification. The trooper looked around outside the vehicle. He then ordered Loughlin from the vehicle and “pat-frisked” him. In response to questioning, Loughlin said that bulges in his pockets were cigarettes. The “cigarettes” turned out to be wads of money. The trooper then ordered Searles out of the car and commanded the two men to lean “spread eagle” over the front of the vehicle. He asked if there were any weapons in the vehicle. Searles said, “No weapons. You can check.” The trooper searched the inside of the vehicle and found no weapons. He then asked if there were weapons in the back of the vehicle. Searles said, “No, you can check.” In the course of a search, the marihuana was found.

The principles expressed in Commonwealth v. Ferrara, 376 Mass. 502, 505 (1978), are controlling, as the Appeals Court ruled. We have no doubt that the trooper was entitled to make an initial inquiry in the circumstances. He was entitled as well, if the facts warranted a reasonable person to believe that the defendants were armed and presently dangerous, to take reasonable precautions for his safety. However, once Searles had produced a valid license and registration and Loughlin had identified himself, any justifiable investigation was complete. “ [Tjhere was no basis for further interrogation and no need for further protective precautions. . . . [T]he record suggests no purpose in ordering [the] occupants out of the car . . . [and] no reason appears why they should not have been permitted to continue on their way.” Id. See Commonwealth v. McCleery, 345 Mass. 151, 153 (1962). Compare Commonwealth v. Farmer, 12 Mass. App. Ct. 961 (1981) (exit order held proper because it occurred before justified threshold inquiry) ,³

Because the evidence in issue was traceable to the illegal pat-frisk of Loughlin and the illegal orders that the defendants leave the car, it must in these circumstances be suppressed as the “fruit of the poisonous tree.” See Commonwealth v. Ferrara, supra at 505. The record does not show sufficient attenuation of the illegal search of Loughlin and the illegal seizure of each defendant to warrant a finding that Searles’s consent was an act of free will, unaffected by the taint of the illegality. See Brown v. Illinois, 422 U.S. 590, 603-604 (1975).⁴ The trooper did not advise Searles of his right to refuse to consent to the search. No significant time elapsed between the illegality and the “consent.” No intervening event occured that dissipated the effect of the illegality.

The findings of the trial judge are set aside, the judgments are reversed, and judgments shall be entered for the defendants.⁵

So ordered.

2 In argument before us, the Commonwealth conceded that, if the motions to suppress were allowed, the defendants would be entitled to judgments in their favor. For this reason, unlike the Appeals Court where the concession apparently was not made, we order judgments for the defendants rather than simply reversing the judgments and setting aside the judge’s findings.

3 On the basis of the suspiciousness of the defendants’ actions, the dissent argues that the officer’s exit orders were proper. The propriety of those orders, however, does not rise and fall with the level of suspiciousness; no amount of suspicion short of probable cause could save an exit order that follows the justifiable threshold inquiry. The relevant distinction between Commonwealth v. Almeida, 373 Mass. 266 (1977), and the Ferrara cases is not in degree of suspiciousness. It is in the order of events.

We note further that had the exit orders preceded the inquiry, we would have had to remand the matter for further findings of fact regarding such issues as the reasonableness of the trooper’s suspicions and his need for precautions, before validating the search. The dissent shortcuts this procedure by making findings, favorable to the Commonwealth, on these issues. Moreover, it decides without discussion other points raised in the defendants’ appeals.

Contrary to the views of the dissent, the suspicions of criminal activity in the Ferrara case were at least as warranted as those in this case. The decision in this case involves no expansion of the exclusionary rule but rather its evenhanded application. Doubt about the wisdom of the views of the Supreme Court of the United States on the subject of illegal searches and seizures, expressed in the last paragraph of the dissent, hardly justifies ignoring those views when Fourth Amendment issues are raised in this court.

4 The principles governing the admissibility of a confession given after an illegal arrest are appropriately applied to determine the validity of “consent” given after an illegal search or seizure. See, e.g., United States v. Perez-Esparza, 609 F.2d 1284,1288-1291 (9th Cir. 1979) (suppressed); United States v. McCaleb, 552 F.2d 717, 721 (6th Cir. 1977) (suppressed); United States v. Bazinet, 462 F.2d 982, 989-990 (8th Cir.), cert. denied sub nom. Knox v. United States, 409 U.S. 1010 (1972) (remanded with instructions to trial court to consider what have since become some of the Brown factors); State v. Wrightson, 391 A.2d 227, 229 (Del. Super. Ct. 1978) (suppressed); State v. Mitchell, 360 So.2d 189,191 (La. 1978) (suppressed) (4-3 opinion); Commonwealth v. Collini, 264 Pa. Super. Ct. 36, 46-48 (1979) (suppressed). See also 2 W. LaFave, Search and Seizure § 8.2(d) (1978 and Supp. 1981); 3 W. LaFave, § 11.4(d), at 644; W. Ringel, Searches and Seizures, Arrests and Confessions, § 9.3 (b) (6) (2d ed. 1980).

5 At the hearing on the motions to suppress, the Commonwealth did not challenge the standing of the defendant Loughlin, the passenger, to object to the search of the vehicle. Presumably, the parties assumed automatic standing under Jones v. United States, 362 U.S. 257 (1960). Where the issue of standing was not raised at the trial court level, we decline to give retroactive effect to opinions of the United States Supreme Court that have established new principles governing standing for Federal constitutional purposes. See Rawlings v. Kentucky, 448 U.S. 98, 105-106 (1980); United States v. Salvucci, 448 U.S. 83, 95 (1980).