389 Mass. 159 (1983), Commonwealth v. Toole

Citation:389 Mass. 159, 448 N.E.2d 1264
Party Name:COMMONWEALTH v. Richard L. TOOLE, Jr.
Case Date:May 11, 1983
Court:Supreme Judicial Court of Massachusetts

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389 Mass. 159 (1983)

448 N.E.2d 1264



Richard L. TOOLE, Jr.

Supreme Judicial Court of Massachusetts, Franklin.

May 11, 1983

Argued Feb. 9, 1983.

[448 N.E.2d 1265] Brian L. Blackburn, Asst. Dist. Atty., for the Commonwealth.

Jack D. Curtiss, Greenfield, for defendant.


WILKINS, Justice.

We are concerned with the lawfulness of a warrantless search of a truck tractor, commonly called a cab, which the defendant had been driving on Route 91 in Deerfield on September 21, 1981. A State trooper lawfully stopped the vehicle and arrested the defendant on an outstanding warrant [448 N.E.2d 1266] for his arrest on a charge of assault and battery. The police ordered the defendant out of the cab and during a routine "pat-frisk" found an empty holster and an ammunition clip containing .45 caliber bullets. The

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defendant was handcuffed and, while he waited with two State troopers at the rear of the vehicle, another trooper searched the cab and found a .45 caliber weapon behind the seat. After the search, the defendant was asked if he had a firearm identification card. He said he did not. During the search, the troopers did not fear for their safety, and they intended to have the vehicle secured and taken to a garage. The defendant was charged with unlawfully carrying a firearm under his control in a vehicle. 1

A judge sitting in the Greenfield District Court allowed the defendant's motion to suppress the firearm. The Commonwealth appealed to the Appeals Court from the order allowing the motion to suppress, and, on our motion, we transferred the appeal here. 2 We affirm the order allowing the defendant's motion to suppress the gun.

The defendant's challenge to the search of the cab and to the seizure of the gun is based on a claimed violation of

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G.L. c. 276, § 1. By a 1974 amendment to G.L. c. 276, § 1, which is set forth in the margin, 3 the Legislature adopted a statutory exclusionary rule concerning evidence seized during a search incident to an arrest. This rule requires the exclusion of evidence that the Supreme Court of the United States would not exclude in its implementation of the prohibition against unreasonable searches and seizures expressed in the Fourth Amendment to the United States Constitution. As we noted in Commonwealth v. Wilson, 389 Mass. 115, 118, 448 N.E.2d 1130 (1983), the 1974 amendment was apparently enacted in response to United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), which upheld the admissibility of contraband found on a defendant during a search made at the time of his arrest for an unrelated crime. See also Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973) (similar facts). The search of the cab following the defendant's arrest was reasonable for Fourth Amendment purposes because it was incident to a lawful arrest and involved an area that had been in the defendant's [448 N.E.2d 1267] control just prior to his arrest. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981).

The 1974 amendment of § 1 adopts the principles expressed in the dissent in the Robinson case regarding the proper scope of a search incident to arrest. Robinson, supra 414 U.S. at 251, 94 S.Ct. at 484 (Marshall, J., dissenting). 4 The Commonwealth

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makes no claim or showing that the search of the cab was made to seize evidence of the defendant's commission of the crime of assault and battery. Compare Commonwealth...

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