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|
Argued Feb. 9, 1983.
[448 N.E.2d 1265] Brian L. Blackburn, Asst. Dist. Atty., for the Commonwealth.
Jack D. Curtiss, Greenfield, for defendant.
Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.
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
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.
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.
The defendant's challenge to the search of the cab and to the seizure of the gun is based on a claimed violation of
G.L. c. 276, § 1. By a 1974 amendment to G.L. c. 276, § 1, which is set forth in the margin,
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).
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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