Com. v. Almeida

• Decision Date: 29 August 1977
• Citation: Com. v. Almeida, 366 N.E.2d 756, 373 Mass. 266 (Mass. 1977)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 756

366 N.E.2d 756

373 Mass. 266

COMMONWEALTH v.Pedro ALMEIDA.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 5, 1977.

Decided Aug. 29, 1977.

Pamela Taylor, Cambridge (Roger Geller, Cambridge, with her), for defendant.

John F. Glynn, Sp. Asst. Dist. Atty. (James M. Lynch, Legal Asst. to the Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.

HENNESSEY, Chief Justice.

On September 3, 1976, the defendantPedro Almeida was found guilty after trial in the Municipal Court of the City of Boston on two complaints: one charging him with unlawful possession of a firearm under G.L. c. 269, § 10, and another charging him with possession of a firearm with the serial number defaced under G.L. c. 269, § 11C.The defendant appealed to the Superior Court, and a District Court judge, sitting in that court under statutory assignment, heard and denied a motion to suppress all evidence which was seized from the automobile which the defendant was operating on the date of the alleged offenses.A single justice of this court granted, pursuant to G.L. c. 278, § 28E, the defendant's request for appeal from the order denying the motion to suppress.

We conclude that there was no error in the ruling and order of the judge below.

We have before us a transcript of the evidence presented at the hearing on the motion.The judge's findings of fact, all of which were warranted on the evidence, were as follows.Officer Michael Feeney has been a police officer in the Boston police department for about eleven years, over ten of which have been spent in district four on night patrol.On July 9, 1976, about 12:10 A. M. he was on routine patrol in a marked cruiser with his partner, Officer Erickson.They were proceeding on Back Street from Arlington Street towards Massachusetts Avenue.Back Street is located between Beacon Street and Storrow Drive.It is a private way with access to Storrow Drive, is a one-lane road and abuts the parking area for the apartment houses facing on Beacon Street.Parking is restricted to tenants.

Officer Feeney knew from his own personal knowledge that this was a high crime rate area for all crimes ranging from breaking and entering to murder.

While proceeding on Back Street and in the vicinity of Fairfield Street Officer Feeney observed a new 1976 Ford station wagon parked in the parking area behind an apartment house the front of which faced Beacon Street.The car was facing in the direction of Arlington Street with its lights out and its motor running.

The cruiser stopped alongside the car and Officer Feeney asked the defendant, who was alone in the car, if everything was all right.The defendant replied, "Yes."The officer then asked if the defendant was from that area and he replied, "No."The defendant was then questioned as to whether he owned the car and whether he had a license and registration for it.He told the officer that the car was borrowed but that he had both license and registration.

Officer Feeney testified that he could see a key in the ignition, had not observed a traffic violation, but wanted to check the defendant's papers.He therefore requested Officer Erickson to back up the cruiser so that he could alight from it.As the cruiser backed up Officer Feeney observed the defendant twist his body toward the right, but he could not see his hands.While he had no reason to suspect the defendant had a weapon, he feared for his safety and as he alighted from his vehicle he drew his revolver, pointing it toward the ground.He approached the defendant's vehicle and asked him to produce his license and registration.Officer Erickson remained in the cruiser for the purpose of checking to see if the car was stolen.

The defendant reached into a console which was located between the driver and the passenger seats, lifted its cover to a height just sufficient for him to get his hand in and removed a wallet therefrom.He extracted from his wallet his license and handed it to Officer Feeney.When some fifteen seconds later he did not produce a registration, Officer Feeney ordered the defendant out of the car.By that time Officer Erickson had alighted from the cruiser and assisted the defendant from the car.He took him to the front of it.At the same time Officer Feeney opened the passenger side door and leaned into the car.The inside of the car was lighted as a result of the doors being open.He saw protruding from underneath the front seat about two inches of an object he recognized as a gun holster.He then put his hand underneath the seat, made a sweeping motion and brought out the holster which was empty and a fully loaded clip of ammunition.While Office Feeney believed that Officer Erickson had already conducted a "pat-down" search of the defendant, as soon as he saw the holster and clip he shouted to Officer Erickson to hold him.

Officer Feeney then looked in the console by opening the top and found therein a fully loaded Browning automatic pistol plus another loaded clip.He removed all items from the car.

The defendant was then placed under arrest and given the Miranda warnings.No further conversation ensued between the parties.

The Commonwealth apparently concedes, and we think correctly, that the search here was not made on the basis of probable cause.¹Rather the argument is that this search was justified under the "stop and frisk" principles first set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968).It is settled that in appropriate circumstances a Terry type search may extend into the interior of an automobile.Adams v. Williams, 407 U.S. 143, 145-149, 92 S.Ct. 1921, 32 L.Ed.2d 612(1972);Commonwealth v. Silva, 366 Mass. 402, 405-408, 318 N.E.2d 895(1974).

Accordingly, we consider the case under "stop and frisk" principles.In Commonwealth v. Silva, supra at 405, 318 N.E.2d at 898, we said: "In 'stop and frisk'cases our inquiry is two-fold: first, whether the initiation of the investigation by the police was permissible in the circumstances, and, second, whether the scope of the search was justified by the circumstances.In both aspects the inquiry relates to whether the police conduct was reasonable under the Fourth Amendment, and there is 'no ready test for determining reasonableness other than by balancing the need to search (or seize) against the invasion which the search (or seizure) entails.' "

We turn now to the first of these dual inquiries: whether the search for weapons here was constitutionally initiated.We consider whether the circumstances were suspicious enough to justify a "stop" or "investigation," and suspicious enough to warrant a reasonable belief that the person investigated might be armed with a dangerous weapon.As to the police officer's privilege to stop and question a suspected person, we have consistently sustained the right of the officer to make a threshold inquiry where suspicious conduct gives the officer reasonable ground to suspect that a person has committed, is committing, or is about to commit a crime.SeeCommonwealth v. Silva, supra at 405, 318 N.E.2d 895, and cases cited.As to the search itself we have said that, although probable cause need not be shown, even the limited search for weapons, which is ordinarily characterized by a "pat-down" of the outer clothing of the suspect, is a serious intrusion on the sanctity of the person and is not to be undertaken lightly.Terry v. Ohio, supra, 392 U.S. at 17, 88 S.Ct. 1868.However, in applying hindsight to the officer's actions, we think it crucial to...