Com. v. Amendola

• Decision Date: 08 February 1990
• Citation: 406 Mass. 592,550 N.E.2d 121
• Parties: COMMONWEALTH v. Alfred L. AMENDOLA, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 121

550 N.E.2d 121

406 Mass. 592

COMMONWEALTH v. Alfred L. AMENDOLA, Jr.

Supreme Judicial Court of Massachusetts Norfolk.

Argued Oct. 3, 1989.

Decided Feb. 8, 1990.

Francis X. Goode, for defendant.

James Lang, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Chief Justice.

The defendant was convicted of possession of cocaine and marihuana (G.L. c. 94C, § 34) and possession with intent to distribute marihuana (G.L. c. 94C, § 32C). The defendant's motion to suppress items found in two automobiles was denied. The Appeals Court reversed the judgments and set aside the verdicts. 26 Mass.App.Ct. 713, 532 N.E.2d 75 (1988). The case is here on the Commonwealth's application for further appellate review. We remand the case to the trial judge for further findings and rulings of law.

1. Facts.

A record of the hearing on the motions to suppress having been unavailable, the parties filed a statement of agreed facts summarizing the testimony at the hearing. Mass.R.A.P. 8(d), as amended, 378 Mass. 932 (1979).

Detective David Brown, of the drug task force in the Norfolk district attorney's office, testified that on May 29, 1984, he received information that a drug transaction was to take place in the early evening in Filene's parking lot at the South Shore Plaza in Braintree. He was told that one or more people would be coming to the plaza with fifteen to twenty pounds of marihuana in an older blue and white Pontiac Grand Prix automobile. The person in the Pontiac was to meet the operator of a brown station wagon. Brown testified that he and other officers set up surveillance of the parking lot.

According to Brown, Detective Peter Gallagher saw an older blue and white Pontiac Grand Prix automobile apparently canvassing the parking lot, going up and down the parking rows. The Pontiac eventually parked next to a brown Chrysler van. Two white males got out of the Pontiac. The passenger of the Pontiac (later identified as John M. Pires) went to the front of the Pontiac and sat on its hood. The driver of the Pontiac (later identified as the defendant) went to the brown van and spoke briefly to its driver. The defendant went into the shopping center leaving Pires sitting on the hood of the Pontiac. Approximately five minutes later the defendant returned to the Pontiac and spoke briefly to Pires. The defendant then walked away from the Pontiac.

Brown testified that he and Gallagher approached Pires, told him they were police officers, and asked him to identify himself. Pires identified himself and denied any knowledge of the defendant or of the Pontiac. His right hand was clenched in a fist. Brown asked him what he was trying to hide and asked him to open his hand. When Pires refused, Brown forced Pires's hand open; in it was a key to the door and trunk of the Pontiac. Brown then reached into Pires's pants pocket and found an ignition key to the Pontiac. Pires still denied ownership or any knowledge of the Pontiac. Detective Gallagher looked into the glove compartment of the Pontiac to find its registration. Inside the glove compartment he saw a packet containing a white powder which he believed to be cocaine.

Gallagher and Brown proceeded to search the trunk of the Pontiac. In the trunk they found a plastic trash bag containing five smaller bags, each of which contained approximately three pounds of marihuana. The total weight of the marihuana was fourteen pounds, eight and one-half ounces.

After the cocaine and marihuana were found in the Pontiac, Sergeant Kenneth Moschella questioned the defendant, who was standing next to a red Triumph convertible, about 250 feet away from the Pontiac. ¹ Moschella took the keys to the Triumph automobile from the defendant and used them to open the trunk, in which he found an electronic balance scale with a white powder residue on it which was later identified as cocaine. Pires and the defendant were both placed under arrest.

The defendant testified that he had previously owned the red Triumph and that he had given it to his girl friend, Valerie Adams. He testified that he was driving it with her knowledge and permission. He testified that he worked with his father in a spice and bread crumb business and that the scale was used for measuring small amounts of spices.

The defendant testified further that he drove to the South Shore Plaza parking lot in the red Triumph and that he went into Filene's to look for a particular kind of jacket. The store did not have it and he returned to his automobile. He walked past the Pontiac. There he saw Pires whom he knew. They had lived in the same neighborhood and Pires had been a classmate of the defendant at school for many years. The defendant stated that he exchanged greetings for about a minute with Pires. He then moved on toward the Triumph about 250 feet away, where he was challenged by Sergeant Moschella. In response, the defendant identified himself. He further stated that he never gave Moschella the keys and that the lock on the trunk was broken. He claimed that Moschella opened the trunk of the Triumph and searched it without permission. Also he testified that he did not drive the Pontiac and was never in the Pontiac.

The trial testimony, which has also not been preserved, was, according to the statement of agreed facts, essentially the same as the motion hearing testimony with the addition that Gallagher testified that he observed part of the conversation with Moschella and the defendant. Gallagher testified that he heard the defendant tell Moschella to search the trunk of the Triumph, and that the defendant voluntarily gave up the Triumph keys to Sergeant Moschella.

2. The Appeals Court Opinion.

The Appeals Court held that there was insufficient showing of probable cause to justify the warrantless search of the Triumph, and that, without the evidence obtained during that search, the evidence at trial did not support a conviction for possession of cocaine or marihuana. The court did not rule on the constitutionality of the search of the Pontiac.

As to the issue of the defendant's standing to assert his constitutional claims, the court stated: "Our resolution of the merits in the defendant's favor makes unnecessary any discussion of the questions whether the defendant had standing to object to either search. See Rawlings v. Kentucky, 448 U.S. 98, 104 [, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633] (1980). Compare Commonwealth v. King, 389 Mass. 233, 240 (1983). See also in this regard, Commonwealth v. Mora, 402 Mass. 262, 265-267 (1988), and cases cited." Commonwealth v. Amendola, 26 Mass.App.Ct. 713, 717 n. 6, 532 N.E.2d 75 (1988).

In our view resolution of the probable cause question in the defendant's favor is not dispositive of the question whether the defendant had standing to challenge the search and seizure as to either vehicle. Under current Federal jurisprudence, the standing inquiry has merged into the substantive inquiry of whether the defendant's rights guaranteed by the Fourth Amendment to the United States Constitution were violated. See Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978); Rawlings v. Kentucky, 448 U.S. 98, 104-106, 100 S.Ct. 2556, 2561-62, 65 L.Ed.2d 633 (1980). Under Federal principles, the defendant is required to show that "governmental officials violated [his] legitimate expectation of privacy." Rawlings v. Kentucky, supra at 106, 100 S.Ct. at 2562. A holding that there was no probable cause for the search bears no necessary relation to the preliminary question whether the defendant had a legitimate expectation of privacy. See Commonwealth v. Podgurski, 386 Mass. 385, 387 n. 5, 436 N.E.2d 150 (1982), cert. denied, 459 U.S. 1222, 103 S.Ct. 1167, 75 L.Ed.2d 464 (1983).

3. Automatic Standing.

The defendant urges us to adopt the "automatic standing" rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), as a matter of State constitutional law. In Jones, the defendant was charged, and later convicted, of purchasing, selling, dispensing, and distributing narcotics, a crime which permitted conviction upon proof of the defendant's possession of narcotics. Id. at 258, 80 S.Ct. at 729. Possession formed the basis of the government's case against the defendant. The defendant had been arrested in an apartment by Federal narcotics officers, who were executing a warrant to search for narcotics and who found narcotics and paraphernalia in a bird's nest in an awning just outside a window in the apartment. The defendant moved to suppress the fruits of the search. The government challenged the defendant's standing to make the motion because he alleged neither ownership of the seized articles nor an interest in the apartment greater than that of an invitee or guest.

The Supreme Court held that the defendant had standing to object to the search. The Court based its holding, in part, on the dilemma faced by a defendant charged with a crime of possession. Should the defendant claim that he possessed the contraband in order to assert standing, the defendant essentially would admit to having committed the crime. Should the defendant exercise his right to remain silent, the defendant would sacrifice any challenge to the search and seizure. In these special circumstances, standing is conferred upon the defendant to challenge the search and seizure.

We think it appropriate to quote the Jones Court's reasoning at length:

"Ordinarily ... it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy. But prosecutions like this one have a special problem. To establish 'standing,' Courts of Appeals have generally required that the movant claim either to have owned or possessed the seized...