Com. v. Andrews

• Decision Date: 25 February 1971
• Citation: 358 Mass. 721,267 N.E.2d 233
• Parties: COMMONWEALTH v. Robert M. ANDREWS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 233

267 N.E.2d 233

358 Mass. 721

COMMONWEALTH v. Robert M. ANDREWS.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Nov. 2, 1970.

Decided Feb. 25, 1971.

Frederick L. Brown, Boston, Mass., for defendant.

A. Stanley Littlefield, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and SPALDING, REARDON and QUIRICO, JJ.

QUIRICO, Justice.

The defendant was found guilty on an indictment charging him with the crime of assaulting Richard J. Vaughn, a police officer, by means of a dangerous weapon at Brockton on January 7, 1969. The case was tried subject to the provisions of G.L. c. 278, §§ 33A--33G, and it is before us on the defendant's assignment of two alleged errors by the trial judge.

The defendant alleges error (a) in the denial of his pre-trial motion to suppress a rifle ¹ taken by the police from his apartment at the time of his arrest; and (b) in the admission at the trial of certain incriminating statements made by him just prior to or about the time of his arrest. The ground on which he bases his claims of error is the allegation that the police entered his house unlawfully and arrested him without a warrant and without probable cause to believe he had committed any crime.

The defendant was arrested at his apartment by several members of the Brockton police acting without a warrant. The rifle in question was taken from the defendant by the police at the time of the arrest. Immediately prior to his arrest the defendant, who was within his apartment, said to the officers who were in the hallway outside of his apartment that he had a gun, that he had six bullets in it, and that he was going to kill the first six 'cops' he saw. It is this rifle and these statements which are involved in the assignments of error. The defendant seasonably made separate motions to suppress the rifle and the incriminating statements. The motions were heard before trial, and both were denied.

Except for the fact that the defendant was arrested without a warrant, his claim that his arrest was unlawful and that therefore the rifle and statements should be suppressed is based on facts which were neither apparent on the record nor agreed to by the parties. The burden of proving such facts was upon the defendant as the moving party. Commonwealth v. Fancy, 349 Mass. 196, 202--203, 207 N.E.2d 276. Commonwealth v. LePage, 352 Mass. 403, 410--411, 226 N.E.2d 200. The evidence which the defendant offered as proof of his factual allegations consisted entirely of oral testimony from him and three police officers called by him. ² After hearing the testimony the trial judge found that the police had probable cause to believe that the defendant had committed a felony and that therefore they had a right to arrest him without a warrant. The trial judge had an opportunity to see and hear the witnesses and we did not. He had the sole responsibility to determine the weight and credibility of the testimony of the witnesses, and we do not review those determinations. Our review is limited to a determination of whether or not the evidence, taken in its light most favorable to the Commonwealth, would, if believed, permit the judge's conclusion on probable cause.

The defendant's burden of proof is not met by merely proving that the information possessed by the police officers at the time of arrest was not sufficient to establish beyond a reasonable doubt that the defendant had committed a felony. The police officers are not required to possess that kind and quantum of information before they may arrest without a warrant in the case of a felony. It is enough if they have information which reasonably permits a conclusion that the defendant has probably committed a felony. Brinegar v. United States, 338 U.S. 160, 175--176, 69 S.Ct. 1302, 93 L.Ed. 1879. Beck v. Ohio, 379 U.S. 89, 91--92, 85 S.Ct. 223, 13 L.Ed.2d 142. Commonwealth v. Lillis, 349 Mass. 422, 424, 209 N.E.2d 186. Commonwealth v. Cuddy, 353 Mass. 305, 308, 231 N.E.2d 368.

If the police in this case had sufficient information to constitute probable cause to believe, and did believe, that the defendant had committed a felony, even though not in their presence, they had the right to arrest him without a warrant. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 298--299, 87 S.Ct. 1642, 18 L.Ed.2d 782; Commonwealth v. Phelps, 209 Mass. 396, 403--406, 95 N.E. 868; Muniz v. Mehlman, 327 Mass. 353, 356--357, 99 N.E.2d 37; Commonwealth v. Holmes, 344 Mass. 524, 525--526, 183 N.E.2d 279; Commonwealth v. Lewis, 346 Mass. 373, 383, 191 N.E.2d 753; Commonwealth v. Lawton, 348 Mass. 129, 133, 202 N.E.2d 824; habeas corpus denied sub nom. in Lawton v. Dacey, 352 F.2d 61 (1st Cir.); Commonwealth v. Mayer, 349 Mass. 253, 255, 207 N.E.2d 686; Commonwealth v. Mitchell, 353 Mass. 426, 428--429, 233 N.E.2d 205. In making such an arrest without a warrant, the police had the right to enter the defendant's apartment to accomplish the arrest. In Commonwealth v. Phelps, supra, 209 Mass. at pp. 407--408, 95 N.E. at p. 873, the court said: 'An officer who has the right to arrest without a warrant because he suspects on reasonable grounds that the defendant has committed a felony has a right to break open doors. That may be taken to be settled now.'

The law which the Phelps decision of 1911 said 'may be taken to be settled now' appears to have survived the more recent series of seemingly innovative decisions of the Federal Courts in this area of the law. In Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, the court upheld an entry by use of a pass key, without a warrant, into the apartment of a suspect, and the arrest of the suspect therein. The police action was upheld on the ground that they had probable cause to believe that the occupant had committed and was committing a narcotics offence. The court said at p. 34, 83 S.Ct. at p. 1630: 'While this Court does not sit as in nisi prius to appraise contradictory factual questions, it will, where necessary to the determination of constitutional rights, make an independent examination of the facts, the findings, and the record so that it can determine for itself whether in the decision as to reasonableness the fundamental--i.e. constitutional--criteria established by this Court have been respected. The States are not thereby precluded from developing workable rules governing arrests, searches and...