Com. v. Baldwin

• Citation: 11 Mass.App.Ct. 386,416 N.E.2d 544
• Parties: COMMONWEALTH v. David BALDWIN.
• Decision Date: 17 February 1981
• Court: Appeals Court of Massachusetts

Page 544

416 N.E.2d 544

11 Mass.App.Ct. 386

COMMONWEALTH v. David BALDWIN.

Appeals Court of Massachusetts, Middlesex.

Argued Dec. 3, 1980.

Decided Feb. 17, 1981.

Thomas F. Heffernon, Boston, for defendant.

Susan C. Mormino, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C. J., and CUTTER and ARMSTRONG, JJ.

CUTTER, Justice.

Baldwin was indicted in November, 1978, for violations of G.L. c. 266, §§ 27A, 60, and 139; c. 90D, § 32; and c. 274, § 7, on numerous counts alleging offenses in Acton from 1976 to 1978 in connection with stolen motor vehicles. Baldwin did business in Acton as "Dave's Bug Shop" (the Shop), which was a licensed automobile repair shop and second-hand automobile business. G.L. c. 140, §§ 58, 59, 66, and 67. ¹ The license restricts the licensee to having only four automobiles for display for sale at any one time.

Baldwin's counsel filed a motion to suppress certain evidence. This was denied after hearing by a motion judge, who made findings (warranted by evidence of the facts stated below) and rulings. Baldwin's application for interlocutory review was granted by a single justice of the Supreme Judicial Court. It has been referred to a panel of this court for decision.

On August 3, 1978, Officer Dennis Thompson of the Acton police department received information from an unnamed informant, who had previously supplied information which had led to success in prosecuting individuals involved with stolen property. In a conversation lasting only a few minutes, the informant told the officer that Dave's Bug Shop on Railroad Street in Acton had "been dealing in stolen motor vehicles," and that stolen Chevrolet Monte Carlos would be delivered to the Shop within a month to be dismantled and the parts sold. The Shop conducted largely a Volkswagen repair and used car business, but also sold automobiles, which was the reason Baldwin had automobiles on display. People walk onto the lot to look at the vehicles on display.

On Sunday, August 20, 1978, about 9:45 a. m., Officer Thompson traveled down Railroad Street past the Shop. He noticed a 1973 Monte Carlo near the edge of the Shop's parking area, two feet from the road and at a level about a foot above the road. About fifteen vehicles (not merely four) were on the lot, mostly Volkswagens. Only two were full-size American-made models. Some automobiles were there for repairs. Three were displayed for sale. The Shop was not open for business that morning. Officer Thompson left his cruiser to look at the Monte Carlo, which had been freshly painted within two weeks. Between August 3 and August 20, he had cruised the area on two or three occasions and had not seen the Monte Carlo there before. It bore no license plates, its ignition was intact, and the keys were not in the vehicle as seen through the window. He viewed through the windshield the vehicle identification number (VIN) on the dashboard and copied it. He then called the VIN into the police station and, upon "a stolen (computer) check," the report came back, after a few minutes, that the vehicle had been stolen in Worcester in September, 1977. He consulted with the duty officer, Sergeant McNiff, and with him proceeded to obtain a warrant. His affidavit contained most of the circumstances summarized above. ² On the strength of this affidavit a warrant issued to search the "1973 Monte Carlo VIN # 1H53H 3146 7611, a two story building cement block first floor and wooden second floor .... Also a trailer attached to the ... building, painted silver ..." and to look for the Monte Carlo, keys for that "vehicle and any other stolen motor vehicles or parts therein, (and) registration plates # 8H429 for the above ... vehicle."

Officer Thompson returned about 1:30 P.M., to the Shop. The police broke a window and unlocked the door. Soon Baldwin (who had been called by the Acton police) arrived, was given Miranda warnings, and was arrested. He gave the officer the keys to the Monte Carlo. A tag attached to the keys, bore the VIN of a second Monte Carlo, a wreck standing near the building. The policemen, for about forty-five minutes, examined and recorded VIN's appearing on all the vehicles. One Datsun had two different VIN's. An initial computer check reported no one of the other automobiles as stolen.

The next morning, Officer Thompson discovered that the initial computer check had been made incorrectly. A further computer check on one red Volkswagen resulted in a report that it had been stolen. The officers returned to the Shop at 9:30 A.M. (on August 21), and found that the red Volkswagen was missing. Two employees of the Shop gave the officers the somewhat improbable explanation that the red Volkswagen must have been stolen during the night. The officers at some time showed the employees a copy of G.L. c. 140, § 66 (note 1, supra). They also conducted a check of certain vehicles, the VIN's of which were at places other than the dashboard. The officers also looked at automobile parts and at business papers, car titles, bills of sale, and other documents stored in a file cabinet. As a result of a continued computer check, other vehicles, as they were reported "stolen," were impounded. One of the officers, Inspector Dupont, left the Shop about 1:30 P.M. (on the 21st) to obtain a new warrant. Documents and papers were taken into police custody under this warrant, which referred to all "records, (b)ooks, papers and inventories relating to" the Shop.

1. Baldwin, through counsel, contends that initial entry a few feet onto the Shop's premises, to look at the newly painted Monte Carlo vehicle, constituted an illegal search. We disagree. Officer Thompson was entering unfenced commercial premises on which vehicles were displayed for sale and to which the public had reasonable access. In view of the informant's earlier report that, within a month, stolen Monte Carlo vehicles would be sent to the Shop, Officer Thompson would have done less than his duty if he had not made an initial, peaceful inspection of the Monte Carlo vehicle in plain sight to see what could be discovered. In addition to the implied invitation to all members of the public to enter reasonably on the area, at least to inspect vehicles displayed for sale, the statutory authorization contained in G.L. c. 140, § 66, purported to give authority for stated authorized persons to "enter upon any premises" used by a licensee to carry on his business under § 59. See Commonwealth v. Murphy, 353 Mass. 433, 435-439, 233 N.E.2d 5 (1968); Commonwealth v. Colella, 360 Mass. 144, 147-151, 273 N.E.2d 874 (1971). If there was a search at all when Officer Thompson looked through the windows of the vehicle (at the VIN in plain view) without opening any part of the vehicle (see Commonwealth v. Dolan, 352 Mass. 432, 433, 225 N.E.2d 910 (1967)), what was done was reasonable, and in no sense such an intrusion as would require obtaining an administrative warrant (not mentioned or required by any language in § 66; see, however, Commonwealth v. Accaputo, --- Mass. ---, --- ^a, 404 N.E.2d 1204 (1980)). There could be no reasonable expectation of privacy on Baldwin's part, preventing examination, through its windows, of a vehicle placed within a few feet of a public street. See Commonwealth v. Small, --- Mass.App. ---, --- - --- ^b, 411 N.E.2d 179 (1980). See also Commonwealth v. Navarro, 2 Mass.App. 214, 216-222, 310 N.E.2d 372 (1974).

It has not been contended that any signs prohibited entrance upon the areas adjacent to the Shop or that the Shop and its sub-buildings were used at all as a dwelling or for residential purposes. Cf. Commonwealth v. Hall, 366 Mass. 790, 794, 323 N.E.2d 319 (1975). If the theory of protection of a curtilage (see Rosencranz v. United States, 356 F.2d 310, 313 (1st Cir. 1965); Wattenburg v. United States, 388 F.2d 853, 857-858 (9th Cir. 1968)) applies at all to business (as distinguished from residential) property, we are of opinion that it cannot reasonably be significant in an open, unfenced, area where public inspection is impliedly permitted and probably invited. See Commonwealth v. Laudate, 345 Mass. 169, 171, 186 N.E.2d 598 (1962); United States v. Conner, 478 F.2d 1320, 1323 (7th Cir. 1973). In such open areas one may not reasonably expect privacy. See Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 861, 864-866, 94 S.Ct. 2114, 2115-16, 40 L.Ed.2d 607 (1974); United States v. Freie, 545 F.2d 1217, 1223 (9th Cir. 1976). See also Commonwealth v. Frazer, --- Mass.App. ---, --- ^c, 408 N.E.2d 884 (1980); United States v. Jackson, 585 F.2d 653, 656, 659-660 (4th Cir. 1978).

2. The affidavit (note 2, supra ) upon which the first search warrant was issued on August 20 was sufficient. The affidavit (1) not only gave support to the informant's reliability in that it stated that the informant's assistance had proved accurate in other instances, but (2) also it gave adequate assurance (by its allegation that a stolen Monte Carlo was at the Shop) that the informant's prediction was based on much more than conjecture. The informant's report was somewhat meager, perhaps because of fear of detection and reprisal. Any inadequacies of his report, however, were cured when a stolen vehicle of the predicted type was found at the Shop within the predicted time period. We hold that, based upon a "common-sense" reading of the entire affidavit (see United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965)), the affidavit provided (by the presence of the stolen Monte Carlo) the "needed ... further support" for the informant's report. See Spinelli v. United States, 393 U.S. 410, 418, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969). See also the cases on corroboration by police investigation of an informant's tip, collected in Commonwealth v. Kaufman, --- Mass. ---, --- - --- ^d, 401 N.E.2d 811 (1980). In the present case, the corroboration was more than adequate. Draper v. United States, 358 U.S. 307,...