Com. v. Bottari

• Decision Date: 28 August 1985
• Citation: 482 N.E.2d 321,395 Mass. 777
• Parties: , 54 USLW 2166 COMMONWEALTH v. Joseph J. BOTTARI (and five companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 321

482 N.E.2d 321

395 Mass. 777, 54 USLW 2166

COMMONWEALTH v. Joseph J. BOTTARI (and five companion cases ¹).

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued April 1, 1985.

Decided August 28, 1985.

Kevin J. Ross, Asst. Dist. Atty. (Max W. Beck, Asst. Dist. Atty., with him) for the Commonwealth.

John C. McBride, Boston, for Joseph J. Bottari.

Kenneth J. Fishman, Boston, for Paul L. Tanso.

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

LIACOS, Justice.

On June 9, 1983, the defendant Paul L. Tanso was charged with possession of chemical mace. On the same date, five complaints were issued against the defendant Joseph J. Bottari for the following offenses: carrying a dangerous weapon (a police baton and a dirk knife), receiving a firearm with the serial number obliterated, possession of ammunition, carrying a firearm, and possession of burglarious tools. Both defendants filed motions to suppress. A judge of the Somerville District Court held an evidentiary hearing and allowed the defendants' motions. The Commonwealth appealed the ruling pursuant to Mass.R.Crim.P. 15(a)(2), 378 Mass. 882 (1979). We transferred the case to this court on our own motion. ² We affirm the order allowing the defendants' motions to suppress.

The relevant facts found are these. On June 8, 1983, at approximately 9 P.M., a detective with the Boston police department met with an informant at the Area A police station on New Sudbury Street in Boston. The informant told the detective, "There's a Joseph Bottari who has a big gun and it looks like a Magnum and he's got no license, and he's at the Assembly Mall." The informant also stated that Bottari had a 1978 Oldsmobile automobile and that the registration number was 112DET. The Boston police department detective related the foregoing information to a police dispatcher of the Somerville police department, who in turn relayed the information to Officers Edward Barnard and Bernard Doherty.

At approximately 11:20 P.M., Officers Barnard and Doherty observed the automobile described by the informant parked near the Sack Cinema in the parking lot of the Assembly Square Mall. Forty-five minutes to an hour later the officers observed four individuals leaving the cinema and approaching the automobile. The individuals were not acting suspiciously or violating any law. Neither officer knew Bottari or Tanso by sight or description. Officer Barnard testified that he saw a black object, which was later discovered to be a knife, sticking out of the pocket of one of the four individuals. In his oral findings, however, the judge found that the officer was unable to see the object, due to the officer's vantage point and the lighting conditions. ³

As another individual, later identified as Bottari, opened the door to the driver's seat, Officer Barnard drove the police cruiser to the rear of the automobile so that the automobile could not be backed out of its parking space. The automobile also was blocked by vehicles parked to the side and in front of it. In his written findings, the judge stated that both police officers immediately drew their guns, ordered the four men out of the automobile, and had them place their hands on the roof of the automobile. The officers then conducted a pat frisk of the four men. Officer Barnard found nothing on Bottari; Officer Doherty found a small cannister of mace on Tanso.

Officer Barnard then asked Bottari for the vehicle's registration. ⁴ As Bottari opened the glove compartment to produce the registration, the officer reached into the glove compartment and took out a dirk knife. Officer Barnard then escorted Bottari to the rear of the automobile and asked him if he had the keys to the trunk. Bottari said that the keys were on the roof of the automobile. Officer Barnard took the keys, opened the trunk, and saw a red nylon bag which was zippered shut. A police baton lay elsewhere in the trunk. The red bag was opened, revealing a .44 magnum gun, some tools, and ammunition. The police officers released the other two individuals but had Bottari and Tanso conveyed to the Somerville police station. The officers ordered the vehicle towed to a lot used by the police department to park impounded vehicles.

The Commonwealth argues that the search of the automobile was lawfully conducted because the police officers had probable cause to believe that Bottari illegally possessed a firearm, and exigent circumstances excused the necessity of a search warrant. The Commonwealth further argues that the dirk knife, found in the glove compartment, and the chemical mace, found on Tanso, were both discovered in the course of a lawful threshold inquiry. Finally, the Commonwealth contends that the search of the trunk was a valid departmental safety procedure designed to ensure that the firearm, believed to be in the automobile, did not cause harm to the public. We conclude, as did the judge, that there was an illegal arrest without probable cause at the time the four men were seized at gunpoint. We agree further with the judge that the objects seized were the fruits of the illegal arrest.

We begin our review with the well-settled proposition that the judge's findings of fact are "binding in the absence of clear error ... and [we] view with particular respect the conclusions of law which are based on them." Commonwealth v. Correia, 381 Mass. 65, 76, 407 N.E.2d 1216 (1980). While the judge's ultimate findings of fact and rulings of law, as they bear on issues of constitutional dimension, are open for reexamination by this court, such ultimate findings are "entitled to substantial deference by this court." Commonwealth v. Bookman, 386 Mass. 657, 661 n. 6, 436 N.E.2d 1228 (1982). Questions of credibility are, of course, for the trial judge to resolve. Commonwealth v. Meehan, 377 Mass. 552, 557, 387 N.E.2d 527 (1979).

It is clear that the motion judge took the view that, although the police officers testified that they did not formally arrest Bottari and Tanso until after the dirk knife and the mace were found, an arrest was effectively made at the time the defendants and their companions were blocked in their automobile and then ordered out of the automobile by police officers with drawn guns. In the judge's view the rights of the parties were "fixed" at that moment, and the legality of the search and seizure that ensued must be judged by the situation as it existed at that time.

In United States v. Marin, 669 F.2d 73, 81 (2d Cir.1982), the court stated:

"In determining whether a particular restraint is an arrest or tantamount to an arrest, thus requiring probable cause, or instead is a restraint short of an arrest, thus calling for analysis under a reasonableness standard, the degree of restraint must be analyzed. When no formal arrest has been made, several factors must be considered. In particular, courts have considered the amount of force used by the police, the extent of the intrusion, and the extent to which the individual's freedom of movement is restrained. ... In cases involving stops of cars, we have considered the number of police officers and cars used to effect the stop; whether the police blocked the car in motion or otherwise completely impeded its movement, or whether they merely pulled up near it; and whether the police officers had their guns drawn and in view." (Citations omitted.)

In Marin the court held, on facts almost identical to the case at bar, that, when a vehicle was blocked by Federal agents who approached the vehicle with guns drawn and ordered the occupants out at gunpoint, the encounter was to be considered an arrest. Cf. Massachusetts Gen. Hosp. v. Revere, 385 Mass. 772, 778, 434 N.E.2d 185 (1982), rev'd on other grounds, 463 U.S. 239, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983). Of similar import, on similar facts, is United States v. Strickler, 490 F.2d 378, 380 (9th Cir.1974), where the court stated:

"[W]e simply cannot equate an armed approach to a surrounded vehicle whose occupants have been commanded to raise their hands with the 'brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information' which was authorized in [Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972) ]."

The officers' use of force was not precipitated by any actions of the defendants, nor did the officers testify that they feared for their safety or the safety of others at the time they approached the automobile with their guns drawn. Commonwealth v. Almeida, 373 Mass. 266, 271, 366 N.E.2d 756 (1977). Commonwealth v. Silva, 366 Mass. 402, 407, 318 N.E.2d 895 (1974). The fact that the officers suspected that one of the occupants may have had an illegal gun does not justify their use of force, without the presence of other fear-provoking circumstances which are absent here. ⁵ Cf. United States v. Jackson, 652 F.2d 244, 249 (2d Cir.1981) (not unreasonable for a police officer to draw gun when approaching a car whose driver may be an escaping armed bank robber). Because the officers' actions exceeded the scope of a Terry-type investigative stop, we consider the effect of those actions to be an arrest. "The facts fall within the rule that '[t]o constitute an arrest there must be either a physical seizure of the person by the arresting officer, or a submission to his authority and control.' ... Although the word 'arrest' was not used either at this time or later in the officers' testimony, that was not necessary." Commonwealth v. Holmes, 344 Mass. 524, 526, 183 N.E.2d 279 (1962), quoting Thompson v. Boston Publishing Co., 285 Mass. 344, 349, 189 N.E. 210 (1934). "There is no magic in the word 'arrest' ...." Commonwealth v. Wallace, 346 Mass. 9, 16, 190 N.E.2d 224 (1963).

To be valid, an arrest must be based on probable cause. Art. 14 of the Massachusetts Declaration of Rights. G.L. c. 276, § 22 (1984 ed.). Cf...