Com. v. Bowlen

• Decision Date: 03 February 1967
• Citation: 223 N.E.2d 391,351 Mass. 655
• Parties: COMMONWEALTH v. Gerald J. BOWLEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 391

223 N.E.2d 391

351 Mass. 655

COMMONWEALTH v. Gerald J. BOWLEN et al.

Supreme Judicial Court of Massachusetts, Essex.

Argued Jan. 3, 1967.

Decided Feb. 3, 1967.

Chester C. Paris, Wakefield, for defendant Bowlen (Gerald M. Lewis, Lawrence, for defendant Gilday, with him).

John N. Nestor, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, KIRK and SPIEGEL, JJ.

SPIEGEL, Justice.

The defendants were tried on an indictment for armed robbery. The jury returned a verdict of guilty as to each defendant. The case was tried subject to G.L. c. 278, §§ 33A--33G, and is here by appeals. The defendant Gilday filed three assignments of error. The defendant Bowlen filed five assignments of error but argued only one of them. Those not argued are deemed waived.

1. The defendant Gilday first assigns as error the denial of his motion before trial for 'Return of Seized Property and Suppression of Evidence.'

At the hearing on that motion the judge could have found the following facts. On Sunday, August 18, 1963, Gilday was involved in an automobile accident in Middleton. When the Middleton police arrived on the scene he was unable to produce his driver's license or registration certificate. There was some delay due to Gilday's searching through various articles in his car for the papers. The police, by radio, inquired about the license and registration from the Registry of Motor Vehicles. 'It being Sunday, there was considerable delay (in) having this information returned to * * * (them).' At 5:20 P.M., about two hours after the police arrived, he was arrested and charged with several motor vehicle violations. His physical condition was 'dazed' and his eyes were 'glassy.' He was taken to a hospital for treatment and from there to the Danvers police station. He arrived at the police station about 6:30 P.M. where he was booked and subjected to a search which revealed that he had approximately $1,700 in ccurrency in his pockets. The cash and some other items of personal property were retained by the Middleton police.

The robbery for which these defendants were tried occurred on the previous day in Haverhill. An inspector from the Haverhill police was notified by the Middleton policy of the discovery of the large sum of money in Gilday's possession. The inspector came to the police station later that evening, bringing with him the victim of the robbery who subsequently identified Gilday and some of the money. The inspector thereupon instructed the Middleton police to keep the money under their control in connection with the robbery, and to put Gilday under a detainer. The inspector returned shortly with a warrant for Gilday's arrest for the robbery.

Gilday, in his unnecessarily lengthy brief, cites over 140 cases most of which have but a peripheral bearing on the issues before us. We make no attempt to discuss this morass of cases. The essence of his argument is that he was searched without a warrant, and not incident to an arrest, in violation of his rights under the Fourth and Fourteenth Amendments to the Constitution of the United States.

The validity of Gilday's arrest is not challenged. At most, he seems to argue that the search was too remote in time and place to be 'incident' to his lawful arrest. See Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777. We do not agree. The search of his pockets at the Danvers police station was pursuant to his arrest and incarceration. Commonwealth v. Lawton, 348 Mass. 129, 134, 202 N.E.2d 824. The arresting officer was not obliged to complete a search at the instant of the arrest. A search of a person about to be left alone in a cell would, in all likelihood, be more thorough than at the scene of his arrest. We do not believe that the Fourth Amendment prohibits the procedure of removing the contents of the pockets of a prisoner who is about to be locked up, even though it is done at a police station and not at the scene of the arrest. Such a search is pursuant to an arrest, even though some time has elapsed between the apprehension of the prisoner and his incarceration.

In the Preston case, supra, the defendant's car was taken to a garage and searched some time after the defendant's arrest. The case did not involve the search of a person pursuant to incarceration, which, so far as we can discern, has never been held to violate the Fourth Amendment so long as the arrest itself was valid. See United States v. Di Re, 332 U.S. 581, 587, 68 S.Ct. 222, 92 L.Ed. 210; Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142.

Gilday next argues, in effect, that even if the search were made pursuant to a valid arrest, the seizure of the money was not permit under the Fourth Amendment because it was not the 'fruits of a crime' for which he was arrested. The case of Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, makes it clear that the mere fact that the defendant was arrested for one crime does not preclude the police from seizing the fruits of another crime which they discover pursuant to a lawful search. The court said at page 154, 67 S.Ct. at page 1103, 'This Court has frequently recognized the distinction between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which may validly be seized including * * * the fruits of crime such as stolen property * * *' (emphasis supplied). The warrants in that case were for certain checks which were the instrumentalities of the crimes for which the warrants were issued. In the course of the search, a sealed envelope containing some stolen draft cards was found in a bureau drawer in the defendant's apartment. The court held that the seizure of the draft cards was not prohibited by the Fourth Amendment. Thus the 'fruits of crime' which are seized do not have to be the fruits of the crime for which the defendant was arrested.

Even the dissenters in the Harris case acknowledged the reasonableness of searching a man's pockets pursuant to arrest. What they objected to was the 'indulgence in the fiction that the recesses of a man's house are like the pockets of the clothes he wears at the time of his arrest. * * * The only exceptions to the safeguard of a warrant * * * are those which...