Com. v. Brown

• Decision Date: 10 May 1968
• Citation: 237 N.E.2d 53,354 Mass. 337
• Parties: COMMONWEALTH v. Christopher BROWN et al. (and six companion cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 53

237 N.E.2d 53

354 Mass. 337

COMMONWEALTH v. Christopher BROWN et al. (and six companion cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 27, 1968.

Decided May 10, 1968.

Alfred P. Farese, Everett, for defendants Brown & another.

Robert A Stanziani, Boston, for defendant Zirpolo.

Garrett H. Byrne, Dist. Atty., and Joseph R. Nolan, Asst. Dist. Atty., for the Commonwealth.

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

KIRK, Justice.

Christopher Brown and Robert Donati were convicted on three indictments charging armed robbery. ¹ Donati was also convicted of operating a motor vehicle after his license had been suspended and before it was restored. ² Anthony M. Zirpolo was convicted on three indictments charging, respectively, receiving stolen property, being an accessory before the fact to armed robbery in three counts, and being accessory after the fact to armed robbery in three counts. The three defendants were tried together under G.L. c. 278, §§ 33A--33G. All have appealed. They argue a total of fifty-six assignments of error, most of which center on three issues: (1) The lawfulness of the arrest of Donati and Zirpolo without a warrant, (2) the legality of the search warrant under which a search was made resulting in the recovery on the same day as the robbery of all of the stolen furs, and (3) the lawfulness of the arrest of Brown without a warrant. The remainder relate to rulings on evidence at the trial.

We summarize the evidence pertinent to the commission of the crimes and outline the evidence leading to the apprehension of the defendants. We point out, by way of preface, that as soon as the crime had been reported to the police, groups of officers from different operational units within the Boston Police Department reported to the scene and then fanned out on different missions or were on alert for further instructions, all with the common purpose of apprehending the criminals and recovering the goods. Some of the detailed evidence, not given in the narrative which immediately follows, is reserved for statement in connection with the disposition of the specific issues raised by the assignments of error.

On Friday morning, April 9, 1965, a man who introduced himself as 'Mr. Larson' entered the shop of Huerth and Huerth, Inc., furriers, on the fourth floor of the building at 376 Boylston Street, Boston. For about twenty minutes or half an hour Huerth showed him furs and quoted prices. The man left. About 10 A.M. on Monday, April 12, 1965, Larson reappeared at the shop accompanied by an older man whom he addressed as 'Sam,' later identified in court as the defendant Brown by Huerth and by Finn, an employee. Brown had under his arm a flat package about the size of a 'Life' magazine. Larson said to Huerth, 'I didn't bring my girlfriend, but I brought my father. He will do just as well.' Thereupon the two men drew guns, forced the four employees present to lie on the floor, and bound and gagged them. They took the employees' money from their wallets, about $400 from the store's cash box, and fifty-six furs valued at about $40,000. 'Sam' advised Larson which furs to take. One of the employees observed the men placing some of the furs in a large laundry bag. After the men had left, Huerth called the police who promptly arrived in large numbers and conducted or heard the questioning of the victims.

About 10:20 A.M., three women who were reentering 376 Boylston Street after a coffee break observed two men leaving the building carrying large white laundry bags marked 'Pilgrim.' The two men placed the bags in the rear seat of a 'green Cadillac convertible car, late model,' and got into the car. The driver got halfway out again and removed a white tag which was under the windshield wiper. The two then drove off.

Shortly before 11:30 A.M. on the same day, four Boston police officers who had earlier been at the Huerth shop in response to the alarm were driving, in furtherance of the investigation, toward Revere by way of the vehicular tunnel to East Boston. As they emerged from the tunnel they received a police radio message giving the registration number and description of an automobile and its occupants which had been at 376 Boylston Street that morning. Thereafter, while proceeding along McLellan Highway in East Boston, they received a police message to stop the car and arrest its occupants. At 11:30 A.M., the officers observed a green Cadillac convertible enter McLellan Highway from Waldemar Avenue and turn right in the direction of Revere. The registration number was 409918. When the Cadillac stopped for a red light the officers stepped from their unmarked cruiser and arrested the two occupants, Donati, the operator, and Zirpolo, who was seated beside Donati. In Zirpolo's pocket was found a parking violation notice which had been placed on the car earlier that morning; in Donati's pocket was a driver's license issued to his brother Richard.

We pause to state the evidence regarding the whereabouts of the Cadillac convertible prior to its seizure at 11:30 A.M. The car was registered to one Nicholas Ventola of Everett. Zirpolo had borrowed it from Ventola at 3 A.M., April 12, 1965, allegedly so that he could take his wife home from the Revere nightclub where they then were. At 7 A.M. Officer Costa, an M.D.C. police officer, saw Zirpolo and one of the two Donati brothers together at a diner in Revere. Several minutes later he saw the two men riding in the green Cadillac convertible, registration 409918. He stopped the car. The driver, one of the Donatis, showed him the license of Richard Donati. Between eight-twenty and eight-thirty on the same morning a Boston police officer placed a parking violation tag on the windshield of a Cadillac automobile, registration 409918, which was illegally parked near 364 Boylston Street, a building in the same block as 376 Boylston street. As already stated the Cadillac had been seen at or near 376 Boylston Street about 10:20 A.M. At 11:00 A.M. the same Cadillac was observed, unoccupied, in a parking lot within 100 feet of a multiple apartment unit at 199 Faywood Avenue, East Boston. The window on the driver's side of the car was down.

The defendant Brown was arrested about 3 P.M. on April 12 in circumstances later to be stated. All of the stolen furs, in three white laundry bags marked 'Pilgrim,' were found in an apartment in East Boston occupied by Zirpolo's wife Sandra in the course of a search conducted under a warrant also to be discussed later. The man who called himself 'Mr. Larson' has not been identified or apprehended.

One month before the trial, Zirpolo stopped his car near Beachmont Station and said to Officer Costa, '(Y)ou didn't see me that morning, did you?'

1. Donati and Zirpolo contend that there was no probable cause for their arrest and that, as a result, the evidence taken from them upon arrest should have been suppressed. We do not agree. We think that there was probable cause on either of two grounds. The officers had probable cause to make the arrest on their own initiative. They had been at the fur shop; they knew that a robbery had been committed by two men whose description they had heard at the shop; they then, en route to Revere, received a definite description including the registration number of the car suspected of being used in the crime. Fortuitously, they came upon the car which precisely matched the given description and was occupied by two men who in a general way conformed to the description given at the shop. On this information they could reasonably believe that the two men had committed a felony. Commonwealth v. Holmes, 344 Mass. 524, 525, 183 N.E.2d 279; Commonwealth v. Bowlen, 351 Mass. 655, 660, 223 N.E.2d 391. We think that the arrests were lawful also on the ground that the officers were ordered to make them as they proceeded to Revere to pursue their investigation. The arresting officers knew that other officers were working on the investigation. 'The * * * officers were engaged in a coo perative effort in the performance of their duty. The knowledge of one was the knowledge of all.' Commonwealth v. McDermott, 347 Mass. 246, 249, 197 N.E.2d 668, 670. It was not necessary that all information be transmitted over the police radio in order to justify the arrest by the officers who made it. It was enough that sufficient information had been gathered and evaluated to justify the issuance of the order to arrest the men in the described car. It was the officers' duty to obey. The arrests of Donati and Zirpolo were lawful and the searchs incidental to the arrests were also lawful. Commonwealth v. Mayer, 349 Mass. 253, 255, 207 N.E.2d 686.

2. We consider the validity of the search warrant which resulted in the recovery of all of the stolen furs at 3:35 P.M. on April 12, 1965, in an apartment occupied by Zirpolo's wife. Detective Fawcett and Officer Donahue, both Boston police officers assigned to Division 7 in East Boston, together with other officers, were aware of the time and place of the arrest of Zirpolo and Donati and were directing their efforts to the recovery of the stolen goods and the apprehension of the other criminals. Zirpolo's mother's apartment at 218 Leyden Street, where Zirpolo lived, was placed under surveillance, as was the housing project unit at 199 Faywood Avenue where Zirpolo's wife Sandra lived.

Following a conversation with Detective Fawcett at approximately 2:15 P.M. Officer Donahue obtained a search warrant from the assistant clerk of the East Boston District Court, a person competent to issue such warrants. Commonwealth v. Penta, 352 Mass. 271, 273--274, 225 N.E.2d 58. In order to place this aspect of the case in its proper setting we make the following observations: The warrant before us was issued after June 23, 1964, the effective date of St. 1964, c. 557, § 3, amending G.L. c. 276 by adding thereto §§ 2A, 2B and 2C. To the date the...