Com. v. Burt

• Decision Date: 22 January 1985
• Citation: 393 Mass. 703,473 N.E.2d 683
• Parties: COMMONWEALTH v. William R. BURT (and three companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 683

473 N.E.2d 683

393 Mass. 703

COMMONWEALTH v. William R. BURT (and three companion cases ¹).

Supreme Judicial Court of Massachusetts Suffolk.

Argued Oct. 2, 1984.

Decided Jan. 22, 1985.

Anthony M. Traini, Boston, for William R. Burt and others.

William F. Spallina, Watertown, for Daniel J. Sullivan.

Judy G. Zeprun, Asst. Dist. Atty. (Michael J. Traft and William T. Walsh, Asst Dist. Attys., with her) for the Commonwealth.

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

LIACOS, Justice.

The defendants, and three others not parties to this appeal, were arrested on July 6, 1982, pursuant to arrest warrants. Also, on July 6 and 7, 1982, Sergeant Detective Robert F. Ryan of the Boston police department obtained, and had executed, warrants to search the defendants' homes, their automobiles, a safe, and certain safe deposit boxes. The defendants were charged in the Municipal Court of the City of Boston on complaints of larceny in excess of $100. G.L. c. 266, § 30. They were arraigned in the Municipal Court on July 7, 1982, and their cases were continued for trial to August 9, 1982.

Meanwhile, on August 5, 1982, the Suffolk County grand jury returned indictments charging the defendants with larceny in excess of $100 and with conspiracy to commit larceny. The prosecutor advised counsel for the defendants that he would seek to dismiss the complaints in the Boston Municipal Court (hereinafter, District Court) on the ground that the grand jury had indicted each defendant on identical charges. On August 11, 1982, the District Court judge allowed the Commonwealth's motion to dismiss, and that same day the defendants were arraigned in the Superior Court. They stood mute, and the judge ordered pleas of not guilty to be entered.

The defendants filed motions to suppress evidence seized pursuant to the search warrants. ² They also filed a motion to dismiss the indictments on the ground that the District Court judge improperly had allowed the Commonwealth's motion to dismiss the complaints. ³ The Superior Court judge denied the motions.

The defendants filed a petition for leave to prosecute an interlocutory appeal of the judge's denial of their motions to suppress, pursuant to Mass.R.Crim.P. 15(b)(2), 378 Mass. 882 (1979), and for leave to appeal from the denial of their motion to dismiss the indictments under G.L. c. 211, § 3. A single justice of this court allowed their petition under rule 15(b)(2), and granted their petition for leave to appeal under G.L. c. 211, § 3, inasmuch as the defendants would be before this court on appeal from the denial of their motions to suppress. We affirm the judge's rulings.

1. Motion to dismiss. We consider first the defendants' contention that the District Court judge improperly dismissed the complaints brought in the District Court when he failed to exercise any discretion in allowing the Commonwealth's motion to dismiss. ⁴ They argue that the judge had discretion under Mass.R.Crim.P. 3, 378 Mass. 847 (1979), to weigh the merits of the motion. They urge this court to reinstate the District Court complaints and to dismiss with prejudice the duplicative indictments in the Superior Court.

In granting the Commonwealth's motion to dismiss, the District Court judge relied on Commonwealth v. Raposa, 386 Mass. 666, 437 N.E.2d 215 (1982). In Raposa, the defendants were arraigned in a District Court, and a trial date was set. Prior to the expiration of a continuance, a grand jury indicted the defendants on identical charges. The prosecutor moved to dismiss the complaints in the District Court. The motion was denied. The defendants then were arraigned in the Superior Court. Subsequently, the prosecutor filed a nolle prosequi in the District Court, and, on the day of trial, the prosecutor nol-prossed the cases in open court.

We held that the Court Reorganization Act, St.1978, c. 478, ⁵ did not alter the power of a prosecutor to seek indictments while identical charges are pending in the District Court and then to nol-pros the case in a District Court. Id. at 668, 437 N.E.2d 215. We held further that the actions of the prosecutor, described above, were not an affront to the court which required reprimand. Id. at 668 n. 6, 437 N.E.2d 215. Cf. Commonwealth v. Thomas, 353 Mass. 429, 233 N.E.2d 25 (1967).

We conclude that, given the procedural posture of the cases before him, the District Court judge acted properly. Should the District Court judge have denied the Commonwealth's motion, the Commonwealth simply could have proceeded to nol-pros the cases. In Raposa, the Commonwealth took precisely that action, which we upheld. The District Court judge took the proper course and allowed the Commonwealth's motion. Cf. Commonwealth v. Brandano, 359 Mass. 332, 335, 269 N.E.2d 84 (1971). There is no error. ⁶

2. Motions to suppress. A. Probable cause. Each of the defendants argues, first, that the warrants for their arrests were issued improperly, in that the judge who issued the warrants relied on affidavits which did not provide a sufficient basis for finding probable cause that the defendants had engaged, or were engaged, in theft of parking meter revenues. The defendants also argue that the judge lacked probable cause to issue warrants authorizing searches of their residences and motor vehicles. They contend, in particular, that (1) the observations described in the affidavits were insufficient to support probable cause; (2) there was insufficient nexus between the information in the affidavits to support the searches of their residences; and (3) the staleness of information in the affidavits rendered the searches unreasonable.

Additionally, the defendant Rocha argues that, under the fruit-of-the-poisonous-tree doctrine, the judge lacked the requisite probable cause to authorize searches of two safe deposit boxes and a safe.

The warrants for the defendants' arrests and for the searches of their residences and motor vehicles were issued on the basis of affidavits signed by Sergeant Ryan. We set forth some of the facts contained in his affidavits.

The investigation which led to the issuance of the warrants began on May 25, 1982, when Sergeant Ryan met with Joseph McDonald, a security officer of the Boston traffic and parking department. McDonald told Sergeant Ryan that he had received information from an unnamed, though reliable, source that eight or nine parking meter collectors employed by his department were involved in a continuing scheme of larceny of coins from parking meters. The estimated revenue loss to the city of Boston amounted to several hundred thousand dollars a year.

McDonald also told Sergeant Ryan that on April 15, 1982, he had been approached on the street by a man who identified himself as Scott Stephens and gave a Boston address. Stephens told him that on a Thursday during the first or second week of March he had observed two meter collectors in a red Chevrolet station wagon, bearing the traffic department logo and registration M20475, parked on Boylston Street in the Fenway area. As he walked by, Stephens noticed the driver using a cup to empty quarters from a small bag into a larger bag. Stephens confronted the two men and warned them that, if they did not empty the quarters into the "strong box" which collectors carry for that purpose, he would turn them in. The two men then dumped the quarters from the small and larger bags into the strong box. Stephens waited until they had completed the task and then left the area.

McDonald told Sergeant Ryan that, after he had heard Stephens's story, he undertook his own investigation. On May 17, 1982, McDonald observed Fred J. Girolamo, a traffic department employee, carrying a brown paper bag, concealed under a traffic department shirt, from a traffic department vehicle to the trunk of a red Oldsmobile automobile parked on the street. Girolamo placed the bag in the trunk, closed the trunk, and returned to the traffic department vehicle. The traffic department vehicle was driven by defendant Voto, another department employee. Later the same day, McDonald saw Girolamo carrying a white bag from a traffic department vehicle, through a vacant parking lot, to the same red Oldsmobile automobile. ⁷ He saw Girolamo put the bag on the floor of the automobile and cover it with a white cloth. After Girolamo was gone, McDonald looked in the automobile through the window and saw a white bag on the floor covered with a handkerchief. The bag was bulging and so tightly packed that he saw the imprint of a round item about the size of a quarter against the side of the bag.

McDonald informed Sergeant Ryan that a number of employees of the traffic department were believed to be involved in the theft, including the defendants. McDonald told Sergeant Ryan that the traffic department meter collectors work in pairs, one person as driver and the other as collector. The pairings rotate from time to time. The collection team travels in a red traffic department station wagon with a large, sealed and locked metal canister, or "strong box." The parking meters are adapted to fit the strong box and to empty the contents without the collector touching the coins. The drivers and collectors are prohibited from carrying coins out of the locked canister and from making stops at motor vehicles during the work day. The traffic department provides its employees with a cost-free parking area at 112 Southhampton Street, next to the traffic department building.

After receiving McDonald's information, Sergeant Ryan undertook his own investigation from May 26, 1982, through July 6, 1982. We shall set forth his statements, as shown in the applications for the warrants, later in the course of our discussion.

We conclude that there was probable cause to support the issuance of arrest and search warrants for all the defendants. We reach our conclusions under the more stringent test set forth in Aguilar v. Texas, 378...