Com. v. Cantalupo

• Decision Date: 19 March 1980
• Citation: 402 N.E.2d 1040,380 Mass. 173
• Parties: COMMONWEALTH v. Ronald P. CANTALUPO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1040

402 N.E.2d 1040

380 Mass. 173

COMMONWEALTH v. Ronald P. CANTALUPO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 4, 1979.

Decided March 19, 1980.

Hans R. Hailey, Boston, for defendant.

Michael J. Traft, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, WILKINS, LIACOS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

The defendant was arrested for unlawful possession of a controlled substance ten tablets of lysergic acid diethylamide (LSD). In the Superior Court the defendant's pretrial motion to suppress these tablets from evidence was denied after a hearing. The motion to suppress was renewed at trial and was again denied. The defendant, having waived a jury trial, was thereafter found guilty of unlawful possession of a controlled substance. See G.L. c. 94C, § 34. He received a suspended sentence of six months in the House of Correction, Suffolk County, and was placed on probation for one year.

The defendant appealed by means of a bill of exceptions to the Appeals Court, which held that the motion to suppress was properly denied. Commonwealth v. Cantalupo, --- Mass.App. ---, ---, ^a 389 N.E.2d 785 (1979). The defendant applied for further appellate review, and the case is before this court on the grant of that application.

We summarize the facts as taken from the bill of exceptions and the findings of the judge who heard the motion to suppress. State Police Officer William Wise testified that on November 2, 1977, he and Revere Police Officer Dennis Moschella were working together in plain clothes investigation illegal drug traffic in Revere. They drove in an unmarked car to an area in Revere near the St. Anthony Church where they received information from a person whom they considered to be a reliable informer. Acting on this information they proceeded to the rear parking lot of the Sunnyhurst Farm store on Revere Street, looking for the defendant. After a short wait, they observed the defendant walking in their direction. They called to him to come over to their car.

When the defendant came over to the car, both officers got out of the vehicle and Officer Wise asked the defendant if he was selling drugs. The defendant responded, "Are you kidding? Hey, I'm clean, search me," and with that he opened both sides of his jacket making a gesture indicating an invitation to the officers to search him. Officer Moschella, who was known to the defendant, performed the search. The officer found a small vial containing ten tablets of LSD in the defendant's left shoe.

The officers had neither an arrest warrant nor a search warrant for the defendant. They did not advise the defendant of any rights prior to the search. The defendant was not arrested until approximately three weeks later, after an analysis of the pills had been made and a complaint obtained against the defendant.

The defendant argues that the search which yielded the vial of LSD violated his rights under the Fourth Amendment to the United States Constitution thereby rendering the LSD inadmissible as evidence at his trial. We agree with the ruling of the Appeals Court that the Commonwealth cannot show that the search was made on the basis of probable cause. See Commonwealth v. CANTALUPO, --- MASS.APP. ---, 389 N.E.2D 785 (1979)^B, and cases cited. Accordingly, the line of cases applying the probable cause plus exigent circumstances rationale to justify warrantless searches is inapposite here. See, e. g., Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973); cf. Commonwealth v. Haefeli, 361 Mass. 271, 279 N.E.2d 915 (1972). Nor was this search made incident to a valid arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Therefore, we must decide whether the police officers' actions are justified as a permissible threshold inquiry followed by a search with consent.

We have consistently sustained the right of a police officer to make a threshold inquiry when the officer has reason to suspect that a person has committed, is committing, or is about to commit a crime. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895 (1974); Commonwealth v. Anderson, 366 Mass. 394, 397, 318 N.E.2d 834 (1974). In "stop and frisk" cases our usual inquiry is twofold: first, whether the threshold inquiry (the stop) was justified, and second, whether the scope of the search was justified by the circumstances. See Commonwealth v. Silva, supra at 405, 406 n. 1, 318 N.E.2d 895.

We turn now to the first of these dual inquiries. "In following the constitutional standards of Terry v. Ohio, supra, we have required that the police officer's action be based on specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer's experience. A mere 'hunch' is not enough. Simple good faith on the part of the officer is not enough. The test is an objective one." Commonwealth v. Silva, 366 Mass. 402, 406, 318 N.E.2d 895, 898 (1974).

We find that this constitutional standard was met in the instant case. Officers Wise and Moschella were specifically involved in the investigation of drug traffic in Revere. See Commonwealth v. Silva, 366 Mass. 402, 407, 318 N.E.2d 895 (1974) (officers entitled to apply their police experience to all of the facts). They acted on information from an informant whom they considered reliable that the defendant had a controlled substance in his possession. This information was sufficient to justify the officers in calling the defendant to them and asking him whether he was selling drugs. See Commonwealth v. Ballou, 350 Mass. 751, 217 N.E.2d 187 (1966), cert. denied, 385 U.S. 1031, 87 S.Ct. 760, 17 L.Ed.2d 679 (1967) (threshold inquiry upheld where police had received anonymous telephone tip that defendant was in a certain cafee in possession of a gun); Commonwealth v. Anderson, 366 Mass. 394, 318 N.E.2d 834 (1974) (threshold inquiry upheld where police had received anonymous note describing man in bus terminal and saying that he was armed and possessed narcotics).

Our second inquiry is whether the scope of the warrantless search was justified by the circumstances. Because the police had no reason to suspect that the defendant was armed and dangerous, the search cannot be justified as a protective weapons search incidental to the initial stop. ¹ See Terry v. Ohio, 392 U.S. 1, 24-27, 88 S.Ct. 1868, 1881-1883, 20 L.Ed.2d 889 (1968); Commonwealth v. Silva, 366 Mass. 402, 407, 318 N.E.2d 895 (1974). The Commonwealth relies instead on the defendant's consent to justify the search.

"When the Commonwealth relies on consent as the basis for a warrantless search, it must demonstrate 'consent unfettered by coercion, express or implied, . . . (which is) something more than mere "acquiescence to a claim of lawful authority" ' (citation omitted). Commonwealth v. Walker, 370 Mass. 548, 555, (350 N.E.2d 678, 685,) cert. denied, 429 U.S. 943 (, 97 S.Ct. 363, 50 L.Ed.2d 314) (1976). See Bumper v. North Carolina, 391) U.S. 543, 548-549, (88 S.Ct. 1788, 1791-1792, 20 L.Ed.2d 797) (1968); Commonwealth v. Antobendetto, 366 Mass. 51, 57 (, 315 N.E.2d 530) (1974). Voluntariness of consent 'is a question of fact to be determined in the circumstances of each case . . . .' Commonwealth v. Aquiar, 370 Mass. 490, 496 (, 350 N.E.2d 436, 440) (1976)." Commonwealth v. Harmond, --- Mass. ---, ---, ^c 382 N.E.2d 203, 206 (1978).

The hearing judge found that "the defendant freely and voluntarily gave the officers his consent to be searched." See Schneckloth v. Bustamonte, 412 U.S. 218, 227-229, 93 S.Ct. 2041, 2047-2048, 36 L.Ed.2d 854 (1973). There is ample support in the record to warrant the judge's findings. ² See Commonwealth v. Harmond, --- Mass. ---, ---, --- - ---, ^d 382 N.E.2d 203 (1978); Commonwealth v. Cruz, --- Mass. ---, --- n. 3, ^e 369 N.E.2d 996 n. 3 (1977); United States v. Ciovacco, 518 F.2d 29, 30-31 (1st Cir. 1975). "The defendant's claim that his apparent consent was involuntary should be carefully scrutinized to avoid giving him an unfair advantage." Commonwealth v. Harmond, supra at ---, ^f 382 N.E.2d at 207. United States v. DiPrima, 472 F.2d 550, 551 (1st Cir. 1973).

In the instant case the defendant initiated the search by opening his jacket, saying "search me" and making a gesture indicating an invitation to the officers to search him. ³ The officers had made no threats to the defendant, but had simply beckoned him and asked a single question when he offered his invitation to search. The defendant was not placed in any coercive circumstances or even taken into custody at the time that he invited the search. Cf. Commonwealth v. LaBriola, 370 Mass. 366, 367, 348 N.E.2d 758 (1976); United States v. Watson, 423 U.S. 411, 424-425, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976). The fact that the police did not explain the right of the defendant to refuse to consent to a search is a factor to be considered in assessing the voluntariness of the consent, but it is not conclusive. Schneckloth v. Bustamonte, 412 U.S. 218, 248-249, 93 S.Ct. 2041, 2058-2059, 36 L.Ed.2d 854 (1973). Commonwealth v. Harmond, --- Mass. ---, ---, ^g 382 N.E.2d 203 (1978). Commonwealth v. Walker, 370 Mass. 548, 555, 350 N.E.2d 678 (1976).

The defendant maintains that, even if he voluntarily consented to be searched, he consented only to a search of the area above his belt, thereby rendering the search of his shoe an intrusion beyond the scope of the consent. Because consent can legitimize what would otherwise be an unreasonable and illegal search, a search with consent is reasonable and legal only to the extent that the individual has consented. See Commonwealth v. Garreffi, 355 Mass. 428, 245 N.E.2d 442 (1969); United States v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971); United States v. DeMarsh, 360...