Com. v. Cast

• Citation: 407 Mass. 891,556 N.E.2d 69
• Parties: COMMONWEALTH v. Saul B. CAST.
• Decision Date: 11 July 1990
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 69

556 N.E.2d 69

407 Mass. 891

COMMONWEALTH v. Saul B. CAST.

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued March 5, 1990.

Decided July 11, 1990.

John C. McBride, Boston, for defendant.

Robert C. Thompson, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

LYNCH, Justice.

The defendant, Saul B. Cast, was found guilty by a jury in the Superior Court of trafficking in over 200 grams of cocaine. He timely appealed from his conviction and the denial of his motion to suppress the cocaine seized by police officers in the July 31, 1986, warrantless search of a closed suitcase in the trunk of his rented automobile. ¹ We transferred the case here on our own motion and now affirm.

The following facts are drawn from the findings of the motion judge. Several days before the defendant's arrest, Herbert Lemon, an agent of the Drug Enforcement Administration (DEA), met with an informant at a Brockton restaurant. Lemon had never seen the informant before, nor had this informant provided him with any "tips" in the past.

The informant told the DEA agent that he was "familiar with" one Saul Cast, living in Bridgeport, Connecticut, who could "move" large amounts of cocaine on very short notice and from whom the informant could arrange a shipment of cocaine to Massachusetts that same day. He provided some personal background information about the defendant, stating that Cast was a light-skinned native of Colombia who had anglicized his surname after becoming a United States citizen, was married to a woman originally from the Brockton area, drove a blue pickup truck, and was self-employed, possibly as a painter. He gave the DEA agent Cast's home telephone number. Finally, he told Lemon that, in conducting his cocaine business, Cast liked to use luxury cars and expensive hotels.

DEA agents in Hartford, Connecticut, thereupon verified that the telephone number given Agent Lemon by the informant was listed to Saul Cast at an address in Bridgeport. At that address they noticed a blue Ford pickup truck as well as a gray Oldsmobile passenger automobile in the driveway. The license plate numbers revealed that the pickup truck was registered to Saul Cast, and the automobile to an individual surnamed Castaneda. The agents were also able to confirm that the defendant was self-employed as a painter. Finally, a check of records at the office of the United States Immigration and Naturalization Service in Hartford turned up the facts that Saul Cast was a Colombian, had married a Massachusetts resident and, as a result, had been naturalized as a United States citizen the previous year, and had changed his name from Castaneda to Cast shortly thereafter.

At a subsequent meeting between Lemon and the informant it was agreed that the informant would contact Cast and arrange for him to deliver two kilos of cocaine to the Plymouth area on the evening of July 30, 1986.

Lemon then arranged with the Boston DEA office for surveillance of the defendant's Bridgeport home on the morning of July 30. The State police drug unit assigned to the Plymouth County district attorney's office was also alerted of the expected delivery that day, and the matter became a joint investigation of the two law enforcement agencies.

At approximately 4 p.m. on July 30, the defendant was observed entering a taxicab outside his home in Bridgeport, carrying a gray suitcase made of some fibrous cloth fabric. DEA agents followed the cab to an automobile rental center, where Cast placed his suitcase in the trunk of a new, white Lincoln with New York license plates.

The DEA agents followed the Lincoln for several hours, losing sight of it for several extended periods. The vehicle was last seen in the vicinity of the Merritt Parkway in Connecticut at about 6:30 p.m. Shortly thereafter, State troopers were stationed at various points along the major route of travel between the New Canaan and Plymouth areas and told to be on the lookout for the Lincoln.

An agent was also stationed at a hotel in Plymouth, where he advised employees that a man named Saul Cast, speaking with a strong Spanish accent, travelling from Connecticut, might call that evening for a reservation, and that the agents and troopers were to be promptly notified if that occurred. Some time later, a hotel clerk reported to the agent that she had taken a call from a man with a heavy accent (which the judge found she could not identify), who gave his name as Richard Sawicki. ²

At about 12:30 a.m. on July 31, 1986, a State trooper at the first stakeout along Interstate 495 saw the white Lincoln with the right New York license plates drive by. He alerted other officers and followed the automobile toward Plymouth to Route 44, where the defendant headed east. Once the officers were satisfied that the defendant was unaccompanied by any associated vehicles that might actually be "caddying" the drugs, he was stopped. Upon identifying him as Saul Cast, the officers searched the vehicle. The cocaine was discovered in a suitcase in the trunk of the vehicle. A credit card bearing the name of Richard Sawicki was found in his wallet.

The searches of Cast, his automobile, and the luggage in its trunk were executed without a warrant. The motion judge found that Sergeant Bruce Gordon of the State police reached a decision sometime after 10 p.m. to proceed with the surveillance operation without applying for a search warrant, because he believed the officers would have no probable cause to stop the defendant and search his Lincoln until they were able to verify that he was travelling alone and that he was headed for Plymouth. When and if these facts were in fact proven true, the motion judge found Sgt. Gordon concluded, there would be exigent circumstances justifying the warrantless automobile search.

The defendant advances a number of theories under which his rights to be free of unreasonable search and seizure under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights were violated by the warrantless search of his automobile and the suitcase. First, he argues that there was no probable cause for stopping him and searching his vehicle. Second, he contends that, even if there were probable cause, it extended only to the suitcase in the trunk and not to the entire vehicle, and so the automobile exception to the warrant requirement is inapplicable. Third, the defendant asserts that, even if probable cause extended to the whole vehicle, there were no exigent circumstances that made the automobile exception applicable to relieve the law enforcement officials of the obligation to get a search warrant. Finally, he argues that, even if the warrantless search of his car and the luggage in the trunk was lawful under the automobile exception to the Fourth Amendment's warrant requirement, the search of the suitcase was illegal under art. 14 and its greater measure of protection for unreasonable searches.

1. Probable cause. In order to have had probable cause to arrest and search Cast and his automobile, the State troopers in this case would have to have known of enough facts and circumstances "to warrant a person of reasonable caution in believing" the defendant was transporting cocaine in the Lincoln. Commonwealth v. Gullick, 386 Mass. 278, 283, 435 N.E.2d 348 (1982). Commonwealth v. Skea, 18 Mass.App.Ct. 685, 687 n. 3, 470 N.E.2d 385 (1984). "In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959), quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). Thus, because in determining whether probable cause exists we are not concerned with guilt beyond a reasonable doubt, "[r]easonable inferences and common knowledge are appropriate considerations." Commonwealth v. Alessio, 377 Mass. 76, 82, 384 N.E.2d 638 (1979).

Where an unnamed informant's tip is relied on by law enforcement officers as supplying probable cause to arrest and to search, art. 14 requires that the information pass muster under the two-pronged standard set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). That standard may be met in one of two ways. As a rule, the Commonwealth must demonstrate some of the underlying circumstances from which (a) the informant gleaned his information (the "basis of knowledge" test), and (b) the law enforcement officials could have concluded the informant was credible or reliable (the "veracity" test). Commonwealth v. Robinson, 403 Mass. 163, 164-165, 526 N.E.2d 778 (1988). However, an informant's detailed tip, plus independent police corroboration of those details, of the type that occurred in Draper v. United States, supra can compensate for deficiencies in either or both prongs of the Aguilar-Spinelli standard, and thus satisfy the art. 14 probable cause requirement. Commonwealth v. Robinson, supra at 166, 526 N.E.2d 778. Commonwealth v. Reddington, 395 Mass. 315, 322, 480 N.E.2d 6 (1985). Commonwealth v. Upton, 394 Mass. 363, 375, 476 N.E.2d 548 (1985).

The motion judge concluded that, on the basis of facts he found, the officers had probable cause to stop and search Cast and his car under both methods for meeting Aguilar- Spinelli 's demands. That is, he ruled that the Commonwealth had proven that the informant's basis of knowledge was established by the facts inherent in the tip itself. Furthermore, he concluded that the Commonwealth had established the informant's veracity from the tip itself, in combination with Draper-style police corroboration which amply made up any deficiency....