Com. v. Cavanaugh

• Decision Date: 11 October 1974
• Citation: 317 N.E.2d 480,366 Mass. 277
• Parties: COMMONWEALTH v. William CAVANAUGH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 480

317 N.E.2d 480

366 Mass. 277

COMMONWEALTH v. William CAVANAUGH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 17, 1974.

Decided Oct. 11, 1974.

Frances Burns, Asst. Dist. Atty., for the Commonwealth.

Joseph S. Oteri and Charlotte A. Perretta, Boston, for defendant, submitted a brief.

Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY and WILKINGS, JJ.

BRAUCHER, Justice.

An interlocutory appeal by a criminal defendant brings to us an issue as to the legality of a warrantless search of his automobile. Police officers stopped him for traffic offenses at night on a Boston street, and asked him to step out of his car. While he was on the sidewalk with one officer, another officer shined his flashlight into the car and saw several hundred slugs and what looked like and were the handles of a boltcutter. The officer reached in and pulled the tool from under the front seat. He then reached under the seat and pulled out other burglar's tools. The judge ruled that the search was proper, and we affirm.

The defendant was arrested at the scene on August 15, 1972, and was indicted on October 11, 1972, for possession of burglar's tools and for giving away slugs to be used to defraud. See G.L. c. 266, §§ 49, 75B. On October 10, 1973, after hearing, a judge of the Superior Court denied the defendant's motions to suppress the evidence seized from the car. The defendant sought an interlocutory appeal under G.L. c. 278, § 28E, and a single justice of this court determined that the administration of justice would be facilitated thereby, granted the appeal, and reported it to the full court without decision.

We summarize the findings of the Superior Court judge. The defendant, driving his car the wrong way on a one-way street, met a police cruiser. As the two cars passed, two officers in the cruiser yelled for him to stop, but he accelerated and a high-speed chase through city streets ensued. Two and one-half miles away a fire engine blocked the street, the defendant's car screeched to a halt, and the two officers reached him. He was asked to step out and was taken over to the sidewalk by one officer.

Meanwhile the other officer shined his flashlight into the car and saw several hundred slugs on the seats and a package large enough to contain 500 slugs, bearing the number 500. He also saw what he believed to be the handles of a boltcutter protruding back from beneath the front seat. He pulled them out, and the instrument was indeed a boltcutter. A screwdriver came out with it. He reached under the seat and found two pairs of gloves, a pair of pliers and a device used in auto thefts in substitution for the normal ignition switch. He then went to the sidewalk and informed the defendant he was under arrest.

1. Interlocutory appeal. When an application for an appeal is granted under G.L. c. 278, § 28E, trial is stayed pending prosecution and determination of the appeal. The situation is thus similar to that arising under G.L. c. 278, § 30A, on a report before trial. See Commonwealth v. Henry's Drywall, Inc., --- Mass. ---, --- - ---, ^a 289 N.E.2d 852 (1972). An interlocutory appeal, like a report, may be appropriate when the alternatives are a prolonged, expensive, involved or unduly burdensome trial or a dismissal of the indictment. See Commonwealth v. Benjamin, 358 Mass. 672, 673, n. 1, 266 N.E.2d 662 (1971); Commonwealth v. Brandano, 359 Mass. 332, 337, 269 N.E.2d 84 (1971); COMMONWEALTH V. PIGNONE, --- MASS. ---, 281 N.E.2D 572 (1972)^B. But interlocutory appeals and reports should not be permitted to become additional causes of the delays in criminal trials which are already too prevalent. See Commonwealth v. Horan, --- Mass. ---, ---, ^c 277 N.E.2d 491 (1972). Defense counsel should carefully weigh the costs and benefits before seeking an interlocutory appeal.

In the present case the interlocutory appeal has apparently delayed a fairly simple trial for more than a year. But a single justice has made the necessary statutory determination that the appeal will facilitate the administration of justice. In view of the uncertainty which has surrounded warrantless automobile searches, we agree with that determination. Compare COMMONWEALTH V. KANE, --- MASS. ---, 290 N.E.2D 164 (1972)^D, with Commonwealth v. Snow, --- Mass. ---, --- - ---, ^e 298 N.E.2d 804 (1973).

2. Burden of proof and findings. We have recently have that the Commonwealth bears the burden of proving justification for a warrantless search. Commonwealth v. Antobenedetto, --- Mass. ---, ---, 315 N.E.2d 530 (1974). The ruling in the present case was made before that decision, and the judge may well have thought that the burden was on the defendant rather than on the Commonwealth. In a brief prepared before the Antobenedetto decision the defendant attacked the judge's findings and argued that the burden of proving the legality of the search was on the Commonwealth.

In this setting we have examined the transcript of testimony with particular care, and we conclude that it fully supports the judge's subsidiary findings. On the most critical point, the officer who conducted the search, called by the defendant, testified that when the defendant was taken out of the car he saw a few hundred quarter-size slugs and 'handles of what appeared to be bolt cutters,' protruding to the back of the car from underneath the front seat. On cross-examination by the Commonwealth, asked whether he knew they were slugs, he said, 'They looked like slugs.' On redirect examination he said, 'I had an idea . . . they (the handles of the boltcutter) were (part of a burglar's too) but I couldn't say that they were bolt cutters just by looking, no.' This testimony is internally consistent; it fully supports the judge's finding that the officer 'observed several hundred 'slugs" and handles which he 'reasonably believed' were part of a boltcutter.

3. Search incident to arrest. The Commonwealth contends that the search of the car was lawful because incident to a valid arrest, citing United States v. Robinson, 414 U.S. 218, 225--226, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). See Adams v. Williams, 407 U.S. 143, 149, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). A warrantless search incident to arrest must be limited to the area 'into which an arrestee might reach.' Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). See Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). The car was less remote from the defendant in time and place in the present case than in Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), but it seems at least doubtful that the car was within the reach of the defendant once the officers had him on the sidewalk. Compare St.1974, c. 508, amending G.L. c. 276, § 1, enacted after the events here in issue.

More important, however, is the fact that the judge did not uphold the search on this ground and hence did not make a finding that there was a 'custodial arrest' before the search. See United States v. Robinson, supra, 414 U.S. at 235, 92 S.Ct. 1921 (1973). Although the case was not within G.L. c. 90, § 21, on arrests in traffic cases, we have little doubt that the officers could have made such an arrest on the ground that the high-speed chase through city streets involved a breach of the peace. See Commonwealth v. Gorman, 288 Mass. 294, 296--298, 192 N.E. 618 (1934). But it does not follow that there was an arrest, much less a 'custodial arrest.' See Commonwealth v. Holmes, 344 Mass. 524, 526, 183 N.E.2d 279 (1962), and cases cited. The situation seems more accurately described as an 'investigative stop' than as a 'custodial arrest.' See Terry v. Ohio, 392 U.S. 1, 24--26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Robinson, supra, 414 U.S. at 227, 92 S.Ct. 1921 (1973); G.L. c. 90C, § 2, as amended by St.1968, c. 725, §§ 2, 3; Commonwealth v. Lehan, 347 Mass. 197, 205, 196 N.E.2d 840 (1964); Commonwealth v. Wilson, --- Mass. ---, ---, ^f 276 N.E.2d 283 (1971), and cases cited.

4. Threshold inquiry. The police had probable cause to stop the car. Commonwealth v. Wilson, --- Mass. ---, ---, ^g 276 N.E.2d 283 (1971). 'If policemen are to serve any purpose of detecting and preventing crime by being out on the streets at all, they must be able to take a closer look at challenging situations as they encounter them.' Dorsey v. United States, 125 U.S.App.D.C. 355, 372 F.2d 928, 931 (1967). Like many other courts, we have held that the use of a flashlight to look into the interior of a car in such situations does not amount to a search at all. Commonwealth v. LaBossiere, 347 Mass. 384, 385--386, 198 N.E.2d 405 (1964); Commonwealth v. Haefeli, --- Mass. ---, ---, ^h 279 N.E.2d 915 (1972). ¹ Contrast Commonwealth v. McCleery, 345 Mass. 151, 153, 186 N.E.2d 469 (1962).

The defendant distinguishes the facts of our prior cases, and argues thet once the occupants were out of the car (the transcript of testimony shows that a companion got out of the car with the defendant) the use of the flashlight did constitute a search and was unlawful under recent Supreme Court decisions, citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). We have therefore reviewed the governing principles as restated in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) and cases cited.

Generally, less stringent warrant requirements have been applied to vehicles' than to homes or offices. One factor has been 'the exigent circumstances that exist in connection with movable vehicles.' Another is that one has 'a lesser expectation of privacy in a motor vehicle' than in one's person or building. The 'exercise of a desire to be mobile does not, of course, waive one's right to be free of unreasonable government intrusion. But insofar as Fourth Amendment protection extends to a...