Com. v. O'Connor

Decision Date11 September 1989
Citation406 Mass. 112,546 N.E.2d 336
PartiesCOMMONWEALTH v. Richard G. O'CONNOR.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Robert E. Fox for defendant.

Kurt N. Schwartz, Asst. Dist. Atty., for Com.

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

WILKINS, Justice.

During a pat-search for weapons, a Burlington police officer seized controlled substances from the defendant in what the Commonwealth concedes was a violation of the defendant's constitutional right to be free from unreasonable searches and seizures. When the police officer seized the drugs, he had already determined to "assist" the defendant to the Burlington police station pursuant to his authority under G.L. c. 111B, § 8 (1988 ed.), because, in his view, the defendant was a person incapacitated "by reason of the consumption of intoxicating liquor" who was "likely to suffer or cause physical harm or damage property" (G.L. c. 111B, § 3 [1988 ed.] ). Section 8 of G.L. c. 111B provides that, if an incapacitated person is held in protective custody at a police station, "all valuables and all articles which may pose a danger to such person or to others may be taken from him for safekeeping" and inventoried. The Commonwealth argues that, because inevitably the drugs would have been found during a lawful inventory search of the defendant at the Burlington police station, the motion judge did not err in declining to suppress evidence of the controlled substances taken from the defendant.

The United States Supreme Court (Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 [1984] ), each Federal Court of Appeals having jurisdiction over criminal matters (id. at 440 n. 2, 104 S.Ct. at 2507 n. 2), and substantially every State court that has considered the question (see Grossman, The Doctrine of Inevitable Discovery: A Plea for Reasonable Limitations 92 Dick.L.Rev. 313, 313 n. 1 [1988] ) have recognized an inevitable discovery exception to the exclusionary rule. We conclude that, in the circumstances of this case, application of an inevitable discovery exception not only meets the standards expressed by the Supreme Court of the United States in Nix v. Williams, supra, but also satisfies the requirements of art. 14 of the Declaration of Rights of the Constitution of the Commonwealth. In reaching that conclusion we decide, contrary to the defendant's contentions, that the police officer lawfully took the defendant into protective custody, that discovery of the drugs was inevitable, and that, because the Commonwealth gained no advantage from the premature seizure and because the evidence ultimately would have been discovered in circumstances not requiring the issuance of a search warrant, exclusion of the evidence is not required in order to fulfil the purposes of State and Federal exclusionary rules.

Officer Robert Healy of the Burlington police department testified during the hearing on the motion to suppress the evidence, and the motion judge made findings consistent with Healy's testimony. Healy said that about 9:40 P.M. on November 28, 1987, while on patrol, he was dispatched to Old Colony Road. On arrival he saw a red Chevrolet pickup truck on the side of the road "hung up on a wall." There were two people there. One had stopped to help get the truck off the wall. The other, the defendant, "seemed to be disoriented." His speech was "rambling and incoherent." He smelled of alcohol. Healy asked the defendant what had happened and received no reply. The ignition of the truck had been punched out, and there was no registration with the vehicle. The defendant said it was not his truck and that he had not been in it. The defendant was "not too steady on his feet" and was having trouble communicating with Healy. Healy concluded that the defendant was under the influence of intoxicating liquor. He decided to place the defendant in protective custody, and, following established police department procedures concerning protective custody, he placed handcuffs on the defendant and searched him for weapons. While searching the defendant, Healy saw a portion of a clear plastic bag protruding from the defendant's vest. He could feel that the bag did not contain a weapon. Healy removed the bag, saw several pills or capsules, and asked the defendant what they were. The defendant said he did not know. Following standard police practice, Healy took the defendant to the Burlington police station. There, also pursuant to standard practice, the belongings of a person taken into protective custody must be inventoried. The plastic bag that Healy had seized contained two capsules and six white tablets that were later tested and determined to be controlled substances.

The motion judge, after making findings of fact, ruled that the defendant had been "incapacitated" within the meaning of the word in G.L. c. 111B, that the officer may have exceeded his authority in seizing the bag when he knew that it did not contain a weapon, that the officer was acting lawfully in placing the defendant in protective custody, and that the evidence would inevitably have been discovered during the inventory booking of the defendant at the police station. He denied the motion to suppress. Following the defendant's convictions, we granted his application for direct appellate review.

1. We conclude that the principles of deterrence underlying the exclusionary rule will not be undercut by the application of an inevitable discovery exception in the circumstances of this case. This court discussed the inevitable discovery exception in Commonwealth v. Benoit, 382 Mass. 210, 217-219, 415 N.E.2d 818 (1981), where we declined to apply it because to do so would have undercut the protective warrant requirement of the Fourth Amendment. 1 See State v. Ault, 150 Ariz. 459, 465-466, 724 P.2d 545 (1986) (State constitutional rule); State v. Handtmann, 437 N.W.2d 830, 832-838 (N.D.1989) (such evidence excluded on Fourth Amendment grounds). Contra United States v. Whitehorn, 813 F.2d 646, 650 (4th Cir.1987). We rejected the argument that an illegal warrantless search could be cured by proof that a search warrant, if sought, would have been issued and the evidence inevitably discovered. Commonwealth v. Benoit, supra 382 Mass. at 219, 415 N.E.2d 818. We left open the question whether, in circumstances not requiring a warrant, we would adopt the inevitable discovery rule, which we viewed as an extension of the independent source rule of Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920), and principles stated in Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). Commonwealth v. Benoit, supra 382 Mass. at 217, 415 N.E.2d 818.

In applying the inevitable discovery rule in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), to a case involving a Sixth Amendment violation, the Supreme Court of the United States seems to have concluded that the inevitable discovery exception would apply without regard to the nature of the specific Federal constitutional violation. Id. at 442, 104 S.Ct. at 2508. 2 Under the rule accepted by the Supreme Court, the state of mind of the wrongdoing police officer is irrelevant. Id. at 445-446, 104 S.Ct. at 2509-2510. The Federal rule simply is that, if no prejudice results from the improperly accelerated seizure and "[i]f the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means ... then the deterrence rationale has so little basis that the evidence should be received." Id. at 444, 104 S.Ct. at 2509. The Court thus rejected the "clear and convincing evidence" standard of proof there urged by the defendant (id. at 444 n. 5, 104 S.Ct. at 2509 n. 5) and favored by the two dissenting Justices, who otherwise agreed that the inevitable discovery exception was "consistent with the requirements of the Constitution." Id. at 459-460, 104 S.Ct. at 2517 (Brennan, J., dissenting).

Although the Supreme Court did not discuss the application of the inevitable discovery rule to primary evidence (such as the drugs in this case) rather than to secondary evidence (such as the victim's body in Nix v. Williams ), the reasoning of the opinion in Nix v. Williams suggests that that Court would make no distinction between the two. Id. at 448, 104 S.Ct. at 2511. 3 In this case the fact that the evidence illegally seized was primary evidence of a crime does not make application of the inevitable discovery exception automatically inappropriate.

Our focus pursuant to art. 14 in determining the acceptability of an inevitable discovery exception to the exclusionary rule is on the nature of the "inevitability" that must be shown and on the character of the police wrongdoing. To the extent that the rule we announce under the State Constitution is more strict than the rule of Nix v. Williams, police will be held to the higher standard.

We accept the principle that the Commonwealth has the burden of proving the facts bearing on inevitability by a preponderance of the evidence. Rather than adopt the imprecisely defined "clear and convincing" standard of proof, we prefer to require a high level of specificity and detail in a judge's findings and analysis of the facts. See Custody of a Minor (No. 1), 377 Mass. 876, 884-886, 389 N.E.2d 68 (1979). It would not be enough to say that the "inevitability" of discovery is established by proof that, more probably than not, the evidence would ultimately have been found by lawful means. Such a standard dilutes the meaning of the word "inevitable." Once the relevant facts are found by a preponderance of the evidence, the question is whether on those facts discovery by lawful means was certain as a practical matter.

In the case before us, the motion judge made careful findings. He found that the defendant...

To continue reading

Request your trial
103 cases
  • Commonwealth v. Hernandez
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 29, 2015
    ...as to require suppression.” Commonwealth v. Sbordone, 424 Mass. 802, 810, 678 N.E.2d 1184 (1997), citing Commonwealth v. O'Connor, 406 Mass. 112, 117–118, 546 N.E.2d 336 (1989). This is a “demanding test.” Balicki, supra, quoting Commonwealth v. Perrot, 407 Mass. 539, 548, 554 N.E.2d 1205 (......
  • Com. v. Santiago
    • United States
    • Appeals Court of Massachusetts
    • April 29, 1991
    ...the contents of any towed car. See Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Commonwealth v. O'Connor, 406 Mass. 112, 546 N.E.2d 336 (1989). The contraband, being in plain view, was properly seized. Contrast Commonwealth v. Silva, 366 Mass. 402, 409-410, 3......
  • Commonwealth v. Darosa
    • United States
    • Appeals Court of Massachusetts
    • January 8, 2019
    ..."certain as a practical matter" that the minivan would have been impounded even had he been arrested. Commonwealth v. O'Connor, 406 Mass. 112, 117, 546 N.E.2d 336 (1989).13 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).14 The only evidence on this point was Donahue's testi......
  • Com. v. McAfee, 03-P-1660.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 9, 2005
    ...that discovery by lawful means was `certain as a practical matter.'" Id. at 547, 554 N.E.2d 1205, quoting from Commonwealth v. O'Connor, 406 Mass. 112, 117, 546 N.E.2d 336 (1989). "[T]he severity of the constitutional violation is critical in deciding whether to admit evidence that it is sh......
  • Request a trial to view additional results
3 books & journal articles
  • Bark with no bite: how the inevitable discovery rule is undermining the Supreme Court's decision in Arizona v. Gant.
    • United States
    • Journal of Criminal Law and Criminology Vol. 101 No. 1, January 2011
    • January 1, 2011
    ...inevitable discovery exception to the exclusionary rule applies to both primary and secondary evidence"); Commonwealth v. O'Connor, 546 N.E.2d 336, 339 (Mass. 1989) (same); State v. Sincell, No. 19073, 2002 Ohio App. LEXIS 1656, at *7-8 (2002) (same); State v. Flippo, 575 S.E.2d 170, 188 n.......
  • § 20.07 "Fruit of the Poisonous Tree" Doctrine
    • United States
    • Carolina Academic Press Understanding Criminal Procedure, Volume One: Investigation (CAP) (2021) Title Chapter 20 Fourth Amendment
    • Invalid date
    ...1997) (requiring proof by "clear and convincing" standard); State v. Garner, 417 S.E.2d 502 (N.C. 1992) (id.); Commonwealth v. O'Connor, 546 N.E.2d 336 (Mass. 1989) (applying a "certain as a practical matter" standard); State v. Winterstein, 220 P.3d 1226 (Wash. 2009) (rejecting any inevita......
  • § 20.07 "FRUIT OF THE POISONOUS TREE" DOCTRINE
    • United States
    • Carolina Academic Press Understanding Criminal Procedure, Volume One: Investigation (CAP) (2017) Title Chapter 20 Fourth Amendment
    • Invalid date
    ...1997) (requiring proof by "clear and convincing" standard); State v. Garner, 417 S.E.2d 502 (N.C. 1992) (id.); Commonwealth v. O'Connor, 546 N.E.2d 336 (Mass. 1989) (applying a "certain as a practical matter" standard); State v. Winterstein, 220 P.3d 1226 (Wash. 2009) (rejecting any inevita......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT