Com. v. DiMatteo

• Decision Date: 02 November 1981
• Citation: 12 Mass.App.Ct. 547,427 N.E.2d 754
• Parties: COMMONWEALTH v. Rachelle A. DiMATTEO (and seven companion cases 1 ).
• Court: Appeals Court of Massachusetts

Page 754

427 N.E.2d 754

12 Mass.App.Ct. 547

COMMONWEALTH v. Rachelle A. DiMATTEO (and seven companion cases

¹

).

Appeals Court of Massachusetts, Middlesex.

Argued Sept. 11, 1981.

Decided Nov. 2, 1981.

Arnold R. Rosenfeld, Boston (Ellen A. Howard, Boston, with him), for Tara J. Donlon.

William P. Homans, Jr., Boston (Anne E. Braudy, Watertown, with him) for Rachelle A. DiMatteo.

Peter W. Agnes, Jr., Asst. Dist. Atty. (Carmel A. J. Motherway, Asst. Dist. Atty., with him), for the Commonwealth.

Before GRANT, PERRETTA and KASS, JJ.

KASS, Justice.

In perpetrating the crimes of which they stand convicted-larceny, ² unlawful possession of a firearm, ³ armed robbery ⁴ and unlawful carrying of a firearm ⁵-the defendants laid less than cunning plans. They arrived and left the scene of the crime, during daylight, in a silver Buick convertible with the top down. It is hardly surprising that the police were able to catch the defendants within minutes of the robbery.

1. Lawfulness of the automobile search.

As a threshold issue, the defendants appeal from the refusal of a Superior Court judge to suppress a brown suede handbag which the police had found in the passenger compartment of the car. We summarize the findings which the judge made on the suppression motion, supplemented with undisputed details which appear in the transcript of the suppression proceedings. The defendants, young women, drove into a self-service filling station on Lexington Street in Waltham. The driver (at trial it developed this was DiMatteo) emerged and pumped gas. When she finished, the passenger (Donlon) went to the cashier's booth, placed a brown suede pocketbook on the counter, withdrew a gun from it, and ordered the cashier to give her "all the money." ⁶ A bulletin about the robbery was broadcast over police radio promptly upon receipt of a complaint from the cashier who had been held up. That message described the suspects, their singular car, the direction in which they had headed, the brown suede purse, the handgun, and the amount of money stolen. Police officers in the first cruiser to spot the Buick convertible brought the defendants to a stop, approached them with their service revolvers drawn, and ordered the women out of their car. The officers separated the defendants, advised them of their rights and placed them under arrest. Meanwhile, a third officer, Lyons, arrived in another cruiser and looked into the open passenger compartment of the defendants' car. He found an empty gun holster on the car seat and the brown suede pocketbook on the floor below the front passenger seat. The snaps of the bag were open and Lyons saw in it a gun and eighty-three dollars in cash. Lyons also noted that the bag was suggestively heavy.

No one challenges the legitimacy of the initial stop of the defendants' car; there was every reason to suspect the defendants of unlawful design. G.L. c. 41, § 98. Commonwealth v. Ling, 370 Mass. 238, 240-41, 346 N.E.2d 703 (1976). Commonwealth v. Ferrioli, --- Mass.App. ---, ---, Mass.App.Adv.Sh. (1980) 1703, 1705, 409 N.E.2d 244. Contrast Commonwealth v. Ellis, --- Mass.App. ---, Mass.App.Adv.Sh. (1981) 1680, 426 N.E.2d 172. It is also self evident that the police officers, in view of the radio bulletin, had probable cause to arrest the defendants and did, indeed, place them under arrest. Passing the point that in an open convertible the telltale brown handbag was in plain view, the officers, who had made a lawful arrest, had probable cause to believe that a search incident to that arrest would yield the fruits and the instrumentalities (the cash and the gun), as well as other evidence (the brown bag), of the crimes for which the arrest had been made. G.L. c. 276, § 1, as amended by St.1974, § 508. ⁷ See Commonwealth v. Dickerson, 372 Mass. 783, 786, 792, 364 N.E.2d 1052 (1977). Compare the somewhat broader search power incident to an arrest countenanced by decisions of the United States Supreme Court in Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969); New York v. Belton, --- U.S. ----, 101 S.Ct. 1736, 68 L.Ed.2d 222 (1981). See also Commonwealth v. Ortiz, 376 Mass. 349, 357-358 & n. 7, 380 N.E.2d 669 (1978). Compare Commonwealth v. Silva, 366 Mass. 402, 408-410, 318 N.E.2d 895 (1974).

But, the defendants argue, the handbag itself should not have been the subject of a warrantless search because the purse enjoyed a status akin to luggage. Searches of closed opaque containers in automobiles, subject to certain exceptions, were proscribed by Arkansas v. Sanders, 442 U.S. 753, 764-765, 99 S.Ct. 2586, 2593-2594, 61 L.Ed.2d 235 (1979). See also the recently decided case of Robbins v. California, --- U.S. ----, 101 S.Ct. 1755, 68 L.Ed.2d 236 (1981), applying the Sanders rule to closed containers other than luggage. The reason for that rule is that persons have an expectation of privacy in closed containers and that, unless driven to do otherwise by exigent circumstances, the police should secure a search warrant before rummaging through a private container. In few possessions, the defendants contend, is there a greater expectation of privacy than a woman's purse.

It is a line of argument that suffers from exposure to the facts in the case. The motion judge found that the handbag was open when Officer Lyons picked it up from the car floor and that he could see inside it. There is evidence in the record to support this finding, and we do not disturb it. See Commonwealth v. Moon, --- Mass. ---, --- - ---, Mass.Adv.Sh. (1980) 1337, 1341-1342, 405 N.E.2d 947. We have examined the bag and it is of the tote bag variety, loosely constructed and without any narrowing at the neck. A person holding the bag will see into it unless making a conscious effort not to; we do not ask police officers to so avert their eyes from potentially incriminating evidence. See Commonwealth v. Ling, 370 Mass. at 241-242, 346 N.E.2d 703; Commonwealth v. Corridori, --- Mass.App. ---, ---, Mass.App.Ct.Adv.Sh. (1981) 468, 477, 417 N.E.2d 969. In addition to what one might see, it was possible, owing to the soft and thin material of the handbag, to feel a gun inside it. Contrast Commonwealth v. Silva, 366 Mass. at 410, 318 N.E.2d 895.

Above all, it is well to bear in mind that the police had been alerted to look for a brown suede bag in which there was likely to be a gun. When Donlon, in sight of the gas station cashier, used the handbag as a carrying case for the gun she surrendered her rights of privacy in the handbag, and the defendants' protestations about the sanctity of a woman's pocketbook take on a tone of false piety.

2. Selection of the jury.

During the selection of the jury the defendants made a peremptory challenge of the only black juror on the venire. ⁸ To this the Commonwealth objected on the ground that, except for her race, the juror's background (e. g., age, occupation) was consistent with other jurors to whom the defense had signified no objection. Therefore, the Commonwealth contended, the defendants' challenge must have been impermissibly used to exclude the prospective juror by reason of her membership in a particular group in the community. See Commonwealth v. Soares, 377 Mass. 461, 486, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). A colloquy among counsel and the judge followed as to whether the Soares principle should be applied in the circumstances. When it became apparent that the judge was going to disallow the challenge because it appeared to be racially motivated, counsel for Donlon offered another reason: the juror was a widow. It was not lost on the judge that widowhood was a tenuous indicator of bias in connection with the crime of armed robbery of a gas station. He expressed skepticism. Defense counsel shifted ground again, evincing concern about the way the juror "looks at the defendant." Acknowledging that the reasons offered were credible ones, the judge nonetheless found they were "insufficient" and denied the challenge. There was no error.

We take as the starting point for our analysis the principle already adverted to, viz., that it is a misuse of a peremptory challenge "to eliminate jurors solely because of their membership in discrete groups." Commonwealth v. Allen, --- Mass. ---, ---, Mass.Adv.Sh. (1980) 175, 187, 400 N.E.2d 229. Commonwealth v. Reid, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 1803, 1809, 424 N.E.2d 495. But the peremptory challenge retains effectiveness to remove from a panel jurors whose particular relationship to the case at bar "raises the spectre of individual bias." Commonwealth v. Soares, 377 Mass. at 485, 387 N.E.2d 499. Commonwealth v. Allen, supra. For this reason peremptory challenges are presumptively valid. Commonwealth v. Soares, supra 377 Mass. at 489, 387 N.E.2d 499. Commonwealth v. Walker, 379 Mass. 297, ---, 397 N.E.2d 1105. But that presumption may be rebutted by a pattern of challenges of potential jurors of a discrete group and the likelihood that their exclusion is sought to purge the jury of a particular group. Commonwealth v. Soares, supra 377 Mass. at 489-490, 387 N.E.2d 499. Commonwealth v. Walker, supra. Sorting out whether a permissible or impermissible reason underlies a peremptory challenge is the function of the trial judge, and we do not substitute our judgment for his if there is support for it on the record. Id. Commonwealth v. Reid, --- Mass. at --- - ---, Mass.Adv.Sh. (1981) at 1811-1812, 424 N.E.2d 495.

Adequate basis for the judge's findings of improper exclusionary purpose appears in the record before us. The defendants are white, the prosecutor is black, and the juror in question, it will be recalled, was the only black person on the venire. When the Commonwealth protested the challenge, the response offered by the defense was largely that the Soares line of cases ought not to apply. The judge was correct in taking the position that the Commonwealth, as well as ...