Com. v. Doulette

• Decision Date: 23 March 1993
• Citation: 609 N.E.2d 473,414 Mass. 653
• Parties: COMMONWEALTH v. David K. DOULETTE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 473

609 N.E.2d 473

414 Mass. 653

COMMONWEALTH v. David K. DOULETTE.

Supreme Judicial Court of Massachusetts Plymouth.

Argued Dec. 9, 1992.

Decided March 23, 1993.

Arthur C. Ryley, Barnstable, for defendant.

Kathleen A. Reagan, Asst. Dist. Atty., for Com.

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

ABRAMS, Justice.

The defendant (Doulette) was convicted of possession of cocaine (G.L. c. 94C, § 34 [1990 ed.] ) in a jury-of-six session. Prior to that trial he filed a motion to suppress evidence because, he asserts, the police's investigative "stop" of his parked automobile was unlawful. The judge denied Doulette's motion to suppress. Doulette appealed. The Appeals Court affirmed the denial of the motion to suppress, concluding that the officer's approach to the automobile was justified as a routine inquiry. Commonwealth v. Doulette, 32 Mass.App.Ct. 506, 591 N.E.2d 213 (1992). Doulette sought further appellate review of the denial of his motion to suppress. ¹ We allowed his application. We affirm.

Facts. The facts as found by the jury-of-six motion judge are as follows: "On September 22, 1988, at 9:45 P.M., [the arresting officer] while on uniformed cruiser patrol, entered the commuter parking lot on Rte. 104 (Off Rte. 24) in Raynham. [The arresting officer] testified that it was a routine check of this lot and on past occasions he had observed criminal activity there. As he entered the lot he noticed an interior light on in the subject vehicle. He then proceeded to shine his cruiser spotlight on two other vehicles and then he illuminated the subject vehicle. He observed the driver (ultimately the defendant) stare straight ahead and noticed a passenger bent over as if he were picking up something. The trooper parked his vehicle to the side of the subject vehicle, without blocking the vehicle. The trooper got out and walked over to the subject car and looked into the vehicle with his flashlight. He then observed a razor blade, a 1"' X 1 1/2"' paper wrapper, and saw a 3"' X 5"' mirror with white powder protruding from under the seat. Based on those observations, the trooper ordered the defendant and the passenger out of the vehicle, seized the noted items and charged the defendant with unlawful possession of a controlled substance."

The jury-of-six motion judge ruled that the arresting officer did not search the vehicle by shining a flashlight into the automobile. The judge concluded that there was no unlawful search and seizure and denied Doulette's motion to suppress. There was no error.

The stop. Doulette argues that the arresting officer's "threshold inquiry" was not supported by specific and articulable facts as required by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Doulette contends that the arresting officer's actions, in leaving his cruiser, approaching Doulette's automobile, and shining his flashlight into the automobile, constituted a search prohibited by the Fourth Amendment. ²

Doulette's argument fails because it is premised on a fundamental misunderstanding of the character of the encounter between the arresting officer and Doulette. The trooper's conduct at issue here did not constitute a "stop." Terry v. Ohio, supra. The trooper did not make an investigatory "stop." Doulette's automobile was already parked; the arresting officer neither stopped Doulette nor took action to prevent Doulette from leaving. Although Doulette suggests that he felt intimidated by the trooper's getting out of his cruiser, the trooper had every right to be in that public parking lot and to get out of his cruiser. The mere fact that the defendant felt intimidated does not make the trooper's actions a stop, a search, or a seizure.

The officer's actions, in shining a flashlight into Doulette's parked automobile, did not constitute a "search." The use of a flashlight to look into the interior of an automobile is not a search. Commonwealth v. Cavanaugh, 366 Mass. 277, 281 & n. 1, 317 N.E.2d 480 (1974) and cases cited therein. See also Commonwealth v. Haefeli, 361 Mass. 271, 280, 279 N.E.2d 915 (1972); Commonwealth v. Wilson, 360 Mass. 557, 276 N.E.2d 283 (1971) (not unlawful to see evidence of crime which was in plain view in automobile). The trooper's discovery of the drugs and drug paraphernalia resulted from a mere "plain view observation." In Commonwealth v. Sergienko, 399 Mass. 291, 503 N.E.2d 1282 (1987), we said, "The key to understanding the distinction between the plain view doctrine and a plain view observation is a recognition that a plain view observation involves no intrusion into an area in which the defendant has a reasonable expectation of privacy. As long as no such intrusion occurs, the observation does not rise to the level of a search, and Fourth Amendment limitations are not triggered.... Our cases ... have acknowledged that no reasonable expectation of privacy, and thus no search, is involved when a police officer observes criminal activity or contraband within an automobile without physically intruding into the vehicle.... The use of a flashlight ... does not alter this conclusion." (Citations omitted.) Id. at 294-295, 503 N.E.2d 1282.

Doulette cites Commonwealth v. Tompert, 27 Mass.App.Ct. 804, 544 N.E.2d 226 (1989), as support for his argument that the arresting officer's very approach to Doulette's vehicle implicated Doulette's Fourth Amendment rights. In Tompert, however, the arresting officer did not see evidence of a crime until he had opened a door of the automobile and ordered the occupants not to move. The focus in Tompert was the necessity for some justification for an intrusive, Terry-type search of a vehicle; the policy of the State police to check on vehicles at rest stops was sufficient justification to conduct the Terry-type search when the officer became concerned for his safety during his approach. In this case, the officer saw the evidence indicating contraband from outside the automobile.

Doulette also cites Commonwealth v. Helme, 399 Mass. 298, 503 N.E.2d 1287 (1987), which, he argues, stands for the proposition that...