Com. v. Duran

Decision Date08 March 1973
Citation363 Mass. 229,293 N.E.2d 285
PartiesCOMMONWEALTH v. Patrick B. DURAN.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Francis C. Lynch, Jr., Springfield, for defendant.

Robert Snider, Asst. Dist. Atty., for the Commonwealth.

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

REARDON, Justice.

The defendant was convicted in cases taken under G.L. c. 278, §§ 33A--33H, of unlawful possession of cannabis (marihuana), and also of possession of marihuana with intent to sell. Prior to trial he moved to suppress certain evidence. This motion was denied by the trial judge who made findings of fact after a pre-trial hearing. Thereafter the defendant waived a trial by jury and was found guilty on both indictments. The basic claim of the defendant is that the evidence, the admission of which he complains, was obtained by means of a warrantless arrest and an unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States.

It was open to the judge to find as follows. About 8 A.M. on August 30, 1971, Special Agent Seth Nadel of the United States Treasury Department, Bureau of Customs, Customs Agency Service, received a telephone call from Special Agent Don Clements in Tucson, Arizona. Clements told him that he had received information from an informer, who had provided specific and correct information on a large number of other cases, including two in which Nadel had been involved, that a quantity of marihuana was being shipped in two suitcases to Boston from Tucson by way of American Airlines flight 246 to Chicago and, thence, direct to Boston on flight 214 due to arrive about 9:30 A.M. The two suitcases were described as a gray Samsonite, claim check No. 58--95--36, and a green suitcase, claim check No. 58--95--37. On receipt of this information Nadel called Sergeant Delaney of the Massachusetts State police, and then proceeded to their Logan Airport headquarters where he met the sergeant. They went to the American Airlines arrival area and discovered that flight 214 was delayed. About 11:30 A.M. they were told that it had been cancelled and that all passengers and baggage on that flight would be flown to Boston on TWA flight 240, arriving about 1:30 P.M. Both Nadel and Delaney proceeded to the TWA arrival area and established surveillance of the baggage carousel to be employed for flight 240. About 1:30 P.M. baggage began to arrive. Nadel and Delaney, standing near the carousel, saw two bags fitting the description given by the informer and bearing the designated claim check numbers. They also observed the defendant standing near the carousel. The defendant looked first at something held in his hand and then at the tags on the bags. He removed the bags from the carousel and proceeded to walk away. Sergeant Delaney approached him and advised him that he was under arrest. He was handcuffed, given the Miranda warnings, and searched. An American Airlines ticket envelope containing a ticket and baggage tags matching those on the bags were found. The suitcases were removed to the State police office at the airport and opened, where it was discovered that they contained a total of fifty-six and a half pounds of marihuana.

1. We first consider whether the search was invalid by virtue of the failure of the police to obtain a warrant. Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, established the rule that the failure to obtain a search warrant, when there had been full opportunity to do so, invalidates what would otherwise have been a search justified by the arrest. However, in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, the court stated, 'To the extent that Trupiano . . . requires a search warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the search after a lawful arrest, that case is overruled.' P. 66, 70 S.Ct. p. 435. Whether the Trupiano case has lost all life remains open to question. See e.g., the discussion in Niro v. United States, 388 F.2d 535 (1st Cir.), suggesting that the case retains some vitality. See also Vale v. Louisiana, 399 U.S. 30, 35, 90 S.Ct. 1969, 26 L.Ed.2d 409. Even assuming that the Trupiano case retains a certain vitality, the facts here would not appear to come within its scope. The crux of the Trupiano approach was that where the police had probable cause to search for a good length of time, they could not avoid the 'inconvenience' of obtaining a warrant by waiting until they had executed an arrest and then justifying the search as incident thereto. The Niro case contains facts indicating that there was probable cause to arrest and search at least twelve hours prior to the actual arrest, and that the failure to obtain a warrant in that case was merely because of 'inconvenience.' In the present case, at least until the moment that the bags matching the descriptions as given from Tucson arrived, no probable cause existed and no warrant could have been obtained. As was noted in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, a case quite similar to this, crucial to the establishment of probable cause was the personal verification by police of details of information forwarded by the informer. In the present case, not until the bags arrived on the carousel could the officers confirm their appearance and know that the claim check numbers matched the bags as described by the informer.

There are circumstances in this case also which negate the possibility that failure to obtain a warrant was unreasonable and designed solely to avoid 'inconvenience.' The information came from the Tucson agent about one and a half hours before the flight was due to arrive in Boston. It was necessary for the officers to proceed to the American Airlines arrival area to set up their watch. It was, thus, not unreasonable by virtue of time pressures that they not endeavor to obtain a warrant en route. While the police learned around 9:30 A.M. that the flight was delayed, it was not until two hours later that they learned of the new route of the passengers to Boston. At that point they had only about two hours prior to the arrival of the rescheduled flight. The record is silent as to how many other officers were involved and how many individuals might be expected to carry out this type of operation. While it might indeed have been preferable for one of the officers to proceed to the nearest court for a warrant, it does not appear unreasonable in these circumstances that no officer did and the entire situation cannot be compared to that in Niro v. United States, supra.

2. Since we conclude that the failure to obtain a warrant in the circumstances of the case was not unreasonable, we...

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9 cases
  • Com. v. Hall
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 10, 1975
    ...second-floor apartment. See COMMONWEALTH V. ANDERSON, --- MASS. --- , 284 N.E.2D 219 (1972)H; Commonwealth v. Duran, --- Mass. --- i, 293 N.E.2d 285 (1973); Commonwealth v. Snow, supra, --- Mass. at --- - --- j, 298 N.E.2d Returning now to the Giordano point, when the foregoing evidence leg......
  • Com. v. Cast
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • July 11, 1990
    ...he had personally set up with the defendant to take place at a hotel in Plymouth on the night of July 30. See Commonwealth v. Duran, 363 Mass. 229, 232, 293 N.E.2d 285 (1973) ("crucial to the establishment of probable cause was the personal verification by police of details of information f......
  • Com. v. Forde
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 22, 1975
    ...sub nom. Agran v. United States, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973). Cf. Commonwealth v. Duran, --- Mass. ---, ---, i 293 N.E.2d 285 (1973). We do not intimate that the emergency which developed at 11:30 P.M. was contrived by the police but since as an emergency it was easily ......
  • State v. Bell
    • United States
    • New Jersey Superior Court — Appellate Division
    • April 11, 1984
    ...In our judgment, the police were justified in waiting until additional facts were developed. [Id. at 781] See also Commonwealth v. Duran, 363 Mass. 229, 293 N.E.2d 285 (1973); State v. Patten, --- Me. ---, 457 A.2d 806 (1983), upholding warrantless searches where the police failed to obtain......
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