Com. v. Egan

• Citation: 428 N.E.2d 342,12 Mass.App.Ct. 658
• Parties: COMMONWEALTH v. John P. EGAN.
• Decision Date: 30 November 1981
• Court: Appeals Court of Massachusetts

Page 342

428 N.E.2d 342

12 Mass.App.Ct. 658

COMMONWEALTH v. John P. EGAN.

Appeals Court of Massachusetts, Norfolk.

Argued Sept. 15, 1981.

Decided Nov. 30, 1981.

Sherrill P. Cline, Boston (Russell Wilkins, Hyannis, with him), for defendant.

Charles J. Hely, Asst. Dist. Atty., for the Commonwealth.

Before BROWN, DREBEN and KASS, JJ. KASS, Justice.

After convictions on indictments for attempted burning of a motor vehicle, malicious injury to a motor vehicle, and larceny of a motor vehicle, the defendant has raised three claims of error regarding fruits of a search and pretrial interrogation which he thinks ought to have been suppressed. He also raises four claims of error in the conduct of the trial. We affirm.

1. The propriety of the investigatory stop.

At the outset we are asked to consider whether justification existed for an investigatory stop of an automobile and interrogation of its occupants. The applicable principles have been much discussed. See Commonwealth v. Riggins, 366 Mass. 81, 86-87, 315 N.E.2d 525 (1974); Commonwealth v. Silva, 366 Mass. 402, 406-407, 318 N.E.2d 895 (1974); Commonwealth v. Ling, 370 Mass. 238, 240-241, 346 N.E.2d 703 (1976); Commonwealth v. Almeida, 373 Mass. 266, 270-272, 366 N.E.2d 756 (1977); Commonwealth v. Ferrara, 376 Mass. 502, 504, 381 N.E.2d 141 (1978); Commonwealth v. Ferrioli, Mass.App.Ct.Adv.Sh. (1980) 1703, 1705, 409 N.E.2d 244; Commonwealth v. Ellis, --- Mass.App. ---, Mass.App.Ct.Adv.Sh. (1981) 1680, 426 N.E.2d 172.

In United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), the Supreme Court essayed an analysis of the assessment which courts should make in determining whether "articulable reasons" or "founded suspicions" ¹ exist which authorize police to stop and question a person. There should be objective information or observations from which a trained officer may draw inferences and make deductions-"inferences and deductions that might well elude an untrained person." Id. at 418, 101 S.Ct. at 695. "(A)n assessment of the whole picture must yield a particularized suspicion ... that the particular individual being stopped is engaged in wrongdoing." Id. at 418, 101 S.Ct. at 695. Thus a hunch, or good faith, on the part of the officer is not enough. Commonwealth v. Bacon, --- Mass. ---, --- Mass.Adv.Sh. (1980) 2223, 2224, 411 N.E.2d 772.

We now apply these principles to the facts found by the trial judge in the case at hand when he acted on a suppression motion. See Commonwealth v. Moon, --- Mass. ---, --- - ---, Mass.Adv.Sh. (1980) 1337, 1341-1342, 405 N.E.2d 947. While investigating an icy street condition at 12:45 A.M., Daniel Sullivan, a Canton police officer, noticed red lights reflected in trees. He deduced that these were car lights and, as no car had passed him on Elm Street, the street he was checking, Sullivan got into his police cruiser to investigate the source of the lights. What he found about a quarter mile up the road was a parked 1969 Pontiac with no one in it. Elm Street is heavily wooded, with houses along one side. Sullivan found that the Pontiac was doused with gasoline, inside and out. Supposing that he had interrupted a burning in progress, Sullivan radioed the other officer who was patrolling the area and asked him to stop any vehicle coming out of Greenlodge Street onto Route 138. If, as Sullivan suspected, a car was fleeing the scene, that was the route it was likely to take. After making a sweep of Greenlodge Street to Route 138 and back, Sullivan returned to the intersection of Greenlodge and Elm Streets and explored a dead end portion of Greenlodge Street which extended beyond the intersection with Elm. At this point he was joined by a second police officer, Kelliher, who arrived in another cruiser. Finding nothing in the dead end portion of Greenlodge Street the two officers, each in his police cruiser, turned around and drove back to the Elm Street intersection. Before they got there, a car came toward them; they had seen no other cars in the intervening time. That encounter occurred about five minutes after Sullivan had spotted the gasoline-doused Pontiac and at a point approximately one quarter mile from where that car stood.

Both police officers turned on their blue flashing lights, but the oncoming car failed to stop and proceeded down the dead end portion of Greenlodge Street. The police made a U-turn, gave chase and, after about a quarter of a mile, the car stopped.

What, if any, particularized suspicion may be deduced from these facts? First, a serious crime was apparently in progress. See Commonwealth v. Breen, 357 Mass. 441, 446, 258 N.E.2d 543 (1970) (armed robbery had occurred); Commonwealth v. Ling, 370 Mass. at 240-241, 346 N.E.2d 703 (suspected burglary); and Commonwealth v. Johnson, 6 Mass.App. 944, 945-946, 382 N.E.2d 1124 (1978) (robbery had occurred). Second, the area was remote, relatively isolated and untravelled and the hour was late. Third, it was at least likely that the arsonist would return to finish his job. Fourth, the location of the encounter was proximate in place and time to the discovery of the Pontiac. See Commonwealth v. Johnson, supra at 945-946, 382 N.E.2d 1124. Fifth, the car did not stop when signalled so to do. In light of all the circumstances, it would be an inattentive officer who did not make an investigatory stop. See Commonwealth v. Ferrioli, --- Mass. at --- - ---, Mass.Adv.Sh. (1980) at 1705-1706, 409 N.E.2d 244. See also G.L. c. 41, § 98, as amended by St. 1967, c. 368, § 1. Compare Commonwealth v. Corridori, --- Mass.App. ---, --- - ---, Mass.App.Ct.Adv.Sh. (1981) 468, 476-477, 417 N.E.2d 969, involving a combination of facts which added up to a suspicious picture. Contrast Commonwealth v. Bacon, --- Mass. ---, Mass.Adv.Sh. (1980) 2223, 411 N.E.2d 772; Commonwealth v. Ellis, --- Mass.App. --- Mass.App.Ct.Adv.Sh. (1981) 1680, 426 N.E.2d 172.

2. The search of the trunk of Egan's car.

When they first approached Egan's car, the police officers did so with guns drawn. They noticed a Brookline police sticker on the car and inquired if Egan was a police officer. Egan established that he was a member of the Brookline force and the Canton policemen, having also checked the glove compartment of Egan's car for weapons, holstered their own. When asked about the gas-soaked car on Elm Street, Egan and his passenger professed ignorance. Sullivan asked to have a look at the trunk of Egan's car; the latter said he did not have a key. A registration check of both vehicles, the one Egan was driving and the abandoned Pontiac, ensued and established that the owner of each lived in Brookline. That coincidence reasonably excited the suspicions of the Canton police officers that Egan might be connected with the incipient burning.

By this time about five minutes had elapsed and a third member of the Canton police, Sergeant Lenhart, arrived on the scene. Lenhart repeated the request to examine the trunk of Egan's car. This time the defendant did not protest that he lacked a key. The trial judge, who also heard the suppression motion, found that Egan consented to a search of the trunk and that, indeed, Egan himself opened the trunk lid. In the trunk Lenhart found a red cannister; it smelled of gasoline and felt, Lenhart said, "approximately a quarter full."

Egan attacks the search and the finding that it was consented to on the grounds that the circumstances were inherently coercive and that he and his companion were detained beyond the scope of a threshold inquiry. Contrast Dunaway v. New York, 442 U.S. 200, 208-216, 99 S.Ct. 2248, 2254-2258, 60 L.Ed.2d 824 (1979), involving removal of a suspect to a police station for further "threshold questioning." We need not decide if the presence of Egan past midnight in this relatively remote area of Canton, his initial refusal to stop when the police signalled him, the coincidence of the Brookline registrations, and the claim not to have a key for the trunk of his car provided probable cause for an arrest. It was sufficient to warrant further questioning. See Commonwealth v. Salerno, 356 Mass. 642, 646-647, 255 N.E.2d 318 (1970), and cases cited. When Lenhart repeated his colleague's request to examine the car trunk, about five minutes had elapsed since the initial stop.

Whatever intimidating-and hence overpowering-effect questioning by police may have in some circumstances, the judge could find, as he did, that this was not the case with Egan, who was a sergeant in the Brookline police, with twenty-one years of experience. The judge found him to be "strong-minded and intelligent" and could conclude that it was not plausible that Egan's consent to an examination of the trunk of his car was compelled. His personal characteristics could be taken into account by the judge in assessing whether, in the circumstances, the consent was voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 226-227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). See Hoover v. Beto, 467 F.2d 516, 521 (5th Cir.), cert. denied, 409 U.S. 1086, 93 S.Ct. 703, 34 L.Ed.2d 673 (1972) (lawyer consented to search); United States v. Bailey, 468 F.2d 652, 658, 672 (5th Cir. 1972) (highway patrol officer made a statement); United States v. Juarez, 573 F.2d 267, 274 (5th Cir.), cert. denied, 439 U.S. 915, 99 S.Ct. 289, 58 L.Ed.2d 262 (1978) (lawyer consented to search). A law enforcement officer of Egan's experience would have known that he could choose to resist Lenhart's request to search his car trunk. His cooperative conduct obviated the need for a search warrant. Commonwealth v. Aguiar, 370 Mass. 490, 496-497, 350 N.E.2d 436 (1976).

3. Admissibility of the stationhouse statements.

After he discovered the gas can, Lenhart told Egan and his companion, Mellen, that they were suspects in an attempted burning and that there was probable cause to arrest them. No formal arrest was made, but Egan and Mellen were asked to accompany the police to the station for...