Com. v. Garreffi

• Decision Date: 07 March 1969
• Citation: 355 Mass. 428,245 N.E.2d 442
• Parties: COMMONWEALTH v. Cheryl A. GARREFFI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 442

245 N.E.2d 442

355 Mass. 428

COMMONWEALTH v. Cheryl A. GARREFFI.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued Jan. 6, 1969.

Decided March 7, 1969.

Raymond R. Cross, Asst. Dist. Atty., for the Commonwealth.

John M. Fitzgerald, Springfield, for defendant.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, SPIEGEL, and REARDON, JJ.

SPIEGEL, Justice.

The defendant was tried on an indictment charging her with possession of burglarious tools. G.L. c. 266, § 49. The jury returned a verdict of guilty and the case is here by appeal under the provisions of G.L. c. 278, §§ 33A--33G.

1. The defendant filed twelve assignments of error. They involve the introduction of evidence with regard to items allegedly seized in violation of the defendant's constitutional rights and the admission in evidence of certain testimony. One of these assignments also deals with the denial of the defendant's motion for a directed verdict. The only witness who testified regarding the search which resulted in the seizure of the items was a police officer, one Dubuc. We summarize his testimony.

At approximately eleven o'clock at night on June 11, 1966, Dubuc was detailed to investigate a complaint by one Ducharme of 58 Camden Street, South Hadley. As he proceeded down Camden Street in his patrol car he observed an automobile parked just beyond 58 Camden Street, about 400 to 500 feet from the All Star Dairy. He parked the patrol car. As he approached the automobile on foot, he noticed the defendant sitting in the driver's seat of the automobile. He observed that '(s)he leaned over in the seat * * * (o)ut of sight,' and then reappeared. When he reached the car he asked the defendant what she was doing. She replied that she had been picked up in Springfield by one Jim Carmen and he had driven to that location. In response to additional questions she stated that Carmen was visiting a friend in one of the nearby houses and that she had not noticed which way he had gone. Dubuc then requested some identification. The defendant gave him her Massachusetts operator's license.

During this conversation Dubuc observed a 'walkie-talkie' unit on the floor of the passenger side of the front of the car. The defendant stated that she did not know what the 'walkie-talkie' unit was for and that the automobile belonged to Jim Carmen. Dubuc warned her that if she 'did not come up with some better answer' he was going to arrest her 'for being abroad in the nighttime without giving a good account of herself.' He then asked her if he could conduct a search and 'if she would mind' if he 'looked into the car.' ¹ 'She said no, she would not mind and she unlocked the door on the righthand side.'

Immediately upon entering the car, Dubuc checked the registration sticker attached to the windshield and discovered that it did not match the number plates then attached to the automobile. He also saw another 'walkie-talkie' unit and a small flashlight on the floor of the car. The unit's microphone was out of its pocket; its antenna was extended and the unit was turned on. When he examined the contents of the glove compartment, he found a key ring with several keys. The keys were either vending machine or alarm system keys. Attached to the key ring were two tags that read 'Platform Vendor' and 'Tville Vendor.' There was also a wallet and an operator's license in the name of Lawrence F. Dionne. The defendant denied knowing Dionne.

In the interim a second officer had arrived on the scene in response to a call by Dubuc for assistance. While the second officer talked with the defendant, Dubuc took the keys he had found in the glove compartment and 'checked' the nearby buildings. Tow doors of the All Star Dairy were unlocked. Neither door appeared to have been 'forced.' He then called the station house and was told that it was not unusual for doors at the dairy to be unlocked. He then went to the station house to compare the keys he had taken from the glove compartment with others that were at the station house. Before he left the scene, arrangements were made to enable the defendant to get home.

Dubuc returned to Camden Street fifteen or twenty minutes later. During his absence the defendant had left in a taxi. She did not take the ignition keys of the automobile with her. Dubuc proceeded to rexamine the contents of the glove compartment. He found a registration certificate for the automobile in the defendant's name. The number on the certificate matched that appearing on the registration sticker. Under the rear floor mat of the automobile, he found the number plates that matched both the registration certificate and sticker. The back seat of the car was removed to gain entrance to the trunk. There Dubuc found a cloth bag that contained the following: a pry bar, a gas mask, a 'light switch' to convert a bulb socket to a plug outlet, a fifty foot, heavy duty extension cord, a power drill, eight drills capable of penetrating metal, wire cutters, a lead sledge hammer, three punches, a metal rod bar, a hole cutting tool and six concrete drills. At no time was a search warrant obtained, nor was the defendant given any of the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.

We believe that the judge was justified in concluding that the defendant 'consented' to the initial search of the automobile. The defendant had a legal obligation to produce the registration certificate. See G.L. c. 90, § 25. We do not think that her compliance with the officer's request for permission to look for the certificate was coerced. See Commonwealth v. Campbell, 352 Mass. 387, 401, 226 N.E.2d 211; Wren v. United States, 352 F.2d 617 (10th Cir.). In order to conduct that search it...