Com. v. Gizicki

• Decision Date: 03 December 1970
• Citation: 264 N.E.2d 672,358 Mass. 291
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Joseph W. GIZICKI et al. 1

Page 672

264 N.E.2d 672

358 Mass. 291

COMMONWEALTH v. Joseph W. GIZICKI et al. ¹

Supreme Judicial Court of Massachusetts, Essex.

Argued Sept. 22, 1970.

Decided Dec. 3, 1970.

Gardner L. McDonald, Gloucester, for defendants.

Peter F. Brady, Asst. Dist. Atty., for the Commonwealth.

Before SPALDING, KIRK, SPIEGEL, and QUIRICO, JJ.

KIRK, Justice.

The defendants Gizicki and Pawlicki appeal under G.L. c. 278, §§ 33A-33G, from their convictions on three separate indictments. One indictment charged that they and another did break and enter in the nighttime the building of the Waverly Heating Supply Company with intent to commit larceny therein and did commit larceny therein. The second charged that they and another did break and enter in the nighttime the building of the Beverly Sign Company with intent to commit larceny therein. A third indictment charged that they and another carried under their control in a motor vehicle a loaded machine gun without a license.

Of their eight assignments of error, five attack the validity of the search warrant under which the police made a search of Pawlicki's automobile resulting in the discovery of three awls under the front seat, and a machine gun and two clips of ammunition containing sixty bullets in the trunk. The remaining assignments of error involve rulings on evidence and the denial of motions for directed verdicts on each indictment.

At a hearing on the pre-trial motion to suppress and at the trial the evidence essentially was as follows. On February 7, 1968, about 1 A.M. while Officers Malionek and Bossie of the Beverly police department were patrolling in a police cruiser, Officer Malionek saw the defendant Gizicki coming out of the front door of the Beverly Sign Company building. A pane of glass in the window of the front door was broken. Gizicki ran to a car in a parking area about four feet in front of the building. The car was facing the street with its lights out and the motor running. The defendant Pawlicki and another were seated inside. Upon approaching the car Officer Malionek saw part of three shiny metallic objects protruding from under the front seat. He did not know what they were. He placed the defendants under arrest, removed the car keys and locked it. He did not remove the objects under the front seat. Malionek then proceeded to Salem to apply for a search warrant from the clerk of the District Court at the latter's home. Sergeant Underwood at the time was in charge of the Beverly police station and directed operations. The defendants were brought to the station and charged with breaking and entering in the nighttime. Sergeant Underwood overheard one of the defendants say to another, 'I hope they don't find the machine gun in the trunk.' In a telephone conversation with Officer Malionek, who was then at the clerk's house, Sergeant Underwood informed him of the statement and told him to include it in the affidavit for the warrant. The affidavit filed with the clerk in pertinent part reads: 'I arrested three men for Breaking and entering in the night-time (with) intent to commit a felony the Beverly Sign Shop on Federal Street, Beverly, one of the men Leo A. Pawlicki had a motor vehicle, Mass.Reg. 640--088 on the Sign Shop property with engine running--one man was coming from the building the other two were in the car--I saw burglar tools in car--statement by said Pawlicki, 'I hope they don't get the machine gun.' * * * The property for which I seek the issuance of a search warrant is the following: * * * Burglar tools, guns and property stolen from the Beverly Sign Shop.'

Having obtained the warrant at approximately 2:45 A.M., Officer Malionek returned to the location of the car in Beverly and seized the machine gun and the three objects from the car. These objects turned out to be awls missing from the Waverly Heating Supply Company which was located about sixty feet from the Beverly Sign Company. With the machine gun were seized two clips of ammunition containing a total of sixty rounds of .45 caliber bullets capable of being fired by the weapon described as a submachine gun, caliber .45, Thompson, M1, 1928.

At the time of the arrest and at the time of the search of Pawlicki's car, Officer Malionek was unaware that a break had also been made the same night at the Waverly Heating Supply Company. He testified he had checked both buildings between 12:30 and 12:45 A.M. on February 7, 1968, and found them secure.

The defendants do not challenge the validity of the arrests. Indisputably Officer Malionek had probable cause to believe that a felony had been committed by the defendants. The defendants do attack the sufficiency of the affidavit and, in turn, the validity of the warrant, pursuant to which the search was purportedly made.

It is important to observe that in the case before us and in the cases to be discussed, the subject of the search is a motor vehicle, not a dwelling or office. The Supreme Court of the United States recognizes the distinction for constitutional purposes under the Fourth Amendment to the Constitution of the United States between houses and automobiles. Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543; Dyke v. Taylor Improvement Mfg. Co. Inc., 391 U.S. 216, 221, 88 S.Ct. 1472, 20 L.Ed.2d 538.

1. The defendants, relying upon Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, and quoting certain language from that opinion, contend that although the police had the right, incident to the arrest, to make a search of the vehicle, they did not do so and accordingly lost that right, that thereafter a search warrant was required, that the warrant they obtained was invalid and the search under it was illegal. The language quoted reads in part: 'Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.' Page 367, 84 S.Ct. page 883.

On June 22, 1970, however, the Supreme Court clarified and qualified the holding of the Preston case. In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, Mr. Justice White noted that in the Preston case the arrest was for vagrancy with the attendant right to make a search of the vehicle incident to the arrest which was not exercised contemporaneously. In the Chambers case, there was not only the usual right, incident to the arrest, to make the search of the vehicle, but there was also, at the time of the arrest, probable cause to believe that a felony had been committed and that the fruits or the means of committing the crime (guns and money) were concealed in the vehicle. The court...