Com. v. Harris

• Court: Appeals Court of Massachusetts
• Writing for the Court: Before HALE; HALE
• Citation: Com. v. Harris, 329 N.E.2d 781, 3 Mass.App.Ct. 343 (Mass. App. 1975)
• Decision Date: 13 June 1975
• Parties: COMMONWEALTH v. Theodore HARRIS.

Page 781

329 N.E.2d 781

3 Mass.App.Ct. 343

COMMONWEALTH v. Theodore HARRIS.

Appeals Court of Massachusetts, Suffolk.

Argued May 12, 1975.

Decided June 13, 1975.

Thomas F. Sullivan, Jr., Boston (Charles L. Johnson, Boston, with him) for defendant.

Kathleen M. Curry, Sp. Asst. Dist. Atty., for the Commonwealth.

Before HALE, C.J., and GOODMAN and GRANT, JJ.

HALE, Chief Justice.

The defendant was tried before a judge at a jury waived trial on a charge of possession of heroin with intent to distribute. G.L. c. 94C, §§ 31, 32, as inserted by St.1971, c. 1071. He was found guilty of simple possession of heroin and was sentenced. The case is before us on the defendant's bill of exceptions.

The defendant filed a motion to suppress the heroin seized by the police on the grounds that: (1) the police officers had no probable cause to conduct a search of the motor vehicle; (2) the search was not conducted incident to a lawful arrest; and (3) there was no consent given by the defendant to search the vehicle. We summarize from the bill of exceptions that evidence taken at the hearing on the motion. ¹

On February 11, 1973, at approximately 3:55 A.M., Boston police officer Roy Sergei was on duty in an unmarked cruiser with a brother officer. Both officers were in uniform and were on a routine traffic patrol. While driving on Boylston Street in the direction of Park Square, the officers saw a car go through a red traffic light at the intersection of Arlington and Boylston Streets. The car proceeded into Park Square and stopped on Carver Street at the rear of the Trailways bus station. Three people alighted from the car and went into the bus station. The driver remained in the car, and another man, later identified as the defendant, remained in the back seat. The officers stopped the cruiser behind the car, intending to give the driver a citation for the observed traffic violation. Both officers alighted from the cruiser. Officer Sergei started towards the passenger's side of the car, and the other officer started towards the driver's side. As Officer Sergei approached, he observed the man in the back seat 'move his shoulders and jiggle around as though he were kicking something under the front seat.' The officer 'thought that he (the defendant) might be getting rid of contraband or a weapon.' Officer Sergei then opened the right rear door of the car, placed his left hand on the defendant's chest and, with his right hand, extracted a bag from under the front seat. Officer Sergei opened the bag and saw 'decks' of a substance which he recognized as heroin. He placed the defendant under arrest for its possession.

The Commonwealth does not contend that the seizure of the paper bag and its contents resulted from a search made on the basis of probable cause, that the seizure was incident to a valid arrest, or that any search was consented to. It argues that the search was a limited one of the type approved in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In view of the Supreme Judicial Court's extensive discussions of the Terry standards in Commonwealth v. Matthews, 355 Mass. 378, 244 N.E.2d 908 (1969); COMMONWEALTH V. HAWKES, --- MASS. --- , 291 N.E.2D 411 (1973)^A, and most recently in COMMONWEALTH V. SILVA, --- MASS. --- , 318 N.E.2D 895,^B no useful purpose would be served by our reiterating those standards here.

The facts of this case bear a marked resemblance to those which the Supreme Judicial Court faced in Commonwealth v. Silva, supra. ² In each case the incident occurred late at night. In neither was there any unusual event observed by the police officers which would have given rise to a reasonable suspicion that the defendant, or another person in the car, was armed or dangerous or that a crime had been or was about to be committed. In the Silva case the police had some prior information concerning the defendant ³ and in the present case none at all. In each case the defendant's movement was seen as an effort to conceal an object rather than to take it into hand. There is, however, a difference between the two cases in the position of the defendant with respect to the location of the object seized. In Silva the defendant was about to be driven by police in a police cruiser to obtain gasoline for his car when the search was made, and there was no showing that the packet was within the reach of anyone seated in the automobile. In the present case the object was within the reach of the defendant. As was the case in Silva, we need not decide whether the facts then known to the officer were sufficient to warrant a reasonably prudent person in believing that his safety was endangered (see Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

We concentrate instead on the question whether the scope of the search was within constitutional limits. The Fourth Amendment forbids only unreasonable searches and seizures. Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). To be reasonable, '(t)he scope of the search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible.' Terry v. Ohio, supra, 392 U.S. at 19, 88 S.Ct. at 1878, quoting from Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (Fortas, J., concurring). '(T)he facts available to the officer at the moment of the seizure or the search (must be such as to) 'warrant a man of reasonable caution in the belief' that the action taken was appropriate.' Terry v. Ohio, supra, 392 U.S. at 21--22, 88 S.Ct. at 1880, citing Carroll v....