Com. v. Harris, 98-P-299

• Decision Date: 30 July 1999
• Docket Number: No. 98-P-299,98-P-299
• Parties: COMMONWEALTH v. Pernell HARRIS.
• Court: Appeals Court of Massachusetts

Page 355

714 N.E.2d 355

47 Mass.App.Ct. 481

COMMONWEALTH v. Pernell HARRIS.

No. 98-P-299.

Appeals Court of Massachusetts Hampden.

Argued May 7, 1999.

Decided July 30, 1999.

Michael O. Shea, for defendant.

Karen J. Bell, Assistant District Attorney, for the Commonwealth.

Present: PERRETTA, DREBEN, & SPINA, JJ.

PERRETTA, J.

A Superior Court jury found the defendant guilty on an indictment charging him with trafficking in cocaine having a net weight of twenty-eight to one hundred grams. See G.L. c. 94C, § 32E(b). He raises several issues on appeal, his principal claim being that the Superior Court judge was in error in concluding that the circumstances of the seizure of evidence from the trunk of an automobile parked on private property were sufficiently exigent as to justify the police in proceeding without a warrant. We affirm the conviction.

1. The evidence. We relate the evidence presented by the Commonwealth at the hearing on the defendant's motion to suppress evidence seized from an automobile without a warrant on May 2, 1994, ¹ and at a voir dire regarding the defendant's motion to suppress evidence seized from his person on the same date. ² Officer Timothy Kenney of the Springfield police department testified at the hearing on the defendant's motion that about two weeks prior to May 2, 1994, the police department received information that narcotics transactions were being conducted in the area of 26 Mapledell Street. On the evening of May 2, Kenney spoke with a confidential informant who had given him reliable information over the past eight months which led to arrests and convictions on narcotics and weapon charges. The informant told Kenney that two African-American men, in their twenties, were selling cocaine in front of 26 Mapledell Street. The first man, named Pernell (defendant), was that day wearing a black leather jacket over a red hooded sweatshirt, black nylon pants, and a ballcap. The second man, Abdullah, ³ was dressed in a blue flannel shirt and baggy jeans and wore his hair in braids.

As further related by the informant, the men were selling crack cocaine from the trunk of a Cadillac parked in the driveway of 26 Mapledell Street. The cocaine and a small scale were contained in a small gift bag. ⁴

Based upon this information, Kenney set up a surveillance point in a parking lot across from 26 Mapledell Street (premises). Four other officers were in the near area for support. Aided by binoculars, Kenney saw the two men, all as described by the informant, standing in front of the premises, "just hanging around in front of number 26." There were two vehicles parked in the driveway immediately adjacent to the house. A brown Cadillac was parked farthest in from the street. The car in front of it, a Buick, protruded out to the sidewalk and blocked the Cadillac from the street. As Kenney watched, he saw a third man approach Abdullah Hakim and the defendant. After a brief conversation, the three men walked over between the two cars parked in the driveway. Hakim reached into his shirt pocket, took out a set of keys, and opened the trunk of the Cadillac. The defendant reached into the trunk and removed a small bag, which he placed on the hood of the Buick. Hakim took a scale and another item out of the bag, placed that item on the scale, and then handed it to the third man. This man handed Hakim what appeared to be currency and then started to walk down Mapledell Street while Hakim returned the scale to the bag and the bag to the trunk.

Kenney relayed his observations over his police radio to the other officers, at least one of whom gave chase to the third man, the buyer. As the buyer was being chased, Kenney could hear a "lot of commotion" and people yelling "police" coming from the neighboring area. Apprehensive that the noise would alert Hakim and the defendant to their presence, the officers abandoned the chase of the buyer and all converged upon the driveway. As Kenney was doing so, he saw Hakim and the defendant get into the Cadillac. As he got closer, he could see that the two men were smoking. Kenney opened the driver's door. The two men were seated inside and the "entire passenger compartment was full of smoke." The police removed Hakim and the defendant from the vehicle and recovered a burning marijuana cigarette that had been thrown to the floor of the passenger compartment.

The officers brought the two men to the rear of the Cadillac, removed the keys from the pocket of Hakim's shirt, and opened the trunk. Kenney reached into the trunk and "recovered" a small bag. The bag contained a small scale and a large amount of crack cocaine. The officers also took the registration documentation from the car. Those documents disclosed that the Cadillac was registered to Hakim. Kenney did not notice any distinguishing features about the car nor did he notice whether it had a license plate. A beeper and $318 were removed from the defendant's person as a result of a search conducted incident to his arrest.

Hakim testified at the suppression hearing that on May 2, 1994, he was residing with his parents at 26 Mapledell Street. He was the owner of the Cadillac. The car had a flat tire and a "blown" engine, and had neither license plates nor a registration sticker. He stated that the car was not mobile on May 2, 1994, and had not been moved since that date. Hakim further testified that sometime subsequent to his arrest, his parents broke the lock to the trunk and removed his possessions. ⁵

2. The denial of the motion to suppress. At the conclusion of the suppression hearing, the trial judge found that, based upon the information from the confidential informant and Kenney's observations, there was probable cause to arrest Hakim and the defendant as well as to search the trunk of the Cadillac, and that the commotion caused in the neighborhood by the pursuit of the buyer gave rise to an exigent situation. She concluded that, in the circumstances presented, the law did not require that one of the officers remain at 26 Mapledell Street to stand guard over the Cadillac while a search warrant was sought. There is ample evidence to support the trial judge's findings of fact, and we, therefore, grant substantial deference to her conclusions of law. See Commonwealth v. Bottari, 395 Mass. 777, 780, 482 N.E.2d 321 (1985).

It is the defendant's argument that the police had sufficient time to obtain a warrant, "particularly given the defunct condition of the automobile." The defendant weaves into this claim a vague assertion that the police lacked probable cause to arrest him and to search the trunk of the Cadillac. ⁶

Because there is ample evidence to support the trial judge's findings that the police had probable cause to search the passenger compartment and trunk of the Cadillac, we turn to the more substantial question presented on the defendant's appeal, that is, whether the Commonwealth met its burden of proving that the warrantless search of the trunk was justified by a recognized exception to State and Federal warrant requirements. The Commonwealth argues that the warrantless search falls within the so-called "automobile exception" to the warrant requirement. As explained in Commonwealth v. Antobenedetto, 366 Mass. 51, 53, 315 N.E.2d 530 (1974), quoting from Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the rationale behind this exception is that a "car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained." See Commonwealth v. Markou, 391 Mass. 27, 29-31, 459 N.E.2d 1225 (1984); Commonwealth v. Cast, 407 Mass. 891, 901, 556 N.E.2d 69 (1990); Commonwealth v. White, 422 Mass. 487, 497-498, 663 N.E.2d 834 (1996); Commonwealth v. Motta, 424 Mass. 117, 122-124, 676 N.E.2d 795 (1997); Commonwealth v. Gajka, 425 Mass. 751, 752, 682 N.E.2d 1345 (1997); Commonwealth v. Vazquez, 426 Mass. 99, 104, 686 N.E.2d 993 (1997).

The trial judge made no finding of fact based upon Hakim's assertions that the Cadillac was inoperable. Rather, she stated that she "heard no evidence from the police that they had any information or any reason to believe that [the Cadillac] would not have operated." However, she did conclude that because the Cadillac was blocked by another vehicle, it was "unlikely" that Hakim or the defendant "could have quickly taken th[e] car and driven it away."

It does not, however, follow from the conclusion that the Cadillac could not be quickly moved from the driveway, that exigent circumstances excusing the need for a warrant did not otherwise exist. "To qualify as exigent circumstances, the situation facing the officers at the time they commenced their warrantless search must be such that it was impracticable for them to get a warrant." Commonwealth v. Cast, 407 Mass. at 904, 556 N.E.2d 69. ⁷ Further, "whether exigent circumstances exist depends upon an evaluation of all the circumstances as they appear to the police at the time." Commonwealth v. Amaral, 16 Mass.App.Ct. 230, 233, 450 N.E.2d 656 (1983).

There are a number of factors to consider in determining whether the particular circumstances were sufficiently "exigent" to justify a warrantless search and seizure. "These factors include the mobility of the automobile, ... the defendant's knowledge that the police had been observing his activities, ... and the likelihood that evidence will be removed or destroyed." Commonwealth v. Sergienko, 399 Mass. 291, 296, 503 N.E.2d 1282 (1987) (citations omitted). Further, the "police should consider how long it would take to obtain a warrant." Ibid., quoting from Commonwealth v. Pietrass, 392 Mass. 892, 899, 467 N.E.2d 1368 (1984). And, "[i]t is also significant that the evidence sought was narcotics, which are 'peculiarly vulnerable to speedy and easily accomplished destruction; and that very vulnerability is something that police officers in the course of their narcotics enforcement duties must be...