Com. v. Hason

• Decision Date: 19 August 1982
• Parties: COMMONWEALTH v. Moshe HASON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 251

439 N.E.2d 251

387 Mass. 169

COMMONWEALTH v. Moshe HASON.

Supreme Judicial Court of Massachusetts Suffolk.

Argued March 2, 1982.

Decided Aug. 19, 1982.

Peter Grabler, Asst. Dist. Atty. (Timothy M. Burke, Asst. Dist. Atty., with him), for the Commonwealth.

Gerald Alch, Boston, for defendant.

Before HENNESSEY, C. J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

On January 14, 1981, the defendant, Moshe Hason, was indicted for violations of G.L. c. 266, §§ 28 and 60 (knowing receipt, possession, and concealment of a stolen motor vehicle and of stolen property valued at more than $100). The defendant filed a motion to suppress the motor vehicle and the home computer which were the basis for the indictments on the ground that they had been improperly seized without a warrant. A judge of the Superior Court allowed the motion. After the Commonwealth's application for an interlocutory appeal was granted, see Mass.R.Crim.P. 15(b)(2), 378 Mass. 884 (1979), we transferred the case to this court on our own motion. We now reverse the judge's order and remand the case for further proceedings.

The indictments against the defendant and two others were the product of a State police investigation into an automobile theft ring. The trial judge heard motions to suppress evidence made by all three men, and the judge's findings on this defendant's motion incorporated by reference his findings in the other two cases. We review the relevant facts as found by the judge.

The auto theft unit of the State police had been investigating an alleged automobile theft ring for approximately three months prior to November 20, 1980, in reliance upon information supplied by an informant who had given accurate information to the police on three previous occasions. In October, 1980, the informant reported to the auto theft unit that the owner of a certain hairdressing business in Boston was in possession of a stolen grey Mercedes-Benz automobile. He also furnished the vehicle identification number (VIN) of the automobile. State police Trooper O'Malley observed a grey Mercedes-Benz parked on the street near the hairdressing business in late October or early November, 1980, and noted the license plate number and the VIN, which was on the dashboard and visible through the windshield. A check of the license number produced the defendant's name and address. A check of the VIN, through State police headquarters, indicated that it belonged to a stolen Mazda automobile.

O'Malley reported to a Lieutenant Powers that the VIN was reported as belonging to a Mazda automobile and not a Mercedes-Benz automobile. The informant was contacted but could not explain the discrepancy. It appeared later that the Boston police had entered the wrong manufacturer's name into the computer when the vehicle was reported stolen. The judge found that an officer with any experience with stolen cars could have ascertained that the VIN in question was in fact a Mercedes-Benz serial number.

By the second week in November, 1980, the police had been able to verify and corroborate much of the information received from the informant. On November 20, 1980, using information from the informant as well as other information, the police obtained a warrant to search the East Boston premises of the suspected ringleaders of the stolen car operation. Nonetheless, because of the Mazda/Mercedes discrepancy, the police did not apply for a warrant in the defendant's case.

On the evening of November 19, 1980, Powers directed State police Officer McGrail to locate a grey Mercedes-Benz which was suspected of having been stolen. McGrail was given a description of the car, the VIN, the defendant's name, and the locations of the defendant's residence and place of business. The following morning, McGrail went to the defendant's place of business, arriving before it had opened. He waited across the street in an unmarked car. At approximately 9:30 A.M., the defendant appeared, driving a grey Mercedes-Benz. McGrail approached the defendant and identified himself as a member of a team investigating stolen motor vehicles. After determining that the VIN visible on the dashboard was the same as the VIN supplied by Powers, McGrail asked the defendant for his license and registration. The defendant informed McGrail that the registration was not available. McGrail then stated that the vehicle was stolen and asked to speak further with the defendant. When the defendant responded that they would talk later, he was arrested. McGrail called the VIN into headquarters and, when it was reported to belong to a stolen Mazda, he ordered the vehicle towed to the Commonwealth Armory. During a subsequent "inventory search" by the auto theft unit, a small computer, later identified as stolen, was found in the trunk of the vehicle.

The defendant argues that the police lacked probable cause to seize the car, and that the computer should be suppressed as the fruit of the illegal seizure of the car. The Commonwealth maintains that the defendant lacks "standing" under the Fourth Amendment to the United States Constitution to challenge the legality of the warrantless seizure and search of the Mercedes-Benz automobile. Alternatively, the Commonwealth urges that the car was properly seized upon probable cause and the computer was properly seized in the course of a lawful inventory search. We assume, without deciding, that the defendant had standing to challenge these seizures. ¹ We find that both the car and the computer were lawfully seized and may be used as evidence against the defendant.

1. Seizure of the automobile. The Mercedes-Benz automobile was parked on a public street at the time it was seized. Thus, McGrail's initial approach to the automobile entailed no "search" for the vehicle in the Fourth Amendment sense of an intrusion into an area where the defendant had a reasonable expectation of privacy. Sullivan v. District Court of Hampshire, --- Mass. ---, --- - ---, Mass.Adv.Sh. (1981) 2370, 2375-2376, 429 N.E.2d 325. Commonwealth v. Simmons, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 576, 584, 417 N.E.2d 1183. See G. M. Leasing Corp. v. United States, 429 U.S. 338, 351, 97 S.Ct. 619, 627-28, 56 L.Ed.2d 530 (1977); Cardwell v. Lewis, 417 U.S. 583, 593, 94 S.Ct. 2464, 2470-71, 41 L.Ed.2d 325 (1973) (plurality opinion). For similar reasons, we conclude that no search occurred when first O'Malley, and then McGrail read the VIN on the dashboard of the Mercedes-Benz. The VIN was visible through the windshield to anyone standing outside the vehicle. The officers made no intrusion into the vehicle to locate it. The defendant could have had no reasonable expectation of privacy in the VIN in these circumstances. Commonwealth v. Dolan, 352 Mass. 432, 433, 225 N.E.2d 910 (1967). United States v. Wagner, 497 F.2d 249, 252 (10th Cir. 1974). 1 W. LaFave, Search and Seizure § 2.5(d), at 357-358 (1978). See Commonwealth v. Baldwin, --- Mass.App. ---, ---, Mass.App.Ct.Adv.Sh. (1981) 354, 359, 416 N.E.2d 544.

The only issue then is whether the police properly seized the Mercedes-Benz on November 20, 1980. ² The judge found the seizure of the vehicle illegal on the ground that "there was no probable cause to arrest Hason on the street ... and to seize the car." Taken alone, this sentence suggests that the judge viewed the legality of the arrest as the crucial factor in determining the legality of the seizure. At other points, though, he found it significant that the police made "no effort ... to get a warrant," and seized the vehicle "pursuant to the plan to make warrantless seizures." It has long been the law of this Commonwealth that an officer may arrest a person without a warrant if he has reasonable grounds for believing that that person has committed a felony. Commonwealth v. Holmes, 344 Mass. 524, 525, 436 N.E.2d 279 (1962). See United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (finding warrantless midday public arrest not violative of Fourth Amendment). Contrast Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 1375, 63 L.Ed.2d 639 (1980) (finding warrantless, nonconsensual police intrusion into home for purpose of effecting routine felony arrest prohibited by Fourth Amendment). Since probable cause alone would be enough to validate the arrest in this case, the judge's reliance on the absence of a warrant makes it clear that he did not view the seizure of the vehicle as in some sense "incident" to the arrest. Instead, he seems to have believed that the police must obtain a warrant to seize a vehicle found on a public street which they have probable cause to believe is stolen, unless exigent circumstances or some other exception to the warrant requirement can be shown. We therefore address two separate questions: (1) whether there was probable cause to believe that the Mercedes-Benz was stolen, and (2) whether, assuming probable cause existed, a warrant was required to effect a seizure. We conclude that probable cause existed and that no warrant was required in these circumstances.

"Probable cause exists where 'the facts and circumstances within ... [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949), quoting from Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). Probable cause requires more than mere suspicion but something less than evidence sufficient to warrant a conviction. Brinegar v. United States, supra. Sullivan v. District Court of Hampshire, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 2370, 2378, 429 N.E.2d 325. Commonwealth v. Bond, 375 Mass. 201, ---, 375 Mass. 201, 210, 429 N.E.2d 335 (1978). As the Supreme Court has emphasized, "In dealing with probable cause...