Com. v. Hawkes
| Decision Date | 10 January 1973 |
| Citation | 362 Mass. 786,291 N.E.2d 411 |
| Parties | COMMONWEALTH v. Hubert W. HAWKES, Jr. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Martin Kantrovitz, Boston, for defendant.
Richard E. Rafferty, Asst. Dist. Atty. (Richard G. Pizzano, Asst. Dist. Atty., with him), for the Commonwealth.
Before TAURO, C.J., and REARDON, HENNESSEY, KAPLAN, and WILKINS, JJ.
The defendant was tried jury waived on indictments for the possession of a narcotic drug with intent to sell unlawfully, and for the unlawful possession of a narcotic drug. He was found guilty on each indictment, and was given a suspended sentence on one. The second was placed on file. The cases, which were tried under the provisions of G.L. c. 278, §§ 33A--33G, inclusive, are here on an assignment of errors, three of which are argued. Error is alleged in the denial of the defendant's motion to suppress certain evidence seized during a search, in admitting the said items in evidence, and in denying the defendant's motion for a finding of not guilty.
The judge could have found as follows. On January 13, 1971, around 10:40 P.M., the defendant was operating a motor vehicle on Pleasant Street in Dorchester when he was observed by police officers of the Boston tactical patrol force patrolling in a police cruiser who noticed that his car was being driven 'somewhat erratically.' On one or two occasions its left side wheels had crossed the center line of the street. When the vehicle driven by the defendant arrived at the intersection of Pond Street and Columbia Road he made a right turn without stopping at a stop sign and continued another several hundred yards on Columbia Road until he was stopped by signals from the police cruiser. Officer Thomas Walsh alighted and approached the defendant's car and asked the defendant through an open car window for his license and registration. It was not then his intention to arrest the defendant, and he was uncertain whether or not he was going to give him a traffic ticket. The defendant was wearing a heavy blue parka which was partly zipped closed. The officer observed that the defendant seemed 'scared.' Upon the request from the officer the defendant reached in his right hip pocket as if to get his license and registration, at which point the officer asked him to turn off the ignition. The officer observed that the ignition was damaged but that the key was in it. The defendant then moved his left hand '(p)retty fast' to the area of the pocket on the jacket 'up over the left lower side of his jacket.' At this point Officer Walsh suspected that the defendant was in possession of a weapon. He grabbed the defendant's left hand and pulled it up, meanwhile drawing his service revolver and telling him not to move. Officer Walsh then noticed a 'bulge' in the defendant's jacket in the area of the 'left side of . . . (the defendant's) chest.' Officer Brendan Flynn, who had been patrolling in company with Officer Walsh, on seeing Walsh draw his gun got out of the car and came to his assistance. Walsh told Flynn, 'This guy has got a gun,' and indicated the area of the bulge. Flynn reached in and drew from inside the defendant's jacket a package about four and one-half by two and one-half by eight inches. This package Flynn determined contained marihuana. The defendant was ordered from the car and searched, a wallet being found in his rear pants pocket, and two other packages of marihuana were discovered in the back of the car open to view in the well lighted area where the incident occurred. There was no warrant for arrest or for a search, and no allegation that the defendant consented to any part of the search. In disposing of the motion to suppress, the trial judge found that the officers had probable cause to believe that the defendant had a gun and therefore had a right to arrest without a warrant and to conduct the search. The question before us is whether this is a 'reasonable' search in Fourth Amendment terms as being incident to a lawful arrest or as necessary to protect the officers in the course of their investigation.
We need not decide whether the police officers here had probable cause to arrest the defendant and whether the search was properly incident to that arrest. The Supreme Court of the United States in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, recognizing the complexity and variety of police work and the necessity for a flexible, escalating set of responses, made it clear that in some circumstances a search may be 'reasonable' within the meaning of the Fourth Amendment even if there was no probable cause. The court held that ...
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