Com. v. A Juvenile (No. 2)

• Decision Date: 12 November 1991
• Docket Number: No. 2,2
• Citation: 580 N.E.2d 1014,411 Mass. 157
• Parties: COMMONWEALTH v. A JUVENILE ().
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1014

580 N.E.2d 1014

411 Mass. 157

COMMONWEALTH v. A JUVENILE (No. 2).

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued Sept. 4, 1991.

Decided November 12, 1991.

Raymond E. Arabasz, Bridgewater, for defendant.

William C. O'Malley, Dist. Atty., & Linda M. Fleming, Asst. Dist. Atty., for Comm.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

ABRAMS, Justice.

A young woman was killed in a hit-and-run automobile accident in Bridgewater. Three days after the accident, police, without a warrant, seized a juvenile's automobile, parked in the driveway of the juvenile's home, as the automobile involved in the accident. Thereafter, the juvenile was found delinquent on charges of negligent motor vehicle homicide, and motor vehicle homicide while under the influence of alcohol. ¹

Prior to trial, the juvenile filed a motion to suppress evidence obtained as a result of the seizure of his automobile. The motion was denied. On appeal, the juvenile argues, as he did at the hearing, that the warrantless seizure of his automobile violated his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. ² We transferred the appeal to this court on our own motion. We conclude that there was no error in the denial of the juvenile's motion. We affirm the adjudication of delinquency.

1. Facts. The motion judge found the following facts. At approximately 6:30 P.M. on February 2, 1987, an eighteen year old woman was hit by an automobile as she walked along Spring Street in Bridgewater. The driver of the automobile did not stop to aid the woman or to identify himself. The woman died the next day as a result of her injuries.

Witnesses at and near the scene told investigating police officers that two automobiles were in the vicinity at the time of the accident. Each witness remembered seeing a white automobile, which some of them speculated might have been a Lincoln. As a result of the witnesses' statements, police initially focused their efforts on a search for a white Lincoln. One witness also recalled a small, black automobile. The police collected paint chips at the scene of the accident; the chips were dark-colored on one side and light-colored on the other.

Three days after the accident Mark Lovell (Lovell), the seventeen year old son of one of the investigating officers, told the police that an individual named Steve Mason told him (Lovell) that, on the evening of the accident, he (Mason) saw the juvenile driving a small, black automobile toward Spring Street. ³ Lovell further recounted that he spoke to the juvenile the day after the accident. The juvenile told Lovell that the juvenile's automobile had a new dent in it, that the juvenile did not know how the automobile had been dented, and that the juvenile had been "wasted" the previous evening.

The police subsequently determined that the juvenile owned a black Chevrolet Camaro. The next day, Officer Robert Gray went to the juvenile's home and saw a black Camaro parked in the driveway. From his vantage point in the road, Gray's view of the automobile was unobstructed, and the area was well lit. Gray saw damage to the front end of the automobile, on the right side; this damage included "light spots" on the dark paint. Gray then left the area and returned with Officer Scott Lovell. The Camaro had not moved. The two officers viewed the automobile from the same position that Gray had occupied earlier. Shining a spotlight on the automobile, Officer Lovell observed front end damage.

More officers arrived on the scene. A number of them went on to the driveway of the juvenile's home. The officers examined the exterior of the automobile. They found chipped paint, fabric fibers embedded in the paint around the right headlight, a dent in the hood and one in the roof, and fabric fibers at the right edge of the roof. The paint on the automobile was black, but the layer underneath was light in color.

The police sergeant in charge of the investigation then ordered his officers to seize the automobile to preserve evidence. The police notified the juvenile's parents, who apparently were home at the time, that the juvenile should report to the police station. The police then obtained a search warrant. ⁴ The police subsequently removed paint chips, fragments, and fibers from the exterior of the Camaro and sent them to the State police laboratory for analysis.

2. The search. The juvenile does not contest that the police officers were within their legal rights to inspect the automobile from the road. There is no search in the constitutional sense if a police officer, from a position in which he is legally entitled to be, observes incriminating evidence in plain view. "[T]here is no reason [the police officer] should be precluded from observing as an officer what would be entirely visible to him as a private citizen." Commonwealth v. Sergienko, 399 Mass. 291, 294, 503 N.E.2d 1282 (1987), quoting Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983). See Commonwealth v. Simmons, 392 Mass. 45, 48-49, 466 N.E.2d 85, cert. denied, 469 U.S. 861, 105 S.Ct. 196, 83 L.Ed.2d 128 (1984). See also 1 W.R. LaFave, Search and Seizure § 2.3(g) at 417 (1987) ("Certainly no justified expectation [of privacy] is present when ... the incriminating objects or activities were readily visible to persons on neighboring lands"). The officer's use of a spotlight in no way alters this analysis. See Texas v. Brown, supra, 460 U.S. at 730, 103 S.Ct. at 1535; Commonwealth v. Sergienko, supra, 399 Mass. at 294, 503 N.E.2d 1282; Commonwealth v. Cavanaugh, 366 Mass. 277, 317 N.E.2d 480 (1974).

When the police officers entered on the private driveway, they inspected the exterior without a warrant. That action violated no "expectation of privacy ... 'which society could recognize as reasonable.' " Simmons, supra, 392 Mass. at 48, 466 N.E.2d 85, quoting Commonwealth v. Cadoret, 388 Mass. 148, 150, 445 N.E.2d 1050 (1983). See Commonwealth v. Podgurski, 386 Mass. 385, 388, 436 N.E.2d 150 (1982), cert. denied, 459 U.S. 1222, 103 S.Ct. 1167, 75 L.Ed.2d 464 (1983). There was, therefore, no unreasonable search. See Sergienko, supra, 399 Mass. at 294, 503 N.E.2d 1282 (because police officer's observation of evidence in plain view implicates no privacy interest, there is no search in constitutional sense). See also Rakas v. Illinois, 439 U.S. 128, 151, 99 S.Ct. 421, 434, 58 L.Ed.2d 387 (1978) (Powell, J., concurring).

In Simmons we said that no reasonable expectation of privacy was frustrated where a rape victim was brought by police onto a private, residential driveway to view the exterior and visible interior of the defendant's automobile. We based our conclusion on "both ... the Fourth Amendment and art. 14 [of the Massachusetts Declaration of Rights]." Simmons, supra, 392 Mass. at 51, 466 N.E.2d 85. In Simmons, as in the case at bar, the automobile was parked in a private driveway; the driveway and the automobile on it were clearly visible from a public way; the driveway was the normal route by which to approach the front door of the residence; no intrusion into the automobile was required; there was a garage at the end of the driveway, but the defendant did not use it; and the owner of the automobile had taken no other steps to conceal the parked automobile from public view. Id. at 46-47, 466 N.E.2d 85. "A driveway is only a semi-private area." Id. at 48, 466 N.E.2d 85, quoting United States v. Magana, 512 F.2d 1169, 1171 (9th Cir.), cert. denied, 423 U.S 826, 96 S.Ct. 42, 46 L.Ed.2d 43 (1975). See United States v. Ventling, 678 F.2d 63 (8th Cir.1982); United States v. Humphries, 636 F.2d 1172 (9th Cir.1980), cert. denied, 451 U.S. 988, 101 S.Ct. 2324, 68 L.Ed.2d 846 (1981). "In the course of urban life, we have come to expect various members of the public to enter upon such a driveway.... If one has a reasonable expectation that various members of society may enter the property in their personal or business pursuits, he should find it equally likely that the police will do so." State v. Corbett, 15 Or.App. 470, 475, 516 P.2d 487 (1973). The degree to which a possessor of a driveway may reasonably expect that his activities thereon are private "will generally depend upon the nature of the activities and the degree of visibility from the street." Simmons, supra, 392 Mass. at 48, 466 N.E.2d 85. The warrantless view of the juvenile's automobile is governed squarely by the rule in Simmons--notwithstanding the juvenile's efforts to distinguish the two cases. ⁵

3. The seizure. The warrantless seizure "invade[d] the [juvenile's] possessory interest" in his automobile in a way that the search did not. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 2306, 110 L.Ed.2d 112 (1990). A warrantless search or seizure is presumptively unreasonable unless it falls under a recognized exception to the warrant requirement. Camara v. Municipal Court of San Francisco, 387 U.S. 523, 528-529, 87 S.Ct. 1727, 1730-1731, 18 L.Ed.2d 930 (1967). Commonwealth v. Antobenedetto, 366 Mass. 51, 315 N.E.2d 530 (1974). A warrantless seizure also must be based on probable cause. See California v. Acevedo, --- U.S. ----, 111 S.Ct. 1982, 1986, 114 L.Ed.2d 619 (1991), citing Carroll v. United States, 267 U.S. 132, 151, 45 S.Ct. 280, 284, 69 L.Ed. 543 (1925). See Commonwealth v. Hason, 387 Mass. 169, 174, 439 N.E.2d 251 (1982). The judge found that "the police officers had probable cause to seize the juvenile's [automobile] without a warrant." There was no error.

"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, 1310-1311, 93 L.Ed....