Com. v. Lawton

• Decision Date: 01 December 1964
• Citation: 202 N.E.2d 824,348 Mass. 129
• Parties: COMMONWEALTH v. John D. LAWTON (and a companion case).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 824

202 N.E.2d 824

348 Mass. 129

COMMONWEALTH v. John D. LAWTON (and a companion case).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 5, 1964.

Decided Dec. 1, 1964.

Ronald J. Chisholm, Winchester (Usher A. Moren, Boston, with him), for defendant.

Donald L. Conn, Asst. Dist. Atty. (Ruth I. Abrams, Asst. Dist. Atty., with him), for the Commonwealth.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

WILKINS, Chief Justice.

These two indictments, respectively for breaking and entering in the nighttime and for possession of burglarious implements (G.L. c. 266, §§ 15, 49), were tried before a judge sitting without jury. At the trial, which was made subject to G.L. c. 278, §§ 33A-33G, as amended, the defendant was convicted of both crimes, and has appealed. The errors assigned and argued are (1) to the denial of a motion to suppress evidence made before trial and heard by the same judge who presided at the trial; (2) to the denial of the same motion when renewed at the trial; and (3) to the denial of the defendant's request in each case for a finding of not guilty on all the evidence as matter of law.

1. We summarize the evidence at the hearing of the motion to suppress before trial. The only witness was Officer Fitzsimmons of the Newton police. On July 24, 1963, about 10:30 P.M. he was in a cruising car when he received information that a break had taken place at 67 Dorset Road, Waban. He learned this from a police radio dispatch to the effect that a woman had just called and reported that, as she entered her house, a man wearing a dark jacket ran out the back door toward the Braeburn Golf Course, which was right in back of the house. Officer Fitzsimmons went to the house where inspectors were interviewing the occupants. Officer Fitzsimmons learned from other officers that the man had run across the golf course toward Fuller Street. About 11:20 P.M. Officer Fitzsimmons, alone in the cruising car, saw the defendant standing at a bus stop at the corner of Commonwealth Avenue and Washington Street, West Newton. This was about two blocks from the Fuller Street entrance of the golf course and a mile from the house where the break occurred. The temperature was very hot, between eighty-five and ninety degrees. The defendant was wearing a heavy black jacket. Officer Fitzsimmons asked him why he was standing there. The defendant in obscene language replied that it was none of the officer's business. Upon being asked his name, the defendant made the same answer. To a question as to where he was coming from, the defendant said 'the Newton-Wellesley Hospital,' and that if the bus should come, he was going to get on it. Officer Fitzsimmons called by radio for the sergeant in charge at the station, who arrived in a 'cruiser' with another officer.

Officer Fitzsimmons then arrested the defendant for being abroad in the nighttime. See G.L. c. 41, § 98, as amended through St.1957, c. 688, § 1, entitled 'Powers and duties of police officers,' which reads in part: 'During the night time they may examine all persons abroad whom they have reason to suspect of unlawful design, and may demand of them their business abroad and whither they are going * * *. Persons so suspected who do not give a satisfactory account of themselves * * * may be arrested * * *.' The unlawful design of which Officer Fitzsimmons suspected the defendant was breaking and entering, but he was not charged with that until after he had been booked at the police station and searched. Officers there took from him a silver dollar in a plastic case which the lieutenant in charge knew had come from a break and was later identified as coming from 67 Dorset Road. The officers also took from the defendant a bag which contained a claw hammer, punch set, screw driver, chisel, a pair of gloves, a pair of rubber-soled shoes, and two flashlights, one a wink light identified as taken in a previous break in Waban. The defendant did not answer any of the 'regular booking questions,' and did not give his name until after two hours, namely, at 1:30 A.M.

The defendant argues that the denial of the motion was error, because G.L. c. 41, § 98, is unconstitutional in so far as it authorizes a police officer to make an arrest for being abroad in the nighttime. This, it is contended, is contrary to the Fourth Amendment to the Constitution of the United States, as permitting an arrest 'on suspicion.' It is also argued that § 98 'is unconstitutionally vague' as affording no guidance to the police officer, who is the sole judge as to whether a person gives a satisfactory account of himself. We shall not decide these questions because there was probable cause for arrest for breaking and entering. To be sure, the police officer, who was a layman and not a legal technician, did not state this to be the ground of arrest during the nighttime encounter on the city streets. But the citizens of the Commonwealth, whom the police are organized and exist to protect, and the Commonwealth should not be conclusively bound or limited by the officer's choice of words made subjectively in the active execution of his duties. A police officer in the solution of a crime and in the presence of one he thinks committed it is not a judge with time for mature consideration. On the contrary, his position more nearly resembles that of a sentry at his post in time of war. Upon his alertness and judgment depends the safety of the many. Officer Fitzsimmons was confronted by a practical problem calling for an immediate exercise of judgment. Without delay he had to reach a decision as to whether he had probable cause to hold the defendant or whether he must let the defendant go, an...