Com. v. Lehan

• Citation: 347 Mass. 197,196 N.E.2d 840
• Parties: COMMONWEALTH v. Raymond F. LEHAN.
• Decision Date: 06 March 1964
• Court: United States State Supreme Judicial Court of Massachusetts

Page 840

196 N.E.2d 840

347 Mass. 197

COMMONWEALTH v. Raymond F. LEHAN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 4, 1963.

Decided March 6, 1964.

Wilbur G. Hollingsworth, Boston, for defendant.

Joseph A. Sullivan, Asst. Dist. Atty., James W. Bailey, Asst. Atty. Gen., for the Commonwealth, submitted a brief.

Lee H. Kozol, Asst. Atty., Gen. Director of the Division of Civil Rights and Liberties, amicus curiae, submitted a brief.

Before SPALDING, WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

WHITTEMORE, Justice.

These are appeals under G.L. c. 278, §§ 33A-33G, as amended, from concurrent sentences upon convictions on two indictments: (1) for possession of burglarious implements, and (2) for breaking and entering a dwelling house in the night time with intent to steal.

The defendant contends that it was error to deny his two motions to suppress evidence, the first filed and heard before trial and the second filed and heard after the jury had been empanelled. The defendant's exceptions were duly saved.

At the hearings on the motions a police officer testified in substance as follows: On February 21, 1963, he and another officer were on duty in a patrol car on Main Street in the Charlestown district of Boston. They saw the defendant (Lehan) carrying two cardboard cartons or large boxes. Lehan was known to the officer who testified as the man whom he had been assigned to watch for a two week period three and a half years before 'in relation to * * * his activities in the early morning hours * * * [there having been] numerous * * * housebreaks * * * in the neighborhood.' The officers stopped their automobile and asked Lehan what he was carrying. Lehan replied that it was 'stuff' belonging to his wife. The officers asked where he was going with it. Lehan replied that he was on his way 'down to his room on Main Street.' When asked where the room was Lehan said it was in the Clipper House and 'he was moving out because his wife and he had an argument, and [he] was taking the stuff with him.' The officers inquired what was in the boxes and Lehan said it was a hair dryer and silverware, gifts and presents. The officers then inquired why 'if he was moving out on his wife * * * he didn't have shaving gear * * * [or] his own personal items, rather than his wife's items, and he said that was it.' The officers then looked in the cartons--'he told us what was in there, and we looked for ourselves.' The cartons had loose end flaps.

The officers asked Lehan if he would accompany them to his wife's house where they could talk with her. Lehan said, 'Yes.' Q. 'If he wanted to get out of the police car, would you let him * * *?' A. 'If he wanted to get out, we would have placed him under arrest at that time.' The three went in the automobile to Bartlett Street and the officer who did not testify went into the house and talked with Lehan's wife. When the officer came out he said, 'Raymond, you are under arrest. Your wife says that the stuff isn't hers, and furthermore when you left the house tonight you were on very good conditions'; Lehan and his wife had parted 'on good terms, had no argument.' Lehan replied, 'That is my story.' It was then a little before 11 P.M.

The officers took Lehan to the police station. At about 12:30 or 12:45 A.M., February 22, word came to the station of a burglary in which, as it turned out, the articles Lehan had been carrying had been stolen. At 12:50 A.M. Lehan was booked on the charges later embodied in the indictments. In the meantime, Lehan was questioned and denied guilt.

Testimony of the officers at the trial somewhat amplified the foregoing testimony. That testimony indicated that Lehan's walk was rapid, that he waved to the officers as they passed in their car, and that his coat bulged. It also showed that a search of Lehan had disclosed in his pockets a watch in a case, a manicure set, a file, a screw driver, powder, and perfume. According to the officers this search took place at the police station. The officers also testified at the trial that after 12:30 A.M. they told Lehan that the owner of these articles and those seen on Main Street had identified them and had said that a radio and sewing machine were also missing. Lehan denied knowledge of the radio but said that the sewing machine was in his back yard under the porch of his house and that he would lead the officers to the machine. He did go with them in the police car, told them where to look, and remained in the car while on of them retrieved the sewing machine from the back yard. Lehan took the stand at the trial and testified that he told the officers what was in the boxes and that when asked, 'Did I mind if they would have a look?' he replied, 'Yes, all right.' He also testified that his pockets were searched when he was stopped on Main Street.

The two cartons and their contents were in evidence and are before us. One, an apparently new carton, is labelled on each of its six faces 'Deluxe Hair Dryer.' The cartons measure in inches, respectively, 17 X 11 1/2 X 3 7/8 and 15 X 15 X 5 1/2. With their contents they weigh about seventeen pounds. In each is an inner box which has to be removed from the carton to discover the contents. The inner boxes contain articles which agree with what Lehan told the officers were in the cartons.

The first motion to suppress recited that on February 21, 1963, Lehan was 'illegally arrested and certain articles taken fron his person and home' and moved to suppress all such articles. The second motion was substantially the same as the first.

To justify the initial detention and search, the Commonwealth relies on G.L. c. 41, § 98, which provides, in part, as follows: 'During the night time * * * [police officers] 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 by the police, and may thereafter be safety kept by imprisonment or otherwise unless released in the manner provided by law, and taken before a district court to be examined and prosecuted.'

This statute may be thought to restate the powers of the New England night watch ¹ and may have been a forerunner of the Uniform Arrest Act, § 2. ² This provision of the uniform act has been adopted with some variations in New Hampshire (N.H.Rev.Sts.Anno. [1955] c. 594, § 2); Rhode Island (R.I.Gen.Laws [1956] § 12-7-1); and Delaware (Del.Code Anno. tit. 11, § 1902 [1953]).

1. We do not agree with Lehan that he was arrested or unlawfully detained when accosted on Main Street. That the police may make brief threshold inquiry of a citizen has been generally assumed. 'It is obvious that an officer may ask an individual a question * * * provided that he does not confine or restrain the individual without his consent.' Remington, The Law Relating to 'On the Street' Detention, Questioning and Frisking of Suspected Persons and Police Arrest Privileges in General, J. of Crim.l., Criminology and Police Science, 386, 389 (1960). Commonwealth v. Merrick, 255 Mass. 510, 512-513, 152 N.E. 377. People v. Henneman, 367 Ill. 151, 154, 10 N.E.2d 649. See comment, 37 Mich.L.Rev. 311 (1938).

Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134, appears to hold that officers could not stop an automobile on suspicion unless they then had probable cause to believe that the occupants had committed a crime. The dissent points out that the government 'unnecessarily' had conceded that the 'arrest' was made when the car was stopped; the dissenters took the view that the 'suspicious activities of the petitioner * * * warranted the stopping of the car,' that cartons in the car in open view gave the officers cause to believe that a crime was being committed, and that this warranted the ensuing arrest and search.

We think a more recent case, Rios v. United States, 364 U.S. 253, 262, 80 S.Ct. 1431, 1436, 4 L.Ed.2d 1688, recognizes that some threshold inquiry even with brief detention may be constitutional though cause to arrest is absent. The court said '[T]he Government argues that the policemen approached the standing taxi only for the purpose of routine interrogation and that they had no intent to detain the petitioner beyond the momentary requirements of such a mission. If the petitioner thereafter voluntarily revealed the package of narcotics to the officers' view, a lawful arrest could then have been supported by their reasonable cause to believe that a felony was being committed in their presence. The validity of the search thus turns upon the narrow question of when the arrest occurred, and the answer to that question depends upon an evaluation of the conflicting testimony of those who were there that night.' ³

People v. Mickelson, 59 Cal.2d 448, 451-452, 30 Cal.Rptr. 18, 380 P.2d 658, holds that a State rule authorizing a brief, preliminary, on-the-street detention does not violate the Federal Constitution. The opinion interprets the Henry and Rios cases and Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, as elaborating a Federal rule that would bar any detention unless probable cause exists. The court held that the Federal constitutional proscription of unreasonable searches and seizures does not bar reasonable State rules covering on-the-street interrogation.

Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, was decided after the Mickelson case. It holds that Fourteenth Amendment due process embodies the Fourth Amendment standard which requires a warrant to search a suspect's domicil unless the search is incident to a lawful arrest and is of reasonable scope. 374 U.S. 23, 30-35, 41-42, 83 S.Ct. 1623, 10 L.Ed.2d 726. However, it was also said that the States are not precluded from developing workable rules governing arrests, searches, and seizures to meet 'the practical demands of...