Com. v. Ling

• Decision Date: 06 May 1976
• Citation: 346 N.E.2d 703,370 Mass. 238
• Parties: COMMONWEALTH v. Kenneth H. LING et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 703

346 N.E.2d 703

370 Mass. 238

COMMONWEALTH

v. Kenneth H. LING et al.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Feb. 2, 1976.

Decided May 6, 1976.

Kenneth D. Weiss, Boston, for defendants.

Helen M. Doona, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

REARDON, Justice.

The defendant Kenneth H. Ling was found guilty, in a case subject to G.L. c. 278, §§ 33A--33G, of possession of burglarious instruments and attempting to break and enter in the nighttime. The defendant John E. Ransett was convicted of the same two crimes and also of operating a motor vehicle without a license. The issue before us is whether the trial judge was in error in denying the defendants' motions to strike the admission in evidence of a crowbar and two screwdrivers seized after police officers made an investigatory stop of a motor vehicle in which the defendants were riding, and conducted a flashlight examination of the vehicle which revealed the tools lying in plain view on the floor of the car.

We recite the pertinent facts which the jury could have found. On April 18, 1972, aabout 3 A.M., Brockton police officers John P. DeChellis and James J. Casey had commenced a patrol in their police cruiser when they received a radio call from a police sergeant reporting the sounding of the burglar alarm at a cafe where the front door appeared to have been forced open. The sergeant sought assistance. While on their way to, and approximately one mile from, the cafe the officers observed a motor vehicle headed in a direction opposite to that in which they were traveling. DeChellis recognized the vehicle as the black Chevrolet station wagon owned by a woman known to him, and noted that the driver was a blond-haired male. In the belief that it was stolen, the police made a quick U-turn and pursued the station wagon. When the defendants refused to stop, a chase ensued for about a quarter of a mile, which terminated when the station wagon made a sharp righthand turn into a dead-end area. The driver leapt from the car and tried to escape but was apprehended by Officer DeChellis. DeChellis recognized the driver as the defendant Ransett and, having previous knowledge that he had no driver's license, asked him if he now had one, to which question he received a negative response. He returned with Ransett to the station wagon, having placed him under arrest. He then asked the defendant Ling, and a third defendant not a party to this appeal, David Moore, to get out of the car, which they did. Officer DeChellis next shone his flashlight into the interior of the car and saw a two-foot crowbar and two large yellow screwdrivers on the floor of the front seat of the car. Recalling that the report of the attempted burglary indicated that the front door of the cafe had been 'forced outward,' he seized these tools. There was no further search of the station wagon. On request, the defendants then accompanied the officers to the cafe where Officer DeChellis found marks on the door jamb matching the size and shape of the tools he had found. Samples of the paint chips on the jamb were subsequently analyzed by a State chemist who testified that they were miscroscopically consistent with paint chips found on the crowbar and the screwdrivers. The denial of the trial judge of the defendants' motions to strike evidence was based on G.L. c. 41, § 98, and the doctrine of 'plain view.'

1. As to the stopping of the car in which the defendants were riding, we have referred frequently to the rubric which governs the validity of such an intrusion. '(T)he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). The Terry case indicated that the assessment of the intrusion in light of the Fourth Amendment is based on the answer to the question, '(W)ould the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate.' Id. at 21--22, 88 S.Ct. at 1880. General Laws c. 41, § 98, as amended by St.1967, c. 368, § 1, provides in part that 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.' In the leading case of Commonwealth v. Lehan, 347 Mass. 197, 204, 196 N.E.2d 840 (1964), we held this section to permit constitutionally a brief threshold inquiry where suspicious conduct gives an officer reason to suspect that an individual has committed, is committing, or is about to commit a crime. The justification for initiating, and the reasonableness of the scope of, a threshold inquiry are factors to be analyzed in each case on its facts. The principles applicable to the case at hand have been delineated further in Commonwealth v. Silva, --- Mass. ---, 318 N.E.2d 895 (1974), ^a with cases cited, and require no further definition here. It suffices to say that the receipt of information by the officers of a reported break, the observation of the station wagon heading away from the scene of the reported break, the recognition by Officer DeChellis of the station wagon, the knowledge of DeChellis that the owner of the station wagon was a woman of his acquaintance,...