Com. v. Loughlin
Decision Date | 13 January 1982 |
Citation | 430 N.E.2d 823,385 Mass. 60 |
Parties | COMMONWEALTH v. Martin J. LOUGHLIN (and a companion case 1 ). |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Lynn Morrill Turcotte, Asst. Dist. Atty., for the Commonwealth.
Michael F. Natola, Everett, for defendants.
Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.
We consider again the propriety of a police search of a motor vehicle. The defendants were convicted of possession of a controlled substance (marihuana) with intent to distribute. In their appeals, they challenge the denial of their motions to suppress evidence seized in the search of the rear area of the vehicle on an interstate highway in Sturbridge. The trial judge made no detailed findings of fact but ruled from the bench, at the close of the hearing on the motions to suppress, that the search was consensual.
On the defendants' postconviction appeal, the Appeals Court reversed the judgments. See Commonwealth v. Loughlin, --- Mass.App. ---, Mass.App.Ct.Adv.Sh. (1980) 2269, --- N.E.2d ----. In a brief accompanying order, that court stated that "the motions to suppress were improperly denied (Commonwealth v. Ferrara, 376 Mass. 502, 505, 381 N.E.2d 141 (1978) )." The Appeals Court further stated that "the evidence which was not subject to (the) motions was such as to make inappropriate the entry of a judgment for either defendant at this time (contrast Commonwealth v. Spofford, 343 Mass. 703, 707-708, 180 N.E.2d 673 (1962) )." We granted the Commonwealth's application for further review. We agree that the motions to suppress should have been allowed. 2
We summarize the evidence presented at the hearing on the motions to suppress. Shortly before 1 a. m. on November 16, 1977, a State police trooper observed a vehicle with its distress signals flashing in the breakdown lane of Route 86, a six-lane divided highway in a poorly lit, deserted area of Sturbridge. He pulled his cruiser up behind the vehicle, a Chevrolet El Camino with a flatbed instead of a rear seat. The flatbed was covered by a canvas, loose at one corner. The defendant Loughlin was standing at the right rear of the vehicle and, as the cruiser stopped, Loughlin walked quickly toward the open passenger door and entered the vehicle. The defendant Searles, who was sitting in the driver's seat, quickly ducked out of sight. He then jumped from the vehicle and came rapidly toward the trooper. Searles gave the trooper his license and registration and, at the officer's bidding, returned to his seat. The trooper asked Loughlin for identification. He gave his name and address but did not produce other identification. The trooper looked around outside the vehicle. He then ordered Loughlin from the vehicle and "pat-frisked" him. In response to questioning, Loughlin said that bulges in his pockets were cigarettes. The "cigarettes" turned out to be wads of money. The trooper then ordered Searles out of the car and commanded the two men to lean "spread eagle" over the front of the vehicle. He asked if there were any weapons in the vehicle. Searles said, The trooper searched the inside of the vehicle and found no weapons. He then asked if there were weapons in the back of the vehicle. Searles said, "No, you can check." In the course of a search, the marihuana was found.
The principles expressed in Commonwealth v. Ferrara, 376 Mass. 502, 505, 381 N.E.2d 141 (1978), are controlling, as the Appeals Court ruled. We have no doubt that the trooper was entitled to make an initial inquiry in the circumstances. He was entitled as well, if the facts warranted a reasonable person to believe that the defendants were armed and presently dangerous, to take reasonable precautions for his safety. However, once Searles had produced a valid license and registration and Loughlin had identified himself, any justifiable investigation was complete. Id. See Commonwealth v. McCleery, 345 Mass. 151, 153, 186 N.E.2d 469 (1962). Compare Commonwealth v. Farmer, --- Mass.App. ---, Mass.App.Ct.Adv.Sh. (1981) 1794, 428 N.E.2d 143 ( ). 3
Because the evidence in issue was traceable to the illegal pat-frisk of Loughlin and the illegal orders that the defendants leave the car, it must in these circumstances be suppressed as the "fruit of the poisonous tree." See Commonwealth v. Ferrara, supra, 376 Mass. at 505, 381 N.E.2d 141. The record does not show sufficient attenuation of the illegal search of Loughlin and the illegal seizure of each defendant to warrant a finding that Searles's consent was an act of free will, unaffected by the taint of the illegality. See Brown v. Illinois, 422 U.S. 590, 603-604, 95 S.Ct. 2254, 2261-2262, 45 L.Ed.2d 416 (1975). 4 The trooper did not advise Searles of his right to refuse to consent to the search. No significant time elapsed between the illegality and the "consent." No intervening event occurred that dissipated the effect of the illegality.
The findings of the trial judge are set aside, the judgments are reversed, and judgments shall be entered for the defendants. 5
So ordered.
In light of the careful analysis in the opinion of the court, this concurring opinion would be surplusage if it were not for the expression of the dissenters that the court here unnecessarily expands the protection of the Fourth Amendment. This is not so; the result reached by this court follows the careful limits mandated by the Supreme Court of the United States. Probably most judges share the dissenters' disappointment and frustration in cases like this, when evidence procured by police "hunch" or intuition must be suppressed. Nevertheless, responsive to the clear teachings of the Supreme Court, we should observe that the Fourth Amendment protects not only the defendants in this case but also the many other persons who that evening stopped their vehicles at the side of high-speed highways with distress lights flashing and, unlike the defendants, had no contraband concealed in their vehicles.
Several principles arise out of the Fourth Amendment, as construed by the United States Supreme Court. "Probable cause" is the pivotal principle. Only if there is probable cause for the police to believe that the defendant has committed or is committing an offense may a search warrant be issued or, in some instances, may a search be conducted without a warrant. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Commonwealth v. Haas, 373 Mass. 545, 555, 369 N.E.2d 692 (1977), and cases cited. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). If probable cause does not appear, but there are "articulable facts" of a suspicious nature which permit the police to stop and question a person, the police may do a "pat-down" search during the questioning. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879-1880, 20 L.Ed.2d 889 (1968). This pat-down is solely for the protection of police during the confrontation, and is directed solely toward concealed weapons.
The Commonwealth does not contend, nor could it reasonably contend, that probable cause was shown in the early stages of this confrontation. Nevertheless, as the opinion of the court here demonstrates, the police procedure, early on, was not merely for the protection of the officer during the questioning of the two men, but was clearly a search for evidence. Commonwealth v. Almeida, 373 Mass. 266, 366 N.E.2d 756 (1977), upon which the dissenting Justices rely, is markedly distinguishable from this case. In the sequence of events in that case the officer was not exceeding his limited self-protection privileges when he discovered the contraband. Our opinion in Commonwealth v. Silva, 366 Mass. 402, 318 N.E.2d 895 (1974), upon which the dissenters also rely, likewise emphasizes the limited self-protection aspect of a "pat-down" search in the absence of probable cause to arrest. I think it is clear from Almeida and Silva, and related cases, that the court is vitally concerned with preserving the right of policemen to stop and frisk for weapons in order to ensure their safety. It is just as plain that the stop and frisk privileges must not be used as a pretext to justify full searches, in the absence of probable cause and contrary to the Fourth Amendment.
Finally, the dissenters express their conviction that illegally obtained evidence should not be suppressed, but rather that the overreaching police should be disciplined. This thought relates to a debate of long-standing, and many persons, probably including many judges, agree with the dissenters' point of view. Nevertheless, once more, this court has no option; the exclusion of evidence in such cases has been mandated by the Supreme Court.
Because I believe that the trial judge correctly denied the defendants' motions to suppress evidence, I dissent from the opinion of the court.
I do not agree that Commonwealth v. Ferrara, 376 Mass. 502, 381 N.E.2d 141 (1978), is dispositive of the case. The actions of the defendant in Ferrara, prior to the time the police stopped his vehicle, were considerably less suspicious than those actions involved here. In Ferrara, the defendant went three times into a cleaning establishment that was under police surveillance and then he drove away in his automobile. The police followed closely in an unmarked automobile and an occupant of the defendant's vehicle looked back at them. W...
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