Com. v. Mamacos

• Decision Date: 02 April 1991
• Citation: 409 Mass. 635,568 N.E.2d 1139
• Parties: COMMONWEALTH v. Peter C. MAMACOS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1139

568 N.E.2d 1139

409 Mass. 635

COMMONWEALTH v. Peter C. MAMACOS.

Supreme Judicial Court of Massachusetts Essex.

Argued Dec. 3, 1990.

Decided April 2, 1991.

S. Jane Haggerty, Asst. Dist. Atty., for Com.

Hugh Samson, Boston, for defendant.

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

O'CONNOR, Justice.

A criminal complaint issued against the defendant charging him with two counts of homicide by negligent operation of a motor vehicle in violation of G.L. c. 90, § 24G (1988 ed.), and one count of operating a motor vehicle negligently so as to endanger in violation of G.L. c. 90, § 24 (1988 ed.). The complaint also charged the defendant with certain civil infractions, namely operating a motor vehicle without an inspection sticker in violation of G.L. c. 90, § 20 (1988 ed.), operating a motor vehicle with defective brakes and handbrake in violation of G.L. c. 90, § 7 (1988 ed.), and altering the height of a motor vehicle in violation of G.L. c. 90, § 7P (1988 ed.). After two mistrials, the defendant filed a motion to suppress the results of tests done to his vehicle and all items removed from his vehicle on the ground that that evidence was obtained without a search warrant. A judge allowed the defendant's motion. A single justice of this court allowed the Commonwealth's application for interlocutory appeal. The case was then entered in the Appeals Court. We transferred the case to this court on our own initiative, and we now vacate the order allowing the motion to suppress.

We summarize the facts stipulated in connection with the suppression hearing as follows. On October 17, 1987, Sergeant Lawrence Streeter of the Amesbury police department was called to the scene of a motor vehicle accident in which two teenagers on a scooter had been killed. Streeter's duties included investigation and reconstruction of serious accidents, and the giving of assistance to other officers in their accident investigations. When he arrived at the scene, Streeter saw the scooter lying under the front bumper and frame of the defendant's pickup truck. The Amesbury police department then towed the truck to Amesbury Coach, where it was secured in a fenced security area.

On October 19 or 20, the defendant requested that his truck be returned to him. On October 20, after that request had been made, Streeter conducted an external examination of the truck's braking system. After doing so, he instructed an employee of Amesbury Coach to tow the truck with all four wheels on the road surface so that he could test the braking system. Following that, he instructed the employee to elevate the front wheels so that only the rear wheels were touching the road surface, and he again tested the truck's braking system.

Next, between October 20 and 22, Streeter returned to the scene of the accident with the defendant's truck and the scooter that had been involved in the accident. He placed the vehicles together as closely as he could to the way he had found them. Streeter then attached the entire mass to a Chitilin Scale and towed it down the road in an effort to discover the force necessary to overcome the friction with the road surface.

On October 22, after examining the exterior of the defendant's truck visually, Streeter asked a mechanic for the town of Amesbury to drive the vehicle and test the braking system with the vehicle operating on its own power. Streeter and the mechanic then removed the wheels from the truck and dismantled the braking system. Then, for the first time, Streeter obtained a search warrant to retain the pieces of the braking system that he had dismantled.

The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The defendant contends that the tests conducted on his truck before a search warrant was issued violated his Fourth Amendment rights as well as his rights under art. 14 of the Massachusetts Declaration of Rights. He does not argue separately with respect to the Federal and State Constitutions, and therefore we confine our discussion to the Fourth Amendment. Our first question, the answer to which resolves this case, is whether the testing of the truck's brakes constituted a "search" in the Fourth Amendment sense. Maryland v. Macon, 472 U.S. 463, 468-469, 105 S.Ct. 2778, 2781, 86 L.Ed.2d 370 (1985). Commonwealth v. Pina, 406 Mass. 540, 544, 549 N.E.2d 106, cert. denied, 498 U.S. 832, 111 S.Ct. 96, 112 L.Ed.2d 67 (1990). Commonwealth v. D'Onofrio, 396 Mass. 711, 714, 488 N.E.2d 410 (1986). To determine whether Streeter's actions constituted a search, we must consider whether his actions intruded on the defendant's reasonable expectation of privacy. California v. Ciraola, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986). Rawlings v. Kentucky, 448 U.S. 98, 104-106, 100 S.Ct. 2556, 2560-62, 65 L.Ed.2d 633 (1980). Rakas v. Illinois, 439 U.S. 128, 143, 143-144 n. 12, 99 S.Ct. 421, 430-31 n. 12, 58 L.Ed.2d 387 (1978). Katz v. United States, 389 U.S. 347, 360-361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). Commonwealth v. Pina, supra, 406 Mass. at 544, 549 N.E.2d 106. Commonwealth v. Chappee, 397 Mass. 508, 512, 492 N.E.2d 719 (1986). The question is really twofold: Did the defendant have a subjective expectation of privacy in his truck's brakes and, if he did, was that expectation one that society is prepared to recognize as objectively reasonable. California v. Ciraola, supra, 476 U.S. at 211, 106 S.Ct. at 1811. Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 1740, 80 L.Ed.2d 214 (1984). Commonwealth v. Panetti, 406 Mass. 230, 231, 547 N.E.2d 46 (1989). Commonwealth v. D'Onofrio, supra, 396 Mass. at 714, 488 N.E.2d 410. The defendant bears the burden of proving that he had a subjective and objectively reasonable expectation of privacy. Rawlings v. Kentucky, supra, 448 U.S. at 104, 100 S.Ct. at 2561. Commonwealth v. Chappee, supra, 397 Mass. at 512, 492 N.E.2d 719.

We have no doubt that the Amesbury police were in rightful possession of the defendant's truck after the accident. Although no statute expressly gives police officers the power to tow a motor vehicle from the scene of an accident and to place it in storage, the police do have the statutory authority to tow motor vehicles in other circumstances. For example, G.L. c. 40, § 22D (1988 ed. & Supp.1989), provides that "the city council or board of selectmen ... may adopt ... rules and regulations ... authorizing the ... police department ... to remove ... any vehicle parked or standing on any part of any way under the control of a municipality in such a manner as to obstruct any curb ramp designed for use by handicapped persons as means of egress to a street or public way ... or to impede in any way the removal or plowing of snow or ice." General Laws c. 85, § 2C (1988 ed.)...