Com. v. Markou

• Decision Date: 01 February 1984
• Citation: 391 Mass. 27,459 N.E.2d 1225
• Parties: COMMONWEALTH v. Peter MARKOU.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1225

459 N.E.2d 1225

391 Mass. 27

COMMONWEALTH v. Peter MARKOU.

Supreme Judicial Court of Massachusetts,

Berkshire.

Argued Oct. 5, 1983.

Decided Feb. 1, 1984.

Michael D. Cutler, Boston, for defendant.

Robert J. Carnes, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

After claiming a trial by jury in the first instance, the defendant waived his right to a trial by jury and was convicted in the Pittsfield District Court of receiving stolen property. He was given a two-year sentence, one year to be served and one year suspended. His motion to suppress certain evidence which was discovered in the course of a warrantless search of his automobile was denied. His motion for stay of execution of the sentence was also denied. This court granted his application for direct appellate review of the denial of his motion to suppress. Since we find no error in the denial of the motion to suppress, the judgment of the District Court is affirmed.

The facts are summarized from the findings of the motion judge and the transcript of the motion hearing. On March 13, 1981, shortly after 11:00 P.M., the clerk on duty at the Williamstown police department received a call from a Donald Menard, who reported that he had just witnessed the defendant, whom he knew and identified by name, placing "stereo equipment" that belonged to Menard and his roommate into a yellow Ford Mustang automobile. Menard then saw the defendant drive away. The clerk sent this information to the two police officers who were on cruiser patrol in separate cars. He described the automobile and the nature of the crime. He did not identify the defendant by name, but one of the officers asked "if it was our friend P.M." The clerk answered in the affirmative. This officer soon observed a yellow Mustang heading south on Route 7 in Williamstown. He stopped the automobile, and when he approached he recognized the driver as the defendant. The defendant agreed to follow the officer to the police station. At some point, however, he ceased to follow and drove off in another direction. The cruiser pursued the automobile, which was eventually stopped by the second police officer. When the first officer approached the automobile, he saw a cassette player in plain view on the rear floor. The cassette player had not been stolen, but the officer believed that it had been. He then lifted a piece of leather covering some items on the back seat and saw some stereo equipment which had been stolen. The officer then placed the defendant under arrest. His automobile was impounded and driven to the police station by the other officer. While at the police station, the officer telephoned the assistant clerk-magistrate of the District Court who set bail in the amount of $10,000.

At the police station between midnight and 12:30 A.M., a complete search of the vehicle was undertaken. The police inventory describes a large number of items, including clothing, household items, and various pieces of stereo equipment. ¹ The police had telephoned Menard; he was present at the search and identified the stereo equipment belonging to his roommate.

At no time did the police obtain a search warrant. At no time were any items of the stolen property visible outside of the automobile without removing the piece of leather covering them. At no time did the defendant consent to a search. The car was ultimately released to the defendant's brother without the permission of the defendant.

The defendant advances two arguments that the evidence seized during the warrantless search of his automobile should be suppressed. First, he argues that there were no exigent circumstances to justify a warrantless search once the automobile had been driven to the police station and the defendant was in custody. Alternatively, he argues that the police lacked probable cause to search because they lacked adequate particularity to identify the object of their search.

1. Exigent circumstances. The history of the "automobile exception" to the warrant requirement has been described at length in many other cases, and need not be repeated here. ² Briefly, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), held that a search warrant is not required where there is probable cause to search an automobile stopped on the highway: an immediate search is constitutionally permissible. In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the Court held that if probable cause to search and exigent circumstances existed when the car was first stopped, the warrantless search would be constitutionally permissible even if it were carried out at the police station. To date, "we have adhered to the view expressed in Chambers." Commonwealth v. White, 374 Mass. 132, 141, 371 N.E.2d 777 (1977). See also Commonwealth v. King, 389 Mass. 233, 449 N.E.2d 1217 (1983). The defendant urges this court to reinterpret the Chambers rule to require exigent circumstances at the time of the search, not just at the time of the stop. ³

The defendant's argument fails because it misinterprets the holding in Chambers. In Carroll v. United States, supra, the circumstances were exigent because the automobile could quickly be moved while a warrant was being sought. The Court in Chambers simply held that, given probable cause, and exigent circumstances such as in Carroll, either a warrantless search on the highway or removal to the police station and immediate search there is constitutionally permissible. Several recent cases have suggested that once the car is immobilized, Chambers no longer applies. See, for example, People v. Rinaldo, 80 Ill.App.3d 433, 35 Ill.Dec. 738, 399 N.E.2d 1027 (1980) (automobile impounded and under police control, warrantless search impermissible); State v. Gagnon, 207 N.W.2d 260 (N.D.1973) (defendant in custody and car impounded, no exigent circumstances). This is the rule that the defendant would have us adopt. Those cases rely on the fact that once the automobile is in police custody, its mobility no longer presents a risk. As the Court recognized in United States v. Ross, 456 U.S. 798, 807 n. 9, 102 S.Ct. 2157, 2163, 72 L.Ed.2d 572 (1982), the holding in Chambers does not assume that exigent circumstances still exist at the police station. Instead it allows the police to conduct a search that could have been done at the scene of the stop in the safety of the police station. It reflects the reality of police work: in some circumstances it may be necessary to delay a search until it can be done in a safe, convenient, and risk-free place.

Decisions since Chambers demonstrate that that decision has not been interpreted as giving the police carte blanche to search without a warrant any time subsequent to a valid stop. ⁴ The decisions that invalidate a warrantless search at a police station are not inconsistent with Chambers. In State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981), for example, the court disallowed a search that took place twenty-two hours after the car was impounded. The delay was for the convenience of the police officer (who had gone off his shift shortly after the car was seized) and for the owner of the stolen property. However, the court said that a reasonably immediate search "would likely have been a valid warrantless search." Id. at 392, 623 P.2d 630. The court in Quinn also noted that "immediate" does not necessarily mean the police officer must search the car before the police officer does anything else. There should be reasonable leeway for the police to do the several things that need to be done at once when a suspect is brought to the police station.

We find that the circumstances in this case fall squarely within the Chambers automobile exception. The police officer clearly had probable cause to stop the defendant and to believe that stolen stereo equipment was in the car. He had received a detailed description of a distinctive...