Com. v. Matthews

• Decision Date: 28 February 1969
• Citation: 355 Mass. 378,244 N.E.2d 908
• Parties: COMMONWEALTH v. William C. MATTHEWS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 908

244 N.E.2d 908

355 Mass. 378

COMMONWEALTH v. William C. MATTHEWS.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Jan. 6, 1969.

Decided Feb. 28, 1969.

Joseph W. MacDonald, Dorchester, for defendant.

Anthony T. Petrocca, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, SPIEGEL, and REARDON, JJ.

SPALDING, Justice.

The defendant was convicted under an indictment charging possession of burglarious tools. The sole question for decision arises out of his exception to the denial of a pre-trial motion to suppress certain evidence.

All of the evidence at the hearing on this motion came from Sergeant Bergin of the Brookline police department who testified in substance as follows: About 2:50 A.M. on July 2, 1966, Sergeant Bergin, while in the vicinity of Commonwealth Avenue, Brookline, observed the defendant walking on Crowninshield Road to Commonwealth Avenue. There had been several breaking and entering incidents in the neighborhood, but none had been reported that night. The officer stopped the defendant and inquired about his identity and purpose for being abroad. The defendant identified himself and stated that he was walking from Boston to visit a friend who lived on Commonwealth Avenue in Brookline. When questioned as to the route he was taking, the defendant replied that 'he had felt like taking a walk.' Observing that the defendant was carrying a paper bag with the name of 'Mal's Department Store' on the outside, the officer asked if he might examine its contents, and the defendant readily assented. The bag contained new articles of clothing, consisting of underwear and socks, and a sales slip bearing the date of June 28. The defendant informed the officer that he had purchased the articles on the preceding day, July 1. Because the items of clothing were apparently not of the defendant's size, the officer became suspicious and frisked him to determine if he was carrying any weapons. The frisk consisted of the officer quickly running his hands over the defendant's clothing. He discovered, in the small of the defendant's back and tucked under his shirt and belt, a screwdriver, the shaft of which was seven inches long; it was not new and had paint marks on both the shaft and handle. The defendant said he had bought the screwdriver along with the clothing at Mal's Department Store. The defendant was thereupon arrested and taken to the police station where a thorough search was made. He was charged with possession of burglarious instruments.

The defendant contends that officer Bergin's action violated his consistutional protection against unreasonable search and seizure and that therefore the court erred in denying his motion to suppress. We shall assume that in these circumstances the officer's action constituted a search and seizure of the defendant. See Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889. We shall also assume, arguendo, that initially there was no probable cause to arrest the defendant and that the frisk was not incidental to an arrest. It does not, however, necessarily follow, as the defendant appears to argue, that the search and seizure were unconstitutional. The Fourth Amendment to the Constitution of the United States prohibits only unreasonable searches and seizures, and in certain circumstances the police may seize a person and subject him to a limited search for weapons even if there were no probable cause for an arrest. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889.

General Laws c. 41, § 98, as amended through St.1957, c. 688, § 1, provides in part that police officers during the nightime 'may examine all persons abroad whom they have reason to suspect of unlawful design.' ¹ In Commonwealth v. Lehan, 347 Mass. 197, 204, 196 N.E.2d 840, 845, we held that this section 'constitutionally permits a brief threshold inquiry where suspicious conduct gives the officer 'reason to suspect' the questioned person of 'unlawful design,' that is, that the person has committed, is committing, or is about to commit a crime. What is reasonable within the principle of threshold inquiry must be decided in each case.' ² See concurring opinion of Harlan, J., in Sibron v. New York, 392 U.S. 40, 72, 88 S.Ct. 1889, 1912, 20 L.Ed.2d 917.

A State is free to develop its own law of search and seizure to meet the needs of local law enforcement, and in the process it may call the standards it employs by any names it may choose. Sibron v. New York, 392 U.S. 40, 60--61, 88 S.Ct. 1889, 1912, 20 L.Ed.2d 917. 'It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct.' Sibron v. New York, supra, 61, 88 S.Ct. 1902. In justifying his actions the police officer 'must be able to point to specific * * * 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. We are of opinion that it was reasonable for the officer to stop and briefly interrogate a man who, while carrying a bag with a department store label, was walking at two fifty in the morning in an area where there had recently been several incidents of breaking and entering. See Commonwealth v. Roy, 349 Mass. 224, 207 N.E.2d 284.

Our next inquiry is whether...