Com. v. McCleery
| Decision Date | 29 November 1962 |
| Citation | 186 N.E.2d 469,345 Mass. 151 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | COMMONWEALTH v. Michael C. McCLEERY. |
Lawrence S. O'Connor, Asst. Dist. Atty., for Commonwealth.
Daniel F. Featherston, Jr., Boston, for defendant.
Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK, and SPIEGEL, JJ.
A judge found the defendant guilty of the crime of possessing a narcotic drug in violation of G.L. c. 94, § 205 (), and, being of opinion that the conviction raised questions of law which are doubtful and important, did not impose sentence, but reported the case to this court with the consent of the defendant and the Commonwealth. G.L.(Ter.Ed.) c. 278, § 30.
Prior to trial the defendant filed a motion (1) to suppress all the evidence in the possession of the Commonwealth on the ground that it was obtained as a result of an illegal search and seizure and (2) to dismiss the indictment. The judge made findings which resulted in his ruling that an illegal and unconstitutional search had been made of a motor vehicle of which the defendant was bailee. Certain evidence, which the judge found had been obtained directly as the result of the search, he ruled should be suppressed. The suppressed evidence comprised narcotics in manila envelopes taken from the motor vehicle; a statement signed by the defendant after interrogation at the State police barracks subsequent to the search; admissions made during the interrogation; and 'testimony concerning this evidence.'
Other evidence, which the judge ruled 'was admissible as not having resulted directly or indirectly from the illegal search, concerned a film container of marijuana which fell out of the defendant's clothing after the illegal search and while he was still at the scene.' At the trial this evidence along with admissions made 'right after the container fell to the ground' was introduced and was the sole basis for the finding of guilty.
An officer of the State police testified that on October 6, 1961, at 10:45 P.M. he stopped a motor vehicle, of which it was later determined the defendant was the bailee, as it entered the Massachusetts Turnpike from a ramp. The vehicle was stopped on a 'routine check' because a headlight was not working. 1 The three occupants, apart from the defendant, were one Williams, a friend, and two navy personnel, who were 'hitch-hiking.' After verifying the driver's license and the registration, the officer conducted an illegal search of the vehicle which resulted in his seizing some envelopes of marijuana from under the defendant's seat. Before searching, the officer had ordered the defendant out of the car. The officer established that the envelopes did contain marijuana and was interrogating the defendant at the rear of the car when the defendant started to walk toward the shoulder of the road. The officer saw a small tin vial falling to the ground from the defendant's person and the defendant attempting to kick it. A small metal 35 millimeter film container of marijuana was introduced in evidence. The officer testified that he asked the defendant, 'What's that?' and the defendant answered, 'That's the rest of it,' or 'That's the rest of the pot,' 'pot' being marijuana. The...
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