Com. v. Moon

• Court: Appeals Court of Massachusetts
• Writing for the Court: GREANEY
• Citation: Com. v. Moon, 394 N.E.2d 984, 8 Mass.App.Ct. 375 (Mass. App. 1979)
• Decision Date: 27 September 1979
• Parties: COMMONWEALTH v. Andrew A. MOON.

Page 984

394 N.E.2d 984

8 Mass.App.Ct. 375

COMMONWEALTH v. Andrew A. MOON.

Appeals Court of Massachusetts, Middlesex.

Argued June 13, 1979.

Decided Sept. 27, 1979.

Carol S. Ball, Asst. Dist. Atty., for the Commonwealth.

Richard J. Hayes, South Boston, for defendant.

Before GOODMAN, GREANEY and KASS, JJ.

GREANEY, Justice.

Andrew Moon was indicted for the crime of assault by means of a dangerous weapon (G.L. c. 265, § 15B) upon Charles Mosesian, arising out of an incident on the night of June 27, 1977. Prior to trial he moved to suppress a wallet and its contents on the basis that the items had been seized from his automobile by means of an illegal warrantless search. He also sought to suppress an identification made by the victim at the scene (by use of the defendant's picture on his driver's license taken from his wallet) and the victim's proposed in-court identification. After an evidentiary hearing, the motion judge made both oral and written findings, concluded that the search of the car had been improper and that the identifications should be suppressed, and allowed both motions. The Commonwealth was permitted an appeal under the provisions of G.L. c. 278, § 28E; that appeal was transferred here under G.L. c. 211, § 4A. We reverse the allowance of the motion suppressing the items taken in the search and affirm the allowance of the motion suppressing the identifications. ¹

The facts are drawn from the judge's findings, supplemented where appropriate from the evidence presented at the hearing. On June 27, 1977, at approximately midnight, the victim, Charles Mosesian, a sixty-four year old man, was on the balcony of his eighth-floor apartment looking down at the street, which was approximately sixty feet below. A few people were walking around. He observed a car drive up the street, back up and park across the way. A young man in dark clothing alighted, walked down the street past the entrance to the building, and went under the locked gate where cars drive into the parking area to the building. Having lost sight of the individual, Mosesian went up on the roof, looked down and observed someone walking down under the building where the cars were parked. Again losing sight of the individual, Mosesian returned to his apartment, obtained a pistol, and took the elevator to the parking area, all of which took about three to four minutes. The parking area was partly open and partly enclosed. The enclosed section was designed to hold about ninety-seven cars and was lit by fifty-watt bulbs at intervals of fifteen feet. Mosesian next observed an individual between two cars and asked him what he was doing there. The individual began backing away from Mosesian. At this time the individual, at a distance of approximately ten feet, said, "don't come near me," and pulled a four to six inch knife out of his pocket. Mosesian informed the culprit that he was armed, pulled his pistol and fired a warning shot. The total encounter lasted for a period of ten to twenty seconds and ended when the individual turned his back and ran away. The police were called while Mosesian remained by the car which he had first seen. ² Two or three cruisers eventually parked by the car. Watertown investigating officers were informed of the details of the incident. Mosesian testified that he gave a description of the individual who had pulled the knife as someone an inch or so taller than he was, weighing maybe 160 or 170 pounds, and having dark hair. The police officer wrote nothing in his police report about the description, ³ but testified that in notes which he "may have made" later that evening, he had written that the individual had "brown eyes and hair, height five feet, seven inches, weight 150 pounds, and swarthy complexion." Upon receipt of this summary of the incident and the general description stated above as to height, weight and dark hair, the officer said to his partner, and Mosesian heard, "must be Andrew Moon." Shortly thereafter, the police received information (in response to their earlier call to ascertain ownership of the automobile previously pointed out by Mosesian) that the car was registered to Moon. At that point, the investigating officer opened the unlocked door of the defendant's car, searched the front seat, discovered and removed a wallet. The officer opened the wallet, examined its contents and removed a driver's license. Mosesian recalled that the officers showed him the license, and asked, "Is this the guy?" He replied that it was. The defendant was apprehended about an hour later, about twenty yards from the car. Mosesian was not asked to identify the defendant by means of a lineup or through a photographic array.

Based essentially on these facts, the judge concluded that the police lacked probable cause to search the car and to search and seize the wallet. He also determined, after consideration of some wavering in the victim's testimony, that the identification procedure employed at the scene was unnecessarily suggestive and ordered the identification made from the license suppressed. He concluded that the proposed in-court identification lacked an independent source and ordered it suppressed as well. As to both identifications, he made a special finding based on his assessment of Mosesian's testimony that, apart from the picture and other insinuating influences at the scene, Mosesian could not have made a trustworthy identification because of his limited opportunity to observe under unfavorable circumstances. ⁴ A majority of the panel conclude that the judge erred in ruling the search improper and in suppressing the seizure of the wallet and its contents. We all agree, based on the judge's findings which are supported by the evidence, that his suppression of the identifications was warranted.

1. Search and seizure issues. Warrantless searches of automobiles are permissible where the search is based on probable cause and exigent circumstances exist. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). See also Commonwealth v. Barnes, 2 Mass.App. 357, 360, 312 N.E.2d 575, 576 (1974) ("(i)n the circumstances of (the) case 'there was a nexus between . . . (the defendants') conduct and the vehicle' sufficient to give rise to probable cause to search the vehicle," quoting from Commonwealth v. Avery, 365 Mass. 59, 64, 309 N.E.2d 497 (1974)). "The critical question is whether . . . (the officer) had . . . 'reasonable or probable cause' to believe . . . (he would) find . . . evidence pertaining to a crime before (he began his) warrantless search." Commonwealth v. Dupont, 2 Mass.App. 566, 569, 317 N.E.2d 83, 86 (1974), quoting from Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968). The majority of the panel base their conclusion upon the following view of the evidence and the reasonable inferences which can be drawn therefrom: The police knew that a criminal assault had occurred and that the perpetrator of the assault was probably the operator of the car. Though the officers were aware of Moon's ownership of the car, they did not know that Moon was the operator, or whether the car had been stolen from Moon. The assailant was at large. The searching officer, in the process of an investigation at the scene, could reasonably believe that some item bearing on identification of the missing assailant could be found in the car while the scent was fresh, and material tending to identify the assailant would be "evidence pertaining to a crime." Accordingly, the majority conclude that this belief warranted the search and seizure of the wallet and the license as bearing on identification of the assailant whose apprehension the police could reasonably believe required immediate action.

The author of this opinion disagrees both with the majority's view of the evidence and with its conclusions and would uphold the judge's ruling that the search was unlawful, because of the Commonwealth's failure to show that the search fell within the narrow class of permissible exceptions to warrantless vehicle searches. Commonwealth v. Antobenedetto, 366 Mass. 51, 57, 315 N.E.2d 530 (1974). Commonwealth v. Harris, 3 Mass.App. 343, 346, 329 N.E.2d 781 (1975). The facts are not within the narrow vehicle identification exception created in Commonwealth v. Navarro, 2 Mass.App. 214, 217-220, 310 N.E.2d 372 (1974), and Commonwealth v. Haefeli, 361 Mass. 271, 280-281, 279 N.E.2d 915 (1972), habeas corpus granted sub nom. Haefeli v. Chernoff, 394 F.Supp. 1079 (D.Mass.), rev'd., 526 F.2d 1314 (1st Cir. 1975). Since the assailant did not return to the car, the police would not have expected to turn up any clothing or other items which the victim might recognize and identify. There was no basis to believe that the assailant might have had any other weapons in the car, and "(a) mere 'hunch' is not enough." Commonwealth v. Silva, 366 Mass. 402, 406, 318 N.E.2d 895, 898 (1974). Commonwealth v. Harris, 3 Mass.App. at 345-346, 329 N.E.2d 781. The automobile was well guarded and immobilized and the evidence indicates that the intrusion was a search for evidence rather than a protective search for weapons. Commonwealth v. Silva, 366 Mass. 402, 318 N.E.2d 895 (1974) (evidentiary search of car improper under Terry Standards). The car was parked on the street and not in the parking area where the assault took place. There was no reason to believe, if the assailant and the individual who alighted from the car were the same person, that the car had been utilized for any purpose besides the personal transportation of the defendant to the street where he parked. Nor were there observations of any of the types of conduct that have typically been held to create a nexus sufficient to justify a warrantless search of a vehicle. See for example Cardwell v. Lewis, 417 U.S. 583, 592, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); United...