Com. v. Motta

Decision Date15 January 1997
Citation424 Mass. 117,676 N.E.2d 795
PartiesCOMMONWEALTH v. Leon R. MOTTA (and seven companion cases 1 ).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

John E. Bradley, Assistant District Attorney, for the Commonwealth.

Jane Larmon White, Boston, for Emilio Serverino.

Charles H. Robson, Lynn, for Leon Motta.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and FRIED, JJ.

LYNCH, Judge.

On May 10, 1994, a Plymouth County grand jury returned indictments against the defendants, Leon R. Motta and Emilio Serverino, for trafficking in heroin. G.L. c. 94C, § 32E (c). 2 The defendants moved to suppress the heroin, asserting that the warrantless search of the vehicle in which Serverino was the driver and Motta was the passenger was unlawful. The Commonwealth argued that the search was justified under the so-called "automobile exception" to the warrant requirement. The motion judge ruled that the police had probable cause to believe that the vehicle contained contraband, but that exigent circumstances were lacking and therefore a warrant was required prior to conducting the search. 3 The judge ordered the heroin suppressed, and the Commonwealth sought leave from a single justice of this court pursuant to Mass. R.Crim. P. 15(b)(2), 4 378 Mass. 882 (1979), to appeal this ruling. The single justice allowed the Commonwealth's motion and reported the case to the Appeals Court. We granted the Commonwealth's application for direct appellate review. For the reasons hereinafter set forth, we vacate the order of suppression and direct the entry of an order denying the defendants' motion to suppress.

The judge found the following facts. 5 Serverino was under police surveillance during the early part of 1994 because he was suspected of selling heroin in the Brockton area. Arthur McClaren, a Brockton undercover detective, purchased heroin from Serverino on seven different occasions between February 15, 1994, and March 1, 1994. On each occasion, Detective McClaren would buy heroin in increasing amounts after arranging by telephone to meet Serverino at various locations. McClaren testified that, at each meeting, Serverino would arrive in a gray 1983 Datsun automobile.

The Brockton police had planned in advance to arrest Serverino on March 4, 1994. In preparation for his arrest, Sergeant Kevin O'Connell of the Brockton police department obtained four separate search warrants, one for each of three apartments in the building where Serverino resided and one for his automobile, a gray 1983 Datsun. Later that day, the Brockton police also obtained a search warrant for another automobile. 6

The Federal Drug Enforcement Agency (DEA), which was also investigating Serverino, planned to buy a large amount of heroin from Serverino on March 4. 7 That same day, a DEA agent notified Sergeant Mario Diliddo of the Brockton police force, as he was riding in an undercover vehicle with Sergeant O'Connell, that Serverino was en route from Lynn to Brockton and would be driving a gray Mercury Cougar, an automobile heretofore unknown to the Brockton police. O'Connell was told that the DEA had arranged a meeting with Serverino at a Purity Supreme market in Brockton. 8 Diliddo and O'Connell drove in the direction of the Purity Supreme and spotted Serverino driving a Mercury Cougar. They followed the vehicle at a distance of about one-quarter mile. They then instructed marked police units in the area to stop the vehicle and arrest Serverino.

The vehicle was pulled over at the intersection of East Ashland and North Carey Streets. Serverino was the driver of the vehicle and Motta was seated in the passenger seat. The two defendants were taken from the automobile, handcuffed, searched, and arrested. A small quantity of marihuana was found in plain view in a tape cassette holder between the two front bucket seats.

The police did not search the automobile at the scene. O'Connell drove the automobile to the police station and parked it in a secured area. He arranged for the automobile to be "sniffed" by a "drug dog" for narcotics. The canine unit arrived within five to ten minutes, and as a result of the canine search, the police discovered a bag of heroin which was zipped into the back of the front passenger seat out of plain view. 9

The Commonwealth argues, and the judge found, that there was probable cause to search the automobile. The Commonwealth also argues, however, that exigent circumstances should no longer be required to invoke the automobile exception and that, even if we conclude that an exigency requirement is still required, the judge erred in finding that there were no exigent circumstances justifying a warrantless search of the automobile. In short, the Commonwealth alleges that the search of the defendants' automobile did not violate the defendants' right to be free of unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.

1. Probable cause. Probable cause existed if police officers had enough knowledge "to warrant a person of reasonable caution in believing" the defendants were trafficking in heroin and the circumstances were such that this particular vehicle contained heroin. Commonwealth v. Cast, 407 Mass. 891, 895, 556 N.E.2d 69 (1990), quoting Commonwealth v. Gullick, 386 Mass. 278, 283, 435 N.E.2d 348 (1982). See Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925); Commonwealth v. Wunder, 407 Mass. 909, 912, 556 N.E.2d 65 (1990). "In dealing with probable cause ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Commonwealth v. Cast, supra, quoting Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959). The judge found that Serverino had sold heroin to an undercover detective on seven prior occasions and that another such sale was arranged for March 4, 1994. The judge reasoned that "[t]he pre-arranged drug deal provided probable cause to believe that [Serverino was] on the way to the meeting and that there was heroin in the car. The police therefore had probable cause to stop the vehicle and to search it." 10

Serverino argues that the testimony at best established that the Brockton police had ordered heroin but had not arranged a meeting time and location, and that the DEA agents had ordered heroin and had been instructed by unknown persons to meet him at the Purity Supreme, but that there was no evidence the transaction was to take place at that time. Thus, he argues that the judge's conclusion that there was probable cause based on his factual finding that there was a "pre-arranged drug deal" had no foundation in the evidence and was erroneous.

We accept a judge's findings of fact, in the absence of clear error, and grant substantial deference to the conclusions of law based thereon. Commonwealth v. Bakoian, 412 Mass. 295, 297-298, 588 N.E.2d 667 (1992). The judge found that the Brockton police, who in the past had purchased heroin from Serverino, ordered heroin from Serverino on March 4. Furthermore, the judge found that DEA agents had ordered heroin from Serverino and had arranged to meet him on March 4 at the Purity Supreme in Brockton. Finally, the judge found that the DEA had learned that Serverino had left Lynn and was en route to Brockton. The judge concluded that, "[g]iven the prior seven drug deals to McClaren and the sale arranged for March 4, 1994," there was sufficient probable cause to search the automobile. We agree.

Although the judge may have misinterpreted the testimony of O'Connell that the DEA had arranged a meeting to purchase heroin from Serverino, 11 this misinterpretation was not crucial to his finding of probable cause.

The officers knew of the seven prior drug sales, that a request for an additional purchase had been made, and that Serverino was traveling by automobile from Lynn to Brockton after talking with DEA agents about another purchase. Furthermore, when the police first saw Serverino in Brockton, he was in the vicinity of the Purity Supreme where the police were told the rendezvous would take place. In addition, based on O'Connell's and McClaren's testimony, the judge reasonably inferred that a prearranged drug deal was to take place. See Commonwealth v. Santaliz, 413 Mass. 238, 241, 596 N.E.2d 337 (1992). Based on such an inference and the prior drug sales, it is reasonable to conclude, as the judge did, that the requisite probable cause existed. We conclude that the judge was warranted in finding that the police officers had probable cause to search the automobile.

2. Exigency. As the automobile exception to the warrant requirement of the Fourth Amendment and art. 14 was originally formulated, a search warrant was not required "when police have probable cause to believe that a motor vehicle on a public way contains contraband or evidence of a crime and exigent circumstances make obtaining a warrant impracticable." Commonwealth v. Cast, 407 Mass. 891, 901, 556 N.E.2d 69 (1990). See Carroll v. United States, 267 U.S. 132, 153-154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925). The United States Supreme Court has eliminated the requirement of exigent circumstances to justify the warrantless search of a motor vehicle stopped in transit or seized or searched in a public place. Pennsylvania v. Labron, --- U.S. ----, ----, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996). The Commonwealth urges us to abandon our similar rule in construing art. 14.

In eliminating the requirement of exigent circumstances from the automobile exception, the Supreme Court has emphasized both that the inherent mobility of an automobile in and of itself constitutes a sufficient exigency and that an individual has a lesser expectation of privacy in an...

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