Com. v. Moynihan

• Decision Date: 26 September 1978
• Citation: 376 Mass. 468,381 N.E.2d 575
• Parties: COMMONWEALTH v. James J. MOYNIHAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 575

381 N.E.2d 575

376 Mass. 468

COMMONWEALTH v. James J. MOYNIHAN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 6, 1978.

Decided Sept. 26, 1978.

Maurice F. Ford, Dorchester, for defendant.

Daniel C. Mullane, Asst. Dist. Atty. (Michael J. Traft, Sp. Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

The defendant was found guilty of armed robbery, G.L. c. 265, § 17, by a jury, following a trial made subject to the provisions of G.L. c. 278, §§ 33A-33G. He appealed to the Appeals Court. We transferred the case here on our own motion. G.L. c. 211A, § 10(A). We affirm the judgment of the Superior Court.

The defendant's numerous assignments of error pertain to two basic issues: (1) whether the judge erred in denying the defendant's motion to suppress certain evidence; and (2) whether the judge erred in his rulings regarding the admissibility of polygraph evidence that was favorable to the defendant. Within these broad categories, we will address each assignment of error that has been adequately argued. See Commonwealth v. Martin, 358 Mass. 282, 290, 264 N.E.2d 366 (1970).

1. Defendant's motion to suppress. The defendant moved to suppress: (a) evidence in the form of clothing taken by police from a car in which the defendant had been previously observed; (b) identifications made by two witnesses to the robbery. Following a hearing on the motion, the judge issued findings and rulings, and ordered that the motion be denied. The following descriptions of the underlying events are taken from the judge's findings, except where otherwise noted.

On November 25, 1974, at approximately 11:30 A.M., two men entered George's Market in Dorchester. In the market at the time were the proprietor, George Jakub, and a clerk, Daniel Stock. One of the men pointed a gun at Jakub and Stock and took money from the cash register. During the robbery, both Jakub and Stock clearly observed the robbers for several minutes. They told police that the man with the gun had glasses and wore a tan "rain-and-shine" coat and a black "Russian-type" hat. The victims also described the other robber, noting, among other things, that he wore an "army-type" jacket.

(a) Clothing taken from the car. Officer John Smyth of the Milton police department was on routine patrol in a marked police car about noon on November 25, approximately one-half hour after the robbery. He was not aware that the robbery had occurred. As he stopped for traffic, he noticed two passenger cars parked in a large parking lot belonging to an American Legion post. Smyth knew that the parking lot was usually empty at that hour. He observed that one of the cars, a Plymouth, did not have a front license plate. He also observed three people, two males and a female, alighting from the Plymouth and walking a distance of about thirty yards to the second car, a four-door white Ford sedan with a black hood. A fourth person was seated in the driver's seat of the Ford. Smyth drove his car into the parking lot and parked near the Ford. At Smyth's request, the person in the driver's seat produced the car's registration, which was found to be in order, and indicated that the Ford was registered to the driver. Smyth then turned to the other occupants and asked them what was wrong with their car. The defendant replied, "What car?" Smyth said, "The car you just got out of." The defendant replied, "We didn't get out of any car." Smyth then asked everyone to get out of the car and they complied, leaving all the car doors open. As the defendant left the car, Smyth saw him move his hand toward the floor next to where he had been sitting in the back seat.

Smyth looked through the open rear door of the Ford and observed a gun clearly visible on top of clothing lying on the floor next to the back seat. Smyth reached in and picked up the gun, and asked the four former occupants, as a group, "Who belongs to the gun?" No one answered. Smyth repeated the question, and again there was no answer. ¹ Smyth then placed the four persons under arrest for illegal possession of a firearm, and informed them of their Miranda rights. The defendant then volunteered the statement: "I'll take my lumps. The gun belongs to me. The Plymouth is stolen. I stole it. The plates are in Swenson's car (the Ford) and in the trunk of the Plymouth." During this conversation, Smyth observed in plain view in the back of the Ford a tan rain-and-shine coat and a dark blue waist-length jacket, but he did not touch them. At Smyth's direction, the two cars were towed to an outside police parking lot behind the Milton police station. The cars were left unlocked.

At approximately 11:45 A.M. on the morning of the robbery Detective Richard M. Driscoll of the Boston police department arrived at George's Market and received descriptions of the two robbers. One of them was said to have been wearing a tan rain-and-shine coat, and the other an army-type jacket. The getaway car was described as a white Ford with a black hood. Driscoll subsequently learned that a car fitting that description was in the custody of the Milton police. On November 26, the day after the robbery, Driscoll went to the Milton police station parking lot where he observed the Ford that had been impounded by Smyth. The car was unattended and unlocked. Standing outside the car, Driscoll looked through the windows and saw lying in the rear, in plain view, a tan rain-and-shine coat and a blue army-type jacket. Driscoll opened a door of the car and took possession of the coat and jacket. He had no warrant to search or seize.

The defendant moved to suppress the gun taken from the Ford by Smyth, and the clothing taken from the Ford by Driscoll. In his brief, however, the defendant admits, as well he might, see, e. g., Commonwealth v. Anderson, 366 Mass. 394, 318 N.E.2d 834 (1974); Commonwealth v. Wilson, 360 Mass. 557, 276 N.E.2d 283 (1971); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); G.L. c. 41, § 98, that "Officer Smyth was acting properly in his threshold inquiry which resulted in his observations that led to the arrest of the defendants and the seizure of the automobile." The defendant does not argue that the seizure of the gun was improper. We therefore focus only on the seizure of the clothing by Driscoll on the day after the robbery.

The judge found that Driscoll's warrantless seizure of the clothing was lawful and could be supported on two independent theories. First, the judge relied on Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), which held that a warrantless search of an automobile at the police station generally is not constitutionally distinguishable from an immediate search of the car on the highway under exigent circumstances and based on probable cause. See, generally, Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Commonwealth v. White, --- Mass. ---, --- - --- ^A, 371 N.E.2d 777 (1977), cert. granted, 436 U.S. 925, 98 S.Ct. 2817, 56 L.Ed.2d 767 (1978); Commonwealth v. Haefeli, 361 Mass. 271, 275-283 (1972), habeas corpus granted sub nom. Haefeli v. Chernoff, 394 F.Supp. 1079 (D.Mass.), rev'd, 526 F.2d 1314 (1st Cir. 1975). Second, the judge concluded that the "plain view" doctrine supported Driscoll's seizure of the clothing, citing our decision in Commonwealth v. Ross, 361 Mass. 665, 681-682, 282 N.E.2d 70 (1972), judgment vacated on other grounds, 410 U.S. 901, 93 S.Ct. 968, 35 L.Ed.2d 265, aff'd on rehearing, 363 Mass. 665, 296 N.E.2d 810, cert. denied, 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973). We agree that the plain view doctrine is applicable to the facts of this case and that Driscoll's actions are fully justifiable under that doctrine. It is therefore unnecessary for us to consider the applicability of the Chambers case and its progeny.

On numerous occasions we have described and applied the plain view doctrine, relying principally on the exposition provided in Coolidge v. New Hampshire, 403 U.S. at 464-473, 91 S.Ct. 2022. As summarized in Commonwealth v. Walker, 370 Mass. ---, --- ^B, 350 N.E.2d 678, 686, cert. denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314 (1976): "The plain view doctrine requires prior police justification for an intrusion in the course of which an officer inadvertently comes across incriminating evidence. The 'prior justification' language is merely another way of articulating the necessity for 'some . . . legitimate reason for being present unconnected with a search directed against (an) accused.' Coolidge v. New Hampshire, supra (403 U.S.) at 466, 91 S.Ct. at 2038. The inadvertence requirement simply lends credibility to the doctrine by ensuring that only evidence which the police did not Anticipate or Know to be at the locus of a search will be seized without a warrant." We have also said that "mere evidence," as distinguished from contraband, fruits of crime and so on, may be seized only if the police recognize it to be plausibly related as proof to criminal activity of which they were already aware. Commonwealth v. Bond, --- Mass. ---, --- - --- ^C, 375 N.E.2d 1214 (1978).

The judge in the instant case made subsidiary findings of fact relevant to the application of the plain view doctrine, and we are bound to accept those findings absent clear error. See, e. g., Commonwealth v. Hosey,368 Mass. 571, 574 n.1, 334 N.E.2d 44 (1975). There was no error. The record supports the view that Driscoll went to the parking lot at the Milton police station for the purpose of determining whether the white Ford in the custody of the Milton police matched the description of the getaway car he had received at the scene of the crime. The car properly had been removed to the security of the police parking lot, and Driscoll was entitled to...