Com. v. Navarro

• Decision Date: 01 May 1974
• Citation: 2 Mass.App.Ct. 214,310 N.E.2d 372
• Parties: COMMONWEALTH v. Joseph NAVARRO.
• Court: Appeals Court of Massachusetts

Page 372

310 N.E.2d 372

2 Mass.App.Ct. 214

COMMONWEALTH v. Joseph NAVARRO.

Appeals Court of Massachusetts, Berkshire.

Argued Sept. 11, 1973.

Decided May 1, 1974.

Alfred Paul Farese, Everett, for defendant.

John T. McDonough, Special Asst. Dist. Atty., for the Commonwealth.

Before HALE, C.J., and GRANT and ARMSTRONG, JJ.

ARMSTRONG, Justice.

The defendant was indicted for possession of burglar tools (No. 11283), unlawfully carrying a firearm under his control in a vehicle (No. 11286), breaking and entering in the night time with intent to commit a felony (No. 11287), and unlawful possession of firearm ammunition (No. 11288). He was tried, subject to G.L. c. 278, §§ 33A--33G, by a jury, was found guilty on all indictments, and was sentenced to various terms at the Massachusetts Correctional Institution, Walpole, to be served concurrently. The day after the sentences were imposed, the trial judge vacated the sentence imposed on indictment No. 11288, and substituted a fine of $100. The case is here on the defendant's appeal with assignment of errors.

There was evidence that in the early morning hours of March 18, 1971, a cafe on Woodlawn Avenue in Pittsfield was broken into and an outer door to a safe was pried open. (An inner door remained intact, and the contents of the safe were undisturbed). Police arrived at the scene at 3:30 A.M. One officer followed footprints in the snow from the rear of the cafe in a westerly direction through a parking lot, across a street, through back yards and across two more streets into a back yard, where he saw a codefendant, Tosi, sitting on the back steps of a house, panting, perspiring and exhausted. There was dust on Tosi's trousers, similar in color to that found by the police in front of the safe at the cafe. His heels bore distinctive marks first noticed in the footprints. He was arrested, and searched; his wallet contained an automobile registration in his name. Officers in the field were instructed by radio bulletin to be on the lookout for Tosi's 1968 black Buick. Tosi was also traced to a motel on the Pittsfield-Lenox road, where he had checked in on March 16 with another man. An officer testified that the motel proprietor told him that the car in which Tosi had arrived was not a black 1968 Buick, but rather a very dirty white 1969 Buick. Following that conversation with the motel proprietor, a second police radio transmission instructed officers to disregard the first transmission and to look out for a vehicle of the new description from the Boston area. At about 5:45 or 6:00 A.M. an officer in a cruiser who had heard the transmission noticed a very dirty white 1970 Buick hardtop parked on Woodlawn Avenue about seventy-five feet from the cafe, among about fifty other parked cars. (There was a General Electric Company factory nearby which employed a night shift). The officer testified that through the window he saw on the front seat what appeared to be, and what turned out to be, a blank Connecticut driver's license protruding from an envelope; that he opened the driver's door, which was unlocked; that his purpose in entering the car was to see if it was from the Boston area; that he leaned across the seat to look at the back of the inspection sticker; and that in doing so he saw a handgun on the seat. He also examined the envelope from which the license protruded and saw that it contained several blank Connecticut licenses, and a completed New Jersey driver's license and a blank New Jersey driver's license bearing the same license number as the completed one. The car was towed to the police station, was identified by the motel proprietor and was thoroughly searched. The trunk contained burglar tools and another handgun, and the glove compartment contained the defendant Navarro's driver's license. Fingerprints from the handgun which was found on the driver's seat and from an empty cigarette package found in the cafe were identified as those of Navarro.

1. Navarro assigns as error the admission in evidence of the various items taken from the automobile, arguing that these are the product of a warrantless, unlawful search in violation of his rights under the Fourth and Fourteenth Amendments to the Constitution of the United States. After a voir dire the judge ruled that the initial entry into the car, which led to the discovery of the handgun and the examination of the envelope of Connecticut and New Jersey licenses, was not a search; and that the seizure of the car and the subsequent search of it were grounded on probable cause and were valid. Later in the trial, testimony by one witness seemed to contradict some of the testimony given at the voir dire, and the judge permitted a second voir dire to inquire into the discrepancies. The judge accepted the testimony by the police at the second voir dire, stating that it reinforced his findings and conclusions based on the first voir dire.

The evidence offered at the two voir dires amply supports the findings of the judge and his ruling that the contents of the automobile were admissible, although we reach that result by reasoning different from his.

A distinction is made in several Federal cases (the issue appears not to have arisen yet in a case in the Supreme Judicial Court) between an examination of a vehicle for the purpose of identifying it, and a search of the vehicle for its contents. See, e.g., Cotton v. United States, 371 F.2d 385, 393 (9th Cir. 1967); United States v. Powers, 439 F.2d 373, 375 (4th Cir. 1971), cert. den. 402 U.S. 1011, 91 S.Ct. 2198, 29 L.Ed.2d 434 (1971). See also United States v. Dadurian, 450 F.2d 22, 24--25, and n. 2 (1st Cir. 1971). Numerous Federal cases have held that examination of motor vehicles for the purpose of identifying them may be conducted within certain limits by police officers having legitimate grounds for doing so, not amounting to probable cause, without violating Fourth Amendment rights. See, in addition to the three cases last cited, United States v. Self, 410 F.2d 984, 986 (10th Cir. 1969); United States v. Polk, 433 F.2d 644, 646--648 (5th Cir. 1970); United States v. Brown, 470 F.2d 1120, 1122--1123 (9th Cir. 1972); United States v. Squires, 456 F.2d 967, 969--970 (2d Cir. 1972); and United States v. Ware, 457 F.2d 828, 829 (7th Cir. 1972), cert. den. 409 U.S. 888, 93 S.Ct. 139, 34 L.Ed.2d 145 (1972). See also Simpson v. United States, 346 F.2d 291, 296--297 (10th Cir. 1965, dissenting opinion of Pickett, J.). Some of those cases have been decided on the theory that an examination of a mark like the vehicle identification number, although necessitating an opening of the door, is not a search at all. (See, e.g., the Cotton case and the dissent in the Simpson case). Others hold that such an entry is a search, but one justified (because of the limited intrusion and the quasi-public nature of the mark of identification) by a 'legitimate reason' amounting to something less than probable cause. United States v. Powers, supra.

Although Fourth Amendment requirements have been held to apply to automobile searches (Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)), the United States Supreme Court has long distinguished between searches of automobiles and searches of buildings. Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Cooper v. California, 386 U.S. 58, 59, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). '(F)or the purposes of the Fourth Amendment there is a constitutional difference between houses and cars.' Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1982, 26 L.Ed.2d 419 (1970). The distinction is grounded on the mobility of automobiles, which results in their frequent use as instruments of crime, and a lesser expectation of privacy, which results from their being out on public ways, open in large measure to visual inspection by the public at large, and subject under many conditions to minor but valid police intrusions in the administration of the motor vehicle laws. Cady v. Dombrowski, 413 U.S. 433, 440--442, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).

The latter factor--expectation of privacy--applies with varying force to different parts of an automobile. 'Thus, warrantless searches of the trunk, the glove compartment, the console or similar areas have been approved only within strict limitations, such as a requirement of probable cause ¹ to search the car, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), or a search incident to a lawful arrest, Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), or a showing the car itself was contraband, Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).' United States v. Powers, 439 F.2d 373, 375 (4th Cir. 1971).

'Inspection of a car's identification number differs from a search of a vehicle and seizure of its contents in one important aspect. The occupants of the car cannot harbor an expectation of privacy concerning the identification of the vehicle. The state requires manufacturers to identify vehicles by affixing identification numbers which are also recorded in registries where the police and any interested person may inspect them. Since identification numbers are, at the least, quasi-public information, a search of that part of the car displaying the number is but a minimal invasion of a person's privacy. A police officer, therefore, should be freer to inspect the numbers without a warrant than he is to search a car for purely private property.' United States v. Powers, supra, at 375. ²

The principle is equally applicable to the case before us. The object of the entry into the vehicle was not to search the vehicle for its contents. Rather, it was to find out where the vehicle was from, and to determine if it was the vehicle which was the subject of the second radio bulletin. There could scarcely be a more...