Com. v. Pietrass

• Decision Date: 27 August 1984
• Citation: 392 Mass. 892,467 N.E.2d 1368
• Parties: COMMONWEALTH v. Richard E. PIETRASS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1368

467 N.E.2d 1368

392 Mass. 892

COMMONWEALTH v. Richard E. PIETRASS.

Supreme Judicial Court of Massachusetts,

Dukes County.

Argued April 2, 1984.

Decided Aug. 27, 1984.

Andrew Silverman, Wilmington (Thomas J. Herbert, Pembroke, with him), for defendant.

Charles A. Morano, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH and O'CONNOR, JJ. LYNCH, Justice.

This is an interlocutory appeal pursuant to Mass. R. Crim. P. 15 (b)(2), 378 Mass. 882 (1970), from the denial of the defendant's motion to suppress certain evidence. We remand the case to the Superior Court for further findings.

The defendant was indicted in December, 1982, by the County of Dukes grand jury for burglary and assault, aggravated rape, indecent assault and battery, unnatural and lascivious acts, and possession of a dangerous weapon. After an evidentiary hearing, a Superior Court judge denied the motion to suppress. The defendant sought leave to appeal this denial. After a hearing, a single justice of this court allowed the defendant's application for leave to appeal and referred the matter to the full court.

The defendant argues that his warrantless arrest was illegal because the police had neither probable cause to arrest him nor probable cause to believe he was inside the house where the arrest took place. He further contends that the warrantless arrest was not justified by exigent circumstances. The defendant also argues that the police conducted a warrantless search of the premises in violation of Federal and State constitutional guarantees.

Based on his assertion that the arrest and search were illegal, the defendant argues that the following evidence should be suppressed: (1) clothing seized at the time of the arrest; (2) clothing worn by the defendant at the time of his arrest and seized at the county jail; (3) statements made by the defendant at his postarrest interrogation at the police station; and (4) the results of a courthouse lineup held shortly after the crime was committed. He further argues that evidence seized the day after the arrest pursuant to a search warrant should be suppressed because the warrant, stripped of information obtained by virtue of the illegal arrest and search, does not demonstrate probable cause to search. The defendant's final argument is that the Commonwealth failed to prove beyond a reasonable doubt that his postarrest, incriminatory statements were made voluntarily or that his waiver of the privilege against self-incrimination was knowing and voluntary.

The defendant also takes exception to several of the judge's subsidiary findings of fact, claiming that they are clearly erroneous and should be rejected by this court.

The judge found the following facts. ¹ About 10:00 p.m. on November 10, 1982, an intruder entered a house on Newton Avenue in Oak Bluffs, Martha's Vineyard. The victim, an elderly retired school teacher, was at home watching television. The intruder, whose face was partially covered by a white cloth held in place by a bandana tied around his head (the victim said he was masked "like Arafat"), forced the victim to engage in oral intercourse and attempted unsuccessfully to force vaginal intercourse. At some point during the attack, the intruder said, "Do you like Edgartown boys?" and, "Fun time is over now." Although the judge did not include it in his findings, a taped conversation between the victim's daughter and the police dispatcher indicates that the intruder was unarmed at the time of the attack.

Officers of the Oak Bluffs police department responded to the victim's call at approximately 10:50 p.m. and she gave them the following description of her assailant. He was a slim, white male, about 140 pounds, five feet, six or seven inches tall. He had dark hair and a dark moustache that was partially covered with black tape. He was wearing a multi-colored plaid shirt, dark pants (possibly green) that smelled strongly of oil or kerosene, brown work gloves, and a tan jacket with sheepskin lining.

At approximately the same time, Officer Warren Gosson ² of the Oak Bluffs police department heard about the attack and heard a description of the intruder and the clothes he was wearing. Gosson concluded that the intruder was the defendant. He was personally acquainted with the defendant's physical appearance and had recently seen him wearing similar clothing. In his testimony he stated that he knew the defendant to be a friend of one Kevin Reth, whom he knew to live in the vicinity of the victim's house. He had also twice placed the defendant in protective custody, once when he was investigating a house break in a nearby area of Oak Bluffs.

While investigating the break-in and attack, the police noticed a trail of footprints in the sand leading away from the victim's house in the direction of the house where the defendant was ultimately found. At trial, Officer Gosson testified that he followed the footprints to the "general area" of that house. As it turned out, when the police came back the next day, they discovered that the tracks continued further down the beach past the house. But when questioned by the judge as to whether they led beyond the house, Gosson testified, "At that time I did not think so."

The victim was shown a photographic array which contained photographs of the defendant and seven other white males. ³ The victim chose the photograph of the defendant as "looking most like her attacker."

Another of the policemen, Officer George Fisher, spoke with a man who indicated that he thought a person fitting the description of the intruder lived several houses down from the victim's house. At trial, the witness testified that he thought the suspect drove a green telephone company van. Officer Fisher testified that neither he nor the witness mentioned the defendant by name.

At approximately 1 a.m. on November 11, the officers proceeded to the house they had identified, which had a green International Scout vehicle parked outside. ⁴ They had neither an arrest nor a search warrant. ⁵ Two officers stood at the back of the house while two others went around to the front where there was a screened-in porch that led to the door to the inside. A witness testified that a double thickness of plastic occluded the view into the house. The house was dark and quiet. Officers Fisher and Maciel opened the unlocked door of the porch and went inside. There were a door and a window on the inside wall. Using their flashlights, they looked through the window and saw on a table brown gloves, a white paper towel with green design, a thermal undershirt, a white cloth, and a tan, sheepskin jacket. ⁶ One of the officers knocked on the inside door and announced loudly, "police." There was no response, so they pushed open the unlocked door and stepped inside. Once inside, they heard snoring or heavy breathing through a partially open bedroom door. They entered the bedroom, turned on the light, and found the defendant in bed. There was a shotgun protruding from under the covers. The officers recognized the defendant as the man identified by the victim. The judge found that, although the word "arrest" was never used, it was clear that the defendant was under arrest while he was still in the bedroom. The judge made no findings as to what happened after the police left the house with the defendant, but the testimony indicates that the defendant was taken to the jail, where additional items of clothing were taken from him. He appeared to be under the influence either of drugs or alcohol. He was given Miranda warnings, which he stated he understood. Upon questioning, the defendant denied having assaulted the victim. After the police telephoned an assistant district attorney to discuss whether there was sufficient probable cause to arrest the defendant, he was formally arrested. ⁷ Later in the morning of November 11, the defendant was placed in a lineup with five other young men. There was no clear identification from this lineup, although the victim narrowed it down to two of the men, one of whom was the defendant. Also on that day, a search warrant was obtained and several more items were seized from the house where the defendant was arrested, among them two rolls of black electrical tape and a tissue or paper towel.

The judge concluded that the police officers "had probable cause to believe that the defendant was only two houses away from [the victim's] house, that he had committed a violent crime against her person, and it was likely that he would escape or engage in similar conduct if they did not act promptly." The judge also found that the police had probable cause to arrest the defendant.

When police enter a dwelling for the purpose of a search or an arrest, ordinarily they must have a warrant. ⁸ If they do not have a warrant, two conditions must be met for the entry to be valid: They must have probable cause to believe that the defendant committed the crime and there must exist exigent circumstances. In this case, the police had probable cause to arrest the defendant. Probable cause to issue an arrest warrant is information "sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). The same standard applies to a warrantless arrest. Julian v. Randazzo, 380 Mass. 391, 395, 403 N.E.2d 931 (1980). The police in this case had ample evidence (Officer Gosson's familiarity with the defendant's physical appearance and knowledge that the defendant had frequented that area of Oak Bluffs, the victim's identification of the defendant from the photographic array and the neighbor's statement that a person fitting the intruder's description lived in the neighborhood) to conclude that it was "more probable than not" that the defendant was the intruder. Commonwealth v. Cruz, 373 Mass. 676, 685, 369 N.E.2d 996 (1977). ⁹

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