Com. v. Pignone

• Decision Date: 07 August 1975
• Parties: COMMONWEALTH v. Stanley L. PIGNONE.
• Court: Appeals Court of Massachusetts

Page 388

332 N.E.2d 388

3 Mass.App.Ct. 403

COMMONWEALTH

v. Stanley L. PIGNONE.

Appeals Court of Massachusetts, Middlesex.

Argued April 17, 1975.

Decided Aug. 7, 1975.

Donald L. Conn, Malden, and James B. Krasnoo, Boston, for defendant.

Terence M. Troyer, Asst. Dist. Atty. (Bonnie H. MacLeod-Griffin, Asst. Dist. Atty., with him), for the Commonwealth.

Before ROSE, KEVILLE and GRANT, JJ.

ROSE, Justice.

The defendant, convicted of larceny of goods over the value of $100 (G.L. c. 266, § 30), brings this case before us on a bill of exceptions pursuant to G.L. c. 278, § 31. He challenges the denial of his motion to suppress evidence obtained by means of a warrantless seizure from his automobile.

This case has had an involved history. The defendant's initial motion to suppress (considered on a statement of agreed facts ¹) was allowed ² and the indictment dismissed. The Commonwealth appealed that ruling, and the Supreme Judicial Court reversed the order allowing the motion to suppress and remanded the case to the Superior Court for further proceedings. Commonwealth v. Pignone, 361 Mass. 566, 569, 281 N.E.2d 572 (1972). On June 13, 1972, the defendant renewed his motion to suppress. Following a hearing, the trial judge (who was not the judge who had ruled on the previous motion to suppress) denied the motion. An exception was taken, and it is that exception which the defendant now brings before us. On June 22, 1972, a jury found the defendant guilty.

The evidence concerning the crime was as follows. On October 14, 1970, the defendant went 'shopping' in the Purity Supreme Supermarket in Wayland. The defendant brought the items he had selected to the check-out station of a certain cashier. The cashier passed the items by her register, told the defendant, 'Get ready for a surprise,' and totalled the purchase at $4.42. The defendant gave the cashier a twenty dollar bill. The cashier dropped the receipt on the floor. The groceries (requiring seven bags) were put in the defendant's car, which was parked in the supermarket parking lot.

The cash manager of the supermarket (who was not on duty but was himself shopping in the store) observed the large order of groceries passing through the cashier's station and the $4.42 total that was rung up. He alerted the store manager, and the cashier was confronted and the tape retrieved. The value of the groceries was later computed to be $108.54.

After he left the store, the defendant, having noticed activity at the check-out counter, went to a telephone booth ten feet from the supermarket, called the store manager, explained that a mistake had been made, and sought of settle the matter. He met the store manager in front of the supermarket. During the course of their 'negotiations,' police officer Thomas H. McEnany, Jr., of the Wayland police force arrived.

The following evidence was introduced at the suppression hearing. McEnany testified that he arrived at the Purity Supreme Market between 8:00 P.M. and 8:30 P.M. and parked close to the defendant's car. He overheard part of the conversation between the defendant and the store manager in which they were trying to determine the amount underpaid by the defendant. McEnany spoke to the cash manager, ³ who told him he had witnessed the cashier ring up $4.42 for a quantity of groceries greatly in excess of that value. McEnany next spoke with the store manager, who told him that the defendant had articles which were the property of the store and that the articles had been passed through the check-out counter without being paid for. The store manager showed McEnany the cash register tape and told him to look inside the defendant's car and 'see if you can buy that for $4.42.' McEnany looked into the car with the aid of a flashlight and observed four bags of groceries in the front seat, articles on the floor, and three bags in the back seat. McEnany testified that he added up the value of marked items showing from the tops of the bags, and that the total was more than $4.42. The cashier admitted to him that she had 'pushed it through' and identified the cash receipt tape as representing the amount of money paid by the defendant. McEnany testified that he then informed the defendant he was not under arrest, but asked him to remain at the scene.

Thirty to forty-five minutes after McEnany's arrival, a second police cruiser arrived. The defendant and the cashier were placed in the back of the second cruiser, which started toward the Wayland Police Station. Before they left the parking lot, the defendant requested that he be taken back to his car, and this was done. Three more police vehicles ultimately arrived on the scene and parked in close proximity to the defendant's car. It appears that four, or perhaps five, police vehicles surrounded the defendant's car, although McEnany testified that he felt that, with some maneuvering, the defendant could have left in his vehicle.

At some time after McEnany had been joined by additional police officers, the police were told by the cashier that the defendant had spoken to her a week earlier and had arranged for her to push items through the register at less than their full price. She stated she had done so on the night in question and had kept the cash register tape herself. At about 10:00 P.M., six of the police officers conferred, ⁴ and the defendant's car was entered and the groceries seized. No warrant to seize the groceries had been obtained and the defendant had not been placed under arrest. ⁵

1. We consider first the defendant's argument that the burden of establishing the reasonableness of this warrantless seizure was on the Commonwealth. On the previous appeal of this case, the Supreme Judicial Court placed upon the defendant the burden of proving that the police lacked probable cause to search his car. ⁶ Commonwealth v. Pignone, 361 Mass. 566, 568, 281 N.E.2d 572 (1972), citing Commonwealth v. Fancy, 34. Mass. 196, 202, 207 N.E.2d 276 (1965), and Commonwealth v. Colella, 360 Mass. 144, 151, 273 N.E.2d 874 (1971). That ruling was in conformity with the state of the law in the Commonwealth at that time. See Commonwealth v. Antobenedetto, --- Mass. ---, --- ^a, 315 N.E.2d 530 (1974), citing Commonwealth v. Roy, 349 Mass. 224, 229, 207 N.E.2d 284 (1965); Commonwealth v. LePage, 284 Mass. 403, 411, 226 N.E.2d 200 (1967); Commonwealth v. Hanger, 357 Mass. 464, 468, 258 N.E.2d 555 (1970), and Commonwealth v. Andrews, 358 Mass. 721, 722--723, 267 N.E.2d 233 (1971). The Supreme Judicial Court has since departed from that position, holding in Commonwealth v. Antobenedetto, supra, --- Mass. at --- ^b, 315 N.E.2d 530, that the Commonwealth has the burden of proving the legality of a warrantless search. See also Commonwealth v. Cavanaugh, --- Mass. ---, --- - --- ^c, 317 N.E.2d 480 (1974).

The defendant urges that we apply the rule of the Antobenedetto case retroactively and order a new hearing on the motion to suppress. ⁷ However, we need not reach the question whether that case has retroactive application (but contrast Commonwealth v. Silva, --- Mass. ---, --- n. 3 ^d, 318 N.E.2d 895 and COMMONWEALTH V. HARRIS, --- MASS.APP. --- , 329 N.E.2D 781 (1975)^E, with Commonwealth v. Forde, --- Mass. ---, --- ^f, 329 N.E.2d 717 (1975) (Quirico, J., dissenting)), because in any event the evidence introduced at the hearing on the second motion to suppress was such as to sustain any burden the Commonwealth may have had to establish the legality of the seizure of the groceries from the defendant's car. Compare Commonwealth v. Cavanaugh, supra.

2. The defendant argues that the police lacked probable cause in this case. The United States Supreme Court in Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 284, 69 L.Ed. 543 (1925), defined probable cause as a 'belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure.'

McEnany, the first police officer to arrive at the scene, received the following information shortly after his arrival. The cashier admitted that she had 'pushed' the items through and had only rung up $4.42. The cash manager told him that he had witnessed the entire 'transaction.' Finally, the store manager showed him the register tape, pointed out the defendant's car, and informed him that the car contained groceries belonging to the store. McEnany observed the seven bags of groceries in the car by looking through the window with the aid of a flashlight, ⁸ and a quick addition of the visible price tags indicated that the value of the goods was in excess of $4.42.

From that time McEnany had probable cause to believe that the groceries were stolen property. ⁹ Additional information bearing on probable cause was received after other policemen had arrived, and probable cause continued to exist at the time the goods were seized.

3. Finally, the defendant argues that even if probable cause existed to believe the goods were stolen, there were no exigent circumstances to justify their warrantless seizure. Probable cause is not in itself sufficient to insulate a warrantless seizure from Fourth Amendment challenge. Once probable cause is found, the Fourth Amendment inquiry must turn to the justification for dispensing with a warrant. Commonwealth v. Barnes,--- Mass.App. ---, --- ^g, 312 N.E.2d 575 (1974). As the United States Supreme Court stated in Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970), '(o)nly in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search.' See also Commonwealth v. Haefeli, 361 Mass. 271, 275, 279 N.E.2d 915 (1972); Commonwealth v. Rand, --- Mass. ---, --- ^h, 296 N.E.2d 200 (1973); Commonwealth v. DuPont, --- Mass.App. ---, --- ⁱ,317 N.E.2d 83 (1974). See generally, Note, Warrantless Searches and Seizures of Automobiles, 87 Harv.L.Rev. 835, 837--845 (1974...