Com. v. Pignone

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before TAURO; SPIEGEL
• Citation: Com. v. Pignone, 281 N.E.2d 572, 361 Mass. 566 (Mass. 1972)
• Decision Date: 07 April 1972
• Parties: COMMONWEALTH v. Stanley L. PIGNONE.

Page 572

281 N.E.2d 572

361 Mass. 566

COMMONWEALTH v. Stanley L. PIGNONE.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 6, 1972.

Decided April 7, 1972.

Terence M. Troyer, Asst. Dist. Atty., for the Commonwealth.

Donald L. Conn, Malden, for defendant.

Before TAURO, C.J., and SPIEGEL, REARDON, BRAUCHER and HENNESSEY, JJ.

SPIEGEL, Justice.

This is an interlocutory appeal by the Commonwealth under G.L. c. 278, § 28E (inserted by St.1967, c. 898, § 1), from the allowance by a Superior Court judge of a motion to suppress evidence consisting of several bags of groceries allegedly stolen. The appeal was reserved and reported by a single justice of this court for determination by the full bench.

At the hearing on the motion to suppress, counsel for the defendant orally presented a statement of agreed facts, which may be summarized as follows. The defendant went to a supermarket in Wayland, took articles from the shelves, and went to a check-out counter. It appears that, by prearrangement with the woman at the checkout counter, the defendant did not pay for some of the articles. They were then placed in bags, and the bags were placed in the defendant's motor vehicle. The defendant got into his vehicle. He then noticed 'certain activity around the check-out counter from which he just exited and particular conversation involving the young lady at the check-out counter, a man who appeared to be in authority . . ., and bag boys who were in the vicinity of the particular check-out counter.' The defendant left his vehicle, called the manager from a pay telephone outside the store, had a conversation, and later met with him in the rear of the store. Following another conversation with the manager and the woman at the check-out counter, the defendant returned to his vehicle and attempted to drive from the supermarket lot. Two police cruisers blocked his exit. The defendant sat in his vehicle for some period of time. ¹ The police then entered the defendant's car and removed seven or eight bags of groceries. The police neither obtained a warrant to search the defendant's vehicle, nor placed him under arrest.

It seems apparent that the judge proceeded on the theory that a warrantless search of an automobile, in the absence of an arrest, was per se unconstitutional. We cannot agree. The proper inquiry should have been whether the police had probable cause to search the automobile. Carroll v. United States, 267 U.S. 132, 153, 155--156, 158--159, 45 S.Ct. 280, 69 L.Ed. 543. Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419. Coolidge v. New Hampshire, 403 U.S. 443, 460, 91 S.Ct. 2022, 29 L.Ed.2d 564. We have recently given extensive treatment to these cases in COMMONWEALTH V. HAEFELI, MASS., 279 N.E.2D 915,^A and see no need to repeat our discussion.

No evidence was presented at the hearing on the question whether the police had probable cause to search the defendant's...