Com. v. Piso
| Decision Date | 22 July 1977 |
| Citation | 5 Mass.App.Ct. 537,364 N.E.2d 1102 |
| Court | Appeals Court of Massachusetts |
Joan C. Schmidt, Boston, for defendant.
Thomas J. Mundy, Jr., Asst. Dist. Atty., for the Com.
Before HALE, C. J., and GRANT and BROWN, JJ.
The defendant Peter R. Piso 1 was tried and convicted on four indictments charging him with larceny, possession of burglarious implements, possession of a firearm without an identification card, and receiving stolen goods. He appeals pursuant to G.L. c. 278, §§ 33A-33G, assigning as error the denial of his motion to suppress evidence obtained during a search of the car which he was in when arrested and the denial of his motion to suppress evidence obtained in a search of his apartment pursuant to a warrant.
The facts as found by the motion judge following the pretrial hearing on the motions to suppress are as follows. Shortly after 11:00 P.M. on July 8, 1975, Detectives Walsh and Lydon and Sergeant Ryan of the Boston police department, riding in an unmarked police car, observed a 1971 Mercury traveling along New Congress Street toward North Station. Walsh recognized the car as one frequently operated by the defendant. The officers suspected that Piso was involved in an ongoing scheme involving larceny of large amounts of money from parking meters. The officers followed the Piso car for about ten to fifteen minutes before it stopped along the curb on Blossom Street near Cardinal O'Connell Way. Leaving their car parked on an adjacent street, the officers took up a position behind some shrubbery bordering Blossom Street directly across from the place where the Piso car had been parked.
Walsh and the other officers observed Piso and Bamonte alight from the car and go over to the first of five parking meters situated on the west side of Blossom Street and take up positions on either side of the meter, Piso on the gutter side of the meter and Bamonte on the sidewalk side. Walsh then observed Piso and Bamonte open the meter, remove the coin box and place the coins in a purple bag. The procedure took about thirty seconds to complete, at which point the two men were observed to walk to the second of the five meters on the west side of Blossom Street and remove coins therefrom. As the officers watched from their vantage point behind the shrubbery, Piso and Bamonte performed the same operation on the remaining three meters on the west side of Blossom Street and then returned to the car.
After approximately twenty to thirty seconds, the defendant and Bamonte left their car for the second time, crossed the street, and opened the four meters located on the east side of Blossom Street. They then returned to the car. Upon seeing them enter their car, the officers immediately got into their own car, and Walsh drove it across Blossom Street and pulled up directly behind the Piso car, blocking it in behind a car which was parked in front of the Piso car. Lydon and Ryan immediately took the defendant and Bamonte out of their car and searched them. Walsh searched the car. He found a key made from copper tubing and a purple bag containing 238 coins. The bag resembled that in which Walsh had seen the defendant and Bamonte place coins taken from the meters and which he had seen Piso carrying when the two men had returned to the Piso car. Walsh also found $4.60 in loose change, a brass object five or six inches in length, a flashlight, an envelope containing two copper keys, and two travel bags, one of which contained three empty bags similar to the one which contained coins.
In addition to his testimony concerning the events surrounding the arrest of the defendant on July 8, 1975, upon which the judge made the findings summarized above, Walsh described to the court the course of a three-month investigation concerning larceny of parking meter money. By means of his own observations and investigation, Walsh had learned that Bamonte was periodically exchanging very large numbers of coins for paper currency at the First National Bank of Boston and that he had been observed on one occasion handing a sum of currency to Piso shortly after emerging from the bank. With the cooperation of the commissioner of the traffic and parking authority, Walsh and his colleagues had planted marked quarters in several designated parking meters at regular time intervals beginning in late May or early June. Thereafter, a number of the marked coins were recovered on various dates from among coins exchanged by Bamonte at the bank.
After the arrest on the night of July 8, Detective Walsh applied for a warrant to search the defendant's apartment. The information contained in the lengthy affidavit mixed direct observations with an inference drawn by Walsh (and approved by the magistrate) that evidence of parking meter larcenies could be found at the defendant's residence. The affidavit was dictated by Walsh and typed by a fellow officer at 3:00 A.M., after both officers had been working all night.
The warrant was executed by the police early on the morning of July 9, 1975. During the course of their search, the police found eighty-four assorted parking meter keys, sixty-eight meter locks and cylinders, nine parking meter money boxes, a parking meter vault door, a brown wooden box containing a set of locksmith's tools, numerous rolls of coins of various denominations, coin wrappers, other items associated with the theft of coins from parking meters, and also revolvers with ammunition.
The Search of the Automobile.
The defendant claims that the search of the car in which he was arrested was illegal because the arrest was not based on probable cause. "Probable cause exists where 'the facts and circumstances within . . . (the arresting officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Commonwealth v. Stewart, 358 Mass. 747, 749, 267 N.E.2d 213, 215 (1971), quoting from Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). As the motion judge stated in his findings, the combination of the officers' previously obtained knowledge and their direct personal observations of the defendant and Bamonte removing money from the coin boxes of nine parking meters operated to provide the officers with an undeniably sufficient amount of information to constitute probable cause to make the arrest. See Commonwealth v. Mitchell, 353 Mass. 426, 233 N.E.2d 205 (1967).
The defendant also contends that if the police had probable cause to arrest him, they improperly delayed arresting him until he was back in his car in order to circumvent the warrant requirement for the search of the car. There was no improper delay. The United States Supreme Court declared in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), that there is no constitutional right to be arrested at a certain time...
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...Mass. ---, --- a, 343 N.E.2d 865, 866 (1976); Commonwealth v. Murray, supra. See also Commonwealth v. Piso, --- Mass.App. ---, --- b, 364 N.E.2d 1102 (1977); Commonwealth v. Sheppard, --- Mass.App. --- c, 358 N.E.2d 480 (1977); Commonwealth v. Kinnitt, 2 Mass.App. 810, 308 N.E.2d 798 (1974)......
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Com. v. Norris
...error was not made in bad faith, did not affect the integrity of the affidavit as a whole, and was inconsequential. See Commonwealth v. Piso, 5 Mass.App. ---, --- - ---, D 364 N.E.2d 1102 Nor do we have any difficulty in determining that the affidavit described the property for which the wa......
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Com. v. Cohen
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