Com. v. Rand

• Citation: 363 Mass. 554,296 N.E.2d 200
• Parties: COMMONWEALTH v. George T. RAND, Sr.
• Decision Date: 08 May 1973
• Court: United States State Supreme Judicial Court of Massachusetts

Page 200

296 N.E.2d 200

363 Mass. 554

COMMONWEALTH v. George T. RAND, Sr.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Jan. 2, 1973.

Decided May 8, 1973.

Klari Neuwelt, Cambridge (Robert V. Greco, Boston, with her) for defendant.

John P. Connor, Jr., Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and QUIRICO, BRAUCHER and WILKINS, JJ.

TAURO, Chief Justice.

The defendant George T. Rand, Sr., appeals under G.L. c. 278, §§ 33A--33G, from convictions on indictments for manslaughter, and for leaving the scene of an accident after causing personal injuries. The defendant assigns as error: (1) the failure to suppress evidence which the police gathered as a result of an alleged illegal search and seizure of an automobile which the defendant was operating at the time of his arrest for an unrelated offence; (2) the judge's denial of his motions for directed verdicts; and (3) the judge's denial of his motions for a new trial.

From the pre-trial hearing on the motion to suppress, the following evidence pertinent to the first assignment of error appears: On January 29, 1970, at 7:40 P.M. two Weymouth police officers investigated a hit-and-run accident on Washington Street in Weymouth. They found the victim, Miss Janice McDermott, 'lying in the road . . .. There were no apparent signs of life.' The victim's girl friend told Officer DiLorenzo and Registry Inspector MacDonald that she and the victim had been walking along the side of the street with 'the McDermott girl being further into the road, approximately two feet' from the road's edge. The girl friend recalled 'hearing a crashing sound and seeing . . . (Janice) being carried down the road on the front portion of the vehicle . . . a late model Chevrolet or Pontiac, possibly white.'

At 10:50 P.M. that same evening, Officers DiLorenzo and MacDonald investigated a two car collision in which the defendant was involved. The defendant was arrested at that time on charges, stemming from this two car collision, of operating so as to endanger, operating under the influence of intoxicating liquor, and drunkenness. During his investigation of this second accident, Registry Inspector MacDonald observed the vehicle operated by the defendant while it was suspended on a tow truck under a street light. The inspector made the following observations: (1) the two car collision took place only 600 feet away from the scene of the prior hit-and-run accident on the same street; (2) in addition to the damage caused by the second accident to the side and rear of the defendant's car, there was damage to the car's front which was consistent in all respects with the hit-and-run accident; (3) there was a string-like material dangling from the headlight and a glass-like object in the automobile's vent cowling; and (4) the car's appearance matched the eyewitness's description of the hit-and-run vehicle.

In light of these observations, the police towed the vehicle to the police station to examine the car more closely in reference to the hit-and-run accident. Relying entirely on an exterior examination of the vehicle, the police found after an hour's investigation an earring, retaining clip, clothing fibers, and fiber impressions (paint samples were also taken), all of which tended to establish the vehicle as the hit-and-run automobile. After this examination was completed, the defendant was charged with manslaughter, leaving the scene after causing personal injuries and operating to endanger. The defendant contends there was error in the denial of his pre-trial motion to suppress all of this evidence on the ground that it was the product of an illegal search and seizure. We disagree.

1. The police had no warrant to search the vehicle and the Commonwealth conceded in argument before this court that the examination of the vehicle at the police station was not incidental to the defendant's initial arrest for charges stemming from an incident, namely the second accident, unrelated to the search. 'Thus narrowed, our consideration must focus on whether there were exigent circumstances which permitted . . . (the police) to search the automobile without a warrant.' COMMONWEALTH V. HAEFELI, MASS., 279 N.E.2D 915, 918^A.

The Commonwealth contends that there was no search of the vehicle at the police station because the police restricted their observations to what was in plain sight. However, the United States Supreme Court has indicated repeatedly that the fact that evidence is in plain view is not by itself legally significant. 'It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the 'plain view' doctrine has been to identify the circumstances in which plain view has legal significance rather than by being simply the normal concomitant of any search, legal or illegal. . . . What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently (emphasis supplied) across a piece of evidence incriminating the accused.' Coolidge v. New Hampshire, 403 U.S. 443, 465--466, 91 S.Ct. 2022, 2037--2038, 29 L.Ed.2d 564.

The facts of the instant case indicate that the police made some initial observations of the defendant's vehicle at the scene of the two car collision which aroused their suspicions about the vehicle's possible involvement in the hit and run. If the police had seized any evidence at that time which was in plain sight, the 'plain view' doctrine would justify the seizure because the police had a prior justification for their intrusion, namely the two car collision and the defendant's arrest in the course of which they had inadvertently come across a piece of incriminating evidence.

However, in the instant case, some of the incriminating evidence ¹ (e.g., earring, retaining clip, fiber impressions) did not come into 'plain view' until the police had made an hour long examination of the vehicle at the police station. Their suspicions aroused, the police had taken the vehicle to the station to look for evidence connecting it to the prior hit-and-run accident. Thus, their discovery of such evidence at the station was anything but inadvertent. ² Therefore, we conclude that the 'plain view' rule does not justify the police's deliberate search at the police station for evidence connecting the automobile to the hit and run.

However, the Supreme Court's decision in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, provides authority for the police's warrantless search of the automobile in the instant case. The court noted that '(o)nly in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search. Carroll, supra (Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543), holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible.' P. 51, 90 S.Ct. p. 1981. However, in the Chambers case, the police made the search at the station house instead of on the highway where the car was stopped. The court held that if probable cause to search and exigent circumstances initially existed when the car was stopped, there was no valid constitutional reason which prevented the police from conducting the search at the station house instead of on the public highway. 'For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant.' P. 52, 90 S.Ct. p. 1981.

The Supreme Court's subsequent decision in the Coolidge case, supra, indicated 'that the Justices of the United States Supreme Court were in seemingly irreconcilable disarray as to what the law was or ought to be with reference to the warrantless search of an automobile.' COMMONWEALTH V. HAEFELI, SUPRA, 279 N.E.2D AT 919.^B However, all of the Supreme Court Justices agreed that the Chambers case supported at the very least the proposition that 'given a justified initial intrusion, there is little difference between a search on the open highway and a later search at the station.' Coolidge v. New Hampshire, supra, 403 U.S. at 463, 91 S.Ct. at 2036, fn. 20. Moreover, the majority opinion in the Coolidge case conceded that in determining whether the initial intrusion by the police was justified by exigent circumstances as well as probable cause to search, the proper test was to examine the exigent circumstances at the time the car was stopped and not at the time the car was actually searched at the police station. 'It is true that the actual search of the automobile in Chambers was made at the police station many hours after the car had been stopped on the highway, when the car was no longer movable, any 'exigent circumstances' had passed, and, for all the record shows, there was a magistrate easily available.' Id. at 463, 91 S.Ct. at 2036, fn. 20. Thus, the proper test is whether, at the time a car was stopped, there was probable cause to search the vehicle and there were exigent circumstances such as 'the fleeting opportunity to search' justifying an immediate search at that time. 'Chambers . . . held only that, where the police may stop and search an automobile under Carroll, they may also seize it and search it later at the police station.' Id. at 463, 91 S.Ct. at 2036.

Unlike the situation in the Coolidge case where the police 'had known for some time of the probable role of the Pontiac car in the...