Com. v. Silva

• Decision Date: 14 November 1974
• Citation: 366 Mass. 402,318 N.E.2d 895
• Parties: COMMONWEALTH v. Edward J. SILVA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 895

318 N.E.2d 895

366 Mass. 402

COMMONWEALTH v. Edward J. SILVA.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Sept. 16, 1974.

Decided Nov. 14, 1974.

Robert J. Ciolek, Salem, for defendant.

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

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

HENNESSEY, Justice.

The defendant was found guilty by a jury on an indictment for unlawful possession of a narcotic drug, specifically heroin, with intent to sell. He was sentenced to a term of imprisonment at the Massachusetts Correctional Institution at Walpole. The case is before us on a substitute bill of exceptions. The defendant asserts as error (1) the denial of his motion to suppress evidence which he asserts was seized as a result of an unconstitutional search; (2) the exclusion of certain questions addressed to the government's expert witness on cross-examination; (3) a statement in the trial judge's instruction to the jury that the defendant had not shown anything to demonstrate that he was an addict; and (4) the denial of his motion for a directed verdict.

The defendant's motion to suppress evidence was heard and denied by a judge of the Superior Court, and another judge of that court later presided over the jury trial of the indictment. We summarize the facts, as taken from the bill of exceptions and the findings of the judge who heard the motion to suppress, which findings were in turn incorporated in the bill of exceptions. At 11:30 P.M. on the night of May 24, 1970, two State police officers, Troopers Johnson and Pelletier, came on what was apparently a disabled vehicle in the breakdown lane on Route 24 in Randolph. The defendant got out of the passenger side of the car and approached the police cruiser; the female driver remained in the car. The defendant and Trooper Johnson recognized each other. The officer had heard from police sources that the defendant had been arrested about a month earlier for using a motor vehicle without authority, and that he was at that time in the company of a person who had a gun. The defendant asked the officer to take him to obtain gasoline. After Trooper Johnson agreed to do so, the defendant returned to the passenger side of his car, leaned over and, as described by Trooper Johnson, bent down under the front seat as if to place something under it. The defendant then returned to the cruiser. Trooper Johnson 'pat frisked' the defendant, found no weapon on him, and placed him in the cruiser. The officer checked with the Registry of Motor Vehicles by radio and ascertained that the vehicle was not stolen and was registered to the defendant. At this point, a second cruiser driven by Trooper Lane arrived. Before leaving to take the defendant for gasoline, Trooper Johnson instructed Trooper Lane to search under the passenger side of the stopped car because Johnson thought the defendant may have hidden a firearm there. The driver apparently remained in the car throughout. In searching beneath the front seat, Trooper Lane found a small black packet containing three bundles, each of which held twenty-five glassine folders containing a substance subsequently analyzed as heroin. When Trooper Johnson returned with the defendant, Trooper Lane showed Johnson what he had found. The policeman believed that they had seized drugs but they gave the defendant the benefit of the doubt and released him. He was arrested on a later date, after analysis of the drugs.

The defendant filed a motion to suppress the evidence consisting of the seventy-five folders of heroin on the ground that the search of the car, more particularly the search beneath the front seat, was an unreasonable search contravening the Fourth Amendment. The motion was denied and the defendant excepted.

We hold that the scope of the search was unreasonable under the Fourth Amendment, and that the motions to suppress the evidence and to direct a verdict for the defendant should have been allowed. Therefore, we need not and do not rest our decision on the issue whether the initiation of the search, even if characterized as a limited 'stop and frisk,' was constitutionally permissible.

The Commonwealth appearently concedes, and correctly so we believe, that the instant search was not made on the basis of probable cause. Accordingly, the line of cases applying the exigent circumstances and probable cause to search analysis of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), is inapplicable to the search of the automobile at issue here. See, e.g., Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931); Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Cf. COMMONWEALTH V. HAEFELI, --- MASS. ---, 279 N.E.2D 915 (1972)^A; Note, 87 Harv.L.Rev. 835 (1974). Nor was the instant search made incident to a valid arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Rather, the thrust of the Commonwealth's argument is that this search was justified under the principles first set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We proceed therefore to examine the facts of this case in light of those principles.

In decisions both before and after the Terry case, we have consistently sustained the right of a police officer to make a threshold inquiry where suspicious conduct gives the officer reason to suspect that a person has committed, is committing, or is about to commit a crime. Further, we have upheld the frisk incident thereto where the police officer has reason to believe that the individual is armed and dangerous. Commonwealth v. Lehan, 347 Mass. 197, 196 N.E.2d 840 (1964). Commonwealth v. Roy, 349 Mass. 224, 207 N.E.2d 284 (1965). Commonwealth v. Ballou, 350 Mass. 751, 217 N.E.2d 187 (1966), cert. den. 385 U.S. 1031, 87 S.Ct. 760, 17 L.Ed.2d 679 (1967). Commonwealth v. Matthews, 355 Mass. 378, 244 N.E.2d 908 (1969). Commonwealth v. Anderson, ^b --- Mass. ---, --- N.E.2d --- (1974). We have, moreover, applied the same 'stop and frisk' analysis in upholding the stopping of an automobile in order to conduct such an inquiry. See COMMONWEALTH V. RIGGINS, --- MASS. ---, 315 N.E.2D 525 (1974)^C. See also Commonwealth v. Dottin, 353 Mass. 439, 233 N.E.2d 304 (1968); Commonwealth v. Lanoue, 356 Mass. 337, 251 N.E.2d 894 (1969); COMMONWEALTH V. WILSON, --- MASS. ---, 276 N.E.2D 283 (1971)^D.

In 'stop and frisk' cases our inquiry is two-fold: first, whether the initiation of the investigation by the police was permissible in the circumstances, and, second, whether the scope of the search was justified by the circumstances. In both aspects the inquiry relates to whether the police conduct was reasonable under the Fourth Amendment, and there is 'no ready test for determining reasonableness other than by balancing the need to search (or seize) against the invasion which the search (or seizure) entails.' Camara v. Municipal Court of San Francisco, 387 U.S. 523, 536--537, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967). Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

We turn now to the first of these dual inquiries: whether the search for weapons here was constitutionally initiated. ¹ In following the constitutional standards of Terry v. Ohio, supra, we have required that the police officer's action be based on specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer's experience. A mere 'hunch' is not enough. Simple good faith on the part of the officer is not enough. The test is an objective one. While the officer need not be absolutely certain that the individual is armed, the basis for his acts must lie in a reasonable belief that his safety or that of others is at stake. Terry v. Ohio, supra, 392 U.S., at 27, 88 S.Ct. 1868, 20 L.Ed.2d 889. Essentially, the question is whether a reasonably prudent man in the policeman's position would be warranted in the belief that the safety of the police or that of other persons was in danger.

In light of these principles, we examine the search of the vehicle in this case on the issue of reasonableness in its inception. When the police arrived at the scene there was no apparent sign that a crime had been committed, was in progress, or was about to be committed. So far as appears, the scene was consistent with the defendant's contention that his vehicle had run out of gasoline. The police had knowledge that the defendant had been charged previously with operating a motor vehicle without authority, but the search of the defendant's vehicle took place after the police had learned that he was the owner of that vehicle. On of the policemen also believed that the defendant had at that time been in the company of another person who was illegally carrying a gun. The police had no knowledge of the reputation of the woman sitting in the defendant's vehicle. The incident occurred at night in an isolated area. Most important of all, the defendant made a gesture as if to conceal something in his automobile and one of the officers thought it was a gun. To all of these facts the officers were entitled to apply their police experience. They were also entitled to consider the possible reactions of the defendant who was involved in an unexpected and possibly, to him unwelcome dialogue with the police.

We have serious doubt whether the circumstances here were so suspicious as to warrant any search at all by the police. Even the limited search for weapons, which is ordinarily characterized by a 'pat...