Com. v. Skea

Decision Date26 October 1984
Citation470 N.E.2d 385,18 Mass.App.Ct. 685
PartiesCOMMONWEALTH v. Stephen B. SKEA.
CourtAppeals Court of Massachusetts

James J. Pieri, Northampton, for defendant.

John C. Bryson, Jr., Asst. Dist. Atty., for the Commonwealth.

Before GREANEY, C.J., and ARMSTRONG and SMITH, JJ.

ARMSTRONG, Justice.

The defendant appeals from a conviction of receiving stolen goods. The stolen goods, diamonds, were found when a police officer searched the defendant's person; and the validity of that search is the sole issue in this appeal.

The search took place in Holyoke on a November evening in 1980. Two Holyoke police officers on routine patrol pulled into a small shopping center and parked next to a red Camaro automobile in front of a liquor store. From prior official contacts the police recognized one Thurston sitting in the front passenger seat. No one else was in the automobile. The police knew Thurston was not of drinking age. Through the window one of the officers saw a handrolled cigarette with twisted ends on the console between the front seats. The officer had prior experience and training in narcotics investigation. He recognized the cigarette as likely to be a "joint", or marihuana cigarette. He asked Thurston what was in the cigarette. Thurston denied ownership of it. The officer reached inside, took the cigarette, smelled it, and confirmed that it contained marihuana. Next to the cigarette, also on the console, was a bean bag ashtray with quarter inch long stubs, which the officer recognized to be "roaches", or smoked marihuana cigarettes. 1 Thurston exited from the automobile and was searched for further marihuana or other drugs. None was found.

At that point the driver, the defendant Skea, returned to the vehicle. He also was well known to the officers, having been arrested many times in the past. The officers asked him if the joint was his. Skea replied, "Give me a break." The officers searched Skea's pockets looking for further marihuana or other controlled substances. In a zippered breast pocket of Skea's jacket was a cellophane envelope. It contained what appeared to be four diamonds. 2 Skea asserted that he had purchased them two weeks before for fifty dollars. He was asked if he had a bill of sale, to which he replied no. He was asked whom he bought the diamonds from, and he answered that he did not know his name.

The police retained the packet of diamonds for further investigation with Skea's consent. 3 The officers also decided not to arrest Skea and Thurston for possession of marihuana, and instead they destroyed the joint and the roaches by trampling them on the ground. This was in accordance with their informal policy not to arrest for possession of small amounts of marihuana unless a search revealed further or more serious drugs. Further investigation revealed that the diamonds were in fact stolen, 4 and Skea was arrested several weeks later. 5

The defendant filed a pretrial motion to suppress evidence of the diamonds, contending that the search was without a warrant, that it did not fall within any recognized exception to the warrant requirement, and that it was not justified by stop and frisk principles enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The judge denied the motion, ruling that the police had probable cause to arrest Skea for possession of marihuana (G.L. c. 94C, §§ 34, 41[c] ), that his detention for purposes of interrogation and search constituted an arrest by objective standards (the officers had testified that they did not put Skea under arrest, but they also testified that he was not "free to leave" until they had searched him), and that the search was therefore valid as a search incident to a lawful arrest. This analysis is faulty, the defendant contends, for two reasons: first, that there was in fact no arrest at the time of the search; and second, that even if there was, it was not based on probable cause.

The second point is without merit. The policemen's observations through the windows of the automobile, in a public parking lot, by themselves involved no search. Commonwealth v. Cavanaugh, 366 Mass. 277, 281, 317 N.E.2d 480 (1974). Commonwealth v. Ortiz, 376 Mass. 349, 353, 380 N.E.2d 669 (1978). An officer seeing contraband items, or what reasonably may be thought contraband items, through the window may legitimately seize them. Texas v. Brown, 460 U.S. 730, 741-744, 103 S.Ct. 1535, 1542-1544, 75 L.Ed.2d 502 (1983). 6 Commonwealth v. Irwin, 391 Mass. 765, 770-771, 463 N.E.2d 1178 (1984). Commonwealth v. Cosme, 15 Mass.App. 448, 453, 446 N.E.2d 123 (1983). It has been generally held that an officer with experience or training in narcotics, seeing in plain view a handrolled cigarette with pinched ends which his experience teaches him is likely to be marihuana, has probable cause (although he does not then smell the characteristic burning odor) to seize the cigarette, examine it, and investigate for the presence of other controlled substances. See, e.g., People v. Anderson, 266 Cal.App.2d 125, 132-133, 71 Cal.Rptr. 827 (1968); People v. Poole, 48 Cal.App.3d 881, 885-886, 122 Cal.Rptr. 87 (1975); Keating v. State, 141 Ga.App. 377, 378-379, 233 S.E.2d 456 (1977); State v. Knowles, 438 So.2d 648, 651-652 (La.App.1983); In re State in Interest of A.C., 115 N.J.Super. 77, 278 A.2d 225, 227 (N.J.App.1971); State v. Tillett, 50 N.C.App. 520, 524-525, 274 S.E.2d 361 (1981). 7 See also State v. Pearson, 15 Or.App. 1, 514 P.2d 884, 888 (1973), and State v. Mahon, 17 Or.App. 177, 521 P.2d 37, 38 (1974). "The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity (emphasis original)." Texas v. Brown, 460 U.S. at 741-742, 103 S.Ct. at 1542 quoting from Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). Sullivan v. District Court of Hampshire, 384 Mass. 736, 742-743, 429 N.E.2d 335 (1981). Probable cause "is a flexible, common-sense standard, [which] merely requires that the facts available to the officer would 'warrant a man of reasonable caution in the belief', Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), that certain items may be contraband ...; it does not demand any showing that such a belief be correct or more likely true than false." Texas v. Brown, supra 460 U.S. at 742, 103 S.Ct. at 1543. Sullivan v. District Court of Hampshire, 384 Mass. at 743-744, 429 N.E.2d 335.

Under those governing principles, the panel are in agreement that the seizure and examination of the marihuana cigarette lying on the console of the automobile was constitutionally valid. The examination confirmed that it was marihuana. Thurston's denial of ownership, the fact that Skea was the only other person to whom the cigarette could plausibly belong, and his (Skea's) statement, "Give me a break," which could properly be taken as an admission of ownership, all combined to give the police probable cause both to arrest Skea (see G.L. c. 94C, § 41) and to search him for additional marihuana or other controlled substances. 8

The defendant is correct, however, in arguing that the search-incident-to-arrest rationale does not fit with the fact that the defendant was released after the search and was not taken into police custody until several weeks thereafter. Detentions for frisking, questioning, routine traffic stops, and the like, where the detainee is released after the police business is transacted, are treated as " 'seizures' of the person", subject to Fourth Amendment scrutiny (see Terry v. Ohio, 392 U.S. at 16-17, 88 S.Ct. at 1877-1878; Cupp v. Murphy, 412 U.S. 291, 294, 93 S.Ct. 2000, 2003, 36 L.Ed.2d 900 [1973] ), but are differentiated from "formal", or "custodial", arrests, the custodial aspect of which serves as the theoretical justification for the incident search. United States v. Robinson, 414 U.S. 218, 234-235, 94 S.Ct. 467, 476-477, 38 L.Ed.2d 427 (1973). 9 The minimal detention necessary to effect a search of a person is not itself an arrest for purposes of search-incident-to-arrest analysis. If it were, there could be no involuntary search of a person without an arrest, and the concept of an arrest, which has hitherto been held to depend on certain objective criteria, 10 would become functionally indistinguishable from limited detentions of the type sanctioned in the Terry v. Ohio line of cases. See Commonwealth v. Cavanaugh, 366 Mass. 277, 280-281, 317 N.E.2d 480 (1974). The case of Commonwealth v. Avery, 365 Mass. 59, 65, 309 N.E.2d 497 (1974), on which the Commonwealth relies, turned on quite different principles, the search in that case being contemporaneous with a formal, custodial arrest. In the same vein it was held in Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980), that "[w]here the formal arrest followed quickly on the heels of the challenged search of [the defendant's] person, [it is not] particularly important that the search preceded the arrest rather than vice versa." See discussion by Harlan, J., concurring in Sibron v. New York, 392 U.S. 40, 76-77, 88 S.Ct. 1889, 1908-1909, 20 L.Ed.2d 917 (1968). By contrast, a search cannot be justified as one incident to an arrest occurring at a substantially different time and place. United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538 (1977).

The defendant argues that this should be the end of the matter. The search, he argues, being warrantless, was presumptively unconstitutional, Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978), and it does not appear to fall within any of the other common exceptions to the warrant requirement: automobile search, plain view, inventory search, etc. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d...

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