Com. v. Tisserand

• Decision Date: 02 June 1977
• Citation: 5 Mass.App.Ct. 383,363 N.E.2d 530
• Court: Appeals Court of Massachusetts

Page 530

363 N.E.2d 530

5 Mass.App.Ct. 383

COMMONWEALTH v. Paul R. TISSERAND.

Appeals Court of Massachusetts, Middlesex.

Argued Jan. 17, 1977.

Decided June 2, 1977.

Dyanne Klein Polation, Brookline, for defendant.

Peter W. Agnes, Jr., Asst. Dist. Atty. (James W. Sahakian, Sp. Asst. Dist. Atty., with him), for the Commonwealth.

Before HALE, C.J., and KEVILLE and GRANT, JJ.

KEVILLE, Justice.

The defendant appeals under G.L. c. 278, §§ 33A--33G, from a conviction of armed robbery after a jury trial. The defendant assigns as error the denial of his motion to suppress physical evidence and oral statements made by him. The evidence presented at the hearing on the motion to suppress may be summarized as follows.

At approximately 6:00 P.M. on December 27, 1974, a Cambridge bookstore was robbed by a man armed with a silver colored gun, wearing a white glove on his right hand and an olive colored parka. The robber entered the bookstore, ordered the manager to empty the contents of the cash register into a bag, and forced the sole customer to surrender his money. The robber then escaped. Later the same evening a Boston police officer arrested the defendant on Dartmouth Street in Boston along with a female companion who had been driving a car in which the defendant was a passenger. The police had been observing the car while it was traveling through an area characterized as a 'high crime' and highdrug traffic area. It had stopped first in front of an establishment known to the police as a resort for drug sellers and users. The driver beckoned to two men standing in front of a lounge who approached the car but retreated when they saw the police cruiser. The car then went around the block and double parked in front of an apartment building. The driver got out and entered the building. She emerged several minutes later. The car proceeded to Dartmouth Street and double parked again.

Having followed the car, the police cruiser pulled up behind it and an officer approached the driver's side of the car. As he did, he noticed that the passenger in the front seat, the defendant, was 'slouched down' with his right hand between his legs about a foot from the car floor. He also recognized the driver as 'a girl being in and out of the courts down in Boston.' He asked her for her license and registration. She took the license from a brown shoulder bag and the registration from the glove compartment of the car which was not registered in her name. A check revealed that there were two outstanding warrants for the driver. She was arrested. When questioned about the brown shoulder bag, she denied owning it. The contents of the bag included identification cards, checks and checkbooks belonging to different persons. The officer then questioned the defendant and ran a warrant check on him. After receiving information that there was a warrant outstanding against him for a parole violation, the officer arrested him, patted him down, handcuffed him and placed him in the cruiser.

After the defendant and the woman driver had been arrested and placed in the police cruiser, the police called for a tow truck to remove the car from its double parked position on Dartmouth Street. Before the car was towed, the police conducted an inventory search pursuant to normal police procedure. Under the front passenger seat they found a loaded 'white metal' revolver, a yellow ski hat and a bag bearing the name of the robbed bookstore and containing money and torn checks. On the back seat, police found a snorkel jacket (later identified by one of the victims of the bookstore robbery as being similar to that worn by the robber) which had a white glove in one of the pockets. The defendant was taken to District 4 police station in Boston. The Boston police notified the Cambridge police that they had found these items and the Cambridge police sent two detectives to District 4 to question the defendant. Statements which he made to the detectives led to his indictment for the robbery of the Cambridge bookstore. The following day it was discovered that the information received by the arresting officer via radio at the scene of the arrest was erroneous, and that the warrant for the defendant's arrest had in fact been rescinded.

Prior to his trial in the Superior Court for the bookstore robbery, the defendant moved to suppress the physical evidence seized from the car in which he was a passenger, evidence taken from his person and any statements obtained from him. After a hearing, the judge denied the motion. The defendant excepted to the judge's refusal to suppress this evidence and has appealed from both of these rulings.

1. The denial of the motion to suppress the physical evidence seized from the automobile in which the defendant was a passenger was proper. The defendant contends that the search of the automobile was invalid having been conducted without a valid warrant and not being covered by any recognized exception to the warrant requirement. But the judge found that the police had acted reasonably in having the vehicle towed because it was double parked and was obstructing traffic in a congested area of the city at a busy time of day. He further found that the search was conducted pursuant to routine police procedure followed in Boston which required that police officers make an inventory search of a car before permitting it to be towed in order to secure any items of value that might be in the vehicle. The defendant claims that the search cannot be justified as a routine inventory search because the officer who searched the car admitted that among the reasons for the search of the vehicle was his suspicion that he would find evidence of a crime.

While it is true that the United States Supreme Court in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), indicated that an inventory search would not be upheld if there were a 'suggestion . . . that this standard procedure' was a pretext concealing an investigatory police motive (id. at 376, 96 S.Ct. 3092), it is also true that taking an inventory of the contents of a car about to be towed or impounded is a reasonable procedure; and the fact that the searching officer may have harbored a suspicion that evidence of criminal activity might be uncovered as a result of the search should not vitiate his obligation to conduct the inventory. We agree with the finding and ruling of the judge that the search was reasonable and that the items seized as a result of the search were properly admitted.

2. The denial of the motion to suppress the defendant's oral statements was proper. As we have already related in part, as a result of information received from the Boston police, two Cambridge detectives visited the defendant in his cell at a Boston police station. After reading the Miranda warnings to the defendant, one of the detectives showed him the items found under the seat of the car (the loaded revolver, the bookstore bag and a yellow ski hat) and asked him if he wanted to talk about the robbery. The defendant said that he understood his rights and that he had committed the robbery alone. Although the detective noticed that the defendant appeared to be under the influence of a drug, he found him to be coherent in both speech and general behavior. In denying the motion to suppress, the court found that the statements made to the Cambridge police were freely and voluntarily made and that the defendant knowingly and intentionally waived his right to remain silent; the court ruled that the statements were therefore admissible.

The defendant argues: (a) that the statements were involuntary in that he had not...