Com. v. Valentine

• Citation: 18 Mass.App.Ct. 965,470 N.E.2d 384
• Parties: COMMONWEALTH v. David VALENTINE.
• Decision Date: 26 October 1984
• Court: Appeals Court of Massachusetts

Page 384

470 N.E.2d 384

18 Mass.App.Ct. 965

COMMONWEALTH v. David VALENTINE.

Appeals Court of Massachusetts,

Norfolk.

Argued May 25, 1983.

Decided Oct. 26, 1984.

James A. Shannon, Quincy, for defendant.

Peter W. Agnes, Jr., Asst. Dist. Atty., for the Com.

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

RESCRIPT.

The defendant, Valentine, appeals from a conviction of possession of heroin with intent to distribute. G.L. c. 94C, § 32(a ), as appearing in st.1980, c. 436, § 4. The heroin was discovered by a police officer in a bulky packet in Valentine's rear pants pocket. The circumstances of the warrantless search were as follows.

While on patrol, the police officer saw an automobile with Rhode Island plates, a "popped-out" trunk lock, and no rear lights. He followed the vehicle, stopped it, and sought a license and registration from Valentine, the driver. Valentine produced a Hawaii license but no registration. At this point, the officer observed traces of smoke in the automobile and smelled what he thought was marihuana. He then directed Valentine to get out of the vehicle, which had four other occupants. As Valentine got out of the vehicle, the officer smelled the odor of marihuana on Valentine's clothing. In addition, the officer observed on the car floor small seeds, some brown vegetable material, and a small envelope, all of which he thought was consistent with marihuana traces. Following a brief conversation, the officer then frisked Valentine, feeling the packet, which he described as "thick and bulky", in Valentine's rear pants pocket. He asked Valentine what it was, and Valentine said, "Nothing." The officer then took the packet and opened it, finding inside ten envelopes made of a material like wax paper, each containing a fluffy white powder which he thought at the time to be cocaine. (Laboratory tests showed it to be 1.1 percent heroin.) He then arrested Valentine for possession of cocaine.

At the voir dire on the motion to suppress, the officer testified that his initial pat down was for the dual purposes of discovering weapons and marihuana. He acknowledged that, when he removed the packet and opened it, he did not think that it might contain a weapon. The judge ascribed the latter testimony to bravado and ruled that, viewed objectively, the officer would have been justified in thinking that the packet might contain a weapon and that the seizure and opening of the packet were therefore justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Because we find that the search was justified on other grounds, we do not address the question whether the search could be justified under Terry.

The "popped-out" trunk lock (indicative of stolen cars) and the absence of rear lights provided the officer with sufficient justification to stop the vehicle, request a license and registration from Valentine, and order him out of the automobile. See Commonwealth v. Cavanaugh, 366 Mass. 277, 281, 317 N.E.2d 480 (1974); Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977) (per curiam); Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59...