Com. v. White

• Decision Date: 08 June 1977
• Citation: 5 Mass.App.Ct. 398,363 N.E.2d 1116
• Court: Appeals Court of Massachusetts

Page 1116

363 N.E.2d 1116

5 Mass.App.Ct. 398

COMMONWEALTH v. Charles E. WHITE.

Appeals Court of Massachusetts, Middlesex.

Argued May 9, 1977.

Decided June 8, 1977.

Eric A. Nissen, Boston (Joseph Sax, Boston, with him), for defendant.

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

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

HALE, Chief Justice.

After a jury trial subject to G.L. c. 278, §§ 33A--33G, the defendant was convicted on separate complaints charging the receiving of stolen property (a firearm) and unlawfully carrying a firearm in a motor vehicle and was sentenced. ¹ After a brief summary of the pertinent evidence we shall discuss those assignments of error which have been argued.

On July 1, 1975, at approximately 2:40 A.M. the defendant, accompanied by three other persons, was proceeding in a motor vehicle along Arsenal Street in Watertown. The vehicle was owned by the defendant and was being driven by his brother, Alvin. At that time Officers Seminara and Murphy of the Watertown police department were on patrol on Arsenal Street in a police cruiser. The defendant's vehicle passed the cruiser, which was heading in the same direction. After the defendant's vehicle had passed, the officers observed that the vehicle's rear number plate was not lighted. Thereupon the officers signalled for the defendant's vehicle to stop, which it did.

Both officers got out of the cruiser. Seminara walked up to the driver's door while Murphy stood at the right rear of the defendant's car. Seminara requested the operator to produce his driver's license and the vehicle's registration certificate. The driver presented his license but was unable to locate the registration, either in the glove compartment or over the sun visor. At this point the defendant suggested that the registration might be in the trunk of the car and said, 'I will get out and look.' He took the keys out of the ignition, alighted from the car, and walked to its trunk. Seminara did not order the defendant from the car, nor did he direct him to open the trunk. The defendant opened the trunk, and on its floor was an attache case. Seminara shined a flashlight into the trunk as he stood behind the defendant. The defendant released the latches of the case, raised the lid about six to eight inches and then reached into it. As the defendant was opening the case, Seminara spotted an ammunition clip and the butt of a pistol Immediately Seminara drew his service revolver, forced the defendant to stand against a wall, and shouted the word 'gun' to his partner, Murphy. Murphy ordered the occupants out of the car. The firearm was tightly wrapped in a brown paper bag, but its butt protruded from the open end of the bag. The defendant told Seminara that he (the defendant) did not have a permit for the gun. The defendant and the other occupants of the car were arrested and taken to the police station.

Before trial the defendant moved to suppress the items which had been taken by the police from the attache case in the trunk. That motion was denied.

1. The defendant assigns as error the denial of his motion to suppress, arguing that the firearm was obtained as the result of an illegal search and seizure. After a hearing the judge found and ruled as follows: 'I rule that the motion to suppress must be denied. It appears to the Court that there was no search and seizure here. The defendant voluntarily went to the trunk of his car and having unlocked and opened it, proceeded to open the attache case in search of his certificate of registration for the motor vehicle. The ammunition clip and the butt of the (pistol) came into the view of the police officer at that point. Whether one were to term this a search with consent or a voluntary disclosure by the defendant of the articles seized would seem to be of no consequence. The officer did nothing other than request to see the registration to the car, and what followed was the result of the defendant's voluntary action. . . . It was the defendant who suggested that the registration might be in the trunk and voluntarily went to it. Officer Seminara neither suggested nor directed this action. Once the trunk and the attache case within were opened, the officer had the objects in view and thereafter had the right to do the things that he did. . . . I find and rule that Officer Seminara had the right to arrest the defendant and seize the articles which are the subject of the motion to suppress.' We agree with the motion judge that there was no search.

When Officer Seminara observed the ammunition clip and the butt of the gun protruding from the paper bag, he had the right to seize them. 'It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.' Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968). Commonwealth v. Fields, --- Mass.App. ---, --- ^a, 319 N.E.2d 461 (1974). The motion judge did not err in denying the defendant's motion to suppress.

2. The defendant's second assignment of error basically claims error in the admission of the firearm in evidence. Without deciding whether all the reasons enumerated by the...