Com. v. Wunder

• Decision Date: 11 July 1990
• Citation: 407 Mass. 909,556 N.E.2d 65
• Parties: COMMONWEALTH v. Richard B. WUNDER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 65

556 N.E.2d 65

407 Mass. 909

COMMONWEALTH v. Richard B. WUNDER.

Supreme Judicial Court of Massachusetts,

Essex.

Argued March 5, 1990.

Decided July 11, 1990.

John C. McBride, Boston, for defendant.

Dyanne J. Klein, Asst. Dist. Atty. (William J. Meade, Asst. Dist. Atty., with her), for the Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

LYNCH, Justice.

After a jury-waived trial in the Superior Court, the defendant, Richard B. Wunder, was found guilty of trafficking in more than 100 grams of cocaine. ¹ He timely appealed from this conviction and from the denial of his motion to suppress the approximately 980 grams of cocaine and a triple-beam scale discovered by State police troopers in the February 24, 1986, warrantless search of a gym bag and cooler found in the passenger compartment of the defendant's Volkswagen van. We transferred the case here on our own motion and now affirm.

The facts, as found by the motion judge, are not in dispute. On February 24, 1986, at 4:45 P.M., State police trooper John Walsh, assigned to the Essex County Drug Task Force, received a call at his office in Lawrence from an informant whom he knew, and with whom he had been dealing for approximately one year. On some six prior occasions, the informant had given Walsh details concerning drug transactions which were under investigation by other law enforcement units in Middlesex County. While the informant's tips had been verified as accurately naming individuals suspected of trafficking in drugs, they had not at that point in time led to any arrests and convictions.

The informant reported to Walsh that a Richard Wunder, then living in Winchester, had told the informant that he had cocaine, that he was "anxious" to sell immediately, and that he planned to make a few transactions that afternoon, after which he would have about three-fourths of a kilogram left over. According to the informant, Wunder had then stated that he was going to sell that remaining cocaine at 6 P.M. in the Grossman's parking lot on Route 114 in Danvers. The informant described Wunder as a clean-shaven, white male in his early thirties with brown hair and blue eyes, and also told Walsh that Wunder would be driving to the parking lot an older-model orange Volkswagen van with a white top.

Walsh immediately talked with Sergeant Paul Regan, who supervised the Drug Task Force in Lawrence, and apprised him of the tip concerning an imminent drug transaction. The two troopers also notified Danvers police and told them to send some officers to meet them at 5:40 P.M. at the Dunkin' Donuts shop just south of Grossman's on Route 114 to discuss the surveillance operation. Walsh and Regan then left Lawrence to go to Danvers, some fifteen miles away. By 6 P.M., the two troopers and a number of Danvers police officers were positioned at various points in the Grossman's parking lot.

At exactly 6 P.M. an old orange Volkswagen van with a white top, apparently occupied solely by its driver, drove into the Grossman's parking lot. The van inched slowly in a 180-degree arc of the parking lot, passing a number of vacant parking spaces. The driver repeatedly looked first to one side and then the other as he headed toward the parking lot's exit. The law enforcement officials observed that he was a clean-shaven white male of approximately the age described by the informant. Worried that the driver was about to pull out on Route 114 and disappear, Trooper Walsh hailed him and brought him to a stop right inside the exit. When asked for his identity and driver's license, the driver stated he was Richard Wunder, as indicated on an expired Florida driver's license he produced, and that he now lived in Winchester.

As soon as Walsh's colleague Regan heard that the driver was indeed Wunder, Regan entered the van to search. He saw first a partially-zippered canvas gym bag in the front seat, wedged between the stick shift and the front passenger's seat, with a blue towel sticking out. Regan opened the bag and found wrapped inside the towel a triple-beam scale and a brown bag containing several packets of cocaine. As he checked further in the van, Regan discovered a closed cooler on the floor behind the driver's seat. Inside the cooler he found another brown paper bag containing more plastic packets of cocaine. When Regan told Walsh what he had found, the defendant was formally placed under arrest.

The defendant concedes that, based on the informant's tip and the police corroboration of its detail, the officers had probable cause to arrest him and to search his van. He has also conceded, as he did at the motion hearing below, that the hour and one-half gap between the tip and the predicted appearance of the defendant with the contraband gave the officers exigent circumstances to search his vehicle without a warrant. The defendant argues only that (1) there was neither probable cause nor exigent circumstances for the search of the closed containers within his van, and (2) assuming that probable cause and exigent circumstances existed justifying the warrantless search of his van and its containers under the Fourth Amendment to the United States Constitution, art. 14 of the Massachusetts Declaration of Rights requires the officers to have a warrant before they could open the closed containers found during the search, and thereby mandates the suppression of the evidence found therein.

1. Probable cause and exigent circumstances. The defendant asserts that, because the informant said nothing about a canvas gym bag or a cooler--or any particular container at all--as the locus of the cocaine, the officers had no right to conduct a warrantless search of the closed containers. Similarly, the defendant argues that the exigent circumstances justifying the search of the van, arising from the brief interval of time between the tip and the anticipated drug transaction, along with the inherent mobility of the van in transit, do not apply to the closed containers inside the van. We disagree.

The defendant's analysis of the scope of probable cause and exigent circumstances in cases such as this one, involving warrantless searches of motor vehicles under the "automobile exception" to the warrant requirement of the Fourth Amendment and art. 14, is fundamentally flawed. Probable cause to search the defendant's van for cocaine existed when the police possessed sufficient information to justify a reasonable person in believing that the defendant, found behind the wheel of that van, had committed or was committing the crime of trafficking in cocaine, and the circumstances were such that cocaine was probably present in that van. See Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925); Commonwealth v. Ortiz, 376 Mass. 349, 354, 380 N.E.2d 669 (1978); Commonwealth v. Avery, 365 Mass. 59, 64, 309 N.E.2d 497 (1974). The defendant concedes such probable cause existed. Under the automobile exception established by Carroll, and followed under art. 14 in Ortiz and Commonwealth v. Cast, 407 Mass. 891, 556 N.E.2d 69 (1990), once there is probable cause to believe a motor vehicle contains contraband, and the situation is exigent so as to render obtaining a warrant impracticable, as the defendant also concedes to be the case here, then law enforcement officers were entitled immediately to stop and search his van without a warrant. Carroll v. United States, supra 267 U.S. at 149, 45 S.Ct. at 283-84.

The fact that a lawful warrantless search of an automobile turns up closed containers in which the object of the search may be hidden "does not in itself either expand or contract the well-established" automobile exception. United States v. Johns, 469 U.S. 478, 486, 105 S.Ct. 881, 886, 83...