Commonwealth v. Sergienko

• Decision Date: 24 February 1987
• Citation: 503 N.E.2d 1282,399 Mass. 291
• Parties: COMMONWEALTH vs. GEORGE SERGIENKO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

399 Mass. 291

503 N.E.2d 1282

COMMONWEALTH vs. GEORGE SERGIENKO.

Supreme Judicial Court of Massachusetts, Hampden.

December 2, 1986.

February 24, 1987.

Present: HENNESSEY, C.J., WILKINS, ABRAMS, LYNCH, & O'CONNOR, JJ.

Ariane D. Vuono, Assistant District Attorney, for the Commonwealth.

Kevin B. Coyle for the defendant.

HENNESSEY, C.J.

The defendant, George Sergienko, an officer with the Chicopee police department, was indicted for possession of marihuana, a class D controlled substance, in violation of G.L.c. 94C, § 34, by a Hampden County grand jury in October, 1984. On February 4, 1985, the defendant filed a motion to dismiss the indictment and, in the alternative, a motion to suppress evidence seized from his automobile. A hearing was subsequently held. On April 8, a judge of the Superior Court denied the motion to dismiss and allowed the motion to suppress. After allowing the Commonwealth's motion to reconsider and holding a subsequent hearing, the judge affirmed his earlier decision. The Commonwealth filed an application for leave to take an interlocutory appeal pursuant to Mass. R. Crim. P. 15 (b) (2), 378 Mass. 882 (1979), which was allowed by a single justice of this court. We do not agree with the reasoning recited by the judge in support of his allowance of the motion to suppress. Nevertheless, the judge's ruling may have been correct by reason of the failure of the police to secure a search warrant. As to that issue, it is necessary for us to remand the case for further findings as to consent to the search.

The judge found the following facts. On July 25, 1985, Sergeant Robert Gendron of the Chicopee police department returned to the police station at approximately 2:30 A.M. and parked his cruiser next to the defendant's Cadillac Eldorado. At the time both cars were parked in a parking lot owned by the city and located between the fire and police stations. The lot was used for parking police cruisers and private vehicles of members of each department, and could be used by the public when going to either the police or fire station. On leaving the police station at approximately 3:15 A.M. and recognizing the Cadillac as belonging to the defendant, Sergeant Gendron became curious to see the interior of the automobile and observe its condition. He testified that he had no special reason for looking into the automobile. He went to the side of the Cadillac, looked into the car with a flashlight, and saw a "roach clip" on the front seat. Looking further, he saw, in the open ashtray in the middle of the dashboard, a hand-rolled cigarette which he believed to be a marihuana cigarette. He tried to open the door to seize these items, but it was locked. He returned to the police station, telephoned the chief of police, Edmund Dowd, at home, and informed him of the facts.

At approximately 7:40 A.M., Chief Dowd, a Captain Peloquin, and the defendant went to the defendant's automobile, still parked in the parking lot where Gendron had seen it earlier. Dowd indicated that he wanted to retrieve the item that he could see in the ashtray. The defendant unlocked the automobile door and gave the hand-rolled cigarette to Dowd. Later, in his office, Dowd asked the defendant where the item had come from. The defendant responded that he did not know anything about it. The cigarette was subsequently analyzed and found to contain marihuana.

In Commonwealth v. Walker, 370 Mass. 548, 557, cert. denied, 429 U.S. 943 (1976), we applied the plain view doctrine enunciated in Coolidge v. New Hampshire, 403 U.S. 443 (1971), and stated that "the plain view doctrine requires prior police justification for an intrusion in the course of which an officer inadvertently comes across incriminating evidence." Citing this passage, the judge in this case granted the defendant's motion to suppress the seized marihuana cigarette on the ground that Sergeant Gendron lacked "prior justification" to be in the position which resulted in his observations. The Commonwealth argues that the plain view doctrine is not specifically applicable in this case because that doctrine, as described in Coolidge v. New Hampshire, supra, provides a basis for a warrantless seizure of evidence or contraband after a police officer has made a lawful intrusion into a constitutionally protected area. Rather, the Commonwealth says, we have in this case a "plain view observation," which involves no physical intrusion and generally occurs in a nonprotected area. Because there was no physical intrusion into the defendant's automobile when Sergeant Gendron observed the contraband, and the defendant had no reasonable expectation of privacy in the front seat of the automobile or the dashboard area, the Commonwealth argues that Gendron's conduct constituted no more than a plain view observation. We agree.

The Supreme Court has recognized the distinction advanced by the Commonwealth. In Texas v. Brown, 460 U.S. 730, 738 n. 4 (1983), the plurality opinion stated: "It is important to distinguish `plain view,' as used in Coolidge to justify seizure of an object, from an officer's mere observation of an item left in plain view. Whereas the latter generally involves no Fourth Amendment search, see ... Katz v. United States, 389 U.S. 347 (1967), the former generally does implicate the Amendment's limitations upon seizures of personal property." See 1 W.R. LaFave, Search and Seizure § 2.2, at 320-323 (1987). Because a plain view observation does not implicate the Fourth Amendment, the "prior justification" requirement of the plain view doctrine need not be considered.

The key to understanding the distinction between the plain view doctrine and a plain view observation is a recognition that a plain view observation involves no intrusion into an area in which the defendant has a reasonable expectation of privacy. As long as no such intrusion occurs, the observation does not rise to the level of a search, and Fourth Amendment limitations are not triggered. Commonwealth v. Ford, 394 Mass. 421, 423-424 (1985). Commonwealth v. Hason, 387 Mass. 169, 172-173 (1982), and cases cited. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. United States, supra at 351. Here, the defendant's automobile was parked in a parking lot open to and used by the public and the employees of both the police and fire departments. The marihuana cigarette was clearly visible on the dashboard ashtray. "The general public could peer into the interior of the defendant's automobile from any number of angles; there is no reason Gendron should be precluded from observing as an officer what would be entirely visible to him as a private citizen. There is no legitimate expectation of privacy... shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers. In short, the conduct that enabled Gendron to observe the interior of the defendant's car ... was not a search within the meaning of the Fourth Amendment." Texas v. Brown, supra at 740. See Scales v. State, 13 Md. App. 474, 477-478 (1971); State v. Powell, 99 N.M. 381, 384-385 (Ct. App.), cert. denied, 99 N.J. 358 (1983); State v. Planz, 304 N.W.2d 74, 79-80 (N.D. 1981); State v. Byerley, 635 S.W.2d 511, 513 (Tenn. 1982).

Our cases similarly have acknowledged that no reasonable expectation of privacy, and thus no search, is involved when a police officer observes criminal activity or contraband within an automobile without physically intruding into the vehicle. "If the officer had been able to observe the illegal activity in the van by standing in the parking lot, or at some other vantage point where he was legally entitled to be, and either looking through the two side windows or the windshield, or peering through the partially open door, this initial observation would not have intruded on any expectation of privacy which the defendants could reasonably have had in the circumstances. Such an initial observation, made without physical intrusion into the vehicle, would have been lawful and could provide probable cause for the issuance of a warrant or, in exigent circumstances, for a warrantless seizure." Commonwealth v. Podgurski, 386 Mass. 385, 388 (1982), cert. denied, 459 U.S. 1222 (1983). See Commonwealth v. Ortiz, 376 Mass. 349, 351-353 (1978); Commonwealth v. Baldwin, 11 Mass. App. Ct. 386, 390-391 (1981); 1 W.R. LaFave, Search and Seizure § 2.2, at 322-323 (1987).

The use of the flashlight by Sergeant Gendron does not alter this conclusion....