Haefeli v. Chernoff, Misc. Civ. A. No. 73-155-T.

• Decision Date: 22 May 1975
• Docket Number: Misc. Civ. A. No. 73-155-T.
• Parties: David A. HAEFELI, Petitioner, v. Paul CHERNOFF et al., Respondents.
• Court: U.S. District Court — District of Massachusetts

394 F. Supp. 1079

David A. HAEFELI, Petitioner, v. Paul CHERNOFF et al., Respondents.

Misc. Civ. A. No. 73-155-T.

United States District Court, D. Massachusetts.

May 22, 1975.

Malvine Nathanson, William A. Nelson, Mass. Defenders Committee, Boston, Mass., for petitioner.

Dennis J. LaCroix, Asst. Atty. Gen., Boston, Mass., for respondents.

OPINION AND ORDER

TAURO, District Judge.

On April 10, 1970, a Suffolk County Grand Jury named David Haefeli in seven indictments, each charging him with knowingly receiving stolen property.¹ Haefeli was tried in Suffolk Superior Court and was convicted by a jury on all charges. He was adjudged a "common receiver of stolen goods" and was given a consolidated sentence of three to seven years. Mass.Gen. Laws Ann. ch. 266, § 62.² His conviction was affirmed by the Massachusetts Supreme Judicial Court. Commonwealth v. Haefeli, 1972 Mass.Adv.Sh. 423, 279 N.E.2d 915.

Haefeli now petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.³ He alleges that the failure of the state trial court to grant his pre-trial motion to suppress evidence which was later introduced against him deprived him of his rights under the Fourth and Fourteenth Amendments to the United States Constitution.⁴

I

On November 24, 1969, the Commonwealth Avenue apartment of Ms. Mona Lacy was robbed. Among the items that were stolen were Ms. Lacy's Star Market check cashing courtesy card, blank personal checks with her name and address printed on them, her Delaware driver's license and several credit cards.

While investigating this incident, Boston Police Officer Robert E. Hughes learned that a number of worthless checks had been cashed at a Star Market by a woman using the name Mona Lacy. The store had a system of photographing persons who cashed checks there. The woman claiming to be Mona Lacy appeared in twenty different photographs. Hughes circulated these photographs to businesses in the general vicinity of the Star Market.

Hughes' investigation also disclosed that Haefeli, whom he had previously known, was involved in a worthless check cashing scheme and that the woman in the Star Market photographs had been seen leaving a number of establishments accompanied by a male fitting Haefeli's general description. Hughes also learned that the man and woman in question were using an automobile which had not been reported stolen, but which was registered to a Mr. Kaler.

On January 12, 1970, Mr. Jarvis, a Boston realtor, called Hughes and reported that a woman resembling the one in the circulated Star Market photograph had been in his office and was expected to return. Later that day Hughes and Detective William Sullivan, took up a surveillance position outside Jarvis' office.⁵

At about 5:45 p. m. that evening the two officers observed the automobile registered to Mr. Kaler drive up and park on Commonwealth Avenue about fifty feet from the real estate office. Hughes recognized the driver as Haefeli and his passenger as the woman shown in the Star Market photograph.

Both passengers got out of the car and went into the real estate office. Hughes followed them inside and asked the woman whether she was Mona Lacy. She said she was not, and gave him an assumed name. Unbeknownst to Hughes at that time, the woman, Janice Kaler, was the automobile owner's daughter using the car with her father's permission. Haefeli also gave an assumed name. Neither of the assumed names matched that of the automobile's registered owner, although the woman claimed it was her car. The two were then arrested.

Hughes then went out to the automobile "to find out who the owner of the car was." Transcript of Hearing on Motion to Suppress at 23 hereinafter TR.. He shone a flashlight through a closed window and saw on the floor an envelope with checks sticking out approximately one inch. From his position outside the car, he could not see anyone's name on the checks. (TR. 23, 24, 28, 29.) Hughes then opened the car door, took the checks out of the envelope and saw the name "Joseph Shain" imprinted on them. The checks eventually became the basis of one of the seven indictments on which Haefeli was convicted.⁶

Hughes then opened the glove compartment, ostensibly looking for the registration, and found a Star Market check cashing courtesy card issued to Mona Lacy. The officers then seized the automobile and brought it to the station. No warrant was obtained or permission given to search the car. (TR. 29).

Following the arrest of Kaler and Haefeli, and the search of the car, Hughes went to an address given to him by Haefeli which proved to be a rooming house. Hughes learned from the proprietor that Haefeli and Kaler had been living together in room 3 on the first floor. Detective Sullivan then secured a search warrant for the room from the Roxbury District Court. Later that same evening, the warrant was executed. The articles seized from the room formed the basis of the remaining six indictments against Haefeli.⁷

Haefeli contends, as he did in the Massachusetts courts, that the materials Hughes seized from Kaler's car were inadmissible against him because no warrant was obtained.⁸ He also maintains his claim that the warrant obtained by Detective Sullivan for the subsequent search of the Beacon Street apartment was issued without probable cause.

This court agrees that the warrantless search of the automobile was improper and that the evidence obtained therefrom should have been suppressed. Moreover, since the fruits of the automobile search formed the basis for the subsequent apartment search, the evidence seized at that time was unconstitutionally admitted as well.

II

Initially, the Commonwealth argues that the checks which Hughes saw protruding from the envelope on the floor of Kaler's car were in plain view and, therefore, could be seized without a warrant. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). This court does not agree.

Evidence of a crime clearly visible to an officer, who has a right to be in a position to see the evidence, may be seized without a warrant and introduced at trial. Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Once an otherwise lawful intrusion is in progress, and "the police inadvertently come upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous — to the evidence or to the police themselves — to require them to ignore it until they have obtained a warrant particularly describing it." Id. at 467-68, 91 S.Ct. at 2039. Of course, the plain view doctrine is only applicable where it is immediately apparent to the officer that what he has seen and wishes to seize is evidence of a crime. Id. at 466, 91 S.Ct. 2022.

The plain view doctrine is inapplicable to this case because, as a factual matter, the incriminating checks were not in plain view at the time Hughes first saw them. All that Hughes saw when he peered through the window of the car was approximately one inch of otherwise unidentifiable checks protruding from an envelope on the car floor. There was nothing inherently suspect about this envelope or its visable contents so as to make it "immediately apparent" they constituted incriminating evidence. The plain view doctrine, therefore, is inapposite.⁹

III

Because the plain view doctrine is inapplicable, Hughes' intrusion into the automobile and inspection of its contents (as opposed to looking through its window aided by a flashlight)¹⁰ constituted a "search" within the meaning of the Fourth Amendment. As such, his failure to obtain a warrant was per se unreasonable unless the Commonwealth can meet its burden of showing that one of the narrowly-defined exceptions to the warrant requirement apply in these circumstances. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

The only exception which the Commonwealth cites in support of the warrantless search is the so-called "automobile exception" established in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 2543 (1925) and refined by Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).¹¹ But those cases do not justify the warrantless automobile search in this case. See also Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed. 2d 325 (1974); Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Dyke v. Taylor Implement Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938); Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931).

Carroll, the cornerstone of the automobile exception, teaches that an automobile may be stopped and searched on the open highway without a warrant, provided there is some "exigency" or realistic danger that the evidence would otherwise be lost. Chambers adds the further lesson that an otherwise justified warrantless search may be accomplished either immediately or later at the police station. "The rationale of Chambers is that given a justified initial intrusion, there is little difference between a search on the open highway and a later search at the station." Coolidge v. New Hampshire, 403 U.S. 443, 463 n. 20, 91 S.Ct. 2022, 2036 (1971) (emphasis in original).

The instant case presents only the question of whether the initial warrantless intrusion by Hughes into the Kaler automobile was justified. Assuming arguendo that the police had probable cause to obtain a search warrant, this court holds that there were no exigent circumstances present which justified a search without a warrant.

Officers Hughes and Sullivan...