Petition of Dirring

• Decision Date: 11 June 1962
• Parties: Petition of John T. DIRRING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 300

183 N.E.2d 300

344 Mass. 522

Petition of John T. DIRRING.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 7, 1962.

Decided June 11, 1962.

Walter Powers, Jr., Boston, for petitioner.

James W. Bailey, Asst. Atty. Gen., for respondent.

Before WILKINS, C. J., and SPALDING, WILLIAMS, CUTTER, and SPIEGEL, JJ.

WILKINS, Chief Justice

The petitioner is in custody of the respondent superintendent of the Massachusetts Correctional Institution at Walpole in execution under criminal process. See G.L. (Ter.Ed.) c. 248, § 1. In 1958 he was convicted in the Superior Court of felonies described in G.L. (Ter.Ed.) c. 266, § 49 (possession of burglarious implements), and in G.L. c. 269, § 10, as amended through St.1957, c. 688, § 23 (unlawfully carrying firearms). Also in 1958 he was committed to the custody of the respondent to serve, and is now serving, two concurrent sentences. At the hearing upon this petition for a writ of habeas corpus, filed on July 11, 1961, he sought release in reliance upon Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (decided on June 19, 1961), contending that there has been 'violation of his Constitutional right to be secure from unreasonable searches and seizures.' The Attorney General filed a motion to dismiss. From a denial of the petition, the petitioner appealed, purportedly under G.L. (Ter.Ed.) c. 231, § 96.

The judge found that the petitioner testified as to the search of his automobile by police officers on September 6, 1958, and the finding of 'an assortment of tools and a loaded pistol' in the trunk 'substantially conformably to the allegations of the petition.' He also found: 'He did not know whether objection to the admissibility of the evidence of the search and seizure was made at the trial of the indictments. He was there represented by competent counsel. The petitioner did not satisfy me that he seasonably safeguarded his Constitutional rights against the alleged unlawful search and seizure.'

The Attorney General argues that the findings of the judge are not before us on appeal under G.L. (Ter.Ed.) c. 231, § 96. He cites Watts v. Watts, 312 Mass. 442, 45 N.E.2d 273; Matter of Loeb, 315 Mass. 191, 193-194, 52 N.E.2d 37; and Harrington v. Anderson, 316 Mass. 187, 191-192, 55 N.E.2d 30. We do not consider this or any other procedural question, because we rest our judgment upon a ground which goes to the heart of the petitioner's case and is decisive.

Retrospective effect of the Mapp rule is enshrouded in doubt. We do not puzzle as to something which must be, for us, inscrutable. Compare People v. Muller, 11 N.Y.2d 154, 227 N.Y.S.2d 421, 182 N.E.2d 99. At the moment there is no occasion to do so, because in the present case no issue as to illegally seized evidence was brought here by an appropriate appellate procedure (see Guerin v. Commonwealth, 337 Mass. 264, 266-270, 149 N.E.2d 220) following the trial of the indictments. Indeed, it does not appear that any motion to suppress or objection was made either before (see Segurola v. United States, 275 U.S. 106, 111-112, 48 S.Ct. 77, 72 L.Ed. 186) or at that trial. Compare People v. Friola, 11 N.Y.2d 157, 227 N.Y.S.2d 423, 182 N.E.2d 100. There is no issue as to jurisdiction, and the question of law is raised for the first...