Motion to Suppress Firearm Reversed by Appeals Court

The Appeals court recently overturned a judges order suppressing a firearm found in COMMONWEALTH vs. TOBEY BELL 78 Mass.App.Ct. 135 (2010). The case is a good illustration of the motor vehicle exception doctrine and the laws of search and seizure.

The court in reviewing the facts stated “At approximately 12:50 P.M. on May 1, 2008, three 911 telephone calls were received by the Fall River police department reporting a shooting on South Main Street in that city. As a consequence of those telephone calls the defendant was apprehended and then arrested, and his vehicle was brought to the police station where it was later searched. After being indicted on charges of assault by means of a dangerous weapon, unlawful possession of a firearm, and unlawful possession of a loaded firearm, the defendant filed a motion to suppress. A judge of the Superior Court allowed the motion in part, suppressing a handgun and gloves and any statements made in response to the discovery of the gun, but denied it as to all other evidence obtained as a result of what the defendant argues was an unlawful stop and search. Before us are cross appeals by the Commonwealth and the defendant allowed by a single justice of the Supreme Judicial Court.

The stop. The judge ruled as follows. Burks had reasonable suspicion to believe that the defendant was involved in the shooting, and thus the stop and Burks’s later actions were justified. In making this assessment, Burks, having heard the broadcast, was entitled to take into account the matching description of the vehicle and the suspect, the temporal and physical proximity of the defendant to the place of the shooting, and the fact that a violent crime had just been committed. See Commonwealth v. Ancrum, 65 Mass. App. Ct. at 654. The broadcast was based on information from two named ordinary citizens who had witnessed the crime, see Commonwealth v. Carey, 407 Mass. 528, 534 n.4 (1990), and who testified at the motion hearing. The judge found their testimony credible. He correctly pointed out that although the police radio broadcast did not include the license plate number provided by Cleary and the *139 unidentified 911 caller, the knowledge of one officer is imputed to another officer working on the same investigation. See Commonwealth v. Lanoue, 356 Mass. 337, 340 (1969); Commonwealth v. Quinn, 68 Mass. App. Ct. 476, 480- 481 (2007). The judge also found that the minimal differences in description did not alter his conclusion. See Commonwealth v. Emuakpor, 57 Mass. App. Ct. 192, 198 (2003).

In its appeal, the Commonwealth argues that the foregoing evidence provided probable cause to search the Durango at the time Burks stopped the defendant. In his cross appeal the defendant claims that Burks lacked not only probable cause but also a valid basis for making an investigatory stop.

“In reviewing a ruling on a motion to suppress, we accept the judge’s subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). The defendant claims that there were insufficient distinguishing physical characteristics of the vehicle, and that the defendant was wearing a white shirt, not a green one. Moreover, he argues that the place where Burks first saw the defendant was one and one-half miles north of thescene of the shooting, while the suspect was reported to have been last seen driving south from the locus of the shooting. The defendant fails to acknowledge the collective knowledge rule of Commonwealth v. Lanoue, 356 Mass. at 340, and hence ignores the potent evidence as to the license plate numbers. The differences in descriptions of the color of the car and the color of the defendant’s T-shirt are insignificant in view of the almost exact match of the actual numbers of the license plate of the vehicle with the identifications of those numbers by the 911 callers. For this reason, we agree with the Commonwealth’s argument that Burks had probable cause to search the vehicle at the time of the stop. See Commonwealth v. Brown, 367 Mass. 24, 32-33 (1975).

In Brown, the defendants sought to suppress evidence found in a car. Minutes after a shooting, police were told by occupants of the invaded apartment that the shooting involved four or five black men who were members of a certain organization with headquarters known as the “Tee Pee.” Ibid. Four names were given, and four “were said to have left the scene in a yellow Toyota station wagon with a roof rack, a dented side, and a loose front license plate.” Ibid. Within two hours of the shooting, at the Tee Pee, police saw a yellow Toyota station wagon answering the description with three (not four) black men in it drive up. Although the police did not then recognize or identify any of the three men, the Supreme Judicial Court held that “the judge was plainly right in ruling that there was ample probable cause for the arrest of the occupants of the car and for the warrantless search of the car.” Ibid. In the present case, the furnishing of the closely matching numbers of the license plate together with the correct make and model of the car are as definitive as the description of the Toyota in Brown. The description and the physical and temporal proximity of the vehicle to the crime scene provided, in our view, probable cause to arrest the defendant and search the car. Because of this conclusion, we need not reach the defendant’s arguments as to the faults of the Kennedy Park identification.

3. The search. The question whether the warrantless search at the police lot was proper is more difficult. While our conclusion as to the validity of the search by Detective Elumba differs from that of the motion judge, we note that his analysis preceded the decision of Commonwealth v. Eggleston, 453 Mass. 554 (2009).

The defendant correctly argues that the automobile exception applies only after the police objectively have probable cause to believe a motor vehicle parked in a public place contains contraband, and provided that no unreasonable length of time elapses before the execution of the warrantless search. See Commonwealth v. Eggleston, supra at 558-559.

There is here a question whether the parking lot was a public place within the meaning of our cases. In Eggleston the motion judge found that the public had access to the parking lot where the vehicle was seized. Id. at 558 n.3. Here, although the judge found that the towing of the vehicle to the police lot was proper, he stated, “[A]t the time of the stop of the Durango, it was not on a public street and the officers were not faced with the attendant risks when a search is conducted on a public street.”  In any event, in view of Burks’s uncontested testimony as to the size of the apartment house parking lot with “rows of parking” and additional parking on the side, we think the public had sufficient access to it for the police to need to move the defendant’s vehicle to a more secure place. See note 3, supra. See also Commonwealth v. Motta, 424 Mass. 117, 124 (1997); Commonwealth v. Lara, 39 Mass. App. Ct. 546, 548 (1995).

The question of the timing of the search also presents some difficulty. No exigency need ordinarily be shown beyond the inherent mobility of an automobile, but the “automobile exception may not be employed to justify an unreasonable delay between the time when the police objectively have probable cause to search the car and the time when they do so . . . ; the question . . . becomes whether the police delayed execution of the search for an unreasonably long time without plausible justification for the delay.” Commonwealth v. Eggleston, supra at 558-559. Even if the police have “plain and ample opportunity” to obtain a warrant, “the police are nevertheless entitled to forgo application for the warrant if it is reasonable to do so and later toproceed with the search under the automobile exception.” Id. at 559. The inquiry is “whether a delay in executing a permissible seizure is motivated by reasonable investigative considerations or merely by a desire to avoid the warrant requirement by exploiting the automobile exception.” Id. at 560.

Here, the judge found that the Durango was secured in the police impound lot for over two and one-half hours before the  search was conducted, that the “obtaining of a warrant was not impracticable,” and that the delay was unreasonable. We think, in light of Eggleston, the judge here used the wrong standard by focusing on the impracticability of obtaining a warrant. The police waited until the arrival of Elumba, who had special training in finding hidden compartments. He came before his regular shift began and was delayed by the State police “tending” to the vehicle. In these circumstances, we do not think the two and one-half hour delay unreasonable. The search thus fell within the automobile exception; though it was made without a warrant, it was constitutionally valid.

For the foregoing reasons the order partially allowing the motion to suppress is reversed, and a new order shall enter denying the motion in its entirety.”

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to
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