Opinion
Nos. 99387-95
1995
FINDINGS OF FACT, RULINGS OF LAW AND ORDER ON DEFENDANTS' MOTIONS TO SUPPRESS EVIDENCE
Defendants Frank Martorano, Daniel D. Mullaney and Michael J. Sands are each charged with breaking and entering in the day time (G.L.c. 266, § 18); larceny of property over $250.00 (G.L.c. 266, § 30) and willful and malicious destruction of property (G.L.c. 266, § 127). Defendants Martorano and Mullaney have moved to suppress evidence seized as a result of the warrantless stop and arrest of them on December 6, 1994 and the warrantless stop and search that same date of a motor vehicle driven by co-defendant Michael Sands. Defendant Sands has moved to suppress the evidence obtained from the warrantless stop and seach of his motor vehicle. The defendants base their arguments on both the Fourth Amendment of the United States Constitution and article 14 of the Massachusetts Declaration of Rights.
A hearing was held on September 13, 1995 and September 20, 1995. The Commonwealth called the following witnesses: Inspector James Curran of the Arlington Police Department; Officer Joseph Rielly of the Marlboro Police Department; and Detective Joseph O'Brien, Office Paul Nahass, Sergeant Albert Droney and Sergeant Bruce D' Innocenzo, all of the Needham Police Department. After the hearing and evaluation of the evidence, including the credibility of the witnesses, the Court denies the defendants' motions.
FINDINGS OF FACT
1. FACTS COMMON TO ALL INCIDENTS.
In December, 1994, Needham experienced a number of noontime housebreaks. During their investigation of these crimes, the Needham Police received information from a number of sources. A large gray Chevrolet sedan was the common thread in all the information received. The information received included the following.
On November 30, 1994, a breaking and entering was reported in Needham at 936 Central Avenue. A neighbor reported seeing a gray sedan leaving the driveway of the victim's home at about noontime. The car contained two white males.
On December 1, 1994, Detective Sergeant Albert Droney, a Needham police officer for twenty-six years, attended an informational meeting of local police officers for purposes of discussing possible breaking and entering suspects operating in the metrowest Boston area because there had been a large number of noontime breaks. The name of Daniel Mullaney, along with a number of others, was discussed at that meeting.
On December 2, 1994, Sgt. Droney received a teletype from the Marlboro Police indicating that a gray Chevrolet, Mass. registration 209THN, with two white male occupants, had been involved in a noontime breaking and entering in that city. Marlboro is about fifteen or twenty miles from Needham.
Testimony regarding the details of this incident was presented at the hearing by Marlboro officer Joseph Rielly.
On December 4, 1994, at 12:30 p.m., Detective Joseph O'Brien, a Needham police officer for thirteen years, responded to a report of a break-in at the O'Connell home at 59 Park Avenue, Needham. In speaking with Ms. June O'Connell, it was determined that the break had occurred between 11:15 a.m. and 12:15 p.m (i.e., about noontime). A neighbor on Park Avenue reported seeing a dark gray Chevrolet sedan(which he thought was a Celebrity model) parked in front of 45 Park Avenue. That address is across the street from number 59 and down the street one or two houses from it. The neighbor did not see anyone in the car or around it.
On December 5, 1994, one David Brady was arrested in Revere on an Arlington warrant for breaking and entering. At the time of his arrest, Brady had been in the company of Daniel Mullaney and Michael Sands (two of the defendants in the present case) and the men had been in a gray Chevrolet Impala with registration number 209YHN. Mullaney was known for committing housebreaks in Arlington.
The registration number that had been received from the Malboro Police was 209THN; the one received from Revere was 209YHN. The latter number was the correct one, see infra.
The source of this information was Inspector James Curran, a member of the Arlington Police Department for eight years. Inspector Curran testified at the hearing.
Finally, on December 6, Sgt. Droney received a message from Inspector James Curran of the Lexington Police that a gray Chevrolet Impala, license number 209YHN, with three individuals including a Daniel Mullaney, might be involved in the noontime breaks. Sgt. Droney had all cruisers notified that said vehicle might be involved in noontime breaks.
2. THE STOP OF THE SANDS' VEHICLE.
On December 6, 1994, at approximately noontime, almost immediately after receiving Sgt. Droney's information regarding the gray Chevrolet Impala, license number 209YHN with three men, including a Daniel Mullaney, who might be involved in noontime housebreaks, Sgt. D'Innocenzo of the Needham Police observed a gray Chevrolet Impala, license number 209YHN, on Mayo Avenue, a residential street in Needham. One white male was driving that car. Sgt. D'Innocenzo followed the gray Chevrolet. As he followed it onto Stevens Road, another residential street, Sgt. D'Innocenzo saw two white males walking on Stevens Road. When the gray Chevrolet passed these two white males, Sgt. D'Innocenzo saw the car slow down and then accelerate to a normal speed. He did not observe any conversation or other interaction between the pasenger and the pedestrians. As Sgt. D'Innocenzo drove by the two pedestrians, the two pedestrians did not look at the cruiser at all. Sgt. D'Innocenzo found this to be unusual; most people whom he passes while on patrol at least look at the cruiser or smile and wave when it passes. (The two pedestrians were later identified as the defendants Martorano and Mullaney and the driver of the car as the third defendant, Sands). Sgt. D'Innocenzo radioed to Sgt. Droney about his observations and was instructed to pull the car over. He did so on Greendale Avenue. Sgt. D'Innocenzo had the driver step out of the car and he pat frisked him for weapons for his safety. Sgt. D'Innocenzo was alone at the time and it was not unreasonable to be concerned that a suspected housebreaker might be armed. Sgt. D'Innocenzo then asked Sands for identification. He had none, but said his name was Michael Sands. Sgt. D'Innocenzo radioed for a computer check about Sands' license. While the Sergeant was waiting for that information, Officer Nahass arrived. No other officer had been present until this point.
Officer Paul Nahass, a Needham traffic officer for twenty-five years, arrived to assist Sgt. D'Innocenzo and looked through the rear of the gray Chevrolet Impala to the front windshield. He did this looking for the inspection sticker as a result of habit from his traffic patrol functions. Officer Nahass saw light coming in the sticker around the numbers that represent the month; that is, the sticker should have been opaque (no light passing through it). The transluscent sticker aroused Officer Nahass' suspicions, so he took a closer look and then saw that the inspection sticker had been altered; the number "12" had been slipped in over the number "8," that is, December (the current month) had been substituted for August. Officer Nahass informed Sgt. D'Innocenzo of his observation. Sgt. D'Innocenzo checked the sticker himself and then arrested Sands for possession of an altered inspection sticker.
With this information, Sgt. D'Innocenzo placed Sands under arrest and read him his Miranda rights. The vehicle was ordered towed for purposes of removing the sticker as evidence (the officers did not have a razor blade at the scene). Also, it would have been a safety hazard for the car to remain on the street.
The Needham Police Department has a written procedure that authorizes inventory searches of all impounded automobiles. Sgt. D'Innocenzo asked Sands if he had any valuables in the car which he wanted to secure before an inventory search occurred. Sgt. D'Innocenzo instructed Officer Nahass to perform an inventory search. Officer Nahass opened the trunk using the keys from the ignition to begin the inventory search. In the trunk were two shopping bags which contained an answering machine, a VCR and other items. Sgt. D'Innocenzo had the vehicle towed to the station to complete the search. The large number of items in the trunk of the vehicle made a complete inventory search at the scene impracticable.
At the station, the trunk was opened with a key and the inventory search was completed at about 2:00 p.m. The Needham Police Department has a Standard Operating Procedure 200-2 governing vehicle inventory and storage searches. The Procedure was introduced at the hearing and, among other things, requires that an Inventory Record form be completed. The form, titled "Vehicle Inventory Record," was completed by Officer Nahass. The Inventory Record lists several items, such as tires, cassette tapes, a starter motor, baseball hats, etc. Other items in the trunk which matched the description of items that had been reported stolen (a VCR, telephone answering machine, shopping bags and jewelry) were removed by Detective O'Brien and put into evidence. A report of the items that had been stolen was received by the Needham Police at 1:15 p.m., before the Inventory Record was completed. Said items were not listed on the Inventory Record as they were confiscated as evidence pursuant to paragraph 2H of the Standard Operating Procedure 200-2. The Inventory Record lists only those items which are to be returned to the car owner.
3. CONFRONTATION WITH MARTORANO AND MULLANEY.
After disseminating the information regarding the gray Chevrolet Impala and the three men including Daniel Mullaney, Sgt. Droney heard Sgt. D'Innocenzo state that he had seen two white male pedestrians on Mayo Avenue whom D'Innocenzo believed were connected to the gray Chevrolet Impala. Sgt. D'Innocenzo described the men as one shorter than the other, wearing a green jacket; the taller man was wearing a dark leather jacket. Sgt. Droney proceeded to Mayo Avenue and eventually saw two men who met the description that Sgt. D'Innocenzo had provided. There were no other young men in the area at the time.
Sgt. Droney radioed to Officer Hunt who was in another cruiser in the area to cut the two men off. Officer Hunt pulled his car up at a thirty degree angle to the two men and Sgt. Droney parked behind him. The police cars did not block the men's path. In fact, the men were three-fourths of the way across an intersection at that time and continued walking. Sgt. Droney asked them to stop and where they were from. They answered: "Revere." The men were asked for identification but they did not have any. They were then asked their names. The shorter man said his name was John Clifford, stuttering as he spoke. The taller man responded that he was Daniel Mullaney. Sgt. Droney recognized the name of Daniel Mullaney as a suspect in the breaking and enterings in the area. The Sergeant asked Clifford to spell his last name and he spelled it improperly as "Clofford." The men appeared very nervous. Sgt. Droney told them to put their hands on the cruiser so that he could pat frisk them for weapons. None were found.
At this point, Sgt. Droney separated the two men and spoke to them individually. He did this in order to question them further and learn if they gave consistent answers. Sgt. Droney asked them why they were in Needham and they said they had taken a train from North Station to visit a girl on Hillside Avenue. Sgt. Droney knew that no train connects North Station to Needham. He also knew that Hillside Avenue was three miles from the spot where the men were found walking. The men gave Sgt. Droney the name of the young woman they said they were visiting but they could not provide her address. They said that they had taken the train from North Station to Needham, pointing easterly on Great Plain Avenue toward Hershey Station, about one mile from where the men were. The Sergeant knew that there were other train stations in Needham, one of which is very close to Hillside Avenue (where they said they were going to visit the woman). The men never mentioned the station that is close to Hillside Avenue. During the conversation, the man who identified himself as Clifford kept repeating that he was not a house-breaker. After the conversation, Sgt. Droney said to the men that he suspected that both of them were involved in housebreaks in Needham. Both men denied the accusation, saying that they were there merely to visit a friend. Sgt. Droney took a picture of each of them and was preparing to let the men go. He was telling them not to walk behind any houses and to go directly to the home of the young woman they were allegedly visiting. This was about twelve-to-fifteen minutes after he had initially stopped them.
Until that time, the only officers present were Sgt. Droney and Officer Hunt; the police had never told the two men that they were not free to leave or that they had to answer any questions. The men never indicated that they wished to end the conversation with the officer. The police had not drawn their weapons. Sgt. Droney "would not have been happy" if the men had chosen to walk away and would have done his best to ask them to stay, but he would not have restrained them.
Sgt. Droney then heard a broadcast over his radio that a breaking and entering had been reported at 32 Ridgeway Avenue (which location he knew was directly across the street from Hershey Station) and that a witness at 9 Ridgeway Avenue, Karen Kimball, could identify two perpetrators. Ms. Kimball had reportedly seen two men leaving the house carrying shopping bags with stars on them. She reported that the two men had gotten into a gray car.Sgt. Droney instructed another officer to bring Ms. Kimball by immediately for an identification. As the witness was driven by the two men, she identified them as the people she had seen exiting 32 Ridgeway Avenue. With that, Sgt. Droney placed the two men under arrest for breaking and entering. The men were taken to the Needham Police station and booked. Following the booking, a question arose about the status of Sands as a parolee. Sands' parole agent came to the station and looked at the picture of Clifford and identified Clifford as the defendant Martorano who was another one of his parolees. Sgt. Droney took the parole agent to the cellblock to make a positive identification of Martorano which he did.
Clifford was eventually identified as Martorano. See infra.
RULINGS OF LAW
1. STANDING.
Initially, the question of standing must be addressed. The Commonwealth claims that defendants Martorano and Mullaney lack standing to contest the stop and search of Sands' car. Massachusetts follows the automatic standing rule of Jones v. United States, 362 U.S. 257 (1960). If a defendant is charged with a crime in which possession of the seized evidence at the time of the contested search is an essential element, the defendant is deemed to have standing to contest the legality of the search and seizure of that evidence. Commonwealth v. Amendola, 406 Mass. 592, 601 (1990). The defendants Martorano and Mullaney are changed with breaking and entering, larceny over and willful and malicious destruction of property. In none of these crimes is possession of the seized items (the stolen goods) at the time of the search an essential element. Defendants argue that possession is an element of the crime of larceny. That is simply not the case. The Commonwealth need not prove possession of the stolen goods in the defendants Martorano and Mullaney at the time of the search in order to convict them; the Commonwealth need only prove that at some point they stole the items. Thus, the defendants Martorano and Mullaney lack standing to contest the stop and search of Sands' car.
2. THE ENCOUNTER WITH MARTORANA AND MULLANEY. a) Initial encounter not a stop or seizure.
Not every encounter between an officer and a citizen constitutes a stop or seizure. Whether the defendants were stopped or seized depends upon the circumstances of the encounter. "An objective standard is used to determine when a seizure has occurred: `a person has been "seized" . . . if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" Commonwealth v. Borges, 395 Mass. 788, 791 (1985), quoting from United States v. Mendenhall, 446 U.S. 544, 554 (1980).
"Because the average citizen questioned by the police does not necessarily feel free to walk away without responding in some manner, the court looks to circumstances beyond the show of governmental authority inherent in the mere presence of the police." Commonwealth v. Pimentel, 27 Mass. App. Ct. 557, 560 (1989). "Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person." Id. Stopping individuals for a brief time to ask a few questions, take their pictures and conduct a check for warrants does not constitute a seizure under the Fourth Amendment or Article 14. See Commonwealth v. Caro, 419 Mass. 383, 387-388 (1995).
In this case, two Needham police officers in separate cruisers approached the two defendants and parked their cars near them. Although Sgt. Droney had directed Officer Hunt to block the paths of the two men, Hunt did not do so. In fact, the manner in which the cruiser was parked permitted the two men to simply walk around the cruiser and continue on their route. As they did this, they were stopped by Sgt. Droney. During the initial conversation between Sgt. Droney and the two men, there were only two officers present; there was no physical touching of the men; no weapon was displayed; and there was no evidence of any language or tone of voice indicating that compliance with the police request might be compelled. Considering the totality of the circumstances, there was "nothing in the officers' conduct from which it could be concluded that they engaged in a `show of authority' which would cause a reasonable person to feel that he was not free to walk away. Commonwealth v. Pimentel, 27 Mass. App. Ct. 557, 561 (1989), quoting from Commonwealth v. Sanchez, 403 Mass. 640, 6433 (1988). Sgt. Droney did not stop or seize the defendants Martorano and Mullaney when he initially spoke with them on December 6, 1994. Any encounter with the police under these circumstances must be brief. Here, the initial questioning was very succinct, merely name and where the men were from.
The initial conversation consisted only of the questions and answers regarding the men's names and where they were from.
b) Specific, articulable facts justified Terry-type stop.
After the first few questions, the encounter must be considered a stop, for the men were pat-frisked, separated, and questioned and detained for a total of ten-to-fifteen minutes. The stop can be validated on Terry grounds. Terry v. Ohio, 392 U.S. 1, 16 (1968); Commonwealth v. King, 389 Mass. 233, 241-242 (1983). By the time the "encounter" turned into a "stop," there was sufficient evidence of specific and articulable facts to justify a reasonable suspicion that illegal activity involving the two pedestrians was occurring or was about to occur. Commonwealth v. Silva, 366 Mass. 402 (1974).
The answers that the two men gave to the very first questions asked by Sgt. Droney resulted in increasing his suspicion and justifiably so. First and of extreme importance, Droney recognized the name of Mullaney as a suspect in the rash of noontime housebreaks and as connected with the gray Chevrolet. Moreover, Mullaney and his companion had been seen at about noontime on the very same street as the suspect gray Chevrolet. In addition, Clifford misspelled his own name. These two factors alone created articulable, specific facts to warrant a Terry-type stop. Further factors were that the men appeared nervous and they stated they were from Revere. There is sufficient evidence of specific and articulable facts to justify a reasonable suspicion that illegal activity involving Martorano and Mullaney and the gray Chevrolet was occurring or was about to occur. Commonwealth v. Silva, supra. Indeed, any other police action would have been irresponsible.
Although this latter answer might normally be an innocuous response, the Needham police had been informed that on the very day before, an individual named Mullaney had been in the company of one Brady who was arrested in Revere on a warrant for housebreaks. (The Court may consider the collective knowledge of all police engaged in a cooperative effort. Commonwealth v. Scott, 29 Mass. App. Ct. 1004 [1990]).
Finally, the answers to the questions the officer asked were not sensible. The men indicated that they had taken a train that did not exist and they were on foot miles from the location they indicated they were visiting and the station at which they said they had alighted. In addition, they could not give an address for the young woman they were allegedly seeking. These suspicious answers certainly justified a stop of about twelve-to-fifteen minutes. Commonwealth v. Laaman 25 Mass. App. Ct. 354 (1988) (Ten minutes not unreasonable time for Terry stop in the circumstances). At that point, Sgt. Droney was preparing to let the men go when he received word of the just-completed housebreak right across from the Hershey Station which was the train stop at which the defendants said they had arrived. With this final piece of information, Sgt. Droney was justified in detaining the men for a further short period for purposes of bringing the witness to the location to see if she could identify the defendants. See Commonwealth v. Gagne, 27 Mass. App. Ct. 425, 426 (1989) (defendant, walking away from crime scene and a short distance therefrom, lawfully detained for identification purposes based on victim's description).
The validity of the show-up is not at issue in this hearing.
3. THE STOP OF SANDS' CAR.
Sgt. D'Innocenzo's original following of the gray Chevrolet does not implicate any constitutional considerations. Merely following or watching someone does not constitute a seizure or stop and may be done on a hunch. Commonwealth v. Moore, 32 Mass. App. Ct. 924 (1992). As to the eventual stop of the car by Sgt. D'Innocenzo, a Terry stop was certainly justified. Sgt. D'Innocenzo was aware that numerous unsolved housebreaks were occurring in Needham and environs at about noon. He had received information that white males in a large gray Chevrolet, likely an Impala, with license plate 209YHN were believed to be involved in said housebreaks. On December 6, at approximately noon, Sgt. D'Innocenzo observed the described car in a residential area of Needham. He had specific, articulable facts to justify a Terry stop.
Sgt. D'Innocenzo pat-frisked Sands. A Terry stop may include a pat frisk for the protection of the officer. Commonwealth v. Moses, 408 Mass. 136 (1990) (police may make protective search of suspects in a Terry stop). Sgt. D'Innocenzo asked Sands for identification. Sands had none; thus, Sgt. D'Innocenzo sought information as to the status of Sands' license by means of a license check.
4. THE ARREST OF SANDS AND THE SEARCH OF SANDS' CAR.
While Sgt. D'Innocenzo was awaiting the license check on Sands, Officer Nahass arrived and observed the altered inspection sticker. At that point, Sands was arrested for possession of an altered inspection sticker and his car was ordered towed.
Officer Nahass' observation of the altered inspection sticker was the basis for the defendant's arrest. See M.G.L.c. 90, § 24B. At that point, it was necessary to tow the car. It could not be driven as it was improperly on the road. Further, the evidence in the case, the altered inspection sticker, had to be removed, and this had to be done at the station. Finally, the car was a safety hazard. Thus, towing was the proper procedure.
The contents of an impounded car may be inventoried without a warrant pursuant to a written standardized administrative procedure. Commonwealth v. Hanson, 387 Mass. 169 (1982). The scope of the search may include the locked trunk of the car. Commonwealth v. Garcia, 409 Mass. 675, 684 (1991). During an inventory search, closed but unlocked containers within the car may be opened. Commonwealth v. Caceres, 413 Mass. 749, 755 (1992). It is permissible to search part of the car at the scene of the stop and part of it at the station. Commonwealth v. King, 389 Mass. 233 (1983). Even though the officer suspects that the search may yield evidence of criminal activity, an inventory search is permissible if it were reasonable and pursuant to writen policy. Commonwealth v. Garcia, supra, at 679.
The Needham Police Department has a written procedure, Standard Operating Procedure 200-2, which authorizes a vehicle inventory and storage search. The protocol states that the area to be searched includes the trunk. See Standard Operatiing Procedure 200-2 at B. The items thus were found during the course of a valid routine inventory search which was undertaken in pursuance of a mandatory policy and not as a matter of discretion or as a pretext for an investigatory search. Commonwealth v. DeVlaminck, 32 Mass. App. Ct. 980, 981 (1992). Pursuant to the holding in Garcia, it was permissible for the Needham officers to enter and inventory the trunk.
Before the car was towed, Officer Nahass opened the trunk with the key and began to inventory the contents pursuant to the Needham Police Department's written inventory policy. However, the trunk contained too many items for him to conduct the full inventory on the street. The fact that Officer Nahass opened the trunk originally at the scene to begin the inventory does not invalidate the procedure. The Standard Operating Procedure states in "A" that the inspection and storage search "should take place before any vehicle is towed." The police began the inventory search on the street; when they saw the large number of items they realized that it was impractical and unsafe to conduct the inventory at the scene. It is permissible to conduct the search partly at the scene and partly at the station. Commonwealth v. King, supra.
Although some items that had been stolen were removed from the trunk and not inventoried, that does not affect the validity of the search. Paragraph H of the Needham Police Department Standard Operating Procedure 200-2 provides that items that are to be used as evidence or that are the property of others may be removed from the vehicle. It is not entirely clear from the Procedure whether the items so removed are to be listed on the Inventory Record and then removed, or whether they need not be inventoried at all. The purpose of the Needham Police inventory search is to list the items of the prisoner that are his or hers and which are to be returned to him or her, to protect the prisoner's property and to protect the police against allegations of loss or theft of these items. This purpose does not apply to items that do not belong to the prisoner. It perhaps would have been more prudent to list all the items in the trunk, even those that were identified as stolen. Failure to do so, however, is not a reason to invalidate the inventory search. Whether the items are tagged has little relation to whether the inspection of the item in the first instance was permissible. See Commonwealth v. DeVlaminck, supra, at 981. (Failure to tag items inventoried does not affect validity of search). Accordingly, the inventory search of the car was proper. Commonwealth v. Garcia, supra.
ORDER
For the foregoing reasons, the defendants' motions to suppress are DENIED.
Judith A. Cowin Justice of the Superior Court
DATED: 1995