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Attorney(S)

Thomas F. Sullivan, Jr. ( Charles L. Johnson with him) for the defendant. Kathleen M. Curry, Special Assistant District Attorney, for the Commonwealth.

Judges

HALE, C.J.

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Smart Summary

Commonwealth vs. Theodore Harris — Appeals Court of Massachusetts (June 13, 1975)

Factual and Procedural Background

On February 11, 1973, at approximately 3:55 A.M., Boston police Officer Roy Sergei and a fellow officer in an unmarked cruiser but in uniform observed a car run a red light. The officers stopped behind the car on Carver Street intending to give the driver a traffic citation. Three occupants departed the car and entered a nearby bus station; the driver and one man (the defendant) remained in the car, the defendant seated in the back seat. As Officer Sergei approached the passenger side, he observed the defendant "move his shoulders and jiggle around as though he were kicking something under the front seat." Believing the defendant might be discarding contraband or a weapon, Officer Sergei opened the right rear door, placed his left hand on the defendant's chest, and with his right hand extracted a bag from under the front seat. Upon opening the bag the officer saw "decks" of a substance he recognized as heroin and placed the defendant under arrest.

Indictment was returned March 14, 1973. The defendant was tried before a judge at a jury-waived trial on a charge of possession with intent to distribute under G.L.c. 94C, §§ 31-32, and was found guilty of simple possession and sentenced. The defendant filed a motion to suppress the heroin seized during the warrantless search; the pre-trial motion and the case were heard by Judge Bennett. The case comes to the Appeals Court on the defendant's bill of exceptions.

Legal Issues Presented

Whether the police had probable cause to conduct the warrantless search of the motor vehicle.
Whether the search was justified as incident to a lawful arrest.
Whether the search was consensual.
Whether, alternatively, the limited search was permissible under the standards of Terry v. Ohio (i.e., whether the scope of the search was reasonable and justified by the circumstances).

Arguments of the Parties

Defendant's Arguments

The motion to suppress asserted that (1) the officers had no probable cause to search the vehicle, (2) the search was not incident to a lawful arrest, and (3) there was no consent to search the vehicle.

Commonwealth's Arguments

The Commonwealth did not contend that the seizure resulted from probable cause, incident to a valid arrest, or consent. Instead it argued that the search was a limited search of the type approved in Terry v. Ohio (1968).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Terry v. Ohio, 392 U.S. 1 (1968)	Standards for limited searches/stops and that the scope of a search must be tied to and justified by the circumstances which rendered its initiation permissible.	The Commonwealth invoked Terry to justify the search; the court applied Terry's requirement that the scope of search be strictly tied to circumstances and found the Commonwealth had not shown the search met Terry standards.
Commonwealth v. Silva, 366 Mass. 402 (1974)	Discusses limits of permissible searches in circumstances similar to the present case; in Silva the court reviewed the packet itself to determine whether it could have been a weapon.	The court compared Silva to the present facts, noted similarities and a key difference (in Silva the packet was not within reach; here the object was within reach), and relied on Silva's caution about outer limits of police search powers.
Commonwealth v. Matthews, 355 Mass. 378 (1969)	Extensive discussion of Terry standards (state court treatment of Terry).	The court referenced Matthews as part of the Supreme Judicial Court's extensive discussions of Terry and declined to reiterate those standards at length.
Commonwealth v. Hawkes, 362 Mass. 786 (1973)	Another state case discussing Terry standards.	Referenced as part of prior state court treatments of Terry; no detailed reiteration by the Appeals Court.
Elkins v. United States, 364 U.S. 206, 222 (1960)	Fourth Amendment forbids only unreasonable searches and seizures.	Quoted to state that only unreasonable searches are forbidden and to frame the court's inquiry into reasonableness.
Warden v. Hayden, 387 U.S. 294, 310 (1967) (Fortas, J., concurring)	"The scope of the search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible."	Quoted (via Terry) to emphasize that the scope of the search must be justified by the facts that rendered its initiation permissible.
Carroll v. United States, 267 U.S. 132, 162 (1925)	Authority cited concerning the facts required to justify a search.	Cited (via Terry) for the proposition that facts available at the moment must warrant belief that the action taken was appropriate.
Beck v. Ohio, 379 U.S. 89, 96-97 (1964)	Authority cited concerning the necessity of facts to justify searches or seizures.	Cited (via Terry) alongside Carroll for the standard that facts must warrant reasonable belief in the appropriateness of police action.
Commonwealth v. Antobenedetto, 366 Mass. 51, 57 (1974)	Allocates burden to the Commonwealth to establish the reasonableness of the scope of a search.	The court relied on Antobenedetto to state that the Commonwealth bore the burden of proving the search's reasonableness and found that burden unmet.

Court's Reasoning and Analysis

The court framed the controlling inquiry as whether the scope of the search was within constitutional limits under the Fourth Amendment and applicable Terry principles. It proceeded as follows:

The court compared the facts of this case with Commonwealth v. Silva, noting factual similarities (late hour; no unusual event observed; defendant's movement appeared to be concealment rather than taking an item into hand) and a material difference (in Silva the packet was not within reach of anyone in the car; here the object was within the defendant's reach).
The court emphasized the governing legal standard: the Fourth Amendment forbids only unreasonable searches and the scope of a search must be strictly tied to and justified by the circumstances that made its initiation permissible (citing Elkins, Terry, and Warden v. Hayden).
The court noted that, unlike Silva where the court had the packet before it and could determine that it could not conceivably have contained a weapon, the Appeals Court in this case did not have the bag or any description of its size, weight, or shape. Consequently the court stated it had no means of determining whether opening the bag was reasonable.
The court observed that the trial judge's isolated finding that there was "nothing to indicate to Officer Sergei whether or not the package contained a weapon" added nothing beyond the bill of exceptions and did not supply the missing descriptive facts.
The court reiterated that the Commonwealth bore the burden to establish the reasonableness of the scope of the search (citing Commonwealth v. Antobenedetto), and concluded that, in the absence of probable cause and without meeting that burden under Terry principles, the search could not be upheld.

Holding and Implications

Holding: The court sustained the defendant's exceptions and ordered judgment for the defendant.

Implications: The direct effect is that the warrantless search and seizure of the bag containing heroin should have been suppressed and the conviction (for simple possession as adjudged at trial) cannot stand under the record presented. The opinion does not announce a new rule of law beyond application of existing Fourth Amendment/Terry principles and prior state decisions; it rests on the conclusion that the Commonwealth failed to carry its burden to justify the scope of the search under those authorities.

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COMMONWEALTH v. THEODORE HARRIS

Threshold Police Inquiry. Search and Seizure. Constitutional Law, Search and seizure. Evidence, Presumptions and burden of proof.

At the hearing of a motion to suppress heroin found during a warrantless search of an automobile, evidence that one of two police officers approaching a car with the intention of giving the driver a citation for a traffic violation observed the defendant in the back seat "move his shoulders and jiggle around as though he were kicking something under the front seat" and that, after opening the rear door, the officer extracted a bag containing heroin from under the front seat was insufficient to satisfy the Commonwealth's burden of establishing the reasonableness of the search. [344-346]

HALE, C.J.

The defendant was tried before a judge at a jury waived trial on a charge of possession of heroin with intent to distribute. G.L.c. 94C, §§ 31-32, as inserted by St. 1971, c. 1071. He was found guilty of simple possession of heroin and was sentenced. The case is before us on the defendant's bill of exceptions.

The defendant filed a motion to suppress the heroin seized by the police on the grounds that: (1) the police officers had no probable cause to conduct a search of the motor vehicle; (2) the search was not conducted incident to a lawful arrest; and (3) there was no consent given by the defendant to search the vehicle. We summarize from the bill of exceptions the evidence taken at the hearing on the motion.

The bill of exceptions contains the usual averment that it "contains all the facts and evidence material to the exceptions alleged."

On February 11, 1973, at approximately 3:55 A.M., Boston police officer Roy Sergei was on duty in an unmarked cruiser with a brother officer. Both officers were in uniform and were on a routine traffic patrol. While driving on Boylston Street in the direction of Park Square, the officers saw a car go through a red traffic light at the intersection of Arlington and Boylston Streets. The car proceeded into Park Square and stopped on Carver Street at the rear of the Trailways bus station. Three people alighted from the car and went into the bus station. The driver remained in the car, and another man, later identified as the defendant, remained in the back seat. The officers stopped the cruiser behind the car, intending to give the driver a citation for the observed traffic violation. Both officers alighted from the cruiser. Officer Sergei started towards the passenger's side of the car, and the other officer started towards the driver's side. As Officer Sergei approached, he observed the man in the back seat "move his shoulders and jiggle around as though he were kicking something under the front seat." The officer "thought that he [the defendant] might be getting rid of contraband or a weapon." Officer Sergei then opened the right rear door of the car, placed his left hand on the defendant's chest and, with his right hand, extracted a bag from under the front seat. Officer Sergei opened the bag and saw "decks" of a substance which he recognized as heroin. He placed the defendant under arrest for its possession.

The Commonwealth does not contend that the seizure of the paper bag and its contents resulted from a search made on the basis of probable cause, that the seizure was incident to a valid arrest, or that any search was consented to. It argues that the search was a limited one of the type approved in Terry v. Ohio, 392 U.S. 1 (1968). In view of the Supreme Judicial Court's extensive discussions of the Terry standards in Commonwealth v. Matthews, 355 Mass. 378 (1969), Commonwealth v. Hawkes, 362 Mass. 786 (1973), and most recently in Commonwealth v. Silva, 366 Mass. 402 (1974), no useful purpose would be served by our reiterating those standards here.

The facts of this case bear a marked resemblance to those which the Supreme Judicial Court faced in Commonwealth v. Silva, supra. In each case the incident occurred late at night. In neither was there any unusual event observed by the police officers which would have given rise to a reasonable suspicion that the defendant, or another person in the car, was armed or dangerous or that a crime had been or was about to be committed. In the Silva case the police had some prior information concerning the defendant and in the present case none at all. In each case the defendant's movement was seen as an effort to conceal an object rather than to take it into hand. There is, however, a difference between the two cases in the position of the defendant with respect to the location of the object seized. In Silva the defendant was about to be driven by police in a police cruiser to obtain gasoline for his car when the search was made, and there was no showing that the packet was within the reach of anyone seated in the automobile. In the present case the object was within the reach of the defendant. As was the case in Silva, we need not decide whether the facts then known to the officer were sufficient to warrant a reasonably prudent person in believing that his safety was endangered (see Terry v. Ohio, 392 U.S. 1, 27 [1968]).

We recognize that the Supreme Judicial Court in the Silva case, in stating that the search "if permissible at all, clearly approached the outer limits of police privileges to search" (366 Mass. at 407), did not rest its decision on whether the initiation of the search was constitutionally permissible (366 Mass. at 404).

"The police had knowledge that the defendant had been charged previously with operating a motor vehicle without authority. . . . One of the policemen also believed that the defendant had at that time been in the company of another person who was illegally carrying a gun." 366 Mass. at 406.

We concentrate instead on the question whether the scope of the search was within constitutional limits. The Fourth Amendment forbids only unreasonable searches and seizures. Elkins v. United States, 364 U.S. 206, 222 (1960). To be reasonable, "[t]he scope of the search must be `strictly tied to and justified by' the circumstances which rendered its initiation permissible." Terry v. Ohio, supra, at 19, quoting from Warden v. Hayden, 387 U.S. 294, 310 (1967) (Fortas, J., concurring). "[T]he facts available to the officer at the moment of the seizure or the search [must be such as to] `warrant a man of reasonable caution in the belief' that the action taken was appropriate." Terry v. Ohio, supra, at 21-22, citing Carroll v. United States, 267 U.S. 132, 162 (1925), and Beck v. Ohio, 379 U.S. 89, 96-97 (1964).

In Silva the court had before it the "little black packet" and was thus able to find that the packet "could not conceivably have contained a gun, nor could an officer reasonably have considered that it contained a dangerous weapon of any kind." 366 Mass. at 410. We have neither the bag before us nor a description of it and thus have no means of determining its size, weight or shape. The finding of the trial judge that "[t]here was nothing to indicate to Officer Sergei whether or not the package contained a weapon," gives us no assistance. It adds nothing to the facts already before us in the bill of exceptions. We thus have no means of determining the reasonableness of the officer's action in opening the bag. The burden was on the Commonwealth to establish the reasonableness of the scope of the search (see Commonwealth v. Antobenedetto, 366 Mass. 51, 57 [1974]). There being no probable cause, and the Commonwealth not having met its burden of showing the search to have been justified by Terry principles, the motion to suppress should have been allowed.

Exceptions sustained. Judgment for the defendant.

COMMONWEALTH v. HARRIS