9 Mass. App. Ct. 618 | Mass. App. Ct. | 1980
The defendant appeals (G. L. c. 278, §§ 33A-33G) from convictions on six indictments charging possession of controlled substances with intent to distribute. He assigns as error and argues in the following order (1) the denial of his motion to suppress evidence which, he contends, resulted from an illegal search and seizure; (2) the trial judge’s refusal to ask certain questions of prospective jurors; (3) the denial of his motions for directed verdicts; and (4) the admission of certain testimony at trial. (Other assignments of error, not argued, are deemed waived.)
1. Motion to suppress. The following background facts appear primarily from the judge’s findings on the motion to suppress, supplemented by the evidence introduced at the hearing on the motion. About 10:00 p.m. , on December 23, 1977, an officer of the East Longmeadow police department (Getty) spoke over the telephone to a State police trooper (Cauley) and told him that he (Getty) had received information “from an informant that there was a possibility of narcotics, guns and a house break at a location near a trailer park, a junk yard and a power line that he thought to be either in the Palmer or Brimfield area.”
The defendant contends that Gauley’s observation of the hashish in the Brimfield cottage is the fruit of an illegal entry, and that this is manifest (a) on the face of the affidavit in support of the search warrant (Commonwealth v. Mon-osson, 351 Mass. 327 [1966]) and (b) from the evidence at the hearing on the motion to suppress. We do not agree.
(a) Cauley’s affidavit recites that, as a result of information from Getty concerning a breaking and entering in a dwelling house in Brimfield, Cauley and other officers went to that dwelling house and found that “there had been in fact a break committed there.” They “entered the dwelling house ... to ascertain who the owner was.” The affidavit further sets out that while in the cottage Cauley noticed “a quantity of . . . hashish.”
It seems clear to us that a house break without more — as set out in the affidavit — raises the possibility of danger to an occupant and of the continued presence of an intruder and indicates the need to secure the premises. In such circumstances “[t]he right of the police to enter and investigate in an emergency without the accompanying intent to either search or arrest is inherent in the very nature of their duties as peace officers.” United States v. Barone, 330 F. 2d 543, 545 (2d Cir.), cert, denied, 377 U.S. 1004 (1964). Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298-300 (1967). Michigan v. Tyler, 436 U.S. 499, 509-510 (1978). Commonwealth v. Thomas, 358 Mass. 771, 774 n.2 (1971). Commonwealth v. Kingsbury, 7 Mass. App. Ct. 51, 53, S.C., 378 Mass. 751 (1979). See Marshall v. United States, 422 F.2d 185, 187-189 (5th Cir. 1970); United States v. Duna-
(b) The defendant further contends that Cauley’s observation of the hashish in the cottage was the fruit of an illegal entry made for the purpose of looking for narcotics, rather than the inadvertent result of the investigation of a breaking and entering. See Commonwealth v. Forde, 367 Mass. 798, 807-808 (1975), citing Wong Sun v. United States, 371 U.S. 471, 484-488 (1963), Commonwealth v. Penta, 361 Mass. 894, 895 (1972), and Commonwealth v. Hall, 36[6] Mass. 790, 795 (1975). The issue, otherwise put, is the applicability to Cauley’s observation of “[t]he plain view doctrine [which] requires prior police justification for an intrusion in the course of which an officer inadvertently comes across incriminating evidence. The ‘prior justification’ language is merely another way of articulating the necessity for ‘some . . . legitimate reason for being present unconnected with a search directed against [an] accused.’ Coolidge v. New Hampshire [403 U.S. 443, 466 (1971)].” Commonwealth v. Walker, 370 Mass. 548, 557 (1976).
On the record in this case we believe the entry was justified. To be sure, Cauley testified that he came upon the cottage in the course of an investigation of the possibility of narcotics in a house which might have been broken into and that Getty’s information, on which he proceeded, came from an informant for whose reliability neither Cauley nor
In the circumstances the possibility that this was the cottage where narcotics might be found did not cancel out the alternate possibility that someone in the cottage was in need of help or that an intruder was in the dwelling. Cauley was not obliged to treat the cottage as somehow an outlaw without the right to police protection and aid because of the possibility that there might be narcotics in it. That mere possibility did not require him to depart from the normal procedure that “if we came upon a break we go in and ascertain if anybody who had broken in was still inside.” Accordingly, the motion to suppress was properly denied.
2. Voir dire of prospective jurors. Of the seventeen questions which defense counsel proposed that the trial judge ask
3. Motions for directed verdict. Contrary to the defendant’s contention, there was sufficient evidence when the defendant moved for a directed verdict at the end of the Commonwealth’s case from which the jury could find beyond a reasonable doubt that the defendant had dominion and control over the narcotics seized in the Brimfield cottage. Three trunks of marihuana were found in the cellar, the windows
4. Admission of evidence. Cauley’s expert testimony as to the “street value” of cocaine and hashish was admissible. The trial judge was well within his discretion in qualifying Cauley as an expert (Commonwealth v. Boyd, 367 Mass. 169, 182 [1975]) and the testimony was obviously relevant to the defendant’s intent to distribute. See Commonwealth v. Baltrop, 2 Mass. App. Ct. 819, 820 (1974); Commonwealth v. Rivera, 6 Mass. App. Ct. 947 (1978). See also cases cited in Opinion of the Justices, 378 Mass. 822, 828 n.4 (1979). We find unconvincing the defendant’s argument in his brief based on points made on cross-examination going to the weight of the testimony. His further objection to the evidence of the correlation between the numbers on the jars found in the defendant’s East Longmeadow home and the notations in notebooks in the Brimfield cottage is insubstantial.
Judgments affirmed.
The quotation, included in the judge’s findings, is taken from Cauley’s testimony at the hearing.
There was also a trailer park in the area.
No separate issue is raised with reference to the East Longmeadow warrant.
The defendant also complains that Cauley omitted from his affidavit any reference to the additional information received from Getty about the possibility that narcotics might be found in the cottage. But in our view, as explained in part (b) infra, this possibility did not make unlawful the entry into the cottage; therefore its inclusion in the affidavit would have been immaterial. See Franks v. Delaware, 438 U.S. 154,161-164 (1978); Commonwealth v. Reynolds, 374 Mass. 142, 147-149 (1977).
Cauley testified that on questioning Getty he was told that Getty had never used this informant before and that when Cauley “asked him what did he base his reliability on ... he told me that the informant was very scared and he tended to believe him.” Getty would not tell Cauley where the informant got the information.
He testified: “I went through a trailer park where there was numerous places. There were some up behind it and I went up a dirt road. I b[ore] to the right. You could have b[orne] to the left and I think the[re] are cottages up in there. I came upon a cottage.” He further testified: “I came upon a dwelling that was obviously broken into. I did not know ... if it was the same place that Mr. Getty had talked to me about.... I went in to ascertain if anybody was inside there who had broken in, to secure the property for the owner and to identify the owner, if at all possible.”
The proposed question was: “Do you have any knowledge of this case gained from any source including but not limited to radio, television, newspapers or in conversation with other prospective jurors?
a. If so, have you formed an opinion about the case?
b. If you have not formed an opinion but have knowledge of the case, can you decide the issues solely on the evidence presented at trial?”
He also asked as proposed by defense counsel: “Do you have any special feelings about narcotics which will make it difficult for you to decide this case upon the evidence alone?”