Commonwealth v. Matthews
244 N.E.2d 908
Mass.
1969
Check Treatment
Spalding, J.

The defendant was convicted under an indictment charging possession of burglarious tools. The sole question for decision arises out of his exceрtion to the denial of a pre-trial motion to suppress certain evidence.

All of the evidence at the hearing on this motion came from Sergeant Bergin of the Brookline police department who testified in substance as follows: About 2:50 a.m. on *379 July 2, 1966, Sergeant Bergin, while in the vicinity of Commonwеalth Avenue, Brookline, observed the defendant walking on Crowninshield Road to Commonwealth Avenue. There had been several breaking and entering inсidents in the neighborhood, but none had been reported that night. The officer stopped the defendant and inquired about his identity and purpose for being abroad. The defendant identified himself and stated that he was walking from Boston to visit a friend who lived on Commonwealth Avenue in Brookline. When questioned аs to the route he was taking, the defendant replied that “he had felt like taking a walk.” Observing that the defendant was carrying a paper bag with the name of “Mai’s Department Store ’’ on the outside, the officer asked if he might examine its contents, and the defendant readily assented. The bag contained new articles of clothing, consisting of underwear and socks, and a sales slip bearing the date of June 28. The defendant informed the officer that he had purchased the articles on the preceding day, July 1. Because the items of clothing were apparently not of the defendant’s size, the officer became suspicious and frisked him to determine if he was carrying any weapons. The frisk consisted of the officer quickly running his hands over thе defendant’s clothing. He discovered, in the small of the defendant’s back and tucked under his shirt and belt, a screwdriver, the shaft of which was seven inches long; it wаs not new and had paint marks on both the shaft and handle. The defendant said he had bought the screwdriver along with the clothing at Mai’s Department Store. The defendant was thereupon arrested and taken to the police station where a thorough search was made. He was charged with pоssession of burglarious instruments.

The defendant contends that officer Bergin’s action violated his constitutional protection against unreasonablе search and seizure and that therefore the court erred ‍​‌​‌‌​‌​​​​‌‌​‌‌‌​‌​​‌‌‌‌​​‌‌​​‌​‌‌​​​‌‌‌‌‌​‌‌​‌‍in denying his motion to suppress. We shall assume that in these circumstances the officеr’s action constituted a search and seizure of the defendant. See Terry v. Ohio, *380 392 U. S. 1, 16. We shall also assume, arguendo, that initially there was no probable cause to arrest the defendant and that the frisk was not incidental to an arrest. It does not, however, necessarily follow, as the defendant aрpears to argue, that the search and seizure were unconstitutional. The Fourth Amendment to the Constitution of the United States prohibits only unreasonable searches and seizures, and in certain circumstances the police may seize a person and subject him to a Hmited search for weapons even if there were no probable cause for an arrest. Terry v. Ohio, 392 U. S. 1, 27.

General Laws c. 41, § 98, as amended through St. 1957, c. 688, § 1, provides in part that police officеrs during the nighttime “may examine all persons abroad whom they have reason to suspect of unlawful design.” 1 In Commonwealth v. Lehan, 347 Mass. 197, 204, we held that this section “constitutionally permits а brief threshold inquiry where suspicious conduct gives the officer ‘reason to suspect’ the questioned person of ‘unlawful design,’ ‍​‌​‌‌​‌​​​​‌‌​‌‌‌​‌​​‌‌‌‌​​‌‌​​‌​‌‌​​​‌‌‌‌‌​‌‌​‌‍that is, that the person hаs committed, is committing, or is about to commit a crime. What is reasonable within the principle of threshold inquiry must be decided in each case.” 2 See concurring opinion of Harlan, J., in Sibron v. New York, 392 U. S. 40, 72.

A Statе is free to develop its own law of search and seizure to meet the needs of local law enforcement, and in the process it may call the standards it employs by any names it may choose. Sibron v. New York, 392 U. S. 40, 60-61. *381 “It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct.” Sibron v. New York, supra, 61. In justifying his actions the police officer “must be able to point to specific . . . faсts which taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U. S. 1, 21. We are of opinion that it was reasonablе for the officer to stop and briefly interrogate a man who, while carrying a bag with a department ‍​‌​‌‌​‌​​​​‌‌​‌‌‌​‌​​‌‌‌‌​​‌‌​​‌​‌‌​​​‌‌‌‌‌​‌‌​‌‍store label, was walking at two fifty in the morning in an area where there had recently been several incidents of breaking and entering. See Commonwealth v. Roy, 349 Mass. 224.

Our next inquiry is whether the subsequent frisking of the defendant was reasonable. A search for weapons is permissible where the police officer “has reason to believe that he is dealing with an armed and dangеrous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others wаs in danger.” Terry v. Ohio, 392 U. S. 1, 27. The officer, after having his suspicions aroused by the defendant’s actions and his answers to the officer’s questions, could reasonably beliеve that his safety was in danger. That there were reasonable grounds for the officer to become suspicious is abundantly warranted by the evidence. In arriving at this conclusion he could consider: the presence of the defendant (carrying a paper bag) at an unusual hour of the morning in a vicinity where breaks had occurred; his unlikely story that he was walking from Boston to Brookline to visit a friend; the statement that he chose the route taken because he wanted to walk; the articles contained in the bag (revealed voluntarily) that apparently were not the defendant’s size; аnd the date on the sales slip which was three days prior to the time when the defendant said he made the purchase. See Commonwealth v. *382 Ballou, 350 Mass. 751, 756. The frisk, therefore, аnd the seizing of the screwdriver obtained as a result of it did not violate the defendant’s right against unreasonable search and seizure, even if the scrеwdriver were not classified as a weapon. Sibron v. New York, supra, 79 (Harlan, J., concurring). The motion ‍​‌​‌‌​‌​​​​‌‌​‌‌‌​‌​​‌‌‌‌​​‌‌​​‌​‌‌​​​‌‌‌‌‌​‌‌​‌‍to suppress was rightly denied.

The defendant complains of two rulings on еvidence made during the course of the trial. But other than the bald assertion that these rulings were erroneous the defendant does not argue the рoints. We treat them as waived. S. J. C. Rule 1:13, 351 Mass. 738. Lolos v. Berlin, 338 Mass. 10, 13-14.

Exceptions overruled.

Notes

1

Statute 1967, e. 368, § 1, amended § 98 to allow such a threshold inquiry in the daytime as well as at night. By St. 1967, c. 368, § 2, § 98 was further amended to provide: “If a police officer stops a person for questioning pursuant to this section and reasonably suspects that he is in danger of life or limb, he may sеarch such person for a dangerous weapon. If he finds such weapon or any other thing the possession of which may constitute a crime, hе may take and keep it until the completion of the questioning, at which time he shall return it, if lawfully possessed, or he shall arrest such person.” This amendment was enacted subsequent to the defendant’s arrest.

2

Alegato v. Commonwealth, 353 Mass. 287, 291-293, held that other provisions of § 98, in so far as they authorized an arrest and prosecution rathеr than a brief threshold inquiry, were unconstitutional. But the opinion stated that ‘ ‘We are not to be understood as impairing in any way our holding in Commonwealth v. Lehan which upheld the statute in so far as it permits a brief ‍​‌​‌‌​‌​​​​‌‌​‌‌‌​‌​​‌‌‌‌​​‌‌​​‌​‌‌​​​‌‌‌‌‌​‌‌​‌‍threshold inquiry in certain circumstances.” P. 293.