Commonwealth v. Pigaga

12 Mass. App. Ct. 960 | Mass. App. Ct. | 1981

1. The keys should have been suppressed because, even on the evidence most favorable to the Commonwealth (and as the judge found), they were discovered and seized by the officer as the result of her direct, immediate and warrantless search of one of the defendant’s pockets rather than in the course of a pat-down for weapons which might have been authorized under Terry v. Ohio, 392 U.S. 1 (1968). Compare Commonwealth v. McGrath, 365 Mass. 631, 631-632 (1974). 2. The false license (G. L. c. 90, § 24B) which was removed without a warrant from inside the defendant’s wallet after he was taken to the police station should have been suppressed under G. L. c. 276, § 1, as amended by St. 1974, c. 508, because the police lacked probable cause to believe that a search of the wallet would yield any evidence or the fruits of any of the crimes for which the defendant had been arrested (contrast Commonwealth v. Dickerson, 372 Mass. 783, 786, 791-792 [1977]) and because the evidence was insufficient to warrant a finding that the license had been discovered by inadvertence (contrast Commonwealth v. Ross, 361 Mass. 665, 679, 680-682 [1972], vacated on other grounds, 410 U.S. 901, aff’d on remand, 363 Mass. 665, cert. denied, 414 U.S. 1080 [1973]) or in the course of a lawful inventory of the defendant’s personal effects (compare Commonwealth v. Benoit, 382 Mass. 210, 219-220 [1981]). 3. The abbreviated record in this case (we have only the evidence at the suppression hearing) contains no suggestion of error in any of the other convictions. 4. The judgments on the complaints numbered 5944, 5947 and 5948 are affirmed; the judgments on the complaints numbered 5946 and 5950 are reversed, the verdicts on those complaints are set aside, and the complaints are to be dismissed (Commonwealth v. Taylor, 383 Mass. 272, 285 n.17 [1981], and cases cited).

John L. Sousa for the defendant. William E. Loughlin, Assistant District Attorney, for the Commonwealth.

So ordered.