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12/30/77 COMMONWEALTH v. CHARLES F. WHITE

December 30, 1977

COMMONWEALTH
v.
CHARLES F. WHITE



Franklin. Indictments found and returned in the Superior Court on September 9, 1975. A pre-trial motion to suppress evidence was heard by Moriarty, J., and the cases were heard by Cross, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Quirico, Braucher, Kaplan, & Liacos, JJ.

SYLLABUS BY THE COURT

Search and Seizure. Probable Cause. Constitutional Law, Search and seizure, Probable cause, Waiver of constitutional rights. Practice, Criminal, Suppression of evidence. Waiver.

The opinion of the court was delivered by: Liacos

At the trial of a defendant charged with possession of certain controlled substances with intent to distribute, evidence that the defendant, who had been arrested for driving under the influence of alcohol or drugs, had unsuccessfully attempted to call an attorney after being given Miranda warnings and that the officer to whom the defendant made statements in response to the officer's questioning did not regard the defendant as having waived his right to counsel or to remain silent warranted suppression of the statements. [137-138]

Statements obtained in violation of a defendant's constitutional rights to counsel and to remain silent could not be used for the purpose of establishing probable cause to obtain a search warrant. [138-139]

Where the only allegations in an affidavit in support of a search warrant for an automobile, other than statements obtained in violation of a defendant's constitutional rights, were that the defendant was under arrest for driving under the influence and that a marihuana cigarette was found in his shirt pocket, the affidavit failed to establish probable cause for the search. [139-140]

The mere fact that a defendant charged with possession with intent to distribute controlled substances was arrested for driving under the influence of an intoxicant did not constitute probable cause for a warrantless search of his automobile. [140-142]

In a jury waived trial held pursuant to the provisions of G. L. c. 278, §§ 33A-33G, the defendant was found guilty on four indictments charging him with unlawful possession with intent to distribute controlled substances, namely, marihuana (Class D); cocaine (Class B); amphetamines (Class B); and LSD (Class C). G. L. c. 94C, § 31. He was sentenced to not more than seven nor less than five years at the Massachusetts Correctional Institution at Walpole as to three of the convictions, the sentences to run concurrently. The marihuana conviction was filed. The defendant appealed to the Appeals Court and we transferred the case here on our motion. We reverse the convictions.

The only point we need consider on this appeal is whether the Judge was correct in denying the defendant's motion to suppress evidence of controlled substances, related paraphernalia, and the contents of a strongbox ($3,195) found in a search of the trunk of the defendant's car. The search was pursuant to a search warrant, the affidavit in support of which was based on statements which the Judge held should be suppressed as they were obtained in violation of the commands of Miranda v. Arizona, 384 U.S. 436 (1966). The underlying facts found after a hearing on the defendant's motion are set forth in the Judge's findings and rulings on the matter. We state the facts, as embodied therein, necessary for our decision.

At approximately 2 a.m., on March 28, 1975, the chief of police of the town of Ashfield responded to a report of a motor vehicle accident. The defendant's automobile had apparently gone off the road over an embankment, hitting several posts. The chief of police found the defendant in his vehicle alone trying to get his car back on the road. The defendant's behavior and appearance gave the chief reason to believe that the defendant was operating under the influence of drugs or alcohol, or both, whereupon he ordered the defendant out of the car, placed him under arrest for operating under the influence, and gave him the warnings required by Miranda v. Arizona, supra. At this point, he ordered the defendant to walk up to the police cruiser, a task the defendant accomplished without assistance, but with some degree of staggering.

Responding to a call for assistance from the chief of police, an officer of the State police met him at the accident scene. After arranging to have the defendant's car towed to the State police barracks at Shelburne Falls, he returned to the barracks. The chief of police had transported the defendant to the same State police barracks for the purpose of having a breathalyzer test administered to the defendant. When the trooper arrived at the barracks, he read the defendant his Miranda rights. He advised the defendant of his right to a breathalyzer test and of the consequences of his refusal to submit to the same, G. L. c. 90, § 24 (1) (f), of his right to a blood test by a physician of his own choice, and of his right to make a telephone call. The defendant agreed to submit to the breathalyzer test.

Prior to the administration of the test, the defendant attempted to retain the services of an attorney through the use of a coin operated telephone. In the course of the attempts to reach an attorney the defendant experienced some difficulty, dropping coins on the floor several times. There was evidence from the trooper that the defendant "bounce around," "climb the walls," was scratching himself in an unusual way, and "didn't know what he was doing." After these attempts to reach an attorney were unsuccessful, the defendant took the test, the results of which were sufficient to invoke the statutory presumption that the defendant was driving under the influence of intoxicating liquor. G. L. c. 90, § 24 (1) (e).

At this point, the trooper prepared to place the defendant in a holding cell. Before doing so, the trooper searched the defendant's person and discovered what appeared to be a marihuana cigarette in the defendant's shirt pocket. The trooper then informed the defendant that he would also be charged with possession of marihuana. He gave the defendant his Miranda warnings once more. The defendant responded that he saw nothing wrong with the possession of one marihuana cigarette. The trooper then asked the defendant if he had any other marihuana on his person or in his car, and the defendant replied that he had some ...


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