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09/12/78 COMMONWEALTH v. GERALDO RIVERA ORTIZ

September 12, 1978

COMMONWEALTH
v.
GERALDO RIVERA ORTIZ



Suffolk. Indictment found and returned in the Superior Court on July 18, 1975. A motion to suppress evidence was heard by Adams, J. Applications for interlocutory appeals were allowed in the Supreme Judicial Court for the county of Suffolk by Wilkins, J., and the appeals were reported by him.

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

SYLLABUS BY THE COURT

Constitutional Law, Search and seizure. Search and Seizure.

The opinion of the court was delivered by: Liacos

A police officer's use of binoculars to observe the defendant's actions on a public street did not intrude on the defendant's reasonable expectation of privacy, and information gained from such observations could form the basis for probable cause to search the defendant's automobile. [351-353]

Evidence that police officers on patrol in an area of heavy drug traffic observed the defendant showing his brother, who had prior drug arrests, a yellow packet of the kind known to the officers as being used for packaging heroin and that the defendant retreated into a public park after throwing the yellow packet into his automobile when the officers approached him was sufficient to support a finding of probable cause to search the automobile. [353-355]

Where police officers observed the defendant throw a packet of heroin into his automobile parked on a public street and retreat into a public park on their approach, where they could not have obtained a search warrant prior to their observation of the defendant's activities, and where there was a possibility that the defendant or someone else could move the car or the contraband, exigent circumstances justified the warrantless search and seizure under both the State and Federal Constitutions. [355-358]

The defendant, having been indicted for possession of heroin with intent to distribute, filed a pretrial motion to suppress evidence seized as a result of a warrantless search of an automobile. After hearing, a Judge of the Superior Court allowed the defendant's motion in part and denied it in part. Both the Commonwealth and the defendant applied for a claim of appeal under G. L. c. 278, § 28E. A single Justice of this court granted the interlocutory appeals, consolidated them, and reported the case, without decision, to the full court.

The facts, taken from the motion Judge's order and memorandum, are as follows. At 7:30 p.m. on May 16, 1975, *fn1 four police detectives, including a Detective Logan, were on patrol in an unmarked vehicle near Blackstone Park in Boston, an area known by the detectives for its heavy drug traffic. At 7:45 p.m. the defendant, driving a Ford Thunderbird automobile, parked adjacent to Blackstone Park. From a distance of 114 feet, and with the aid of high-powered (7 X 50) binoculars, Logan observed the defendant being approached by his brother, Felix. On two prior occasions, Logan had arrested Felix on charges of conspiracy to violate the drug laws. As the defendant's brother neared, the defendant left the automobile to show him a yellow packet, which appeared to be a "dime bag" of heroin. At that time, "dime bags" of heroin distributed in the Spanish-speaking community often consisted of blue, red, yellow, brown or orange writing paper. While the defendant showed the yellow packet to his brother, the detective operating the surveillance vehicle started up. The tires screeched as a result of the quick acceleration, thereby alerting the defendant and his brother to the detectives' presence. The defendant immediately threw the yellow packet into the Thunderbird, closed the door, and together with his brother retreated into Blackstone Park.

The surveillance vehicle stopped alongside the Thunderbird, and Logan opened the door of the Thunderbird to retrieve the yellow packet. He then told Detective Spellman to grab the defendant. The defendant was apprehended and handcuffed, but the police "could not apprehend Felix." Spellman then entered the Thunderbird and observed on the front seat an eight-track tape deck from which protruded a yellow tissue paper similar in color, but not texture, to the "dime bag" previously recovered. He seized the tape and the tissue whose contents were subsequently found to contain a so called "Chinese marble" consisting of brown heroin.

The Superior Court Judge denied the motion to suppress with respect to the "dime bag" or yellow packet, but allowed that part of the motion urging the suppression of the "Chinese marble." We conclude that the Judge should have denied the defendant's entire motion to suppress.

1. Did the Use of Binoculars Constitute a Search ?

By use of binoculars, the police detective's initial observations of the defendant's activities led to the information establishing probable cause for the seizure of the contraband. The defendant urges the suppression of the fruits of this surveillance on the ground that before artificial viewing aids may be used to make such observations, a warrant should be obtained, or at least a reasonable cause standard should be constitutionally required. We hold that the Fourth Amendment to the United States Constitution makes no such demand in these circumstances.

In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court considered a person's expectations of privacy to be of importance in determining the constitutionality of a search. Although Katz held that "the Fourth Amendment protects people, not places," the place involved may be relevant in deciding whether the person has a reasonable expectation of privacy. Id. at 360-361 (Harlan, J., Concurring). The observations in this case which took place from a public street while the defendant engaged in apparently illicit activity by the entrance to a public park could not, in our opinion, intrude on the defendant's reasonable expectation of privacy. Other courts, when determining the legality of binocular observations in similar circumstances have reached this same result. See United States v. Minton, 488 F.2d 37, 38 (4th Cir. 1973), cert. denied, 416 U.S. 936 (1974); United States v. Grimes, 426 F.2d 706 (5th Cir. 1970); Fullbright v. United States, 392 F.2d 432, 434-435 (10th Cir.), cert. denied, 393 U.S. 830 (1968); *fn2 Patterson v. State, 133 Ga. App. 742 (1975), aff'd, 138 Ga. App. 290 (1976), and 238 Ga. 204 (1977); Commonwealth v. Hernley, 216 Pa. Super. 177 (1970), cert. denied, 401 U.S. 914 (1971). Further support for this Conclusion can be found in United States v. Lee, 274 U.S. 559 (1927), which upheld a warrantless searchlight scan of a boat deck at open sea. In this pre- Katz case, Mr. Justice Brandeis remarked in dictum that "uch use of a searchlight is comparable to the use of a marine glass or a field glass." Id. at 563. See Commonwealth v. Cavanaugh, 366 Mass. 277, 281 (1974) (flashlight observation of interior of car on public street constitutionally permissible). Accord, Commonwealth v. Haefeli, 361 Mass. 271, 280 (1972), granted sub nom. Haefeli v. ...


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