12 Mass. App. Ct. 960

November 3, 1981

The defendant filed a motion to suppress evidence in the Superior Court. After that motion was denied, the defendant admitted to sufficient facts for a finding of guilty of the offense charged. The defendant now claims that he has preserved his right to challenge on appeal the denial of his pretrial motion to suppress. The trial judge (who was not the motion judge) stated that he was going to "treat [the defendant's admission to sufficient facts] as a plea of guilty" and proceeded to interrogate the defendant fully in the same manner as all defendants who plead guilty. See, e.g., Commonwealth v. Taylor, 370 Mass. 141, 144-145 n.5 (1976).

Under the decided cases a guilty plea waives all but jurisdictional defects. See Commonwealth v. Zion, 359 Mass. 559, 563 (1971), and cases cited. See also United States v. Boniface, 631 F.2d 1228, 1229 (5th Cir. 1980), and cases cited. Although the judge gave the defendant and his counsel to understand that he was going to adhere to the usual practice in the circumstances, it appears that the defendant and his counsel acted under a misapprehension of the consequences of the steps they took.

Accordingly, we remand this case to the Superior Court, where the defendant may within thirty days move to revoke this implied plea of guilty and proceed to trial. If the defendant does not so move, the judgment is to stand as affirmed. Compare State v. Parkhurst, 121 N.H. 821 (1981).

So ordered.


12 Mass. App. Ct. 960

November 5, 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.

Page 961

McGrath, 365 Mass. 631, 631-632 (1974). 2. The false license (G. L. c. 90, Section 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, Section 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).

So ordered.