COMMONWEALTH vs. EDWARD STREET.

DREBEN, J. On the evening of June 4, 1996, while sitting with her friend James in his Chevrolet Camaro automobile in a parking lot near Mystic Lake in Medford, sixteen year old Harriet [Note 1] was forced from the car. Her assailant said he had a gun, slapped her in the face, and demanded her money. Shortly thereafter, a second assailant grabbed her, lifted her by the waist, and carried her to the woods. Unsuccessful in his attempt to rape her vaginally, the second assailant forced his penis into her mouth. In the meantime, James also was attacked; he was punched, kicked with shod feet, and grabbed from behind with a stick pulled up against his neck, choking him. Suddenly, at the instigation of one of the group, the attackers left, two of them taking off in James's Camaro. James and Harriet, fearful that the assailants might return, swam across the lake to get help.

The defendant was charged with multiple offenses as a joint venturer [Note 2] and was individually charged with rape and assault with intent to commit rape. Except as noted, [Note 3] a jury convicted the defendant on all the joint venture charges but were deadlocked on the sexual assault charges. After a second trial on the sexual assault charges before a different judge, the defendant was convicted by a jury of both of those charges.

The defendant appeals from the denial of a motion to suppress evidence seized from his girlfriend's car prior to the police obtaining a warrant to search the vehicle, from the denial of a separate motion to suppress his sneakers, and from the refusal of the first trial judge to suppress a pair of nylon pants. [Note 4] The sneakers and pants were taken from the defendant's person after he had been brought to the police station subsequent to his warrantless

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arrest. [Note 5] He also claims error in the refusal of the second trial judge to allow him to read portions of Harriet's grand jury testimony at his second trial. We affirm the defendant's convictions.

1. Motion to suppress evidence seized from the automobile. [Note 6] We take our findings from the memorandum of the first motion judge, supplemented on occasion by uncontradicted testimony at the hearing on the first motion to suppress. On June 6, 1996, the State police were notified of the incident. Officers went to the scene and also interviewed Harriet and James. Other events of importance to the investigation occurred on June 6. The police recovered James's Camaro, stripped of its stereo, speakers, and amplifier. Also on that day, Sergeant Stephen Matthews, who was involved in the investigation, received a tip that Jefferson Silva and three other males unknown to the informant were participants in the rape and carjacking at Mystic Lake. Matthews went to Silva's apartment where he saw speakers matching the description of the speakers taken from James's car. Silva indicated that he wished to cooperate, informed Matthews that he had been involved in the incident, and told him about the other participants: Chris Smith, two Salvadoran men, and a black male by the name of "Street." On the evening of the incident, Silva had met with the other participants and had driven to Mystic Lake in the defendant's Toyota Corolla automobile in search of someone to rob. Silva remained in the Toyota and acted as a lookout while the others proceeded toward a parked car. Later, three of the men returned to the Toyota and they drove off, followed by Smith in the stolen Camaro. The defendant told Silva that he had tried to "get into" the girl but could not.

Silva told Matthews that the defendant lived with his girlfriend at 585 Main Street in Medford, and Silva drove with Matthews

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to that address. Silva identified a parked blue Toyota Corolla automobile as the car he had driven during the incident. The defendant was arrested that evening at about 8:00 P.M.

After the defendant's arrest, Matthews began drafting affidavits in support of applications for warrants to search the defendant's apartment [Note 7] and the blue Toyota Corolla. At about 1:15 A.M. on June 7, Matthews telephoned the troopers who were surveilling the apartment and the Toyota and told them the vehicle was going to be towed. Mistakenly believing the tow was en route, the troopers conducted an inventory search following written inventory procedures. At the time of the search the search warrant affidavits were still being drafted, and the warrants were not issued until about 4:00 A. M. The vehicle was towed to the State police barracks at approximately 4:45 A. M.

Because the vehicle was not yet in lawful police custody, the motion judge rejected the Commonwealth's argument that there was a valid inventory search. The judge also rejected the Commonwealth's claim that there were exigent circumstances. Since the troopers were watching the car, he reasoned that only if the defendant's girlfriend (the owner of the Toyota) had attempted to remove items from the vehicle, or to move the car itself, would exigent circumstances have existed to excuse the warrant requirement.

Citing Commonwealth v. O'Connor, 406 Mass. 112 , 117-118 (1989), the judge concluded that the Commonwealth had satisfied the requirements of the inevitable discovery exception. While the judge's reliance on this exception may be correct, we need not reach the issue because our cases provide an established alternative basis for upholding the search. The police had probable cause to believe that the automobile seized was involved in the incident and therefore was likely to contain or otherwise provide evidence of the crimes. The defendant does not claim otherwise. In Commonwealth v. Motta, 424 Mass. 117 , 124 (1997), the Supreme Judicial Court adopted the reasoning of Pennsylvania v. Labron, 518 U.S. 938, 940 (1996), and held that "when an automobile is stopped in a public place with probable cause, no more exigent circumstances are required by

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art. 14 [of the Massachusetts Declaration of Rights] beyond the inherent mobility of an automobile itself to justify a warrantless search of the vehicle." In the present case, the Toyota, when seized, like the van in Commonwealth v. Gajka, 425 Mass. 751 , 752 (1997), "was parked in a public place and was apparently capable of being moved. . . . [G]iven the mobility of such a vehicle, no further exigency is required." Although we base our decision on reasoning different from that of the motion judge, we agree with his conclusion denying the defendant's motion to suppress the evidence obtained from the car. See Commonwealth v. Va Meng Joe, 425 Mass. 99 , 102 (1997).

2. Motion to suppress evidence seized at the police station. After the defendant's arrest, he was taken to the police station, where he was interrogated and where the black nylon pants he was wearing and his sneakers were taken from him. The pants were significant because Harriet had indicated that the second assailant wore dark pants, and that when he was hovering over her, she heard a swish of material. [Note 8] The sneakers were important because the police had taken impressions of footprints at the scene, and, as it later turned out, the defendant's sneakers were consistent in size and manufacturing pattern with one of the impressions.

The judge who heard this motion (who was not the judge who heard the motion to suppress the evidence seized from the Toyota) made the following findings. He described the incident and subsequent information given to the police by two of the persons involved, Smith [Note 9] and Silva. Silva's evidence, as related by the judge, was substantially similar to that described by the first motion judge. Of note is that Silva told the police that he knew the defendant by his nickname, "Street."

After Silva had pointed out to the police the location of the defendant's apartment and car, two troopers, during the course

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of June 6, 1996, conducted a surveillance of the apartment building and the vehicle. They observed the defendant driving the Toyota Corolla at 11:45 A.M. and again at 3:30 P.M. The defendant's name was not known to the officers at that time. [Note 10] At approximately 8:10 P.M., the troopers, knowing that the defendant was still in the multifamily building, entered through an unlocked front door and knocked on the door on the third floor. The defendant opened it, and one of the troopers recognized him as the driver of the Toyota. They asked him his name, and he answered, "Eddie Street." The defendant was placed under arrest and advised of his Miranda rights. At his request, he was permitted to put on a pair of sneakers and was then transported to the police station. The premises were secured in order that the police could apply for a search warrant. After being interviewed at the police station, the defendant was brought to his cell, where troopers seized his sneakers and pants.

The judge ruled that the arrest was valid because there were exigent circumstances and hence the seizure was proper. On our independent review, see Commonwealth v. Jones, 375 Mass. 349 , 354 (1978), we conclude that the Commonwealth has not sustained its burden of demonstrating that there was an exigency justifying the warrantless arrest.

Applying the factors set forth in Commonwealth v. Forde, 367 Mass. 798 , 807 (1975), the judge noted the crime was one of violence, and that there was probable cause based on the victims' descriptions and the identifications by Smith and Silva against their own penal interests. He concluded: "Since there were five perpetrators and two of them, Smith and Silva, were aware of the police investigation focusing on them, and two other suspects were unidentified at the time, there was a likelihood defendant might escape if not apprehended."

"Under the exception for exigent circumstances, [however,] there must be a showing that it was impracticable for the police to obtain a warrant, and the standards as to exigency are strict." Commonwealth v. Forde, 367 Mass. at 800. The apartment was under surveillance, a number of police were at hand who could prevent flight (indeed, five officers went to the apartment to effect

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the arrest), see Commonwealth v. Huffman, 385 Mass. 122 , 126 (1982), the police had probable cause to arrest, and, from what appears, the police could have obtained a warrant. [Note 11] Since Smith and Silva were cooperating with the police, there was little likelihood they would alert the defendant, and there was no suggestion that evidence would be destroyed or that the defendant was in a position to escape given the surveillance. As was the situation in Commonwealth v. Huffman, the

"Commonwealth did not offer any evidence that the defendant was armed, that he might flee, or even that the defendant was aware of the officers' [surveillance]. . . . [T]he Commonwealth did not offer any evidence as to the time it would take to get a warrant, or indicate that it would be impractical to get one."

Id. at 125. Its only rationale, which we indicated was invalid, was that they did not know the defendant's name. See note 11, supra.

Our analysis does not end with the determination that the arrest was illegal; we consider the seizure of the defendant's sneakers and pants at the police station permissible under the reasoning of Commonwealth v. Marquez, 434 Mass. 370 (2001),

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the case adopting the principles stated in New York v. Harris, 495 U.S. 14 (1990). As pointed out in Marquez, the United States Supreme Court

"held that 'where the police have probable cause to arrest a suspect, the [Fourth Amendment's] exclusionary rule does not bar [the admission] of a statement made by the defendant outside his home, even though the statement is taken after an arrest made in the home in violation of [his rights].' "

Marquez, supra at 377, quoting from Harris, supra at 21. The Court noted that "the purpose of the warrant requirement for an arrest in the home is 'to protect the home, and anything incriminating the police gather[] from arresting [a defendant] in his home.' " Marquez, supra at 377, quoting from Harris, supra at 20. The majority in Marquez considered that upholding otherwise valid statements given at the police station would not cause the police to ignore the rule of Payton v. New York, 445 U.S. 573, 590 (1980), requiring a warrant:

"The penalty for an unlawful arrest in a defendant's dwelling is the suppression of anything seized at the time of the arrest, either from the defendant or in the dwelling, and any statements made at the time of the arrest. It is at this point, i.e., the time of the arrest, that some of the most incriminatory evidence is commonly obtained. The police are unlikely to risk the loss of the admission of that evidence in the hope that the defendant will confess to the crime later at the police station."

Marquez, supra at 378. See Harris, supra at 20, where the Court pointed out that despite its holding, "the principal incentive to obey Payton still obtains: the police know that a warrantless entry will lead to the suppression of any evidence found, or statements taken, inside the home." [Note 12]

The reasoning of Marquez (and Harris) applies to the sneakers

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and pants taken from the defendant at the police station. Of significance is the following language in Marquez, quoting from Harris:

" '[N]othing in the reasoning of [Payton v. New York, supra,] suggests that an arrest in a home without a warrant but with probable cause somehow renders unlawful [the] continued custody of the suspect once he is removed from the house . . . . Because the officers had probable cause to arrest [the defendant] for a crime, [he] was not unlawfully in custody when he was removed to the station house, given Miranda warnings, and allowed to talk.' "

Marquez, supra at 377-378, quoting from Harris, supra at 18. If the defendant was lawfully in custody for purposes of permitting admission of his statements, the same reasoning would appear to apply to the seizure of his clothing. Cf. Commonwealth v. Gliniewicz, 398 Mass. 744 , 750 (1986).

Indeed, this is the interpretation of the majority opinion taken by the dissent in Marquez: "Under the court's decision, any evidence seized or statements made after the suspect is removed from the home would be admissible despite the illegal conduct" (emphasis supplied). Marquez, supra at 382 (Cowin, J., dissenting). We also note that decisions elsewhere have applied Harris to physical evidence taken from a defendant as well as to statements. E.g., People v. Watkins, 26 Cal. App. 4th 19, 31 n.8 (1994); People v. Alexander, 212 Ill. App. 3d 1091, 1104-1105 (1991). See Timmons v. State, 734 N.E.2d 1084, 1086 (Ind. Ct. App. 2000). Cf. Carranza v. State, 266 Ga. 263, 268 (1996).

3. Grand jury testimony. The defendant claims that the second trial judge erred in refusing to permit the defendant, after the Commonwealth rested, to read a portion of Harriet's prior grand jury testimony. He argues this testimony was admissible as a

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prior inconsistent statement. [Note 13] Although the Commonwealth argues that the defendant should have raised this issue on cross-examination of Harriet, extrinsic evidence of inconsistent statements is, in some circumstances, admissible in Massachusetts even without cross-examination. Robinson v. Old Colony St. Ry., 189 Mass. 594 , 596 (1905). Liacos, Massachusetts Evidence § 6.7.2(a) (7th ed. 1999). Since the rapist was Harriet's second assailant, whether she was inconsistent as to her description of the first assailant was "collateral to all issues in the case, save the victim's credibility. The victim's testimony on matters not relevant to contested issues in the case cannot, as of right, be contradicted by extrinsic evidence." Commonwealth v. Sherry, 386 Mass. 682 , 693 (1982). There was no abuse of discretion in not allowing this testimony. See Commonwealth v. Bettencourt, 361 Mass. 515 , 519-520 (1972).

Judgments affirmed.