COMMONWEALTH vs. CLIFFORD A. ROY.

KIRK, J. The defendant Roy, with one Lamm, was tried and found guilty on three indictments. [Note 1] Indictment 38,432 charged, in count 1, that Roy and Lamm on September 17, 1964, at Milton broke and entered the dwelling of Paul G. Queeney with intent to commit larceny, and, in count 2, that on the same day in the named dwelling they committed larceny. Indictment 38,434 charged both with the possession of burglar's tools on September 17, 1964. Indictment 38,527 charged, in count 1, that Roy and Lamm on August 29, 1964, at Brookline broke and entered the dwelling of Paul F. Clark with intent to commit larceny, and, in count 2, that on the same day in the named dwelling they committed larceny. The trial was subject to G. L. c. 278, Sections 33A-33G. The case comes to us on Roy's appeal accompanied by seventeen assignments of error. We have a summary of the record and the transcript of evidence.

We first consider assignment 2 based on the denial of the "defendant's Motion to Suppress Evidence on the ground that the evidence was obtained in violation of . . . [the defendant's] rights protected by the Fourth and Fourteenth Amendments to the Federal Constitution." Nowhere in the record or in the transcript does it appear what evidence was sought to be suppressed by the motion as filed. The judge nevertheless, before trial, granted a hearing on the motion. The transcript of testimony taken at the hearing consists of eighty-nine pages. At the conclusion of the hearing the defendant orally moved that each of several items of personal property be suppressed and that several statements of witnesses be "suppressed." These motions,

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and the original general motion to suppress, were rightly denied for reasons later to be mentioned.

We think, however, that it is our duty to comment upon the procedure which was followed. Although the granting of the preliminary hearing was doubtless originally intended by the judge to safeguard the defendant's constitutional rights, it developed into a far ranging and free wheeling expedition in which the defendant was able to search out all of the evidence, physical and testimonial, which the Commonwealth had against the defendant. For example, items of personal property, the existence and custody of which were disclosed by the defendant's examination of the Commonwealth's witnesses, were at the defendant's request produced by the Commonwealth, marked for identification and, at the close of the preliminary hearing, became the subject of the defendant's oral "motions to suppress." This procedure is not consistent with good trial practice. It is prejudicial to the Commonwealth's right to a fair trial. In the absence of a clear showing of unusual circumstances that the procedure is warranted, it should not be permitted. Evidence which has been obtained as the result of an allegedly illegal search and seizure is properly the subject of a pre-trial motion to suppress. Commonwealth v. Lewis, 346 Mass. 373, 382. "The judge, however, is not required to make, and in the nature of things cannot be required to make, a decision on such a motion, where, as here, the evidence sought to be suppressed is not identified by the moving party." Commonwealth v. Kiernan, 348 Mass. 29, 34. Nor may the judge be required to permit counsel before trial to examine the Commonwealth's witnesses in order to ascertain what evidence the Commonwealth has and the means used to obtain it. See Commonwealth v. Kiernan, 348 Mass. 29, 34. A pre-trial motion to suppress, based on an alleged illegal search and seizure, should specify the evidence sought to be suppressed, and the hearing should be directed to the specified evidence and to the grounds alleged for its suppression.

We return to a consideration of the assignments of error. Several of them relate to the admission of exhibits and to

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rulings on testimony at the trial. The issues raised by these assignments require a statement of the relevant evidence which, as given at the trial, was substantially the same as that given at the preliminary hearing. Just prior to September 17, 1964, a series of house breaks had taken place in Milton. As each break was discovered, the Milton police were informed at roll call. At about 2 P.M. on September 17, 1964, Officers Green and Murphy of the Milton police department, in uniform, and riding in a police car, stopped to make a duty call from a police box at the corner of Reedsdale Road and Brook Road. After making the call, Officer Green noticed a young man (who later proved to be Lamm) at a bus stop across the street, standing beside a suitcase and with a paper bag under his arm. When Green looked at the young man (Lamm) the latter looked away from Green. Green decided to question him. Lamm gave his name as Thomas Young. He had no identification. Green had talked to Lamm for about "a second" when an older man (who later proved to be Roy) came out of a nearby drug store and joined them. As identification, Roy showed a Massachusetts General Hospital card bearing the name Thomas Gilday and an address on Chandler Street, Boston. Lamm was asked by Green if he knew the name of the older man. In answer Lamm said that Green already knew the older man's name and he would not tell him again. Roy was asked what was in the suitcase and replied, "Clothes." When asked if he would mind opening the suitcase, Roy said, "No; I have nothing to hide." Roy opened the suitcase. In it was a "ten by ten by four" metal filing case or cabinet, but no clothes. Roy explained that the younger man must have forgotten to pack the clothes. Roy said the filing case was locked. Green said that he could see that the lid was open and asked if Roy would "mind opening that." Roy opened it himself, revealing papers which, he said, were "[i]nsurance papers." He said that he earned his living as a "TV repairman." The initials "P.Q." were on the suitcase. When asked by Officer Murphy what the initials stood for, Roy said that the suitcase belonged to his uncle, but he "refused to give

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us any name of his uncle." [Note 2] Green then asked Roy if he would "mind coming to the police station to get this confused story you're telling us straightened out." Lamm and Roy voluntarily accompanied the police to the station where they arrived at approximately 2:15 P.M. The officers at that time did not know that Queeney's dwelling had been broken into. Lamm was interrogated first, apart from Roy. Within fifteen minutes he admitted participation in six house breaks including one at the Queeney residence. At about 2:20 P.M. while the interrogation of Lamm was in progress and before any questioning of Roy at the police station had begun, Lieutenant Giuliano, head of detectives, said to Roy, "I am going to inform you that you do not have to talk unless you have an attorney present, and you are entitled to use the station telephone for the purposes of engaging counsel or communicating with family and friends." Roy replied, "Look it, you're only a youngster. I've been through this before. I'm a graduate of Sing Sing." He said that he did not want to use the telephone. Later, at a confrontation of Lamm and Roy, the latter said to police, "I'll go for this break that you have me for but I won't go for anything else that Lamm says. I'm a graduate of Sing Sing. I know the score."

Assignments 3 and 4 are based, in part, on the contention that the suitcase and filing cabinet should have been excluded because there was an illegal search and seizure. Whether there was an illegal search is a question for the judge. Commonwealth v. LaBossiere, 347 Mass. 384, 387, and cases cited. The burden of proof of the issue is on the defendant. Commonwealth v. Fancy, ante, 196, 202. The judge's conclusion was right. All of the evidence at

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the preliminary hearing and at the trial supported the Commonwealth's position that the police officers did not touch or open either the suitcase or the filing cabinet. Whatever the officers were able to see in either container was the result of Roy's voluntary act. The act was incidental to a reasonable and brief on-the-street inquiry by alert police officers. No arrest had then taken place. See Commonwealth v. Lehan, 347 Mass. 197, 204-206, and authorities cited and discussed. The revelation of the contents of the suitcase and filing cabinet justified continued questioning by the officers.

The episode in its entirety, viewed in the light of the responses by Lamm and Roy before and after the opening of the suitcase and the filing case and of the police awareness of the fact of numerous recent house breaks in the vicinity, presented to the officers the choice between detention for the purpose of further investigation, or release on the spot which doubtless would finally and conclusively eliminate them from the case. The course pursued was sensible, reasonable and dutiful. See Commonwealth v. Lawton, 348 Mass. 129. The evidence shows that the officers suspected that Lamm and Roy had committed a felony. The facts and circumstances of which the officers were aware when the street interrogation was completed afforded, in our judgment, reasonable grounds or probable cause for their belief that the two men had committed a felony. Commonwealth v. Phelps, 209 Mass. 396, 404. The further detention of the men was therefore lawful. The fact that the officers did not then know or had not then been informed that a felony had in fact been committed is not determinative of the issue. Commonwealth v. Carey, 12 Cush. 246, 251. Commonwealth v. Lehan, 347 Mass. 197, 206. About 4:30 P.M. on September 17, 1964, Queeney reported the breaking and entering and larceny at his residence to the police.

There is no merit to Roy's contention that he was deprived of his right to counsel when he made his statements at the police station, and that his statements were inadmissible

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under the Sixth and Fourteenth Amendments to the Constitution of the United States. Roy spurned the opportunity to have counsel. He chose to rely upon his own experience in dealing with the police. He cannot now be heard to complain that his admission of the Queeney break at the confrontation with Lamm was not admissible because he was without counsel when he made it. Moreover, his reference to being a "Sing Sing graduate" was testified to at least twice and at no time was there an objection, an exception, a motion to strike, or a request for an instruction with respect to it. "It is settled that in trials held in accordance with . . . G. L. (Ter. Ed.), c. 278, Sections 33A-33G, inclusive, as amended, there can be no valid assignment of error respecting a matter as to which exception might have been saved at the trial, unless there has first been such exception." Commonwealth v. Gray, 314 Mass. 96, 102, and cases cited. (Assignment 8.)

Roy's admission of his participation in the break into and larceny from the Queeney household made admissible against him the several items of property which were identified by Queeney as having been stolen from the dwelling on that day and found in either his or Lamm's possession. (Assignments 3, 4, 5, 6.) It likewise made admissible against him the screw driver which, as narrated by Lamm to the police in Roy's presence, had been purchased, taped and used by both to gain entrance to the Queeney dwelling and then purposely left there. (Assignment 9.)

We do not feel called upon to determine, as the defendant Roy asks, the precise moment when his arrest may be said to have taken place. No right of his turns upon that determination. The significant facts show that there was no invasion of his constitutional rights during the on-the-street inquiry and that there was no infringement of them from the moment he accompanied the police to the station. Cf. Escobedo v. Illinois, 378 U.S. 478. Accordingly, without any intimation of error, we consider assignments 1 and 7, apparently directed to the issue of the time of arrest, as immaterial to our holding that there was no error in the

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denial of Roy's motions for directed verdicts on the indictment relating to the Queeney dwelling or on the indictment charging him with the possession of burglar's tools. (Assignments 13, 14 and 15.)

The defendant Roy was entitled, however, to a directed verdict on the indictment charging breaking and entering and larceny at the Clark dwelling in Brookline on August 29, 1964. We state briefly the reasons for this conclusion. Although Lamm's statements to the police at the station clearly implicated Roy in the Brookline crime, his statements, as the judge repeatedly and correctly instructed the jury, were not evidence against Roy. There was no competent evidence that Roy lived in the same room where Lamm stated they both lived, and where goods stolen from the Clark residence were found at 7 P.M. when the police accompanied Lamm to search the room. The statements made by Roy, in response to questions by the Brookline police are not, in our view, reasonably susceptible of any interpretation other than as an unequivocal denial of participation in the Brookline house breaks. See Commonwealth v. Twombly, 319 Mass. 464; Commonwealth v. Grieco, 323 Mass. 639. The motion for a directed verdict on indictment 38,527 should have been allowed.

It follows that as to indictments 38,432 and 38,434 the judgments are affirmed, and that as to indictment 38,527 the judgment is reversed.

So ordered.