355 Mass. 378

January 6, 1969 - February 28, 1969

Norfolk County


Where it appeared in a criminal proceeding for possession of a burglarious instrument that about 2:50 one morning in a neighborhood in which there had been several recent breaking and entering incidents a police officer observed the defendant walking on a street carrying a paper bag with a department store label, it was held that it was reasonable for the officer to stop the defendant for a brief interrogation, even though there was then no probable cause to arrest him [381]; and, where it further appeared that the defendant then gave an unlikely story to account for his actions and voluntarily permitted the officer to examine the contents of the bag, which contained articles of clothing apparently not of the defendant's size and a sales slip bearing a date three days prior to the date the defendant stated he had purchased them, it was held that it was reasonable for the officer to search the defendant's person for weapons, and that a motion to suppress a screwdriver found concealed thereon in the course of the search was rightly denied even if the screwdriver was not a weapon [382].

INDICTMENT found and returned in the Superior Court on September 30, 1966.

A motion to suppress evidence was heard by Moynihan, J., and the case was tried before him.

Joseph W. MacDonald for the defendant.

Anthony T. Petrocca, Assistant District Attorney, for the Commonwealth.

SPALDING, J. The defendant was convicted under an indictment charging possession of burglarious tools. The sole question for decision arises out of his exception to the denial of a pre-trial motion to suppress certain evidence.

All of the evidence at the hearing on this motion came from Sergeant Bergin of the Brookline police department who testified in substance as follows: About 2:50 A.M. on

Page 379

July 2, 1966, Sergeant Bergin, while in the vicinity of Commonwealth Avenue, Brookline, observed the defendant walking on Crowninshield Road to Commonwealth Avenue. There had been several breaking and entering incidents in the neighborhood, but none had been reported that night. The officer stopped the defendant and inquired about his identity and purpose for being abroad. The defendant identified himself and stated that he was walking from Boston to visit a friend who lived on Commonwealth Avenue in Brookline. When questioned as to the route he was taking, the defendant replied that "he had felt like taking a walk." Observing that the defendant was carrying a paper bag with the name of "Mal's Department Store" on the outside, the officer asked if he might examine its contents, and the defendant readily assented. The bag contained new articles of clothing, consisting of underwear and socks, and a sales slip bearing the date of June 28. The defendant informed the officer that he had purchased the articles on the preceding day, July 1. Because the items of clothing were apparently not of the defendant's size, the officer became suspicious and frisked him to determine if he was carrying any weapons. The frisk consisted of the officer quickly running his hands over the defendant's clothing. He discovered, in the small of the defendant's back and tucked under his shirt and belt, a screwdriver, the shaft of which was seven inches long; it was not new and had paint marks on both the shaft and handle. The defendant said he had bought the screwdriver along with the clothing at Mal's Department Store. The defendant was thereupon arrested and taken to the police station where a thorough search was made. He was charged with possession of burglarious instruments.

The defendant contends that officer Bergin's action violated his constitutional protection against unreasonable search and seizure and that therefore the court erred in denying his motion to suppress. He shall assume that in these circumstances the officer's action constituted a search and seizure of the defendant. See Terry v. Ohio,

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392 U.S. 1, 16. We shall also assume, arguendo, that initially there was no probable cause to arrest the defendant and that the frisk was not incidental to an arrest. It does not, however, necessarily follow, as the defendant appears to argue, that the search and seizure were unconstitutional. The Fourth Amendment to the Constitution of the United States prohibits only unreasonable searches and seizures, and in certain circumstances the police may seize a person and subject him to a limited search for weapons even if there were no probable cause for an arrest. Terry v. Ohio, 392 U.S. 1, 27.

General Laws c. 41, Section 98, as amended through St. 1957, c. 688, Section 1, provides in part that police officers during the nighttime "may examine all persons abroad whom they have reason to suspect of unlawful design." [Note 1] In Commonwealth v. Lehan, 347 Mass. 197, 204, we held that this section "constitutionally permits a brief threshold inquiry where suspicious conduct gives the officer `reason to suspect' the questioned person of `unlawful design,' that is, that the person has committed, is committing, or is about to commit a crime. What is reasonable within the principle of threshold inquiry must be decided in each case." [Note 2] See concurring opinion of Harlan, J., in Sibron v. New York, 392 U.S. 40, 72.

A State is free to develop its own law of search and seizure to meet the needs of local law enforcement, and in the process it may call the standards it employs by any names it may choose. Sibron v. New York, 392 U.S. 40, 60-61.

Page 381

"It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct." Sibron v. New York, supra, 61. In justifying his actions the police officer "must be able to point to specific . . . facts which taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21. We are of opinion that it was reasonable for the officer to stop and briefly interrogate a man who, while carrying a bag with a department store label, was walking at two fifty in the morning in an area where there had recently been several incidents of breaking and entering. See Commonwealth v. Roy, 349 Mass. 224.

Our next inquiry is whether the subsequent frisking of the defendant was reasonable. A search for weapons is permissible where the police officer "has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry v. Ohio, 392 U.S. 1, 27. The officer, after having his suspicions aroused by the defendant's actions and his answers to the officer's questions, could reasonably believe that his safety was in danger. That there were reasonable grounds for the officer to become suspicious is abundantly warranted by the evidence. In arriving at this conclusion he could consider: the presence of the defendant (carrying a paper bag) at an unusual hour of the morning in a vicinity where breaks had occurred; his unlikely story that he was walking from Boston to Brookline to visit a friend; the statement that he chose the route taken because he wanted to walk; the articles contained in the bag (revealed voluntarily) that apparently were not the defendant's size; and the date on the sales slip which was three days prior to the time when the defendant said he made the purchase. See Commonwealth v.

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Ballou, 350 Mass. 751, 756. The frisk, therefore, and the seizing of the screwdriver obtained as a result of it did not violate the defendant's right against unreasonable search and seizure, even if the screwdriver were not classified as a weapon. Sibron v. New York, supra, 79 (Harlan, J., concurring). The motion to suppress was rightly denied.

The defendant complains of two rulings on evidence made during the course of the trial. But other than the bald assertion that these rulings were erroneous the defendant does not argue the points. We treat them as waived. S. J. C. Rule 1:13, 351 Mass. 738 . Lolos v. Berlin, 338 Mass. 10, 13-14.

Exceptions overruled.


[Note 1] Statute 1967, c. 368, Section 1, amended Section 98 to allow such a threshold inquiry in the daytime as well as at night. By St. 1967, c. 368, Section 2, Section 98 was further amended to provide: "If a police officer stops a person for questioning pursuant to this section and reasonably suspects that he is in danger of life or limb, he may search such person for a dangerous weapon. If he finds such weapon or any other thing the possession of which may constitute a crime he may take and keep it until the completion of the questioning, at which time he shall return it, if lawfully possessed, or he shall arrest such person." This amendment was enacted subsequent to the defendant's arrest.

[Note 2] Alegata v. Commonwealth, 353 Mass. 287, 291-293, held that other provisions of Section 98, in so far as they authorized an arrest and prosecution rather than a brief threshold inquiry, were unconstitutional. But the opinion stated that "We are not to be understood as impairing in any way our holding in Commonwealth v. Lehan which upheld the statute in so far as it permits a brief threshold inquiry in certain circumstances." P. 293.