Commonwealth v. Mayer

349 Mass. 253 (1965) 207 N.E.2d 686

COMMONWEALTH
vs.
LEO PAUL MAYER.

Supreme Judicial Court of Massachusetts, Suffolk.

May 3, 1965. June 4, 1965.

Present: WILKINS, C.J., SPALDING, WHITTEMORE, CUTTER, & KIRK, JJ.

Ronald J. Chisholm for the defendant.

John T. Gaffney, Assistant District Attorney, for the Commonwealth.

KIRK, J.

The defendant was found guilty at a trial without jury on three indictments charging him with unlawfully carrying a firearm and on one indictment charging him with armed robbery. The trial was subject to G.L.c. 278, §§ 33A-33G. The sole issue presented is whether there was error in denying the defendant's motion to suppress certain evidence which the defendant contends was obtained by the Commonwealth by an illegal search and seizure.

We summarize the evidence bearing on this issue. About 3 P.M. on June 9, 1964, Sergeant Matthew F. King, a Boston police officer with twenty-four years of experience, proceeded, in response to a radio call, to a hotel on Atlantic Avenue, Boston. He there learned from a maid, the housekeeper and the hotel manager that two guns and loose bullets were in a drawer in a room on the second floor of the hotel and that a man had registered alone for the room about 6 A.M. on June 9 under the name of Welch. He also learned that later on the same day the same man under a different name had registered for a room on the third floor of the hotel. In the officer's experience it was unusual for one person to be licensed to carry more than one gun. It therefore could be found, as the judge implicitly did find, that Sergeant King had probable cause to believe that the person who registered for and occupied the room on the second floor had committed a felony in violation of G.L.c. 269, § 10. The officer went to the third floor accompanied by others. As the defendant emerged from the room the maid said, "That's him." The defendant was immediately arrested by the officer and searched. On his person were some bills, a key to the room on the third floor, and, in his back pocket, a key to the room on the second floor.

At the time of his arrest the defendant said that he had "found" the key to the second floor room. He denied that he had registered for that room. He denied that he was in that room. Thereafter Sergeant King, without a warrant, and accompanied by the manager, searched the second floor room and found in a chest of drawers two fully loaded revolvers, extra bullets, and a coat with coins and bills in one of the pockets.

There was no error in denying the motion to suppress. The arrest, being based on probable cause, was lawful. Muniz v. Mehlman, 327 Mass. 353, 356, and cases cited. Commonwealth v. Holmes, 344 Mass. 524, 525. The search of the defendant's person, being incidental to the arrest, was likewise lawful. Commonwealth v. Holmes, 344 Mass. 524, 525, and cases cited.

The judge could find that the defendant's statements to the police amounted to a total disclaimer or disavowal of any right to or interest in or connection with the room on the second floor. The police and the hotel manager could take him at his word. The defendant cannot now be heard to complain that his constitutional rights were violated. See Abel v. United States, 362 U.S. 217, 241. Cf. Stoner v. California, 376 U.S. 483, 489.

Since it is conceded that the seized evidence, together with other evidence produced at the trial, was sufficient to warrant the findings of guilty, the order must be

Judgments affirmed.