Opinion
11-P-1162
03-20-2012
COMMONWEALTH v. WALTER MAINS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a conviction of possession of a class B controlled substance (as a lesser included offense of possession with intent to distribute). The defendant contends the judge erred in denying his motion to suppress evidence found by police in conducting a search incident to arrest, in that the police lacked the right to arrest the defendant and that the jury later acquitted the defendant of the charges underlying the arrest. We affirm.
The fact that the defendant was later acquitted of malicious destruction of personal property and acting as a disorderly person, the offenses for which he had been arrested, does not vitiate the propriety of the search and seizure following that arrest which revealed the class B controlled substance at issue. See Commonwealth v. Wilkerson, 436 Mass. 137, 140 (2002) ('Probable cause to arrest is not vitiated when the basis on which the police officer acted is shown after the fact to have been erroneous, because the existence of probable cause is determined 'at the moment of arrest,' not in light of subsequent events'), quoting from Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980). See also Commonwealth v. Ceria, 13 Mass. App. Ct. 230, 234 (1982).
Moreover, even in the absence of any reasonable basis for the arresting officer to conclude that the defendant was committing a felony, an officer may arrest an individual 'without a warrant [for a] misdemeanor involv[ing] a breach of the peace committed in the presence or view of the officer.' Commonwealth v. DiMarzio, 52 Mass. App. Ct. 746, 751 n.6 (2001), citing Commonwealth v. Jacobsen, 419 Mass. 269, 272 (1995). Here, the defendant kicked out the window of the taxi, conduct amounting to a misdemeanor as well as a breach of the peace, in the parking lot of the police station and in the presence of the police officer. The officer, therefore, had authority to arrest the defendant without a warrant. As such, the judge properly denied the defendant's motion to suppress.
Judgment affirmed.
By the Court (Cohen, Brown & Fecteau, JJ.),