Commonwealth v. Haas

*566 Hennessey, C.J.

(dissenting in part). I concur in the majority’s decision that there must be a new trial here, but I disagree with the majority’s conclusion that there was not probable cause to arrest the defendant on the morning of June 26, 1976.

The practical effect, if my view as to probable cause were to prevail here, would be that the four handwritten notes seized from the defendant in the police search of his person would be admissible in evidence in the Commonwealth’s case in chief at the new trial of the case. This evidence would include the note, properly described by the majority as “especially incriminating,’’ which listed “gloves, overalls, tape, bags, ether, mask.” This result would follow from reasoning that the search of the defendant was valid as pursuant to a lawful arrest on probable cause to believe that the defendant had committed a felony.

However, even if my view as to probable cause were to prevail, I would agree that the defendant’s statements at the police station should be excluded at the new trial, for failure of the police to comply with Miranda requirements. Indeed, that failure, together with the improper argument of the prosecutor, are the reasons why I agree that a new trial must be ordered.

In appraising whether probable cause existed, I, of course, consider only the information available to the arresting and investigating officers at the time the defendant was taken to the police station. This was as follows. In his telephone call to the Ipswich police on that morning, the defendant stated that he had just received an anonymous telephone call to the effect that “black and white don’t mix” and that his family had just been “taken care of.” Thereafter, the Ipswich police officer who was dispatched to the Haas home to investigate found the front door ajar with a key in the lock. The officer then entered the house and discovered the bodies of Mrs. Haas and the children. The words “[b]lack and white don’t mix,” the same words which the defendant had previously related in his telephone call to the police, were written on *567 a sign in the bedroom. The house was observed to be in order, the windows appeared to be secure, and the back yard, which was muddy, contained no footprints. The medical examiner examined the bodies and informed the chief of police that each victim died between 3 and 5 A.M. He also noted that the fingernail on the middle finger of Mrs. Haas’ right hand was broken. There were scratches on the right side of the defendant’s face which were observed by the police at the police station that morning.

In my opinion this knowledge in the aggregate reached the level of probable cause. It is perhaps fair to say that. the evidence is minimally adequate, and that judges might reasonably differ as to whether it is sufficient. Perhaps, too, an underlying difficulty is that the definition of “probable cause” has not previously been stressed in our cases. It may be that the appraised by the judges tends to be subjective, rather them by objective standards. If this is true, it is an important deficiency in our administration of criminal justice, because few concepts are more important or have more frequent application than that of probable cause.

The usual language of definition is acceptable, but unsatisfactorily genered. I accept the definition offered by the majority opinion, as far as it goes, viz.: “Probable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police officers were sufficient to warrant a prudent person in believing that the person arrested had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89 (1964). Commonwealth v. Snow, 363 Mass. 778, 788 (1973). Commonwealth v. Andrews, 358 Mass. 721, 723 (1971).” This broad language, without more, leaves unanswered the vital question as to the degree or strength of the required belief. The vagueness of the language of definition would even permit an inference that proof beyond a reasonable doubt. is necessary. For that reason I think it is useful here to articulate as specific a definition as possible.

In my view probable cause should be held to mean simply “more probable than not” or “more likely than *568 not.” 1 The substance of probable cause is a reasonable ground for belief of guilt, and this means less than evidence which would justify condemnation or conviction, but more than bare suspicion. See Brinegar v. United States, 338 U.S. 160, 175 (1949); 2 as to cases of “suspicion,” see Henry v. United States, 361 U.S. 98 (1959); 3 Terry v. Ohio, 392 U.S. 1 (1968); Commonwealth v. Almeida, ante, 266 (1977); Commonwealth v. Silva, 366 Mass. 402 (1974).

I believe that most judges, experienced policemen, and lawyers concerned with the criminal process customarily apply the foregoing definition in practice, although they may not articulate it. Analysis in any given case probably consists for the most part of an empirical comparison with other known cases where probable cause was or was not found by a court to exist. This is the same practical approach which judges often take on the issue of directed verdicts. Articulating a definition of probable cause, in the words I have suggested, may serve to avoid differences of judicial opinion in some cases.

As to the case before us, I think the police were warranted in concluding, on the facts known to them, that it *569 was “more likely” or “more probable” than not that Haas had committed the crimes. The probability that Haas, rather than an intruder, was the criminal arose from several facts: in the state of the security of the house, with the key in the front door lock; the scratches on Haas’ face and the broken fingernail of Mrs. Haas; the estimated time of death at between 3 and 5 A.M., together with the probability that a husband and father would have been at home during those hours; and Haas’ early awareness of the wording of the sign in the bedroom, which was guilty knowledge, if the fact of the anonymous telephone call were disbelieved.

However, the American Law Institute’s Model Code of Pre-Arraignment Procedure rejects the “more probable than not” test as imposing too onerous a standard on police, stating that the “mathematics” of such a standard would preclude some arrests as illegal which should not be precluded. See Model Code of Pre-Arraignment Procedure § 120.1 (1975), particularly Commentary at 295.1 suggest that the code is itself casting unnecessary doubt on a difficult concept by rejecting “probable” and “more probable than not,” which are words of common understanding.

See also the following language in Brinegar at 175 : “In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.”

In the Henry case, at 101, the Court stated: “And as the early American decisions both before and immediately after its adoption show, common rumor or report, suspicion, or even ‘strong reason to suspect’ was not adequate to support a warrant for arrest. And that principle has survived to this day.”