COMMONWEALTH vs. BERNARD MCCLUSKEY.

COMMONWEALTH vs. BERNARD MCCLUSKEY.

395 Mass. 1003

June 27, 1985

Murray Shulman for the defendant.

William T. Walsh, Assistant District Attorney, for the Commonwealth.

The defendant, convicted of possession of a controlled substance with intent to distribute, challenges in this appeal on Federal constitutional grounds only the May 18, 1981, warrantless search of closed, opaque containers in the trunk of the motor vehicle he was operating when he was stopped by police officers. The defendant raises no State constitutional question and does not challenge the implied finding of the judge, who denied his motion to suppress the evidence, that the police had probable cause to stop the motor vehicle and look in the trunk.

The defendant argues that, because in a ruling made on May 26, 1982, the motion judge initially suppressed the evidence on the basis of Robbins v. California, 453 U.S. 420 (1981), decided July 1, 1981 (warrantless search of closed, opaque containers in trunk of vehicle lawfully stopped, unconstitutional), the judge should not have changed his ruling, on motion of the Commonwealth,

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about one month later on the basis of United States v. Ross, 456 U.S. 798 (1982), decided June 1, 1982, which reversed the result in the Robbins case. As a matter of State law the judge was entitled to reconsider his ruling on the motion to suppress. Mass. R. Crim. P. 13 (a) (5), 378 Mass. 871 (1979). See Commonwealth v. Upton, 390 Mass. 562 , 565 n.3 (1983), rev'd on other grounds, 466 U.S. 727 (1984). As a matter of Federal law, a decision narrowing the scope of the exclusionary rule is properly applied to events occurring prior to the date of that decision. United States v. Estrada, 733 F.2d 683, 685 (9th Cir. 1984), cert. denied, 469 U.S. 850 (1985). United States v. Freire, 710 F.2d 1515, 1523 (11th Cir. 1983), cert. denied, 465 U.S. 1023 (1984). United States v. Burns, 684 F.2d 1066, 1074 (2d Cir. 1982), cert. denied, 459 U.S. 1174 (1983).

Judgment affirmed.