Ouimette v. Howard
| Decision Date | 02 November 1972 |
| Docket Number | No. 72-1131.,72-1131. |
| Citation | 468 F.2d 1363 |
| Parties | Gerard Thomas OUIMETTE, Petitioner-Appellant, v. Francis A. HOWARD, Warden, Adult Correctional Institutions, Respondent-Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
William G. Gilroy, Providence, R. I., with whom John F. Sheehan, Providence, R. I., was on brief, for appellant.
Donald P. Ryan, Asst. Atty. Gen., with whom Richard J. Israel, Atty. Gen., was on brief, for appellee.
Before COFFIN, Chief Judge, McENTEE and HAMLEY,* Circuit Judges.
Gerard Thomas Ouimette, under state penal custody in Rhode Island, appeals from a district court order denying his petition for a writ of habeas corpus. For the reasons stated below we affirm.
The facts are substantially undisputed. On January 8, 1968, Ouimette left a 1967 white Cadillac automobile parked illegally in front of a building in the City of Providence, in such a way as to obstruct traffic. A portion of this building is rented by the 13th Ward Independent Club (Club). This Club is chartered by the State of Rhode Island for the purpose of advancing the social, economic and political betterment of the 13th Ward. An adult female was seated in a passenger seat of the Cadillac.
While the automobile was so parked, two state police officers came upon the scene. One of them, Detective Vincent Vespia, Jr., recognized the automobile as one customarily driven by Ouimette. On two prior occasions this officer had found the same car illegally parked in the vicinity of the Club. On these prior occasions Detective Vespia entered the Club unhindered and unchallenged for the purpose of requesting Ouimette to move the car. On one such occasion Ouimette had personally moved the Cadillac; on the other he had given the automobile keys to another person for that purpose.
Relying upon his previous experience, Detective Vespia, accompanied by his partner, Detective Cunningham, opened the unlocked door of the Club and entered for the purpose of requesting Ouimette to move his automobile. No one questioned their entry at that time. Ouimette was well known to both officers and they were fully aware that he had a criminal record, including conviction of a crime of violence. Immediately after entering the Club, the detectives saw Ouimette standing by a bar in a general area of the Club along with several other men.
Ouimette was holding a revolver in his hand, having just received it from another man at the bar. This was a violation of Rhode Island G.L.1956, § 11-47-5, as amended, forbidding one to possess a firearm after conviction of a crime of violence. The officers therefore immediately arrested Ouimette and seized the firearm. Ouimette was later convicted in a Rhode Island Superior Court for violation of G.L.1956, § 11-47-5, and that conviction was affirmed by the Rhode Island Supreme Court. State v. Ouimette, 274 A.2d 732 (R.I. 1971).
Ouimette then commenced this habeas corpus proceeding. He asserts that his state court conviction is based upon evidence, namely the weapon and officers' testimony concerning their observations within the Club, obtained in violation of the Fourth and Fourteenth Amendments. In an opinion reported at 339 F.Supp. 1166 (D.R.I.1972), the district court denied the petition, holding that the officers' entry into the Club for the purpose of requesting Ouimette to move his automobile was, under the circumstances, "justifiable," and that the offense of which Ouimette was convicted was committed in the plain view of the officers after they made this proper entry. On this appeal, Ouimette disputes the district court's rationale and all alternative grounds for affirmance urged by appellee.
If the officers were properly in the general area of the Club quarters where the bar was located, they were...
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