Palmigiano v. Mullen, 76-87-A

• Decision Date: 31 August 1977
• Docket Number: No. 76-87-A,76-87-A
• Parties: Nicholas A. PALMIGIANO v. James MULLEN, Warden. ppeal.
• Court: Rhode Island Supreme Court

Page 242

377 A.2d 242

119 R.I. 363

Nicholas A. PALMIGIANO v. James MULLEN, Warden.

No. 76-87-Appeal.

Supreme Court of Rhode Island.

Aug. 31, 1977.

William F. Reilly, Public Defender, Richard A. Gonnella, Barbara Hurst, John A. MacFadyen III, Asst. Public Defenders, for petitioner.

Julius C. Michaelson, Atty. Gen., Judith Romney Wegner, Sp. Asst. Atty. Gen., for respondent.

OPINION

BEVILACQUA, Chief Justice.

On May 30, 1974, the petitioner filed with this court a petition for a writ of habeas corpus challenging the legality of his arrest. After consideration, this court, on September 25, 1974, issued an order denying the petition without prejudice and remanding the petition and papers to Superior Court for an evidentiary hearing. This court further ordered that the petition be treated as if it had been originally filed as an application for post-conviction relief under G.L.1956 (1969 Reenactment) § 10-9.1-1.

In accordance with these instructions, an evidentiary hearing on the petition was held in Superior Court, and the trial justice found that the warrantless arrest of petitioner in a dwelling house was lawful. Specifically he found that the police had probable cause to arrest petitioner and that they entered the apartment pursuant to the tenant's consent. The plaintiff now appeals from the Superior Court judgment.

In the course of the evidentiary hearing the following facts were adduced. On April 10, 1969, the Providence Police received a call informing them that there had been a holdup of the Brinks armored truck at the H. P. Hood & Sons' plant on Harris Avenue in Providence. When the police arrived on the scene, they learned that the guard carrying the money had been shot by a person wearing a wig and women's shoes. In the process of fleeing, the robber dropped the money and discarded the wig and shoes. It then became evident that the robber was a man disguised as a woman. The robber stole a station wagon belonging to the Brownell & Field Company, located next door to H. P. Hood & Sons.

From the interrogation of several witnesses at the scene of the crime, the police acquired the following information. The witness who saw the robber leave the scene of the crime disguised as a woman and emerge from an alley without the disguise was able to furnish a specific description which included height, build, complexion and hair, and which fit petitioner. Gerald Mastracchio was seen immediately prior to the robbery riding a motorcycle which he drove right in front of the armored car, forcing it to slow down on Dean Street Bridge leading onto Harris Avenue. He was also observed parked in the area of H. P. Hood & Sons during the robbery-murder talking to an unknown person in an automobile; after the shooting he left the area on his motorcycle.

Prior to the holdup, the Providence police, specifically Captain Eddy and then-Lieutenant O'Connell, had received information from one Fred Rylance that he and others had been asked by Gerald Mastracchio to participate in a holdup of the Brink's truck which carried money to H. P. Hood & Sons. In addition, police officer O'Connell testified that on several occasions prior to the holdup, petitioner and Gerald Mastracchio were observed in each other's company.

Immediately after questioning the witnesses at the scene of the crime, the police sent an order to pick up Gerald Mastracchio for questioning concerning the robbery. In the meantime Lieutenant O'Connell received a call informing him that the stolen station wagon had been found abandoned in the Eagle Park area of Providence, not far from where petitioner lived.

Based on this information, including the description of the robber and the fact that petitioner and Gerald Mastracchio had been observed together, the police began to search the Eagle Park area for petitioner. Shortly thereafter they were told that Gerald Mastracchio had been apprehended. With Mastracchio in their custody, the police officers went to the Vandewater Street home of petitioner but failed to find petitioner. Then Lieutenant O'Connell received a call from Detective Sergeant Thomas Leyden asking to meet him at a certain place. When the lieutenant arrived, Leyden informed him that he had received information from a reliable person that petitioner had been seen entering a house located at 553 Charles Street, where Mrs. Salvatore, petitioner's aunt, resided and where on occasion petitioner was known to have also lived. About 5 to 10 officers then gathered at that address and several went up to the rear portion of the third floor where Mrs. Salvatore's apartment was located. The officers knocked at the door and announced themselves. ¹ They had not procured an arrest warrant.

At the hearing one of the police officers testified that he and the other officers attempted to take the hinges off the door. No reference to this was made by Mrs. Salvatore in her testimony. She testified that she opened the door because she became frightened when she heard the police talk about breaking the door down with a hatchet. However, this testimony contradicted a signed, sworn statement which she gave to Officer Fuina at 11:00 A.M. on April 10, 1969, the morning of the robbery. In that statement, she said that petitioner had come to her house and told her that he was in "a little trouble." She also stated that after he had arrived, she received a phone call from a sister-in-law who mentioned the Hood robbery and told her that the man from the payroll had been shot. The sister-in-law then said that she hoped that petitioner was not involved. In this same statement Mrs. Salvatore said she gave her consent to the police to search her premises. At the hearing she admitted signing a statement, but claimed that she told the officer that she opened the door because the police had threatened to force their way in by using a hatchet and she was afraid the police would break it.

However, Officer Fuina testified that he wrote down the statement, as it was given to him, and that Mrs. Salvatore read it prior to signing it. He further testified that she made no mention of any hatchet.

Upon entering the apartment, the police observed that petitioner was bleeding from his wrist. One of the Brinks guards had informed the police that he thought he had wounded the robber-murderer. At trial, it was disclosed that blood had been found at the scene of the crime and also in the stolen getaway car.

After his arrest, petitioner was taken into custody and taken to the police station where he was fingerprinted and examined by a doctor. He was also placed in a lineup and identified. All of this evidence was introduced at trial. The petitioner now contends that it should have been suppressed, as the "fruit" of an illegal arrest.

On appeal petitioner contends that the trial justice erred in finding that his arrest was legal. Specifically, he argues that the police did not have probable cause to arrest him, but that even if they did, his arrest was the fruit of an illegal search: the warrantless entry by police into Mrs. Salvatore's apartment to search for petitioner was illegal (1) because it was not voluntarily consented to and (2) because it was not justified by exigent circumstances. In addition, petitioner argues that the trial justice erred in assigning the burden of proof to petitioner to establish the lack of probable cause to arrest and the absence of consent to enter the apartment.

I

At the outset, the state argues that petitioner lacks standing to challenge the legality of the warrantless entry by police into Mrs. Salvatore's apartment. The trial justice reasoned that a warrantless entry into an apartment to effect an arrest was distinguishable from a warrantless entry to conduct a search for evidence and concluded that petitioner did not have standing. ² We disagree.

In the landmark case of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the Supreme Court held that anyone legitimately on the premises has standing to challenge the legality of a search when the fruits of the search are proposed to be used against him.

In determining standing, therefore, we see no reason to distinguish an entry to search from an entry to arrest. It is clear from the record in the instant case that petitioner was present in the home of his aunt, Mrs. Salvatore, with her permission. Since the essence of petitioner's challenge is that the entry into Mrs. Salvatore's apartment was illegal and that the evidence thereby obtained should have been suppressed, we conclude that petitioner has standing to challenge the legality of the warrantless entry by police.

II

The petitioner contends that the trial justice's finding that Mrs. Salvatore voluntarily consented to the entry by police into her apartment was clearly wrong.

One of the established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854, 858 (1973). Thus, a warrantless entry by police into a dwelling house authorized by a valid consent is constitutionally permissible. However, the validity of the consent turns on whether it was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797, 802 (1968); State v. Sprague, 114 R.I. 282, 331 A.2d 399 (1975). And the question of whether consent was "in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, supra 412 U.S. at 227, 93 S.Ct. at 2047-48, 36 L.Ed.2d at 862-63.

A review of the record discloses that on April 10, 1969 in the sworn statement she made to Officer Fuina, which was entered as an exhibit, Mrs. Salvatore told him that she gave the police consent to enter her apartment. ³ However, in the hearing below, she stated that the...