State v. Barlow Jr.

• Decision Date: 12 June 1974
• Citation: 320 A.2d 895
• Parties: STATE of Maine v. Cleveland James BARLOW, Jr.
• Court: Maine Supreme Court

Page 895

320 A.2d 895

STATE of Maine v. Cleveland James BARLOW, Jr.

Supreme Judicial Court of Maine.

June 12, 1974.

Thomas E. Delahanty, II, County Atty., Auburn, for plaintiff.

Skelton, Taintor & Abbott by Charles H. Abbott, Lewiston, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

DUFRESNE, Chief Justice.

On April 15, 1971 the defendant, Cleveland J. Barlow, Jr., was charged in separate informations, authorized under 15 M.R.S.A., § 701 and Rule 7, M.RCrim.P., with the crimes of assault and battery aggravated in nature (17 M.R.S.A. § 201) and robbery (17 M.R.S.A. § 3401). The Court below consolidated the cases for trial.

Pursuant to Rule 41(e), M.R.Crim.P., the defendant filed pre-trial motions to suppress for use as evidence certain items of property seized by the police on different occasions from the defendant's car, apartment and person. In addition thereto, he moved to suppress, in anticipation of its use at trial, any identification testimony by one Paul Caron, the victim of the robbery and aggravated assault with which the defendant stood accused.

After hearing, the presiding Justice ordered that the victim's identification testimony be not used at trial, but, respecting the defendant's other motions, he suppressed only the gun and bullet clip which the police had seized from the defendant's car and refused relief in connection with the other seized property.

Aggrieved by such rulings favorable to the defendant, the County Attorney, with the approval of the Attorney General, filed a notice of appeal for the State pursuant to 15 M.R.S.A., § 2115-A. ¹ The presiding Justice treated the State's notice of appeal as a motion by the State for the report of the Justice's interlocutory order under Rule 37A(b) ² and reported the issues. The defendant cross-appealed, raising the propriety of the Court's order reporting the interlocutory ruling and claiming error in the denial of some of the relief prayed for in his motions to suppress. The Court below similarly treated the defendant's cross-appeal as a motion for report under Rule 37A(b) and reported those issues as well.

In this Court the only issues briefed and argued are the questions originally raised by the State challenging the grant of the defendant's motions to suppress. Issues neither briefed nor pressed in argument are deemed waived and abandoned on appeal. See, State v. Campbell, 1974, Me., 314 A.2d 398; State v. Devoe, 1973, Me., 301 A.2d 541; State v. Trott, 1972, Me., 289 A.2d 414. The same rule applies to cases before the Law Court on report. State v. Bull, 1969, Me., 249 A.2d 881, 883. We will confine our discussion to the issues briefed and argued.

A summary of the facts reveals that, on January 21, 1971 at about 5:30 p. m., one Paul Caron was beaten and robbed in his apartment in Auburn, Maine by a pistolwielding assailant who, for the purpose of concealing his identity, had pulled a woman's silk stocking over his head and face.

Later that evening, Officer Charles Haskell, a detective with the Auburn Police Department, received a call from the Auburn dispatcher who informed him that Officer Schutt of the Lewiston Police had receiver an anonymous call saying that the perpetrator of the crime was an individual named Jimmy Johnson who could be found at the Holly Hotel in Lewiston with his blond girlfried.

Detective Haskell then proceeded to the Holly Hotel accompanied by Detective Bolduc, also of the Auburn Police. They arrived at the hotel at approximately midnight and were met by Detective Ashburn of the Lewiston Department. At the hotel, the defendant, Barlow, was the only person seen sitting with a blond. Detective Haskell testified that the defendant fitted the general description given by Caron, although the transcript does not indicate the specifics of the description reported. The officers learned, apparently from the defendant, that he used the name Jimmy Johnson. They informed him that he was a suspect in a robbery and asked if he would come to the Auburn Police station to answer some questions. Barlow testified that he had no objections.

Outside the hotel, Barlow was 'frisked' for weapons. He was then put in the rear seat of the police car and taken to the Auburn police station. According to Officers Bolduc and Haskell, the defendant was then given complete 'Miranda' warnings (the defendant testified that he remembered being advised of some, but not all, of his rights). At some point during the interrogation the Auburn Detectives learned from the Lewiston Police that the defendant's car had been located and that, through the window, a bullet clip could be seen protruding from underneath the driver's seat. The defendant was not informed of this discovery by the police. Barlow was asked, if he would consent to a search of the vehicle. He refused, saying the car was registered to his girlfriend and he was not sure whether or not he could permit a search. He was informed by the officers that his consent would be valid. Barlow, nevertheless, persisted in his refusal.

Officer Bolduc then announced that he was going to get a warrant and departed, apparently for that purpose. He later returned and, according to the defendant, stated that he could not 'get ahold (sic) of anyone' to issue a warrant. Officer Haskell testified, however, that Boldue had in fact contacted a Complaint Justice who refused to issue a warant for insufficient probable cause. Officer Bolduc confirmed this on cross examination.

The officers then continued their efforts to obtain the defendant's consent to search. They persuaded the defendant to go with them to look at the car from the outside. According to the testimony of Officers Bolduc and Haskell, they told the defendant that, if they saw 'anything suspicious,' they would have a right to search the vehicle. At another point in his testimony, Officer Haskell stated that the defendant was told they would search the vehicle if they saw something suspicious. The defendant's version of the policemen's statements was to the effect that, if they saw anything suspicious, they could either search the car or obtain a warrant.

When the defendant and the officers arrived at the car parked outside the Holly Hotel, they were met by three or four Lewiston officers. The defendant remained near the police cruiser, while Officer Bolduc looked through the windows of the car with a flashlight. He allegedly spotted the bullet clip and summoned Officer Haskell and the defendant. Although Barlow made the comment that he could not see any bullet clip, Officer Bolduc then remarked: 'I feel that the clip of bullets is suspicion enough for me to be able to look through the car.' Barlow, however, quoted Bolduc as saying: 'This gives me the right to search the car because of the circumstances of the evidence that we might find in it because of the bullet clip.'

According to the defendant, the then responded: 'Well, okay, if that is the way it is.' He further testified that he voiced no objection, because he did not believe his objections would have made 'much difference.' According to Detective Bolduc, Barlow simply said: 'All right.'

It was at this point that Officer Bolduc entered the vehicle to seize the clip, whereupon Barlow informed him that a pistol would be found in the glove compartment. Bolduc took possession of the weapon and turned it over to Haskell. Barlow was then taken back in handcuffs to the police station in Auburn.

VALIDITY OF THE WARRANTLESS SEIZURE OF THE GUN AND CLIP

The Justice below found that Barlow's ostensible consent to the search of the car and his disclosure to the police that there was a revolver in the glove compartment were neither a true consent nor a voluntary revealment, but merely evidenced withdrawal of resistance, and actual submission, on the part of the defendant to lawful authority in the belief that he was powerless to prevent a search of the car, a reasonable conclusion fully justified under the totality of the police procedures adopted in the instant case to obtain said consent.

We recognize that a search authorized by consent is constitutionally valid and not in derogation of the Fourth and Fourteenth Amendments to the Constitution of the United States. Schneckloth v. Bustamonte, 1973, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. Like principles are applicable under our State Constitution (Article I, Section 5). State v. Brochu, 1967, Me., 237 A.2d 418.

We further realize that State standards in testing the legality of a search and seizure can be no lower than the constitutional standards mandated by the Constitution of the United States as interpreted by the United States Supreme Court. See, State v. Hawkins, 1970, Me., 261 A.2d 255.

Whether a given consent to a search in a particular case was in fact voluntary or the product of duress, coercion, express or implied, is a question of fact to be determined from the totality of all the surrounding circumstances. Schneckloth v. Bustamonte, supra. No single criterion controls, but all factors must be taken into consideration in assessing the voluntariness of a consent.

Coercion will invalidate consent and render a search unreasonable in constitutional reference is not solely confined to a consent obtained by threats or force, but is equally operative in those situations where the consent is granted only in submission to a claim of lawful authority.

In Bumper v. State of North Carolina, 1968, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d

797, the Supreme Court held that a search cannot be justified as reasonable and lawful on the basis of consent when that 'consent' has been given only after the official conducting the search has asserted an alleged authoritative right to search. The Bumper Court said:

'When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct...