State v. Cadigan
| Decision Date | 29 January 1969 |
| Citation | 249 A.2d 750 |
| Parties | STATE of Maine v. Kenneth A. CADIGAN, Peter Comas, Rasa Lind Garcia, Michael Arthur Krasnow, Lawrence P. Rieger, Christine Staubauch. |
| Court | Maine Supreme Court |
Albert E. Guy, Asst. County Atty., Portland, for the State.
Louis Bernstein, and William W. Willard, Portland, for Cadigan and Garcia.
Jacob Agger, and Joseph Brennan, Portland, for Comas.
John W. Philbrick, Portland, for Krasnow.
Frederick A. Johnson, Portland, for Rieger.
Udell Bramson, Portland, for Staubauch.
Before WEBBER, TAPLEY, MARDEN, DUFRESNE and WEATHERBEE, JJ.
This case is before us on report under Rule 37A(b) of the Maine Rules of Criminal Procedure for Law Court determination of the propriety of an interlocutory order or ruling in the Superior Court denying in part defendants' motion to suppress evidence alleged to have been obtained by virtue of an unlawful search and seizure. Rule 41(e), M.R.Cr.P.
Defendants contended before the Justice below and advanced the same contentions before us that the reference search and seizure was in violation of their respective rights under the Fourth and Fourteenth Amendments to the Constitution of the United States and under Article I, Section 5 of the Constitution of Maine, and more specifically (1) that the warrant, application and affidavit supporting the same were insufficient on their face; (2) that the property seized was not described in the warrant; (3) that there was no probable cause for believing the existence of the grounds upon which the warrant was issued; (4) that the warrant was illegally and unreasonably executed; and (5) that the property was illegally seized without a warrant.
Our consideration of the first stated point of error in the ruling below will suffice to dispose of the case as we agree that the search warrant was insufficient in law and rule that the search thereunder amounted to a warrantless unreasonable search in violation of defendant's constitutional rights.
We must however dispose of the State's threshold argument, sustained in the Court below, that the defendants ahve no legal standing to raise the constitutional issue respecting the search. The State concedes that the defendant Rieger who admittedly occupied the residence at the time of its search had legal status to question the validity of the search and of the resultant seizure. But in the absence of any stipulation or testimonial evidence to the effect that the other defendants were guests in the home of the defendant Rieger, whose premises were being searched and in whose home all the defendants were arrested when the search turned up a quantity of marijuana, pills and capsules (barbiturates and amphetamines), the presiding Justice True, one must have standing to invoke the Fourth Amendment proscription against unreasonable searches and seizures. In Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the United States Supreme Court has identified certain classes of persons eligible to claim aggrievement from a constitutionally unlawful invasion of privacy. They must be either (1) persons against whom the search was directed, (2) persons legitimately on the premises searched against whom the fruits of the search are intended to be used, or (3) persons charged with illegal possession of the property seized and sought to be suppressed.
ruled that they were not persons aggrieved by the unlawful search and thus had no standing to question its validity.
That the Justice below refused to draw from the stipulated facts the natural inference that the other defendants were in defendant Rieger's apartment under his express or at least implied invitation or as mere licensees seems to us a strained construction of the stipulation. In the light of the sole legitimate conclusion to be reached from the factual posture of the case, the defendants would have standing as persons legitimately on the searched premises against whom the fruits of the search are proposed to be used. But notwithstanding their status on the Rieger premises, the defendants are charged with the crime of unlawful possession of the seized narcotic drugs. As such, they have standing to question the legality of the search.
Jones has set up standing requirements in two alternative ways one of which is, 'when * * * possession of the seized evidence is itself an essential element of the offense with which the defendant is charged, the Government is precluded from denying that the defendant has the requisite possessory interest to challenge the admission of the evidence.' Simmons v. United States, 1968, 390 U.S. 377, 390, 88 S.Ct. 967, 974, 19 L.Ed.2d 1247. Thus, standing no more depends solely on the legitimacy of the existing interest of the person claiming Fourth Amendment protection in the premises searched, even to the extent of mere legitimate presence, but may rest completely upon that person's connection with the seized property, especially where the seized property is contraband, the mere possession or ownership of which is the crime charged against the person seeking its suppression. The rationale underlying the new look given to the legal concept of standing by Jones is that the accused may enjoy the free exercise of Fourth Amendment privileges in testing the validity of the search without at the same time surrendering any other constitutional right. He may press for suppression without assuming the risk that his assertion of possession or ownership of the contraband property to establish standing be used against him to prove guilt in violation of the Fifth Amendment's Self-Incrimination Clause. Simmons v. United States, supra.
The authorities have construed Jones to the effect that the very nature of prosecutions for illicit possession of property, by that very fact, accords the accused the standing to invoke Rule 41(e) (motion to suppress) as a person aggrieved and legally empowered to raise the constitutional question respecting the alleged unlawful search and seizure. Contreras v. United States, 1961, U.S.C.A., 9th Cir., 291 F.2d 63; Monnette v. United States, 1962, U.S.C.A., 5th Cir., 299 F.2d 847; United States v. Holt, 1962, U.S.C.A., 6th Cir., 306 F.2d 198; Niro v. United States, 1968, U.S.C.A., 1st Cir., 388 F.2d 535. We rule that all the defendants have standing to question the validity of the search and seizure through their motion to suppress, and therefore we now pass to a consideration of the merits of their claim that the search and seizure in the instant case was One of the main thrusts of the defendants' contentions is that the warrant, application and affidavit justifying the search and seizure are insufficient in law on their face and that the police invasion of the Rieger home was tantamount to a search without warrant and the ensuing seizure of the illicit goods illegal and suppressible. These reference documents read as follows:
unreasonable and an invasion of their constitutional rights.
'STATE OF MAINE
CUMBERLAND, ss.
DISTRICT COURT
District Nine
Division of Southern
Cumberland
AFFIDAVIT AND REQUEST FOR
To Bernard M. Devine, Judge, of the District Court to be holden at Portland in the County of Cumberland and State of Maine.
Albert E. Guy an Assistant County Attorney of Windham, in the County of Cumberland in said State of Maine, on oath complains that he has probable cause to believe and does believe that on the premises known as the residence of Lawrence P. Reiger located at 47 Bramhall Street, in the City of Portland County of Cumberland in said State, said premises being occupied by Lawrence P. Reiger.
There is now being concealed certain property, to wit; Marijuana, heroin, LSD, and various barbituates and amphetamines that said property (state reason for seizure) is contraband by virtue of the provisions of Title 22, sections 2361 through 2380 of the Maine Revised Statutes Annotated.
WHEREFORE, the said Albert E. Guy prays that a warrant may issue authorizing a search in the daytime of the above described premises, for said property; and that if said property, or any part of the same be there found, the said Lawrence P. Reiger, or the person having said property in his custody or possession may be arrested and held for examination as the law directs.
*The said Albert E. Guy on oath further states that he is positive that the property is in the place to be searched and it is necessary to prevent the removal of said property, that a warrant issue authorizing a search in the nighttime of the above described premises.
Dated at Portland, this seventh day of December 1967.
Subscribed and sworn to by the said Albert E. Guy this seventh day of December 1967, before me
District Judge'
'STATE OF MAINE
(Seal)
CUMBERLAND, ss.
DISTRICT COURT
District of Nine
Division of Southern
Cumberland
To the Sheriff of Cumberland County, or any of his deputies or any other authorized officer:
Affidavit having been made before me by Albert E. Guy that he has reason to believe that on the premises known as the residence of Lawrence P. Reiger located at 47 Bramhall Street, in the City of Portland County of Cumberland and State of Maine, said premises being occupied by Lawrence P. Reiger there is now being concealed certain property, to wit; Marijuana, heroin LSD, and various barbituates and amphetamines.
As I am satisfied that there is probable cause to believe that the property so described and used is being concealed on the premises above described, upon the following grounds:
Affidavit of Assistant County Attorney Albert E. Guy.
You are hereby commended to search the place named for the property specified, serving this warrant and making the search of the daytime and if the property be found there to seize it, prepare a written inventory of the property seized, and bring the property and the person in whose possession or custody the same was found before a District Judge, to wit...
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...by court rule the grounds for issuance of search warrants. See, e.g., People v. Leahy, 173 Colo. 339, 484 P.2d 778 (1970); State v. Cadigan, 249 A.2d 750 (Me.1969). Delaware v. Prouse, 440 U.S. 648, 662-63, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (referring to Adams v. Williams, 407 U.S. 143, ......
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