State v. Cowperthwaite

• Decision Date: 19 March 1976
• Citation: 354 A.2d 173
• Court: Maine Supreme Court
• Parties: STATE of Maine v. Earle C. COWPERTHWAITE, Jr.

Page 173

354 A.2d 173

STATE of Maine v. Earle C. COWPERTHWAITE, Jr.

Supreme Judicial Court of Maine.

March 19, 1976.

Michael E. Povich, County Atty., Ellsworth, for plaintiff.

Libhart & Farris, by Wayne P. Libhart, Brewer, for defendant.

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

DUFRESNE, Chief Justice.

Earle C. Cowperthwaite, Jr., the defendant-appellant, was convicted by a Superior Court jury (Hancock County) of the crime of night hunting in violation of 12 M.R.S.A. § 2455 and of failing to stop on the signal of uniformed game wardens in contravention of 12 M.R.S.A. § 3051(2). His appeals from the ensuing judgments are denied.

The defendant charges error in the Court below in the admission at trial of certain real evidence which he claims was the fruit of an illegal search and seizure and in the instructions to the jury. He further contends that the evidence was insufficient to support the jury verdict of guilt in relation to the charge of failing to stop for the officers.

The record supports the following facts:

In the evening of November 24, 1973 and during the early morning hours of the next day, Officers David O. Sewall and Gayland Brackett, two game wardens, while on duty and in uniform, were patrolling on the Gouldsboro Point Road in Gouldsboro for possible violations of our night hunting laws. The officers were checking several open fields containing apple trees, blueberry bushes and a 'deer yard,' which Warden Sewall referred to as 'a place where deer congregate . . . especially in the winter time.'

On November 25, 1973 at about 12:15 a.m. the two officers, from a vantage point on the west side of the main road, observed a vehicle approaching from a southerly direction at a very slow rate of speed. When it reached the intersection of an old camp road, it turned into it and stopped, illuminating in the process a portion of the field on the east side of the Gouldsboro Point Road. Returning to the main road, the automobile, while proceeding again in a northerly direction, made what one officer described as 'jigging' movements which permitted an illumination of the rest of the open field.

Concluding that these activities constituted, or at least indicated, a violation of the hunting laws, the game wardens entered their patrol car, pulled onto the main road and started in pursuit of the suspect vehicle in an attempt to intercept it. When Officer Sewall put on the headlights of his car and the flashing blue light on the dash board, the other vehicle accelerated and a high speed chase ensued, but the game wardens were successful in overtaking the fleeing car and forcing it to stop at the intersection of Gouldsboro Point Road and U. S. Route #1. This proved to be a very short intermission. Officer Sewall managed to get out, but as he reached the door on the driver's side of the car, the lone occupant of the blue Chevelle with white top swung into action, backed away and, avoiding the wardens' automobile, speeded forward onto U. S. Route #1. The chase was resumed reaching speeds in excess of 95 miles per hour according to Warden Sewall.

The defendant's racing skill was not to bring him a gold medal that day. Indeed, as he reached the intersection of the Chicken Mill Pond Road with U. S. Route #1, due to the presence of a car coming from the opposite direction, he brought his car to an abrupt stop. The tailgating pursuers were not so fortunate and ran into the left rear of the Chevelle.

This time Warden Sewall was not to be denied. Proceeding to the driver's door of the disabled Chevelle, he placed the defendant driver under arrest for night hunting and ordered him to get out of the vehicle. When compliance to his order was not forthcoming, Warden Sewall forcibly removed him from the automobile.

Handcuffing the defendant, whom he identified at trial as Earle C. Cowperthwaite, Jr., Warden Sewall went back to the Chevelle with its door still open and, looking inside, observed a short gun in the front seat leaning against the passenger door. He also noticed a hunting knife on the front seat and a loose shot gun cartridge and cartridge box on the floor of the wrecked car. He seized these materials.

I

The shot gun, hunting knife and ammunition were admitted into evidence at trial over the objection of the defendant's counsel. It is contended this was error on the ground that the seized items were products of an unreasonable warrantless search and seizure. The primary argument in this regard is that the search, in order to be sustained, must be justified as incident to a valid arrest for night hunting and that the arrest here was invalid. ¹

While we, of course, agree with the basic contention that the propriety of a search incident to arrest is dependent upon the existence of a valid arrest (see e. g. State v. Benoski, 1971, Me., 281 A.2d 128, 133), that doctrine has no application to this case. The materials taken by the warden were not products of a search. The objects were in the open, and the observation by the officer of such materials exposed to general view did not constitute the type of intrusion which can be considered a search in the legal sense. State v. Poulin, 1970, Me., 268 A.2d 475, 480; State v. Chapman, 1969, Me., 250 A.2d 203, 206-207; State v. MacKenzie, 1965, 161 Me. 123, 137, 210 A.2d 24 and cases cited.

The testimony establishes that all of the evidence seized by the wardens was observed by Officer Sewall while standing at the open door of the disabled vehicle. The classical formulation of the 'plain view doctrine,' which we find applicable in the present case is found in Harris v. United States, 1968, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067, 1069.

'It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.'

We believe, as we have already indicated, that the objects taken were in plain view. Cf. State v. Stone, 1972, Me., 294 A.2d 683, 688-689. We also believe that the warden had ample legal justification for being in a position to make the observation which led to the seizure of the evidence.

One of the factors which supplies such justification is the propriety of the arrest of the defendant. We recognize that a warrantless arrest for a misdemeanor is only proper, in the absence of broader statutory authorization, when the offense is committed in the arresting officer's presence. Palmer v. Maine Central Railroad Company, 1899, 92 Me. 399, 42 A. 800, 44 L.R.A. 673; Caffinni v. Hermann, 1914, 112 Me. 282, 91 A. 1009.

Both cases are distinguishable from the instant case. In Palmer, '(t)he plaintiff was not found violating any law of the state. The constable had no lawful authority to arrest him for a misdemeanor of which he was not guilty, on information merely, without a warrant' (the first emphasis in original-the second ours). In Caffinni, the only justification for the warrantless arrest was that the officers had been having trouble with offenders who brought liquors to Portland in suit cases and hand bags such as the plaintiff was carrying while traveling in an electric car from Old Orchard to Portland. The Court said:

'Testimony was offered by defendant, and excluded, relative to trouble which the enforcement officers had been having with those who violated the law by illegally transporting liquor in suit cases and hand bags; but as there was no attempt to connect such acts with this plaintiff there was no error in the ruling.' (Emphasis added)

Here, the wardens observed the defendant in the performance of activities which could lead any ordinarily prudent and cautious officer of the law under the same circumstances to conclude that the offense of night hunting was being committed in their presence.

The circumstances upon which the wardens acted in formulating a belief there existed probable cause that the defendant was violating the hunting laws in their presence may be readily discerned from the following facts: 1) deer were known to the officers to congregate in the area, 2) appel trees on which deer feed were present, 3) it was nighttime, 4) the hunting season was in full swing, 5) the manner in which the car was being operated so that 'deer yards' were illuminated, conduct generally recognized as consistent with violations of the hunting laws, and 6) the defendant's rapid exit at the approach of the officers in his attempt to escape.

True, the officers' factual observations did not include the actual physical sight of all the elements necessary to convict of the crime of night hunting. This, however, does not preclude the existence of probable cause to believe that the crime of night hunting was being committed in the presence of the officers.

As we did in State v. Heald, 1973, Me., 314 A.2d 820, at 824, 825, we again quote from Brinegar v. United States, 1949, 338 U.S. 160, 174, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879:

'In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.

These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community's protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for...