State v. Dall
| Decision Date | 31 May 1973 |
| Citation | 305 A.2d 270 |
| Parties | STATE of Maine v. Robert DALL. |
| Court | Maine Supreme Court |
Peter G. Ballou, Asst. County Atty., Portland, for plaintiff.
Daniel G. Lilley, Portland, for defendant.
Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, WERNICK and ARCHIBALD, JJ.
The appellant was tried, jury waived, by a single Justice of the Superior Court and convicted of receiving stolen property. The applicable statute is 17 M.R.S.A., Sec. 3551 which provides:
'Whoever buys, receives or aids in concealing stolen property, knowing it to be stolen, shall be punished:
The conviction of the person who stole the property need not be averred or proved. * * *'
The statute describes but one offense which, however, may be committed in any one of three modes. State v. Nelson (1849), 29 Me. 329. In the instant case it was incumbent upon the State to prove beyond a reasonable doubt (1) the receipt of the property either from the actual thief or from some third party other than the owner, 1 (2) the fact that the property was stolen, and (3) knowledge of that fact by the defendant. Problems here arise with respect to the adequacy of proof of (1) receipt and (3) knowledge.
On August 26, 1971 the home of one Curtis was broken and ransacked and a safe containing valuable papers, money and jewelry was removed. On the following day Mr. Curtis received an anonymous telephone call. The informant, indicating that he was aware of the theft and what had been lost, told him that two persons connected with it, naming one Lewis Catlin and the defendant Robert Dall, were in town preparing to leave in a small blue car which might be a 'Valiant.' The theft had occurred in North Harpswell about three miles from Brunswick. Mr. Curtis immediately relayed his information to the police and road blocks were established. A short time later, police officers observed a small blue 'Comet,' a Ford product, containing two men leaving Route 1 in Brunswick by exit ramp. As the car approached, Lieutenant Joy, who knew the defendant, saw him sitting on the passenger's side of the front seat. The car was being driven by Catlin. Joy observed that Dall suddenly bent forward in his seat. The car was immediately stopped and the two men ordered out and searched. On request, Catlin then gave permission to open the trunk but nothing material to the investigation was found in it. Joy went to the door on the driver's side of the vehicle, bent over and observed a brown paper bag protruding from under the seat on the passenger's side. Joy took the bag, opened it and discovered items identified as part of the property stolen from Curtis. Officer Medary then drove the vehicle off the highway and searched it more thoroughly. On pushing the front seat back, he discovered under it a wig and under that a 22 caliber revolver.
Whether or not to stolen property found in the car was the fruit of an illegal search and thus improperly admitted into evidence is by no means free from doubt, especially in view of the holding in Whiteley v. Warden, Wyoming State Penitentiary (1971), 401 U.S. 560, 567, 91 S.Ct. 1031, 1036, 28 L.Ed.2d 306. 2
We are satisfied, however, that this decision can and must rest on even narrower grounds. Assuming without deciding that the stolen property was properly found in the vehicle, we nevertheless conclude that the evidence falls far short of that proof which is required to convict of receiving stolen goods.
Even though the State contends that the anonymous tip in this case is a proper factor to be used in deciding whether there was probable cause to search the vehicle, the State frankly admits that no use whatever can be made of the tip in proving the defendant's possession of the stolen property, upon which fact all else depends. In evaluating the evidence of possession, therefore, we must perforce divorce from our minds the fact that such a tip was given as well as its contents. We are left then with the bare facts that Dall was a passenger in the car, that stolen property was concealed in a bag partially under the seat which he occupied and that just before the car came to a stop he was seen to bend forward. Mere presence will not support a finding of possession. The fact of presence is relevant and admissible evidence but it will not alone raise an inference of possession unless 'illuminated by other facts.' United States v. Romano (1965), 382 U.S. 136, 141, 86 S.Ct. 279, 282, 15 L.Ed.2d 210. We squarely faced this issue of proof of possession in State v. Mosher (1970-Me.), 270 A.2d 451. Mosher was present in a vehicle in which stolen property was in plain view but there were no other facts linking him to possession of that property and he could as well have been an innocent passenger or even a hitchhiker. Mosher stands in sharp contrast to State v. Poulin (1971-Me.), 277 Me. 493 in which Poulin's presence in the same vehicle with Mosher was adequately supported by other facts. Poulin was the driver and in control of the car which was owned by his wife. Thus, inferentially, he was also in control of its contents. He had been seen, both as to space and time, near the crime. In the instant case, however, many hours had elapsed between the discovery of the crime and the apprehension of the defendant Dall. He had never been seen during those hours in company with Catlin or near the scene of the crime. He was not the operator of the car nor is there any evidence that he owned or controlled it. The State, recognizing that it must distinguish Mosher, contends that Dall's 'furtive' movement, bending forward in his seat, fills the evidentiary gap with respect to his control and possession of the stolen property. Such an action on the part of a suspect, understandably deemed suspicious by an experienced police officer, might well have supportive effect if the issue were probable cause. But it will not suffice as a matter of law to prove possession beyond a reasonable doubt. If there was anything in the defendant's hand when he bent forward, the officers were unable to observe it. There are simply too many rational hypotheses explanatory of such a sudden movement which are consistent with a lack of control or possession of the stolen property. The vehicle was about to be stopped or...
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