State v. Dow

• Decision Date: 20 October 1978
• Citation: 392 A.2d 532
• Parties: STATE of Maine v. Hollis G. DOW and Forrest E. Wardwell, Jr.
• Court: Maine Supreme Court

Page 532

392 A.2d 532

STATE of Maine v. Hollis G. DOW and Forrest E. Wardwell, Jr.

Supreme Judicial Court of Maine.

Oct. 20, 1978.

Michael E. Povich, Dist. Atty., James E. Patterson (orally), Asst. Dist. Atty., Ellsworth, for plaintiff.

Libhart, Ferris & Dearborn by Wayne P. Libhart (orally), Willian N. Ferm, Ellsworth, for defendants.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY, GODFREY and NICHOLS, JJ.

DELAHANTY, Justice.

The defendants prosecute this joint appeal from judgments of the Superior Court, Hancock County, finding them guilty, after separate bench trials, ¹ of possessing forty-nine short lobsters in violation of 12 M.R.S.A. § 4451(1). ² Each defendant was fined $1,135.00.

Because of the numerous questions presented, we have revised the defendants' format, and mindful of the points of appeal properly before us, we have organized our opinion in the following manner:

(1) whether the warrantless seizure of the lobsters violated defendants' constitutional rights,

(2) whether the evidence was sufficient to sustain the State's allegation that the length of the lobsters was less than allowed by law,

(3) whether the evidence was sufficient to indicate that both defendants possessed the lobsters within the meaning of the statute and whether each was liable for the statutory fine, and

(4) whether the fines were imposed in violation of the statute or of defendants' constitutional rights.

Upon consideration of the questions, we hold that the legal issues raised by the defendants do not suffice to show error. We therefore deny the appeal.

The only individual who testified at the trial was Orville Nisbet, a Coastal Warden employed as such for over twelve years by the Department of Marine Resources. He testified that on September 17, 1977 at about 5:30 p. m., he had secreted himself in the bushes along the shore in the Oceanville area of Stonington. From that vantage point, he observed a boat operating in Pickering's Cove. Later, the boat motored out of the cove and came ashore on a nearby beach. The beach lay at the foot of an old clam factory which abutted a large parking lot. He observed the defendants walking up the beach lugging two large open containers toward a green van in the parking lot. As the defendants reached the rear of the van, Warden Nisbet made his presence known, and the defendants set down the containers. The containers one a galvanized tub, the other a clam hod were brimming with lobsters, several of which, in the warden's judgment, were "short." ³ The warden produced his State of Maine double gauge lobster measure and set about to measure the lobsters. ⁴ On each lobster, he placed his measure on the shell just behind the eye socket and parallel to the center line. After measuring each lobster on both sides of the center line, the warden determined that forty-nine of the lobsters were less than the legal minimum of three and three-sixteenths inches. Warden Nisbet then turned to defendant Wardwell and asked him several times if he would like to have an opportunity to measure the lobsters. Wardwell made no response at first and then gave a "no" shake with his head.

Shortly thereafter, Constables Joyce and Powers of the Stonington Police Department arrived on the scene and helped Warden Nisbet return the forty-nine undersized lobsters to the Atlantic Ocean. Returning to the parking lot, the warden issued a summons to each defendant.

I. The Seizure of the Lobsters

A common contention of both defendants is that Warden Nisbet's actions violated their fourth amendment rights in that the defendants were in a "protected place" and the warden had no probable cause for his warrantless "search."

To invoke the protection of the warrant requirement, it must be demonstrated that a search in fact took place. Here, the defendants were observed walking on a beach and were accosted in a large parking lot. The warden, who apparently had as much right to be in the parking lot as the defendants, merely observed that which was completely open to public view, and his observations, guided by more than twelve years' experience, alerted him to the fact that the defendants were in obvious possession of contraband. Accordingly, we find that the defendants have failed to demonstrate that a search, within the meaning of the fourth amendment, took place. The case is a textbook example of the "open fields" doctrine first announced by Justice Holmes fifty-four years ago in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). Hester simply held that the "protection accorded by the Fourth Amendment . . . is not extended to the open fields." Id. at 59, 44 S.Ct. at 446, 68 L.Ed. at 900. Open, obvious, and notorious criminal activity conducted in a public place has never been accorded constitutional protection under the fourth amendment.

As we held in State v. MacKenzie, 161 Me. 123, 137, 210 A.2d 24, 32 (1965), "(a) search implies some exploratory investigation. It is not a search to observe that which is open and patent . . .", Quoting State v. Griffin, 84 N.J.Super. 508, 517, 202 A.2d 856, 861 (1964). We applied the same rationale in the companion cases of State v. Poulin, Me., 277 A.2d 493, 495 (1971), and State v. Mosher, Me., 270 A.2d 451, 452-53 (1970). In a case also entitled State v. Poulin, Me., 268 A.2d 475, 480 (1970), we held that no search had occurred where a police officer observed a 250-pound safe lying in the open trunk of an automobile. We invoked the "open fields" rationale again in State v. Stone, Me., 294 A.2d 683, 688-89 (1972), and found no fourth amendment implications where a police officer, using a flashlight, observed an apparently loaded carbine lying on the back seat of an automobile. See also State v. Cowperthwaite, Me., 354 A.2d 173, 176 (1976); State v. Lafferty, Me., 309 A.2d 647, 654 (1973).

The defendants argue that Hester 's force has been limited by United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), which have expanded the fourth amendment's protection to areas outside of the dwelling. To the contrary, we find that the Hester doctrine remains entirely intact. G. M. Leasing Corp. v. United States, 429 U.S. 338, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977); United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); United States v. Johnson, 182 U.S.App.D.C. 383, 397, 561 F.2d 832, 846, Cert. denied, 432 U.S. 907, 97 S.Ct. 2953, 53 L.Ed.2d 1080 (1977) (Leventhal, J., concurring). Indeed, Justice Stewart, writing for the Katz Court, flatly stated that "(w)hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz, supra 389 U.S. at 351, 88 S.Ct. at 511, 19 L.Ed.2d at 582. In State v. Stone, supra, we recognized a long line of authority to the effect that "an owner can be held to have exposed property to public view notwithstanding that artificial illumination, specifically directed, might be required to render the property visible." Id. at 688-89.

It is also clear, contrary to their contentions, that the defendants were not in a constitutionally protected place where they held a reasonable and justifiable expectation of privacy. Open beaches and large parking lots to which the public has access simply do not afford privacy. ⁵

II. The Release of the Lobsters

The defendants claim that returning the lobsters to the Atlantic Ocean deprived defendants of physical evidence the inspection and presentation of which might have afforded them a more effective defense. ⁶ They argue that to convict them solely on the basis of the warden's testimony, that is, without introducing the lobsters into evidence, constitutes a violation of what defendants refer to as the "Primary Evidence Rule." They would thus have us hold that the State must introduce the relevant physical evidence wherever remotely possible. ⁷

The rule in this state is to the contrary. In State v. McLain, Me., 367 A.2d 213, 219 (1976), we held that "(i)f the essential elements of a crime are established by testimonial evidence of sufficient force, physical evidence is not a prerequisite for conviction." In McLain, we upheld a larceny conviction over defendant's objection that the allegedly stolen property was not introduced at trial. A similar result was reached in State v. Creamer, Me., 359 A.2d 603 (1976), in the context of a prosecution for receiving stolen goods.

Our holdings in McLain and Creamer conform to the view generally accepted in the United States. See 4 Wigmore, Evidence § 1181 (Chadbourn rev. 1972). For example, in prosecutions for illegal possession of alcohol, it has been held that the alcohol itself need not be produced. Burney v. United States, 339 F.2d 91 (5th Cir. 1964); Commonwealth v. Welch, 142 Mass. 473, 8 N.E. 342 (1886); Napolet v. Board of Liquor Control, 119 N.E.2d 93 (Ohio App.1953); Williams v. State, 179 Tenn. 247, 165 S.W.2d 377 (1942). In prosecutions for drunken driving, the defendant's blood-alcohol level can be established without introducing the blood sample. Hayes v. State, 397 P.2d 524 (Okla.Crim.App.1964); Yarbrough v. State, 384 S.W.2d 705 (Tex.Crim.App.1964).

In the case at bar, the warden measured each lobster twice, repeatedly offered an opportunity to measure the lobsters, and then released them into the ocean. His testimony was sufficient to form the basis for conviction. Had they elected to measure the lobsters themselves, the defendants would have been in a position to call to the warden's attention any mistakes in measurement he may have made. They would also have been able to testify at trial, had they chosen to, regarding the length of the lobsters.

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