State v. Duffy

• Decision Date: 21 August 1973
• Docket Number: No. 1708-E,1708-E
• Citation: 308 A.2d 796,112 R.I. 276
• Court: Rhode Island Supreme Court
• Parties: STATE v. Robert E. DUFFY and William H. Hardy, III. x. &c.

Page 796

308 A.2d 796

112 R.I. 276

STATE v. Robert E. DUFFY and William H. Hardy, III.

No. 1708-Ex. &c.

Supreme Court of Rhode Island.

Aug. 21, 1973.

Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., Edward E. Dillon, Jr., Sp. Asst. Atty. Gen., for plaintiff

William F. Reilly, Public Defender, Paul E. Kelley, Asst. Public Defender, for defendants.

OPINION

KELLEHER, Justice.

Today, the general agent for the Rhode Island Society for the Prevention of Cruelty to Animals in Lionel E. Hetu, a retired member of our State Police. However, on January 7, 1970, Hetu's pursuits were the prevention of crime and the apprehension of the criminal. On that date at approximately 5:30 p.m., Lieutenant Lionel E. Hetu was the commander of a motorized state police patrol whose area of responsibility encompassed the towns of Scituate, Coventry, Foster and Johnston. It had been a cold day and snow from a previous snowfall covered many of the roads.

At this particular time while traveling Route 116 in Scituate, the officer received a radio message notifying him that the Johnston Police were seeking assistance relative to a housebreak that had just been discovered; that the thieves had fled the scene on foot; that they were believed to be armed; and that they were to be considered dangerous. Lieutenant Hetu first dispatched some of his men to Johnston and then proceeded to that area. After some minutes travel on such roads as Plainfield Pike and Peck Hill Road, the Lieutenant arrived in Johnston and came onto Shun Pike.

As he was traveling east, he saw before him, in his lane, a tank truck. It, too, was heading east. It had no lights, no rear registration plate and its radiator was steaming. The windows of the truck were covered with fog or steam. The Lieutenant left his vehicle, drew his revolver, opened the driver's door and pointed his revolver at the driver's head. The driver was Duffy. The occupant of the passentger's seat was Hardy. Duffy, who was no stranger to the officer, was carrying a loaded pistol. On the floorboard of the truck were jewelry and a pistol that was later identified as having been taken from the Johnston residence. A search of defendants uncovered some ammunition, more jewelry, and a cigarette lighter.

Later, a Superior Court jury found defendants guilty of breaking and entering a dwelling with the intent to commit larceny. The defendants concede that they might have entered the Johnston residence, but maintain that they were both so far under the influence of drugs and narcotics that they were incapable of forming the requisite intent. They argue this point and the denial of their motion to suppress as evidence certain articles. Some were taken from defendants, some from the truck, and some from an automobile.

The defense efforts to suppress the evidence seized on Shun Pike is premised on a lack of probable cause for the arrests of Duffy and Hardy.

Probable cause which would justify a warrantless arrest must be determined upon a realistic common-sense appraisal of the circumstances surrounding the arrest. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); State v. Durrell, R.I., 305 A.2d 104 (1973); State v. Nerney, 110 R.I. 364, 292 A.2d 882 (1972). In order to establish probable cause, the state is not required to produce the quantum of evidence which is necessary for a conviction. The question is probable cause, not guilt beyond a reasonable doubt. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); State v. Doukales, R.I., 303 A.2d 769 (1973); State v. LeBlanc, 100 R.I. 523, 217 A.2d 471 (1966). Probable cause exists when the facts and circumstances within the knowledge of the officer and about which he has trustworthy information are sufficient to warrant a person of reasonable caution to believe that the suspect has committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. McWeeney, 100 R.I. 394, 216 A.2d 357 (1966).

The defendants concede that the absence of rear lights and license plate would have authorized a stopping of the tank truck. However, they contend that the abrupt cut-off of the truck and the drawn pistol indicated a felony arrest and they claim Lieutenant Hetu had no probable cause to believe that they had committed such a crime. We disagree.

In State v. Wilson, 110 R.I. 740, 297 A.2d 645 (1972), we observed that while some courts have held that information received by the arresting officer through official channels can provide probable cause for an arrest only if the officer's testimony is supplemented by the officer supplying the information explaining how he obtained it. Other jurisdictions have found probable cause strictly on the basis of the communication. In Whitely v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), an arrest was made upon the receipt of a radio bulletin to apprehend the subject of an arrest warrant. The Court did not question that police were entitled to act on the strength of the radio message, 'Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered to the magistrate the information requisite to support an independent judicial assessment of probable cause.' Id. at 568, 91 S.Ct. at 1037, 28 L.Ed.2d at 313. The Court continued, 'Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.'

Accordingly, we believe that information relayed to a police officer via police radio may provide probable cause to arrest. While it is true that Lieutenant Hetu did not have first-hand knowledge of what had transpired in Johnston, the existence of probable cause can be determined on the basis of the collective information available to the law enforcement organizations as a whole and not solely on that knowledge of the arresting officer. Mattern v. State, 500 P.2d 228 (Alaska 1972); State v. Cobuzzi, 161 Conn. 371, 288 A.2d 439 (1971).

When the motion to suppress was heard, a Johnston police officer told of how the homeowners reported the break, the theft of a rifle and the messages transmitted by his department. Lieutenant Hetu informed the trial judge that he stopped the truck because of (1) its missing rear plate; (2) its proximity to the area of the crime; (3) its steaming radiator; and (4) the knowledge gained through years of police work that the thieves would attempt a motorized exit from the area.

In Durrell (the charge was possession of cannabis) we alluded to the part that the training and expertise of the arresting officer play in determining probable cause. We think that the same may be said of Lieutenant Hetu, a veteran of many years of patrolling the state highways. He had ample reason to act as he did when he apprehended defendants. He had a right to rely upon the information obtained by the Johnston police. He was justified in the light of the radio message he had received and what he observed on Shun Pike to stop the truck ¹ to interrogate its occupants and to take reasonable means for his own protection. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Although defendants express shock at the state policeman approaching the truck with a drawn pistol in his hand, we can only say that, while it would be ideal if a police officer's armament could be reduced to a beanbag or even a sling shot, the realities of the turbulent times in which we live will not permit such flights of fancy. Hetu's technique on that cold evening in January, 1970 affords an officer on highway patrol with some degree of assurance that when retirement time comes, he will be in reasonably good health. The articles found on the truck's floorboard and on defendants were taken as incident to a lawful arrest. State v. Giragosian, 107 R.I. 657, 270 A.2d 921 (1970).

Before proceeding further, we will give a cursory description of Duffy's actions on January 7, 1970. Duffy was a linotype operator for a local newspaper. He worked from 7 p.m. to 3 a.m. When he awoke at approximately 9:30 a.m. on January 7, he went about on a series of errands. Since it was payday, he drove to his place of employment, picked up his check, and cashed it. At this point, Duffy was driving a 1961 Cadillac that belonged to Raymond Iovino. Duffy was going to buy Iovino's Cadillac if it worked properly. He had given Iovino a down payment of $50. Sometime during the afternoon, Duffy went into an Olneyville restaurant where he met Hardy. Duffy told Khardy that he was on his way to meet his sister who lived in Scituate. Hardy replied that he would go with Duffy because he wanted to look up a 'buddy' who lived at 16 Simmons Lake Drive, Johnston. The defendants entered the Cadillac and headed for Johnston. Duffy claims he does not know what happened after that.

Sometime later, at approximately 5 p.m. William St. Laurent, a Johnston police officer, was ordered to investigate the presence of a suspicious car at 24 Simmons Lake Drive. When the officer approached the area, he observed Iovino's 1961 Cadillac in front of 1 Simmons Lake Drive on the wrong side of the road. At this point, the Johnston Police Communication Center informed Officer St. Laurent of the report by the owner of the break at 24 Simmons Lake Drive. Among the missing items were a television set, a stereo set and a rifle. The door of the Cadillac was open. A flashlight inspection of its interior showed a television set and a stereo set resting on the rear seat. The denial of the motion to suppress the items found on the Cadillac's back seat was proper. The objects fall within the ...