State v. Hawkins

• Decision Date: 22 January 1970
• Citation: 261 A.2d 255
• Parties: STATE of Maine v. Linda A. HAWKINS et al.
• Court: Maine Supreme Court

Page 255

261 A.2d 255

STATE of Maine v. Linda A. HAWKINS et al.

Supreme Judicial Court of Maine.

Jan. 22, 1970.

Bernard C. Staples, County Atty., Ellsworth, for plaintiff.

Atherton Fuller, Shirley Povich, Ellsworth, Norman P. Shaw, Bar Harbor, George W. Perkins, Skowhegan, Albert H. Winchell, Jr., Edward Stern, Bangor, for defendants.

Before WILLIAMSON, C. J., and WEBBER, MARDEN, DUFRESNE, WEATHERBEE and POMEROY, JJ.

POMEROY, Justice.

Sixteen cases involving identical issues of law, have been consolidated by agreement of all parties. They are here on report for decision under the provisions of Rule 37A(b) of the Maine Rules of Criminal Procedure.

The defendants dispute the correctness of an interlocutory ruling of the Superior Court, denying a Motion to Suppress Evidence seized by State Police Officers. ¹ Their attack is focused on the alleged insufficiency of the affidavit filed in support of the issuance of a search warrant used by the officers. (See Appendix A for text of affidavit.)

The State, in its brief, has removed any question of the standing of the defendants, or any of them, to challenge the legality of the search. Such issue (if any existed after Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)), was decided favorably to the defendants in State v. Cadigan et al., 249 A.2d 750 (Me.), (January 29, 1969).

The questions here for decision are:

(1) Was the affidavit supporting the application for a search warrant sufficient to justify the issuance of the warrant?

(2) Can the search which was made, be justified as a legal search without a search warrant incidental to a lawful arrest?

For reasons stated below, we must answer No to both questions.

Since Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, it is clear the Fourth Amendment's proscriptions are enforced against the States through the Fourteenth Amendment and the standard for determining the reasonableness of a search and seizure is the same under the Fourth and Fourteenth Amendments. Ker v. California, 374 U.S. 23, at 33, 83 S.Ct. 1623, 10 L.Ed.2d 726. While in the first instance, the legality of a search and seizure must be determined under State law, the State standard can be no lower than the constitutional standards applicable to proceedings in the Federal Courts under Federal prosecutions. Ker v. California, supra.

It follows that the affidavit, to be valid, must not only satisfy requirements of our own Rule 41, Maine Rules of Criminal Procedure, but must be agreeable to Federal constitutional standards as defined by the Supreme Court of the United States.

The Fourth Amendment of the Constitution of the United States declares:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' ²

The constitutional proscription of unreasonable searches and seizures was in large part a reaction to the general warrant and warrantless searches that had so alienated the Colonists and helped speed the movement for independence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 at page 692.

What is sought to be protected by the courts by suppressing evidence is not the lawbreaker, but the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.

'(The provisions of the Fourth Amendment) are not mere second-class rights but belong to the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.' Mr. Justice Jackson, dissenting in Brinegar v. United States, 338 U.S. 160, 180, 69 S.Ct. 1302, 1313, 93 L.Ed. 1879, 1893.

See also: McDonald v. United States, 335 U.S. 451 at page 455, 69 S.Ct. 191, 93 L.Ed. 153.

Much criticism is heard of the technique which the Supreme Court of the United States has adopted for protecting Fourth Amendment rights. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. According to many, attempts to restrain police officers from making illegal searches, by excluding illegally seized evidence on constitutional grounds is to use unnecessarily the 'big stick' of the Constitution to obviate a problem which, they argue, usually lends itself to adequate control by other means.

The Supreme Court itself in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), declared it could not 'brush aside the experience of States which deem the incidence of such conduct by the police too slight to call for a deterrent remedy * * * by overriding the (State's) relevant rules of evidence.' ³ Notwithstanding the attitude of a majority of the States and for reasons which the Supreme Court of the United States felt justified such rule, that Court determined that the only way to protect Fourth Amendment rights from invasion by either the Federal or State governments was to remove the temptation to an illegal search by making the fruits of such illegal search unusuable as evidence in any court.

With full awareness of the attitude of the States, the United States Supreme Court chose to vindicate what it considered sound Fourth Amendment principles at the possible expense of State concerns.

The imperative of judicial integrity compelled this result even though, under this constitutional exclusionary doctrine, in some instances 'the criminal is to go free because the constable has blundered.' Cardozo, J., People v. Defore, 242 N.Y. 13, at 21, 150 N.E. 585, at 587. 'The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.' Mapp v. Ohio, 367 U.S. 643 at 659, 81 S.Ct. 1684 at 1694.

In view of Mapp and Ker, discussion of the objections to the exclusionary rule becomes academic because the supremacy clause of the Constitution of the United States (Article VI) requires obedience by State officials to every change in Fourth Amendment law. Duncan v. Robbins, 159 Me. 339, 193 A.2d 362.

The constitutional provision to which we have referred not only commands To facilitate review, most courts, including ours, require procedurally that the affidavit ⁴ contain all the information on which the magistrate's judgment is based as to the existence of probable cause.

against unreasonable searches and seizures, it further enjoins the issuance of search warrants 'but upon probable cause, supported by Oath or affirmation.' The policy of the law is that the existence or absence of probable cause shall be determined by a 'neutral and detached magistrate' and not by 'the officer engaged in the often competitive enterprise of ferreting out crime.' Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436.

In State v. Cadigan, 249 A.2d 750 (Me.), it was held, in testing for the existence of probable cause that a reviewing court is not permitted to travel outside the allegations contained in the affidavit.

By a series of decisions the Supreme Court of the United States has established these principles: Only the probability and not a prima facie showing, of criminal activity is the standard of probable cause. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142, that affidavits on probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial. McCray v. Illinois, 386 U.S. 300, 85 S.Ct. 223, 18 L.Ed.2d 62; that in judging probable cause issuing magistrates are not to be confined by niggling limitations or by restrictions on the use of common sense, United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684; and that the magistrates' determination of probable cause should be paid great deference by reviewing courts. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), a two-pronged test for determining probable cause in those many instances in which the affidavit is based wholly or substantially upon an informant's tip was described. (1) The affidavit must describe underlying circumstances from which a neutral and detached magistrate may determine that the informant is reliable; (2) the affidavit must describe underlying circumstances from which such magistrate may determine that the posited 'reliable informant's' information concerning the existence of evidence of criminal activity is itself reliable and not the result of mere rumor or suspicion. The conclusion that the 'reliable informant's' statements are not based on rumor or suspicion may be reached by the magistrate not only upon the basis that the informer says he has personal knowledge but also upon inferences which the magistrate ⁵ may draw as to reliability from the nature of the information supplied. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. The requirement is, the nature of the information be such that the magistrate can properly infer it was received by the informant in a reliable way.

The appellants urge upon this Court that it was error for the trial Court to refuse to compel the affiant to reveal the name of the informant at the hearing on the Motion to Suppress...