State v. Heald

• Decision Date: 19 January 1973
• Citation: 314 A.2d 820
• Parties: STATE of Maine v. Augustus F. HEALD, Jr. STATE of Maine v. Robert H. MOTTRAM.
• Court: Maine Supreme Court

Page 820

314 A.2d 820

STATE of Maine v. Augustus F. HEALD, Jr.

STATE of Maine v. Robert H. MOTTRAM.

Supreme Judicial Court of Maine.

Jan. 19, 1973.

John L. Easton, Jr., Co. Atty., Dover-Foxcroft, for plaintiff.

Jules L. Mogul, Bangor, for defendant Heald.

Bartolo M. Siciliano, Dexter, for defendant Mottram.

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

WEBBER, Justice.

In each of these two cases the defendants are charged by identical indictments with breaking, entering and larceny from a store in Dover-Foxcroft. In each case a motion was filed to suppress certain evidence found in an automobile owned and driven by Mottram and occupied at the time of apprehension by both defendants. Additionally a motion to dismiss the indictments was filed by defendant Mottram and joined by defendant Heald at the time of hearing, grounded upon the presumed use before the grand jury of evidence subject to suppression. After hearing, the Justice below granted the motions to suppress and denied the motion to dismiss the indictments. By order of the Superior Court both rulings have been reported for our review.

The Justice below made detailed findings of fact with respect to the arrest of the defendants and the initial search as a part of his 'Order' on the motion to suppress as follows:

'Between 1:45 and 2:00 A.M. on February 16, 1970, Eugene F. Mountain, Jr. arrived at his store on West Main Street in Dover-Foxcroft to plow snow and discovered that his store had been broken into and the contents of a safe and some merchandise stolen. Sheriff Frank Murch was called to the scene and he in turn called Deputy Sheriff Paul Ruksznis and Officer William Fair of the Dover-Foxcroft Police Department. After looking around the store, Sheriff Murch and Deputy Ruksznis followed two sets of boot tracks on foot through the snow to a lumberyard where it appeared from the tracks that the persons had entered a parked vehicle and driven away. A new snowfall of several inches had ended in the Dover area prior to midnight on the 15th. The two officers followed the vehicle tracks about one block to the intersection of Forest and Park Streets where they were met by Officer Fair in his police car. They had noted that the vehicle tracks were smooth in the center but had ridges on the sides of the tread-mark. Officer Fair had been cruising the streets on the north-west side of the town and he had just found on Park Street near Forest Street a checkbook bearing the name of Eugene Mountain. Deputy Ruksznis and Officer Fair continued about three miles out of town on Park Street, Dawes Road and Anderson Road, which leads into Wharf Road in the town of Guilford. Some of these roads had been plowed more recently than others, with the Guilford end being most recently plowed. These two officers came upon a tan colored 1964 Chevrolet 'Corvair' automobile (Maine registration #428-542) stopped at the side of the road headed toward Guilford. As soon as they saw it, the car's lights came on and it started up. By radio, the officers learned the car was registered to a Robert Mottram of Bath which meant nothing to them except that he was not a native of the area. About one-quarter to one-half mile into Guilford the officers put on the blue light and stopped the car.

Officer Fair approached the driver's side with drawn gun, while Deputy Ruksznis approached and arrested defendant Heald, who was getting out of the passenger side, for 'breaking and entering.' Officer Fair ordered defendant Mottram, who was the driver as well as the owner of the car, to get out of the car and Officer Fair arrested him. Deputy Ruksznis took a revolver from Heald's jacket pocket and had him move behind the car. Both defendants were personally searched, and under control of the officers.

Deputy Ruksznis went to the driver's side of the car and removed another revolver from the front seat. He also observed tools on the floor on the passenger side. He called Sheriff Murch by radio for assistance and then he opened the locked trunk at the front of the 'Corvair', searched the trunk, and then he searched the glove compartment. Deputy Ruksznis testified he was searching for weapons and that he removed nothing from the car other than the revolver. Both defendants were taken to the County Jail.' ¹

The State subsequently filed a request for additional findings of fact. The Court dismissed the request 'for the reason that to the extent the requests are inconsistent with the Court's previous findings they must be denied and to the extent the requests are not covered by the Court's previous findings the parties must be left to the record.' (Emphasis ours) We construe this order as not intended to preclude the reviewing Court from nothing such additional facts, deemed material on the issue of probable cause, as are supported by undisputed evidence and not inconsistent with the express factual findings of the Justice below. In so saying we are mindful that there was no blanket rejection of the veracity and credibility of the testifying officers since the facts expressly found below rested entirely upon the testimony of these officers. The testimony of the State's witnesses was rejected by the Justice below only as to certain matters carefully and precisely defined by his findings of fact. Accordingly, in our initial review of the facts we will advert only to facts found and facts omitted from the findings not inconsistent with the findings made, but which we deem significant and clearly proven on the record.

At the outset it may be noted that tracks in new snow furnish a prime example of trustworthy circumstantial evidence and one which with great frequency has been used by trial courts in explanatory instructions to juries. When, as in this case, there has been a recent fall of snow, the presence or absence of fallen or drifted snow in the tracks is revealing as to approximately when the tracks were made. Tracks often speak louder than words as to the direction taken by and the activities of those who made them. In the instant case the activities of the two persons who broke and entered the store of Eugene F. Mountain, Jr. some time before 1:45 A.M. on February 16, 1970 were clearly revealed in the snow.

By back-tracking from the store and observing the size and condition of the tracks it was possible for the investigating officers to determine that at some time in the evening two men had approached the Mountain store on foot by a circuitous route, crossing West Main Street at a point some distance from the store and proceeding along the bank of the Piscataquis River to a wooded area near the river and in the rear of the store; and that they had spent some time in the woods in a well tramped area and had finally approached the rear entrance of the store. There was physical evidence that they forced the door and gained entrance, broke into the safe and removed virtually its entire contents as well as numerous other items on the premises. Following the tracks leading from the store, the officers noted that some items taken from the store had been abandoned both in back of the store and further along the line of these tracks; that, leaving the store, the two men had proceeded across West Main Street, across an intervening area to Dwelley Avenue, a street running parallel to West Main Street, and thence across Dwelley Avenue and into what is referred to by the witnesses as a sawmill yard. There the foot tracks ended and it was apparent that at this point the two persons had entered a motor vehicle equipped with tires smooth on the inside but having some remaining tread on the outside edges. Two officers, proceeding on foot and equipped with an electric lantern, followed these tire tracks out of the sawmill yard and thence in a northerly direction along Forest Street to its intersection with Park Street. There they encountered Officer Fair, a Dover-Foxcroft police officer, who had parked his police cruiser near the intersection. Fair had at the request of the Sheriff just completed a surveillance of streets of the town in the course of which he observed no moving vehicle. While Officer Fair was waiting in his parked car for the arrival of the officers who were moving toward him on Forest Street, he observed and retrieved a checkbook lying on the snow in the intersection area. From its contents this checkbook was identifiable as the property of Mr. Mountain. While the officers were assembled at the intersection, the motor of an automobile was started in the yard of a residence on Hancock Street and the car was then driven back toward the village. The owner of this vehicle was known to Officer Fair. No other vehicle was observed in motion by the officers during their investigation until they encountered the Mottram car. Deputy Sheriff Ruksznis and Officer Fair then undertook to follow the tracks of the vehicle which had been parked in the sawmill yard. They proceeded in a westerly direction on Park Street, turned right at its intersection with Dawes Road and turned left at the intersection of Dawes Road and Anderson Road. After proceeding about a mile they stopped and picked up at the side of the road a paper bag lying on top of the fresh snow and containing small electrical parts. After proceeding some three or four miles they came upon an automobile stopped in the middle ² of the highway with its lights out. As the officer's car approached the rear of the stopped vehicle, its lights were turned on and it proceeded forward for some distance until the blue dome light of the police car was turned on, whereupon the automobile was stopped by the driver, Mottram. The arrest of the two defendants followed immediately.

The standards to be applied in a determination of probable cause were clearly defined in Brinegar v. United States (1949) 338 U.S. 160, 174, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 and have been adhered to in subsequent cases. The Court said in part:...