State v. Jenison

• Decision Date: 12 March 1982
• Docket Number: Nos. 80-98-C,s. 80-98-C
• Citation: 442 A.2d 866
• Parties: STATE v. Joel JENISON. STATE v. Michele CORY and Joel Jenison. A., 80-100-C.A.
• Court: Rhode Island Supreme Court

Page 866

442 A.2d 866

STATE v. Joel JENISON.

STATE v. Michele CORY and Joel Jenison.

Nos. 80-98-C.A., 80-100-C.A.

Supreme Court of Rhode Island.

March 12, 1982.

Dennis J. Roberts II, Atty. Gen., James P. Renaldo, Sp. Asst. Atty. Gen., for plaintiff.

Keven A. McKenna, Bruce Hodge, Providence, for defendants.

OPINION

MURRAY, Justice.

We have consolidated two criminal cases for review. In Criminal Information No. 79-195, Joel Jenison (Jenison) is charged with carrying a pistol without a license in violation of G.L.1956 (1969 Reenactment) § 11-47-8(a), as amended by P.L.1975, ch. 278, § 1. ¹ In Criminal Information No. 79- 199, Jenison and Michele Cory (Cory) are charged with the unlawful possession with intent to deliver a controlled substance, cocaine, in violation of G.L.1956 (1968 Reenactment) § 21-28-4.01(A)(2)(a), as enacted by P.L.1974, ch. 183, § 2. ²

The cases come before us on the appeals of the state, pursuant to G.L.1956 (1969 Reenactment) § 9-24-32, as amended by P.L.1972, ch. 169, § 10, from Superior Court orders granting motions to suppress evidence in each case. The defendants, in response to the state's appeals, have filed a number of cross-appeals. In their brief, defendants have presented numerous arguments in opposition to the state's appeals and in support of their eight cross-appeals. At this time we should note that this matter has been before this court on an earlier occasion. State v. Jenison, R.I., 405 A.2d 3 (1979). In that case, we found the indictments charging these two defendants to be constitutionally infirm because the grand jury indicting the defendants had not been drawn from a fair cross section of the community. Id. 405 A.2d at 10.

In the instant case, we shall deal with only one of defendants' cross-appeals, viz, whether the trial justice erred in denying Jenison's motion to dismiss information No. 79-199, charging him with constructive possession of cocaine, for lack of probable cause. The consideration of that single cross-appeal is all that is required to bring these actions to a conclusion.

We have considered the narcotics investigation of August 14, 1977, at the Carlton House Motor Inn (Carlton) on three previous occasions. See State v. Porter, R.I., 437 A.2d 1368 (1981); State v. Alexander, R.I., 433 A.2d 965 (1981); and State v. Bennett, R.I., 430 A.2d 424 (1981). In each of these three opinions we have developed many of the facts of the present appeals as they relate to the state and defendants. Those relevant facts of the instant appeals are here presented.

On August 14, 1977, at approximately 12:30 p. m., Detective Mackey Carnahan (Carnahan) of the Warwick police department, while investigating another crime, received information from a Carlton employee that drug paraphernalia had been seen in room number 249 by the employee. Carnahan was able to determine that room 249 was rented by a Frederick B. Porter III of Virginia; he also learned that Porter was accompanied by a male companion. Shortly thereafter, Detective Sergeant Kenneth David (David), and Detectives James Godbout (Godbout), Mark Tripp (Tripp), and Raymond Theisler (Theisler) ³ began surveillance of room 249. During the investigation, Sergeant David was informed that the occupants of room 249 had made or received between forty and fifty phone calls in a period of less than twenty-four hours. During a brief period of observation, several people were seen coming to and leaving from room 249. A person was noticed leaving room 140 and proceeding toward room 249; the individual left the door open behind him.

The police noticed a male suspect leaving room 249 carrying a brown paper bag and walking quickly. The police approached him and identified themselves. The individual, subsequently identified as James D. Bennett, dropped the bag and began to run. He was apprehended, and the bag, containing marijuana, was recovered. After receiving his rights, Bennett gave a verbal statement to police in which he stated that he had received the marijuana from the people in room 249.

At this point, the police went to room 249 and knocked on the door. As the door was opened, a gun became visible to the detectives. The detectives proceeded to arrest the three occupants of the room: Tracy Boyd, Frederick Porter, and Patrick Alexander. As a result of the investigation of room 249, five suspects were taken into custody. Several guns were also seized.

The detectives then went directly to room 140; the door still being open, they proceeded into the room. The aroma of marijuana pervaded the motel room. A large plastic garbage bag was found in a suitcase, the contents of which, upon examination, were revealed to be marijuana. Shortly after their discovery, the detectives left room 140. They were standing outside the room for several minutes searching another vehicle, when a vehicle entered the Carlton parking lot.

The rented yellow Mercury Cougar stopped in a parking space below room 249. When the driver emerged, Officer Tripp recognized him as a former high school classmate. Officer Tripp stated to Officer Godbout and Sergeant David, "that looks like Joel Jenison." A female passenger, subsequently identified as Cory, was in the car with Jenison.

Immediately thereafter, Jenison emerged from the vehicle and began to walk toward the trunk. According to the detectives, Jenison opened the trunk and removed an object. He tucked the object, which the officers were unable to identify at that time, into his pants and placed his shirt over it. He closed the trunk. Jenison then proceeded to a stairwell not far from where the yellow Cougar was parked. The stairwell led to room 249. Jenison knocked on the door and started to say something; Officer Tripp was not exactly sure of what was said. After a minute or two, Jenison proceeded down the stairs and started to walk toward his vehicle.

At this point the accounts of the incident given by the detectives and by the civilian witnesses begin to differ. Officers Tripp and Godbout both testified that Jenison walked past the driver's side of the vehicle and toward the trunk. The detectives, with Officer Tripp leading, had begun to approach Jenison as he descended the stairwell. By the time Jenison reached the rear of the automobile, the detectives were only eight to fifteen feet away from him. When he opened the trunk and took the object out from under his shirt, Officer Tripp recognized it as a gun. He mentioned this to the others. Officer Tripp then hollered something that alerted Jenison that the police were in pursuit. Jenison had his hand on the trunk and appeared ready to shut it when Officer Tripp put his hand on it. Jenison was given his rights and told what he was being arrested for. The civilian witnesses, although their testimony was in no way consistent with one another's, testified that they did not see the trunk open after Jenison had returned from room 249 and prior to his formal arrest.

According to the police version of the incident, the detectives, while at the trunk effectuating Jenison's arrest, saw the automatic pistol resting in a partially open brown briefcase. Also contained in the briefcase was a substantial amount of American currency. When inventoried later by the police, the currency amounted to $51,000, of which Cory claimed $20,000 as her own. In addition, the trunk held two larger suitcases; one of the suitcases contained $100,000. After photographs were taken of the trunk and its contents, the briefcase and the trunk were then closed. The vehicle, with the luggage secured in the trunk, was driven to the police station.

While Jenison was being given his rights, Cory remained in the car. She was approached by Officer Tripp and asked to step out of the vehicle. When she obliged, Officer Tripp took possession of her pocketbook. Because the zipper on the top of the pocketbook was open, he had little problem peering into the pocketbook and making a cursory search for weapons. Finding none, he turned the pocketbook over to Sergeant David.

Subsequently, at the police station a thorough search of the pocketbook was made by Officer Tripp; the search was undertaken at the direction of Sergeant David. He was specifically looking for "narcotics, weapons, (and) money." The search uncovered approximately six ounces of cocaine.

Additional facts will be discussed as necessary in the resolution of the issues.

I

Initially, we consider the charge that Jenison was carrying a pistol without a license. After listening to testimony at the hearing on the motion to suppress the evidence taken from the trunk of the Mercury Cougar, the trial justice gave a detailed bench decision. He carefully reviewed the testimony of each witness. Since the police had not obtained a search warrant, the trial justice correctly viewed his duty as one in which he was required to determine if the state had proven by clear and convincing evidence that the search was justified under one of the exceptions to the warrant requirement. Relying primarily upon the testimony of the state's rebuttal witness, Pamela Trottier (Trottier), and the fact that he did not believe the detectives' version of the incident, the trial justice found that the state had not sustained its burden. He, therefore, suppressed the evidence taken from the trunk of Jenison's vehicle. ⁴

The state argues that the trial justice's decision to suppress the evidence found in the trunk was clearly erroneous. Essentially, the state contends that we must assume that the seizure of the evidence occurred according to the testimony of the detectives. The state bases this argument upon the fact that the witnesses called by the defense made inconsistent and contradictory statements and that the trial justice overlooked or misconceived portions of the crucial Trottier testimony. The state proceeds to contend that if we assume the facts are as stated by the detectives and accept the trial justice's conclusion that probable cause existed...