State v. Little
Decision Date | 05 August 1975 |
Citation | 343 A.2d 180 |
Parties | STATE of Maine v. Philip LITTLE and Michael Brewer. |
Court | Maine Supreme Court |
Michael N. Westcott, Asst. Atty. Gen., Wiscasset, for plaintiff.
Fitzgerald, Donovan & Conley by Duane D. Fitzgerald, Mark L. Haley, Daniel R. Donovan, Hart & Stinson, P. A. by Carl W. Stinson, Roland A. Hart, Bath, for defendants.
Before DuFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.
On two occasions in the early morning hours of February 24, 1974 a motor vehicle passed the house of Sergeant Streng of the Boothbay Harbor Police Department. With each pass gunfire erupted from the vehicle, once from a shotgun and the second time from a .22 calibre pistol. Several hours later defendants Philip Little and Michael Brewer were arrested as the culprits.
They were separately indicted in the Superior Court (Lincoln County) on April 3, 1974. Each indictment charged two counts of 'armed assault' upon Robert Streng in violation of 17 M.R.S.A. § 201-A:-one count alleging that the weapon involved was a 12 gauge shotgun and the other that it was a .22 calibre pistol.
The cases were consolidated for trial before a jury, and an 8 day trial began on April 22, 1974. During the trial each defendant moved for the suppression as evidence against him of weapons and shells (as more extensively discussed infra). Each motion to suppress was denied in all particulars.
At the conclusion of all the evidence the presiding Justice ordered a judgment of acquittal as to the first count of each indictment (assault while armed with a shotgun). Each defendant was found guilty by the jury of the second count (assault while armed with a .22 calibre pistol).
From the judgment of conviction entered on the jury's verdict each defendant has appealed. The appeals were consolidated for presentation to this Court. We deny each appeal.
The jury in adjudicating the guilt of defendants, and the presiding Justice in denying the motions to suppress, were warranted, respectively, in finding the following facts.
Sergeant Streng had gone to bed at approximately 1:45 a. m. on February 24, 1974. Soon, he heard a vehicle with an extremely loud exhaust go by his house proceeding northerly along Lakeside Drive in Boothbay Harbor. Minutes later, the Sergeant heard a vehicle with an extremely loud exhaust pass his house heading southerly. Coincident with this second pass there was a shotgun blast which destroyed the living room window of Streng's house.
At approximately 2:40 a. m. Sergeant Streng was engaged in making temporary repairs to his living room window. Numerous lights were on inside and outside the house, and the living room door was open. Again, a vehicle with a loud exhaust passed the Streng house heading southerly. As the vehicle went by and Sergeant Streng, in an abundance of caution, had leaped behind a bush to find cover, numerous shots were fired from the vehicle towards the house. Sergeant Streng saw an old dark sedan disappearing down Lakeside Drive. Although he had not been able to make out any numbers on the license plate, Sergeant Streng ventured the thought to the police that the car might have been a 1962 black Chevrolet belonging to one Tommy Campbell with a license plate having 031 as the last digits. 1 Police cars cruising in the area were notified by radio of this information and also that the vehicle involved in the Streng attack had an extremely loud exhaust and was travelling south from the Streng residence. Within minutes a private citizen who had heard the dispatch on his police-band radio phoned the police station and reported that an old black sedan with a loud exhaust had just gone over the bridge to Sourthpost Island. Police cruisers were immediately informed, and they then concentrated their search upon Southport Island.
Soon, officers observed freshly broken ice on the driveway of the residence of one Raymond Swett situated near the Southport bridge. Because of the rural nature of the area, the early hour of the morning and the general absence of traffic in the vicinity the police concluded that the vehicle shown by the freshly broken ice to have recently traversed the Swett driveway could well be the same as the one which had been involved in the Streng attack. The officers, therefore, placed the area of the Swett home under watch.
At approximately 3:55 a. m. a black 1960 Ford sedan with a loud exhaust drove out of the Swett driveway. The nearest police cruiser signalled it to halt. The sedan ignored the cruiser's flashing light and sped off towards the Southport bridge. It was ultimately brought to a stop by a police cruiser obstructing the road.
When the officers pursuing the Ford sedan came to the spot at which it was stopped, they approached the vehicle with guns drawn. They observed a shotgun in plain view on the front seat between the two occupants of the sedan. The occupants were then ordered out of the vehicle, and they complied with the order. They turned out to be the defendants, defendant Brewer having been the operator and defendant Little the front seat passenger.
The officers seized the shotgun on the front seat and some shotgun shells lying between the front seat and the front door on the passenger side. After these were examined, the officers made a custodial arrest of defendants. 2
Thereafter, a routine pat-down of defendant Little disclosed an expended shotgun shell in his pocket. When defendants were taken to the police cruiser, a search of the person of defendant Little produced seven unexpended .22 calibre shells.
A search of the sedan revealed a .22 calibre pistol located under the passenger side of the front seat. Later, when defendants were being held in custody at the Lincoln County Sheriff's Office a search of the person of defendant Brewer yielded three unexpended .22 calibre shells. 3
While the sedan was being detained at a local garage to which the police had removed it, a .22 calibre shell was observed caught on a strip of chrome on the outside of the sedan.
Other .22 calibre casings and expended shells were subsequently found outside the Streng house.
Defendants predicate their argument attacking the denials of the motions to suppress on alleged violations of the Fourth-Fourteenth Amendments to the Constitution of the United States. Each defendant contends that the presiding Justice erred in allowing into evidence the .22 calibre handgun found in the search under the seat of the sedan. In addition, defendant Brewer contests the correctness of the rulings admitting into evidence the various .22 calibre shells.
Patently without merit are the claims that there were violations of constitutional protections against warrantless searches in the discovery of the .22 calibre casings and the expended shells found near the Streng house and the .22 calibre shell discovered caught in the chrome strip on the outside of the sedan. These were in plain view, come upon without need for 'search.'
More extended discussion is necessary to refute defendant Brewer's claim that the warrantless search of his person at the police cruiser which brought to light the seven unexpended .22 calibre shells was an unconstitutional search.
When they were trying to, and did, stop the sedan, the police knew that (1) there had been two shooting incidents at the Streng house, (2) an old dark sedan with a loud exhaust was involved in them, (3) such a car had passed over the Southport bridge onto rural Southport Island, (4) the sedan which the police had come upon and were stopping had a loud exhaust, and (5) that sedan had emerged in the early hours of the morning from a driveway on rural Southport Island, near the Southport bridge, a driveway which, according to physical indicia, had at a recently prior time been traversed by a motor vehicle. These circumstances, in combination with the attempted flight of the sedan and the observed presence of a shotgun lying in plain view on the front seat of the vehicle between the occupant, gave the officers probable cause to believe that the sedan and its occupants had been involved in the felonious assault on Streng. 4
Given such probable cause, the police acted lawfully in making an immediate custodial arrest of the defendants. The seven unexpended .22 calibre shells found on the person of defendant Little came to light during a search of Little's person conducted as an incident of this valid custodial arrest, and were, therefore, admissible as evidence under United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); State v. Dubay, Me., 338 A.2d 797 (1975).
The rationale of these same cases also establishes the admissibility of the three unexpended .22 calibre shells uncovered by the search of the person of defendant Brewer conducted while he was being held in custody at the Lincoln County Sheriff's Office. State v. Dubay, Me., 313 A.2d 908 (1974).
There remains for consideration the admissibility of the .22 calibre pistol found under the passenger seat of the sedan. Because, as shown above, the officers had probable cause to believe that the sedan was the vehicle used in the felonious attack on Streng, the legal validity of the on-the-spot warrantless search of the vehicle as an instrumentality of the felony is settled by Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).
In Chambers v. Maroney, the police, acting with probable cause, stopped a motor vehicle on the highway, made a...
To continue reading
Request your trial-
State v. Lewisohn
...rule creates an erroneous distinction between direct and circumstantial evidence and tends to confuse the jury. See State v. Little, 1975, 343 A.2d 180, 185; State v. Heald, 1975, 333 A.2d 696, 700; State v. Pike, 1973, 306 A.2d 145, 149-150; State v. Tomer, 1973, 304 A.2d 80, 85 n. 6. In f......
-
State v. Parkinson
...911, 914, n. 3 (1976). Here, the police, in addition, had been given the license number of the offending vehicle. See also State v. Little, Me., 343 A.2d 180 (1975); State v. Heald, Me., 314 A.2d 820 (1973). The defendant's contentions that reversible error resulted from the admission in ev......
-
Reed v. Cockrell
...proof of circumstantial evidence is subject to a more rigorous standard than is proof by direct testimonial evidence. State v. Little, Me. 343 A.2d 180, 185 (1975); State v. Heald, Me., 333 A.2d 696, 700 (Emphasis added.) 51. At the trial, Reed's objections to the jury instructions included......
-
State v. Mann
...general intent to complete the act of an unlawful touching of the victim. See State v. Anania, 1975, Me., 340 A.2d 207; State v. Little, 1975, Me., 343 A.2d 180, 185. Since the 'armed assault' statute (17 M.R.S.A., § 201-A) is identical to the 'plain' assault statute (17 M.R.S.A., § 201), n......