State v. MacKenzie
| Decision Date | 06 May 1965 |
| Citation | 161 Me. 123,210 A.2d 24 |
| Parties | STATE of Maine v. Kenneth MacKENZIE. |
| Court | Maine Supreme Court |
Howard M. Foley, County Atty., for Penobscot County, Bangor, for the state.
Gene Carter, Bangor, for defendant.
Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, SIDDALL and MARDEN, JJ.
On exceptions, (1) to the denial of a pre-trial motion to suppress evidence and (2) to the trial admission of the evidence to which the motion to suppress had been addressed,--each before a different member of the Superior Court.
The facts, derived from the testimony presented at the hearing on the motion to suppress, out of which exception (1) arises, are as follows:
On the night of March 3-4, 1963 the store of one Hikel was forcibly entered and 2 six-packs of bottled beer (Budweiser), several wrist watches (1 Admiral and 13 Timex), and a coin collection, consisting of both old and mint coins, among other things, were taken. On the morning of March 4, Officers Rideout and Montgomery of the local police department in the course of investigating the break, and aware that ones Albert, MacKenzie and another had been on the street and drinking the previous night, that Albert had broken into the same store in 1957 and that the method of operation of the two breaks was the same, sought one John Albert for questioning. They had neither arrest nor search warrant. It was learned that John Albert was a tenant in W's rooming house, and the officers, aided by the landlady, located and went to separate doors of Albert's room. In this room was John Albert and an invited guest, Kenneth MacKenzie, the exceptant, neither yet arisen from bed. While MacKenzie is the party at interest, Albert's participation in the events under review is relevant.
From the moment of the officers' arrival outside Albert's room until the subsequent arrest and removal of both Albert and MacKenzie, the incidents and sequence are confused. Testimony covering this period supporting the motion to suppress is supplied by MacKenzie and Officer Rideout. Albert claimed, and was granted, constitutional immunity. Both witnesses agree that Officer Rideout knocked on the door, and that Albert said 'Who is it?' MacKenzie testified that the reply was Officer Rideout testified that his reply was 'Dick Rideout of the Millinocket Police Department, I would like to talk to you'. Both MacKenzie and Officer Rideout state that Albert's reply was 'just a minute'. They agree that shortly thereafter Albert opened the door to his room.
MacKenzie testified that thereupon Officer Rideout 'burst himself in the room, forced himself in the room' and that Albert had to move aside or 'get shoved down'. Officer Rideout testified that Albert opened the door and walked away from the door toward a dresser upon which rested a pack of bottled Budweiser beer, saying 'the door is open, come in'. On cross-examination were the following questions and answers:
'Q. And you entered into that room in pursuance of your duties as a police officer and under your authority as a police officer?
'A. Yes, sir.
'MR. FOLEY: I object to that question. I would like to have those two questions asked separately.
'Q. Did you enter into John Albert's premises in the performance of your duties as a police officer?
'A. Yes, sir.
'Q. Did you enter into the premises of John Albert at that time under your authority as a police officer?
'A. No, sir, under the authority granted by Mr. Albert.
'Q. When the question was asked the first time your answer was yes.
'
After Officer Rideout entered Albert's room, Officer Montgomery also entered through the other door, which entry MacKenzie characterizes as 'bursting in', 'with his hand on his weapon'. MacKenzie also adds that 'he (it is not clear to whom reference is made) said he would put the lead to me' (if MacKenzie tried to get out of bed). Up to this point MacKenzie remained on the bed and Officer Rideout stated that MacKenzie was in bed with blankets pulled up, with such appearance of sleep that he 'woke him by shaking his shoulder' and that 'he (MacKenzie) came out of a groggily type of sleep' though it might have been feigned. Albert, after opening the door and heading toward the dresser, continued in his course and procured a bottle of Budweiser beer from a pack on the top of the bureau, and apparently searched for an opener, without success.
The conduct of the officers, which MacKenzie characterized as a search, is described by him as:
'Q. Would you describe the nature of this search? What did he do?
'A. Well, he was looking in (emphasis added) the bureau and found a paper bag, and he looked in the corner and found some other items.
'Q. Do you have any knowledge what those items were?
'A. Ao. (sic) There was two tool boxes he picked up and he said, Montgomery said something about a coin collection, something about coins.
'Q. Did you see him examine any other object in the room?
'A. No.
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* * *
'Q. Would you tell whether or not he was examining other items?
'A. Yes, he was.
'Q. Would you tell the Court whether or not Officer Montgomery took these articles into his possession?
'A. Yes, he did.
'Q. And would you tell the Court whether or not, if you know, he examined these items?
'A. Yes, he did.
'MR. FOLEY: I will have to object to this because I don't know what this means.
'Q. After Officer Montgomery had examined these items did he make any statement?
'A. He said, that is all we need to hold.
'Q. And what did you take that to mean?
'A. It means that we was arrested.
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'Q. Were you then placed under arrest?
The record is silent as to other statements and acts, if any, of the officer(s) from which MacKenzie concluded that he was under 'arrest'.
MacKenzie then testified that no restraint was placed upon him, at that time, but that handcuffs were put upon Albert. In the interval between this occurrence, and the time the officers and the men left the room to go to the Police Station, which MacKenzie states to have been about four or five minutes, MacKenzie states that the officers 'went back to the room again to search'.
In cross-examination of MacKenzie we have this testimony:
'Q. Now you say the officers made a search of the apartment. You started to say they looked at a paper bag on (emphasis added) the bureau, is that right?
'A. I said they looked at the items around the room.
'Q. Well, one statement you made was they looked at a paper bag on (emphasis added) the bureau, is that right?
'A. Yes.
'Q. Now isn't it true that Mr. Albert went over to that paper bag just before that and took out a bottle of beer?
'A. I couldn't say yes to that.
* * *
* * *
'Q. How do you know the officers looked at this bag on (emphasis added) the bureau?
'A. Because he had it in his hand.
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'Q. The officers didn't touch that bureau or any of the drawers did they?
'A. I would say yes to that question they did.
'Q. You say yes, they did?
'A. I would say yes.
'Q. Do you remember that they did go into the bureau?
'A. I would say yes, they did. They was going around the bureau on top of it. (emphasis added)
* * *
* * *
'Q. You say the officer also searched the corner by going over and looking in the corner?
'A. Yes.
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'Q. There were some articles there weren't there?
'A. They found some, yes.
'Q. In the corner?
'A. Yes.
'Q. They were just laying on the floor weren't they?
'A. I guess so, yes.
* * *
* * *
'Q. Where else did they get some articles?
Later with relation to the bureau.
'Q. You don't know if they took anything out of there do you?
MacKenzie's testimony specifies only two tool boxes and coins in a paper bag as having been taken by the officers from the room.
Chronology of events dealing with the alleged search and seizure and arrest, is reflected by Officer Rideout's testimony on cross-examination as follows:
'Q. Now once you were in this room, Officer Rideout, did you place either of these people immediately under arrest? 'A. No, sir.
'Q. Isn't it true it was only after you observed certain of the contents of that room you placed these persons under arrest?
'A. Yes, sir. Lying in plain sight.
'Q. Isn't it true that as of that time you made a determination you had probable cause to believe that a felony had been committed and that these persons committed it?
'A. Yes, sir, after the evidence was found.
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'Q. It was only after you entered the room and saw the items in the room that you have testified to on direct examination that you made a determination that you had probable cause to make this arrest, is that correct?
In neither the testimony of MacKenzie nor that of Officer Rideout are the acts and statements of the occupants in Albert's room related in strict chronology which would be most helpful to the record. For the trial court to have determined the facts, and for us to now determine if there be error in the trial court's conclusion, the record has to be studied with great care to conclude with any degree of certainty in just what order the incidents occurred. The testimony of the exceptant is fairly represented by the excerpts given above. His narration of the key facts is equivocal. With relation to all of the testimony covering the room episode it is not inaccurate to conclude that everything which occurred, took place in less time than it takes to tell it. Observation of unconcealed objects in the room, conversation among the men, and conclusions by the officers from what they saw and heard, certainly were taking place simultaneously. The observation of something in plain sight, a decision based upon that observation, and a physical act with or without comment naturally...
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