State v. McLain

• Decision Date: 17 December 1976
• Citation: 367 A.2d 213
• Court: Maine Supreme Court
• Parties: STATE of Maine v. Richard Wayne McLAIN.

Page 213

367 A.2d 213

STATE of Maine v. Richard Wayne McLAIN.

Supreme Judicial Court of Maine.

Dec. 17, 1976.

Michael E. Povich, Dist. Atty., Howard M. Foley, Asst. Dist. Atty., Ellsworth, Sandra Hylander Collier, Student, for plaintiff.

Silsby & Silsby by Herbert T. Silsby, II, William S. Silsby, Jr., Ellsworth, for defendant.

Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ.

GODFREY, Justice.

After a jury trial, appellant was convicted on two separate charges of breaking, entering, and larceny in the daytime in violation of former 17 M.R.S.A. § 2103. He makes timely appeal from (1) the denial of his pretrial motion to suppress certain evidence as improperly seized, (2) the admission of certain photographic evidence during trial, and (3) the denial of his motions for acquittal and new trial on the ground of statements allowed in evidence. We deny the appeal.

The jury would have been warranted in finding that the facts of the case were as follows: On or about November 13-15, 1974, a summer residence in Blue Hill, Maine, was broken into. Stolen were some antiques, including, among other things, a desk, a musket, several oil paintings, and an antique harpsichord bearing the inscription 'JOSEPH JOANNES COVCHET MEFECIT ANTVERPIAE 1679' in large letters over the keyboard.

On December 2, 1974, Inspectors Peterson and Jordan of the San Francisco Police Department visited appellant's home in California to investigate a report by a credible informant who claimed to have seen the stolen harpsichord in the dining room of that hosue. While still outside the house, the police were met and held at bay by a large guard dog. A resident of the house, one Mulldune, came out of the house, collared the dog, and accosted the visitors. They identified themselves as police inspectors, said they would like to talk to him, and asked him to remove the dog. Mulldune took the dog inside. While leading the dog back into the house with one hand, Mulldune held the outside door open behind him with the other in a manner which the inspectors interpreted as permission to enter the house. Once inside, the police eventually observed in plain view numerous antiques, including the harpsichord with the distinctive inscription. The police seized the instrument and several paintings as stolen property taken in the Blue Hill Break.

After talking with appellant and the two other residents of the house about how they had come into possession of the property, the police decided not to make any arrests. Continuing their investigation, the police learned two days later that other antiques appellant had recently delivered to a San Rafael auction gallery were also stolen from Blue Hill. Shortly thereafter, appellant was arrested.

I

Appellant appeals first from the denial of his pretrial motion to suppress evidence of the property seized in his California home on December 2, 1974, and of property seized at the auction gallery on December 4, 1974. The two seizures must be considered separately.

Appellant argues that the warrantless seizure of the harpsichord and paintings in his home was unlawful under the Fourth and Fourteenth Amendments and that the evidence derived from the seizure must be excluded. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

The Fourth and Fourteenth Amendments guarantee that a citizen's home will be free from arbitrary intrusion by the police. Therefore, the entry into appellant's home without a warrant was unreasonable in itself unless justified under one of a few exceptions to the requirement of a warrant issued by a disinterested magistrate on a showing of probable cause. An established exception to the warrant requirement is a search conducted pursuant to a valid consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). For valid consent to exist there must be some objective manifestation of consent given. It can be given by words or by gesture. Robbins v. MacKenzie, 364 F.2d 45 (1st Cir. 1966). Consent must be freely and voluntarily given and cannot be achieved by implied threat or covert force. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Finally the person giving consent must bear an appropriate relationship to the property to be searched. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

Whether valid consent was given is a question of fact to be determined from all the circumstances existing at the time of the search. Schneckloth, supra. the State has the burden of proving by a preponderance of the evidence that consent existed. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); State v. Koucoules, 343 A.2d 860 (Me.1974).

Inspector Peterson testified that before entering appellant's home the police identified themselves and the general nature of their visit to Mulldune, the resident of the house who had come outside to collar the guard dog. Explaining how the police got inside the house, Peterson testified as follows:

'A He walked in front of us with the dog.

Q Did he open the door to the house?

A Yes he did.

Q Did he hold it open for you people?

A He opened up the door to the residence. And as he . . . he turned towards us and looked at us, I believe, keeping his hand on the door, indicatting that he was allowing the door to remain open while we entered behind him . . ..'

Standing in the entrance hallway of the house, the police could see part of the dining room. They saw a large and apparently antique object sitting in one corner of the room. Pointing to the object, which was in fact an antique desk, Peterson asked Mulldune if it was the harpsichord which the police had said they were looking for. Mulldune's response was, 'No, that's not it, it's around the corner.' As he spoke, Mulldune made a pointing, circling gesture with his hands indicating that the harpsichord was around a corner of the dining room which the police could not see from the hallway. The police told Mulldune that they would like to examine the harpsichord. Mulldune again gestured toward the dining room with upturned palm and pointing index finger. Later testifying that he could only interpret such a gesture as permission to enter the dining room, Peterson and his partner entered. There they observed a harpsichord bearing the inscription 'JOSEPH JOANNES COVCHET MEFECIT ANTVERPIAE 1679' in large letters over the keyboard.

While the police were examining the harpsichord in the dining room, the door to an adjacent bedroom was opened by Mrs. Soucy, another resident of the house. Behind her, and in plain view, were four paintings which appeared to be old. Nearby was an antique musket. After identifying themselves, the police asked Mrs. Soucy where the paintings had come from. She told them that appellant had brought them and the harpsichord to California from Maine a week earlier. Later that day, believing the harpsichord and paintings to be fruits of the Blue Hill larceny, the police had the property taken downtown and impounded for positive identification.

The trial judge, the finder of fact at the suppression hearing, found that entry into McLain's home was made pursuant to the voluntary consent of Mr. Mulldune. Mulldune's apparently helpful attitude toward the police and his gestures support this conclusion. The findings of a single justice in cases such as this will not be set aside unless clearly erroneous. State v. MacKenzie, 161 Me. 123, 210 A.2d 24 (1965). While the testimony of Peterson was controverted in some particulars by Mulldune, we must give due regard to the opportunity of the trial court to judge the credibility of witnesses. There being sufficient evidence in the record to support a finding, by a fair preponderance of the evidence, that consent to enter the premises was freely given, we cannot hold that the conclusion reached by the presiding justice was clearly erroneous.

Mulldune bore an appropriate relationship to the property to consent effectively to an entry by the police. While the house in question was rented in the name of appellant McLain, Mulldune had lived there for seven or eight months. He had full use of the house, and he and McLain conducted business from the premises. Those factors gave Mulldune sufficient control over the house to give consent in his own right to the entry of the police. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); State v. Thibodeau, 317 A.2d 172 (Me.1974).

Having determined that the police were authorized to be where they were, namely, in McLain's home and, more specifically, in his dining room, we conclude that the harpsichord and the paintings which were seen in plain view were subject to seizure. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); State v. Cowperthwaite, 354 A.2d 173 (Me.1976).

Even when there has been a lawful search or when no search has been necessary, the accompanying seizure must be based on reasonable grounds to believe that the property falls within a category of goods warranting seizure. See Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782, 792 (1967). The inscription on the antique harpsichord made it a highly unusual piece. The presence of this instrument and the four antique paintings in close proximity, coupled with Mrs. Soucy's statement that all the items had just been brought back from Maine, afforded reasonable and adequate grounds for their seizure as stolen goods and as evidence to be used in any future prosecution. Warden, Maryland Penitentiary v. Hayden, supra.

The seizure of the musket and desk at the San Rafael auction gallery was also proper. While appellant apparently does not object to the entry of the police upon the gallery premises, he does object to the seizure on the grounds that the desk and masket were not sufficiently distinguishable from other property to permit a...