State v. McWeeney
| Decision Date | 26 January 1966 |
| Docket Number | No. 10516,10516 |
| Citation | 216 A.2d 357,100 R.I. 394 |
| Parties | STATE v. Walter J. McWEENEY. Ex. |
| Court | Rhode Island Supreme Court |
J. Joseph Nugent, Atty. Gen., Corinne P. Grande, Sp. Counsel, for the state.
Gallogly, Beals & Tiernan, Robert O. Tiernan, James M. Jerue, Providence, for defendant.
This is a criminal complaint charging that the defendant 'Did knowingly have in his possession a certain slip or certificate such as is used in carrying [sic] on, promoting and playing the game commonly known as policy-lottery or policy.'
The defendant has briefed and argued only his exceptions to the denial of his motion to suppress and to the denial of his motion for a direction of acquittal. Under our well-established rule his other exceptions having been neither briefed nor argued are deemed to be waived. Labbe v. Hill Brothers, Inc., R.I., 197 A.2d 305.
After a careful review of the record we deem it necessary to consider only the exception to the denial of his motion to suppress. The principal thrust of the motion is that the evidence on which the criminal complaint is grounded was procured by, through or in consequence of an illegal search and seizure in violation of his constitutional rights under art. XIV of amendments to the federal constitution and art. I, sec. 6, of the state constitution. We shall examine briefly the evidence pertinent to this issue as it appears in the transcript of the hearing on the motion to supporess.
At approximately 12:15 p. m. on the day of defendant's arrest, officers James H. Dodd, Jr., and Joseph R. Gonsalves of the Providence Police Department's C-squad went to a barroom in Providence, according to officer Dodd's testimony, as a result of 'numerous complaints that the defendant was accepting horse and number pool bets at that establishment.' The defendant had been employed there for some years as a bartender, but he was not on duty on the day in question. Officer Dodd testified that he did not know who made the complaints and there is no evidence in the record indicating that anyone knew the identity of the person or persons claimed to have made such complaints.
Upon arriving at the bar the officers looked through the front window of the barroom and saw defendant sitting at a table with two men who were talking to him. The defendant had his head down writing on something with a pencil, but they were then unable to see what he was writing on because he had his left hand cupped around it. They then entered the bar. Officer Dodd testified that as he entered the front door, he went immediately toward the table at which defendant was seated; that as he opened the door, defendant looked up, recognized him, and removed a 'bill' from the table on which he was writing; and that he placed the bill in his left trouser pocket and the pencil in his jacket pocket. Officer Dodd testified that after he entered the bar and before defendant picked up the bill, he
Officer Dodd then asked defendant what he had put in his pockets and defendant replied 'Nothing.' The officer then asked defendant to empty his left trouser pocket on the table, with which request defendant complied. There was a roll of bills and a one-dollar bill separated from the roll. In further compliance with the officer's request defendant put the pencil on the table. The dollar bill was crumpled and had various numbers written in pencil upon its face. Officer Dodd identified the numbers as being number pool bets. This dollar bill, which the officers testified was the object upon which defendant was writing when they first observed him, was the subject of defendant's motion to suppress which was heard and denied by a justice of the superior court before trial of the case on the merits. It was subsequently introduced into evidence over defendant's timely objections at his trial on the merits.
The testimony of officer Gonsalves substantially corroborated that of officer Dodd. He testified that when officer Dodd walked over to defendant's table, the latter 'became quite excited and put the pencil in his pocket, and picked up a bill from the table; that is when I saw what he was writing on.'
In his decision the trial justice said: 'The Court is completely satisfied that the officers entered the bar and were aware that a misdemeanor had been committed, or had been committed in their presence; and in view of the law, which is Section 12-7-3, they were entitled to make the arrest without a warrant, and the search that was made of the defendant was completely incidental to the arrest, and for that reason, the defendant's motion to suppress the evidence is denied and the defendant's exception is noted.'
General laws 1956, § 12-7-3, in pertinent part reads as follows:
'A peace officer may without a warrant arrest a person for a misdemeanor, whenever:
(a) The officer has reasonable ground to believe that a misdemeanor has been or is being committed in his presence and that the person to be arrested has committed or is committing it.'
The primary question raised by the instant exception relates to the validity of defendant's arrest without a warrant. It appears from the trial justice's decision that he concluded that a valid arrest had been made by the officers and that officer Dodd's request that defendant empty the contents of his pockets on the table was a search incidental to a valid arrest and therefore lawful. We disagree with his conclusion with respect to the validity of the arrest. In our opinion the evidence does not satisfy the requirements of law, state or federal, warranting an arrest without a warrant for a misdemeanor.
The law governing such arrests is generally well settled. See State v. Mercurio, R.I., 194 A.2d 574. See also Arrest, The Decision to Take a Suspect into Custody, By Wayne R. LaFave, particularly chap. 11, at p. 231, entitled 'Misdemeanor Arrest: The 'In-Presence' Requirement.' The difficulty arises in applying the law to specific cases; such is the situation before us presently.
We keep in mind that we are considering an arrest without a warrant in a misdemeanor case. We would agree with defendant's contention that the statement of the trial justice that the officers 'were aware that a misdemeanor had been committed, or had been committed in their presence' is an incorrect statement of the law if such statement stood alone. But it does not stand in a vacuum; it is part of the decision of the trial justice wherein he discussed the pertinent evidence. From a reading of his decision as a whole we are satisfied that the trial justice was aware of the law applicable to arrests without warrants in misdemeanor cases, but he was not warranted in applying the same in the case at bar.
The court discussed this problem at some length in Mercurio, supra. Repetition of what was said in that case will serve no useful purpose. Suffice to say that the federal standard must be satisfied in a case such as this. Section 12-7-3(a), which provides that a peace officer may without a warrant arrest a person for a misdemeanor whenever the officer has reasonable ground to...
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