State v. Mosher

• Decision Date: 06 November 1970
• Parties: STATE of Maine v. Ralph E. MOSHER, Jr.
• Court: Maine Supreme Court

Page 451

270 A.2d 451

STATE of Maine v. Ralph E. MOSHER, Jr.

Supreme Judicial Court of Maine.

Nov. 6, 1970.

William Clifford, Jr., County Atty., Charles H. Abbott, Asst. County Atty., Auburn, for plaintiff.

James F. Cosgrove, Lewiston, for defendant.

Before DUFRESNE, C. J., and WEBBER, MARDEN, WEATHERBEE and POMEROY, JJ.

WEBBER, Justice.

On appeal from a conviction by jury verdict of the offense of breaking, entering and larceny. At the close of the State's case the defendant elected to rest without presenting evidence. Motions for directed verdict of acquittal and for a new trial were seasonably presented and denied. Additionally a motion to suppress evidence was heard and denied by the presiding Justice. In the course of trial certain evidence was admitted over defendant's objection and portions of the instructions to the jury were challenged by defendant. The issues thus raised are before us on this appeal.

The State adduced credible evidence that between the hours of 7:00 P.M. on August 22, 1968 and 7:00 A.M. on August 23, 1968 a break occurred in Turner, Maine and certain new clothing was stolen from the burglarized store; that at 2:00 A.M. on the latter date a white 1960 Chevrolet bearing Maine registration #243-311 and containing three occupants was observed by a police officer in Lewiston, Maine, some eleven or twelve miles from Turner; that shortly after, the same car was observed at another location in Lewiston by another officer who was able to identify the operator as one Henry Poulin (co-defendant in this trial) but was unable to identify the other two occupants; that the car entered the ramp leading to the tollgate entrance of the Maine Turnpike in Lewiston; that the car was next seen leaving the Turnpike at the Auburn exit some five or six miles from where it had entered; that at about 2:40 A.M., still carrying three occupants, it reentered the Turnpike at the Auburn tollgate; that the car was next observed by a police officer in Somerest, Massachusetts, about 205 miles from Auburn; that the car was then parked in a laneway on private property and about 25 feet from an old railroad bed on which the police car was traveling; that the appellant and the two co-defendants Henry Poulin and Richard Poulin were standing at the rear of the parked vehicle with its trunk lid open; that upon arrival of the police car the trunk lid was slammed shut by one of three men, otherwise unidentified; that on command of the officer the men entered the vehicle and drove it onto the railroad road bed; that Henry Poulin then operated the vehicle, Richard Poulin was a passenger in the front seat and the appellant a passenger in the rear seat; that the officer arrested all three men for trespass; that while waiting for assistance to arrive, the officer observed articles of clothing, subsequently identified as the stolen property, lying in plain view in cellophane wrapping on the rear seat; that the Poulin car was subsequently removed to the parking lot at the police station; that the arresting officer then obtained information through regular police channels that new winter clothing similar to that observed in the Chevrolet had been stolen in Maine; that he then obtained a search warrant, admittedly defective, and removed and impounded the stolen property at about noon or shortly after; and that thereafter the clothing remained continuously in the hands of police authorities in Massachusetts and Maine except as produced in court in connection with proceedings involving the appellant.

We turn first to the motion to suppress. The defendant's theory appears to be that once a search warrant issued, it being technically invalid, a police officer purporting to act under the authority of the warrant could not under any circumstances make a valid seizure of the property described therein. This theory has no application to the situation which arises when no search in necessary. The Indiana Court summarily disposed of this argument as raising a 'supertechnicality' in a case where officers seized stolen property which was in a public restaurant 'in plain view.' Brown v. State (1959) 239 Ind. 358, 157 N.E.2d 174, 178.

The 'plain view' doctrine is universally recognized. 'It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.' Harris v. United States (1968) 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067.

The statement found in the text of 47 Am.Jur. 516, Sec. 20 has abundant support in the case law of our own and other jurisdictions. 'Where no search is required, the constitutional guaranty is not applicable. The guaranty applies only in those instances where the seizure is assisted by a necessary search. It does not prohibit a seizure without warrant where there is no need of a search, and where the contraband subject matter is fully disclosed and open to the eye and hand.' State v. Poulin (Me.1970) 268 A.2d 475, 480; Gerard v. State (1963) 237 Ark. 287, 372 S.W.2d 635; State v. Turner (1966) 101 Ariz. 85, 416 P.2d 409; Bryant v. United States (1958) 5 Cir., 252 F.2d 746; State v. Colson (1968) 274 N.C. 295, 163 S.E.2d 376.

Even where a search without warrant is reasonable and lawful or no search is necessary, the accompanying seizure must be accompanied by probable cause or reasonable grounds to believe that the property falls within a category which warrants the seizure. Such appears to be the clear import of Warden, Maryland Penitentiary v. Hayden (1967) 387 U.S. 294, 307, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782 which abolished any distinction between fruits of the crime, instrumentalities and contraband on the one hand and 'mere evidence' of criminal conduct on the other. In that case seizure of incriminating articles of clothing tending to identify the respondent followed a warrantless search made lawful by 'hot puruit.' Applying the probable cause requirement, the Court concluded that on the Hayden facts, 'the police * * * could reasonably believe that the items would aid in the identification of the culprit.' Where stolen property was in plain view of the officers and no search was necessary, the Court in People v. McDonald (1969) 13 Mich.App. 266, 163 N.W.2d 796, 801 said, 'Without a search, the police saw evidence which aroused their suspicions. Their suspicions were confirmed within the hour, and they proceeded properly in seizing that evidence, the apparently stolen goods.'

So in the instant case, the officer without a search saw the articles on the seat of the car which aroused his suspicions. Later, with reasonable grounds to believe that the articles had been stolen in Maine, he seized them as evidence. There was no error in denying the motion to suppress or subsequently in admitting into evidence the exhibits of clothing.

The defendant further contends that the clothing exhibits were improperly admitted into evidence because the continuity of possession of the police authorities had not been shown. It suffices to say that by identifying markings and description the exhibits were adequately shown to be the same stolen in Turner and later found in the seat of the car in which the defendant rode.

A more serious problem arises in connection with proof of defendant's participation in the burglary. Admittedly, the State was able to offer no direct evidence of defendant's guilt nor any admissions thereof. The case against the defendant rests entirely upon the application of the presumption arising from the possession of stolen property. Such a presumption has long been recognized and applied in Maine in cases in which the State could prove beyond a reasonable doubt that defendant was in possession of the stolen property, a possession which was 'recent' and 'exclusive.' As we review our case law, it must be noted that for the most part there has been little uncertainty with respect to the fact of defendant's possession. State v. Merrick (1841) 19 Me. 398 (sole possession of sheep by defendant who sold them as his own property); State v. Capodilupo (1921) 119 Me. 600, 112 A. 387 (sole possession by defendant of property obtained by shoplifting; State v. Russo (1928) 127 Me. 313, 143 A. 99 (sole possession of clippers by defendant who concealed them in his cellar); State v. Lizotte (Me.1967) 230 A.2d 414 (possession by defendant of 'green stamps' in glove compartment of his car, accompanied by sale thereof); State v. Langley (Me.1968) 242 A.2d 688 (sole possession of property by defendant who claimed he found it in the street); State v. O'Clair (Me.1969) 256 A.2d 839 (sole possession by defendant of stolen tractor). A more difficult problem was encountered in State v. Barrett (Me.1969) 256 A.2d 666 in which the possession was held jointly by defendant and two others. Recognizing that in order to raise the presumption the possession must be a 'personal, conscious and exclusive possession of recently stolen property,' which nevertheless may be 'joint' possession, we concluded that a mere constructive possession by defendant of the premises in which the stolen property was stored, although evidence to be considered, would not alone suffice to raise the presumption. We held, however, that the acts of the defendant in participating actively with others in the physical transportation of the stolen item and negotiating its sale soon after the...