State v. Niemszyk

• Citation: 303 A.2d 105
• Parties: STATE of Maine v. Michael John NIEMSZYK.
• Decision Date: 04 April 1973
• Court: Maine Supreme Court

Page 105

303 A.2d 105

STATE of Maine v. Michael John NIEMSZYK.

Supreme Judicial Court of Maine.

April 4, 1973.

Ronald E. Ayotte, County Atty., Roland A. Cole, Asst. County Atty., Alfred, for plaintiff.

Lloyd P. LaFountain, Biddeford, Edward G. Hudon, Brunswick, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

POMEROY, Justice.

After a jury verdict that the appellant was guilty of the crime of Robbery (17 M.R.S.A. § 3401), judgment was entered. Appeal was seasonably taken from this judgment.

We deny the appeal.

The factual framework of the events which brought about the indictment of appellant and his prosecution and ultimate conviction, as revealed by the record, is substantially as follows:

On January 19, 1971, between 9 a. m. and 9:30 a. m. the South Berwick Branch of the First National Bank of Biddeford was 'held up.' Three men entered the bank, two were identifiable as white men despite the fact they wore ski masks in an obvious attempt to conceal their identity. The third man, identified as a black man, wore no mask.

When the robbers left the bank they were driven away in an automobile, the driver of which was not one of the three who entered the bank.

The sum of $14,474.35 in money was taken in the robbery. Included in this money was an amount witnesses described as 'bait money'. The 'bait money' was described as being bills of various denominations, the serial numbers of which had been previously recorded to facilitate identification. The so-called 'bait money' had been deliberately placed in the head teller's drawer. As this money was removed from the special clip, two automatic cameras in the bank lobby were activated.

In the course of the investigation of the robbery, the police found a car bearing New Hampshire license plates abandoned near the bank. New Hampshire authorities identified the car as belonging to Grace Bailey of Portsmouth, New Hampshire. A Portsmouth police officer was dispatched to the Bailey residence to make inquiries concerning the auto found in South Berwick. At about 1 p. m. that day the Portsmouth police officer was invited into the apartment by a female houseguest of Mrs. Bailey. Mrs. Bailey told the officer that she had loaned her car to a man named 'Bobby' early that morning. After determining that Mrs. Bailey would be able to identify 'Bobby,' the officer called for photographs and 'mug books' to be brought to the apartment. From these pictures Mrs. Bailey identified 'Bobby.' By this time four Portsmouth policemen, headed by a Lieutenant, were in the apartment. One of the detectives noticed that Mrs. Bailey appeared nervous. The officer, fearing danger if armed persons were in the apartment, asked for permission to 'look around.' Mrs. Bailey testified that before she could respond the detective walked through a bedroom and, opening a door, walked into the kitchen. The Lieutenant testified that Mrs. Bailey responded affirmatively to a request to 'look around' after being told that 'there might be some danger.'

Upon opening the kitchen door the detective saw three men, two white men (one of whom was appellant) and one black man seated at a table playing cards. The three were taken into custody. An officer testified at the trial that he purported to take custody of the appellant under the authority of a New Hampshire statute which he interpreted as permitting a four-hour detention of one suspected of a crime without formal arrest. N.H.R.S.A. ch. 594, § 2.

After removing the three men from the apartment, consent to search the apartment was requested by the officers. During the afternoon of January 19, 1971, additional police officers both from Maine and New Hampshire as well as two FBI agents were in the Bailey apartment. The Portsmouth Police Lieutenant, fearing Mrs. Bailey might be involved in the bank robbery, read the 'Miranda warning' to her, informed her of her right to refuse permission to search, then procured the signatures of Mrs. Bailey and her female houseguest on a consent to search form. At some point an unidentified policeman stated that if the consent to search could not be secured, Mrs. Bailey would have to be taken 'downtown.'

A search conducted after consent had been given produced a pillowcase containing gloves, ski masks, guns and better than $14,000, including the 'bait money' taken from the bank in South Berwick.

On January 20, 1971, a complaint against appellant was signed by Bernard Emery, a Maine State Police Officer. Emery took the complaint to Portsmouth on the same date, and appellant was released by New Hampshire authorities to Maine authorities on that date, extradition apparently having been waived.

On January 25, 1971, Trooper Emery took nine photographs to the South Berwick Bank for purposes of identification. Three employees of the bank identified appellant's photograph. The bank manager was unable to make any identification.

On February 4, 1971, appellant was indicted by the York County Grand Jury for having committed the crime of robbery.

On August 11, 1971, the State's motion to consolidate for trial the indictments for robbery against appellant and three others was granted. ¹

At the end of the State's case, motions for acquittal were granted as to appellant's three co-defendants.

Appellant's first claim of error is that the denial of his motion to suppress the gloves, ski masks, guns and money found in the search of Grace Bailey's apartment was erroneous. In support of this claim appellant characterizes the police action as two searches: The first when the detective walked into the kitchen and discovered appellant; the second when the Police searched for and found the evidence and fruits of the crime.

Even if we viewed the record most favorably to the appellant and concluded that Mrs. Bailey did not consent to the initial search, the appellant would gain nothing because no evidence resulted therefrom.

Appellant claims that the first search provided the basis and the reason for the second search. Thus, the illegality of the initial search 'tainted' the subsequent search. The guns, masks, gloves and money are 'fruit of the poisonous tree' under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the appellant says.

In deciding Wong Sun the Supreme Court stated that:

'We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'' 371 U.S. at 487-488, 83 S.Ct. at 417.

The question then becomes, was the consent to search given by Mrs. Bailey an exploitation of the initial search. Or, paraphrasing Wong Sun, was Mrs. Bailey's consent given 'under such circumstances,' resulting from the first search, as to make unreasonable an inference that her consent 'was sufficiently an act of free will to purge the primary taint of the unlawful invasion'? Id. at 486, 83 S.Ct. at 416.

Thus resolved, appellant's first argument that Mrs. Bailey's consent was not freely and voluntarily given due to the initial search merges with his second argument that the consent was not freely and voluntarily given in light of all the circumstances existing on the afternoon of January 19, 1971.

On that afternoon Mrs. Bailey was, at the outset, nervous. She had recovered from a 'hard' delivery and was caring for a young infant. Three persons, suspected of robbing a bank, had been found in her kitchen and removed by the police. An unknown policeman had stated that she might be 'taken downtown' if her premises could not be searched. The Lieutenant who had assumed control of the inquiry and who ultimately gained her consent for the search delieved that she was possibly involved in the crime. The Lieutenant wisely, in light of his belief, read the 'Miranda warnings' to Mrs. Bailey. While this was wise police procedure, under the circumstances it may have reinforced Mrs. Bailey's fear that she was a suspect or was implicated in the robbery. On these facts alone, it might be difficult to hold that a signed consent to search was 'an intentional relinquishment or abandonment of a known right.' Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

The trial justice at the suppression hearing heard testimony that the Police Lieutenant inquired of Mrs. Bailey and her houseguest whether they had knowledge of the bank robbery or knowledge of any 'guns, money or disguises in the house.' After receiving a negative response from both women, the Lieutenant requested permission to conduct a search of the premises. He informed the women that the search was for guns, money and disguises. Both women indicated assent, both read the consent form, the Lieutenant explained to both that they had a right to refuse a search, then both women signed the consent form.

The giving of this form of 'Miranda warning' as a precondition of the search constitutes a full and accurate explanation of the meaning of the rights and the consequence of waiver of those rights. The signed consent establishes that the two women knowingly relinquished their rights.

The remaining question in relation to the search is whether the trial Justice was in error in finding that the consent was not the product of coercion or duress.

We hold that he was not in error.

Mrs. Bailey ² was frightened by the events of that afternoon. Her car had been found near the scene of the crime. Three men had been found in her home who were, at the least, suspects, and she had been given the 'Miranda warning' which may have caused her to believe that she too was a suspect. All of these circumstances were the result of a normal and proper...