State v. Rattenni

• Decision Date: 30 November 1976
• Docket Number: No. 75-47-C,75-47-C
• Citation: 117 R.I. 221,366 A.2d 539
• Parties: STATE v. Richard T. RATTENNI. A.
• Court: Rhode Island Supreme Court

Page 539

366 A.2d 539

117 R.I. 221

STATE v. Richard T. RATTENNI.

No. 75-47-C. A.

Supreme Court of Rhode Island.

Nov. 30, 1976.

[117 R.I. 227] Julius C. Michaelson, Atty. Gen., John R. McDermott, Sp. Asst. Atty. Gen., for plaintiff.

Bevilacqua & Cicilline, Providence, for defendant.

OPINION

KELLEHER, Justice.

The defendant, Richard T. Rattenni, appeals his conviction for carrying a weapon in an automobile in violation of G.L.1956 (1969 Reenactment) § 11-47-8. He claims error on two points: first, that the trial justice erroneously denied the motion to suppress the gun and bullets; and, second, that in closing argument the prosecutor so inflamed and prejudiced the jury that the defendant was denied a fair trial. We find both contentions without merit and affirm the judgment below.

On the spring night of May 15, 1972, Urbano Prignano, Jr. and David P. Deignan, Jr., two members of the Providence Police Department's tactical unit, were on patrol in an unmarked police vehicle. At that time they had received information that a man possessing a gun was driving a blue or green Thunderbird with a broken taillight. Officer Prignano had known the informant for approximately a month, while Deignan had known the informant for over a year and knew the informant had supplied information to other members of the department. Later that evening the officers observed a car fitting the Thunderbird description driving along Bridgham Street. They ordered the driver to stop his vehicle. The driver drove into a nearby parking lot and stopped.

The officers testified that they approached the car, one going to each side. Officer Prignano asked Mr. Rattenni for his license and registration. Apparently looking for the documents, Rattenni opened a compartment between the two seats, at which time a light in the car or compartment came on, exposing the gun to Prignano's keen eye. The officer removed Rattenni and his gun from the car and subsequently removed the bullets from the gun. No search was conducted prior to the discovery of the pistol, and Rattenni was not arrested until after such discovery. The police did not ask Rattenni to open the compartment.

Rattenni maintains that the tip which the officers received did not constitute probable cause to search or arrest without a warrant. This, however, is not a probable cause case. Previously, this court has held that good police work may require an officer to make a brief investigative stop, an 'intermediate response,' on less than probable cause in appropriate circumstances. State v. Wilson, 110 R.I. 740, 297 A.2d 645 (1972). See Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It would be Rattenni's contention that the officers should ignore the tip because it would not meet the reliability requirements for a warrant. To take that position would be tantamount to saying that '* * * a policeman who lacks the precise level of information necessary for probable cause to arrest * * * (must) simply shrug his shoulders and allow a crime to occur or a criminal to escape.' Adams v. Williams, supra, 407 U.S. at 145, 92 S.Ct. at 1923, 32 L.Ed.2d at 616. We have already rejected that course of action. State v. Wilson, supra, 110 R.I. at 744, 297 A.2d at 648.

Furthermore, we do not find the factual distinction between the police radio report in Wilson and the informant's tip in this case to be persuasive. Realistically, we realize that police depend heavily on information from their street contacts. The informant here was known to both policemen and had been used by other members of the department. The tip was sufficient to warrant a brief investigative stop. See United States v. Jefferson, 480 F.2d 1004 (4th Cir.), cert. denied, 414 U.S. 1001, 94 S.Ct. 354, 38 L.Ed.2d 236 (1973). When the officers received information of a man carrying a gun in his car, and a car meeting the given description was spotted, it was their duty to investigate. Davis v. United States, 284 A.2d 459 (D.C.App.1971). Good police work required no less. State v. Wilson, supra. See Terry v. Ohio, supra. Moreover, it is completely within an officer's power to stop a car for a license and registration check. General Laws 1956 (1968 Reenactment) §§ 31-3-9, 31-10-24; State v. Maloney, 109 R.I. 166, 283 A.2d 34 (1971). Consequently, the police were justified in making the initial intrusion.

Rattenni has contended that even if the officers were justified in stopping him, they could not seize the gun because their primary purpose in questioning him was to see whether he had a gun; hence, their discovery of the weapon was not inadvertent. ¹ We reject this argument.

At the outset we note that the discussion of plain-view cases in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), recognizes two general types of situations. First, there are cases where evidence is discovered in the course of some legitimate search: by warrant, hot pursuit or incident to arrest. Coolidge v. New Hampshire, supra at 465, 91 S.Ct. at 2037-38, 29 L.Ed.2d at 582. Second, there are situations where there is no search. Coolidge v. New Hampshire, supra at 466, 91 S.Ct. at 2038, 29 L.Ed.2d at 583, citing Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The case before us today falls into the latter group. Officers Prignano and Deignan opened no doors, no trunks, no compartments;nor did they ask Rattenni to open anything for them. Nobody violated Rattenni's privacy. See United States v. Nunn,525 F.2d 958, 959 (5th Cir. 1976). The only search which might arguably have been conducted was with their eyes. Justice should be blind, but law enforcement should not. When officers have reason to believe that a person whom they are questioning is armed, we would hope that they would keep their wits about them and their eyes open. To do otherwise would be less than prudent. See Davis v. United States, supra.

Secondly, although the officers had information that Rattenni possessed a gun, this fact does not preclude their discovery of the weapon from being inadvertent. Rattenni seeks the best of both worlds. On the one hand, he argues, the tip was worthless and unverified, giving no basis for probable cause to search or arrest, but in the next breath he says this tip was so good that the officers 'kn(e)w in advance the location of the evidence and intend(ed) to seize it * * *.' Coolidge v. New Hampshire, supra at 470, 91 S.Ct. at 2040, 29 L.Ed.2d at 585.

We find that this is just not the case. Here the officers had sufficient grounds to investigate, but they did not know whether or not a gun was in the car, if so, where it would be, or that Rattenni would inadvertently reveal it to them. This was not a case where '* * * the police know in advance they will find (the evidence) in plain view and intend to seize (it).' Coolidge v. New Hampshire, supra at 471, 91 S.Ct. at 2041, 29 L.Ed.2d at 586. The police were justified in seizing the gun which they lawfully...