State v. Sapiel

• Decision Date: 30 July 1981
• Citation: 432 A.2d 1262
• Parties: STATE of Maine v. Richard SAPIEL.
• Court: Maine Supreme Court

Page 1262

432 A.2d 1262

STATE of Maine v. Richard SAPIEL.

Supreme Judicial Court of Maine.

Argued Nov. 7, 1980.

Decided July 30, 1981.

David M. Cox, Dist. Atty., Gary F. Thorne, Asst. Dist. Atty. (orally), Bangor, for plaintiff.

Paine & Lynch, Martha J. Harris (orally), Bangor, for defendant.

Before WERNICK, GODFREY, NICHOLS, GLASSMAN ^* and CARTER, JJ.

NICHOLS, Judge.

Indicted for theft by unauthorized taking or transfer, 17-A M.R.S.A. § 353 (Supp.1979), ¹ the Defendant, Richard Sapiel, was found guilty by a Penobscot County jury on February 25, 1980. The following day the same jury returned a guilty verdict on an ancillary indictment for habitual theft, 15 M.R.S.A. § 757 (1980). ²

Appealing from the judgments entered thereon in Superior Court, the Defendant raises five issues, contending: (1) the warrantless search and seizure of the Defendant's automobile was in violation of the Maine and United States Constitutions; (2) the presiding justice abused his discretion in admitting certain photographs at trial; (3) the evidence was not sufficient to warrant application of the "permissible inference" provided by 17-A M.R.S.A. § 361(2) (Supp.1979); (4) the court's jury instructions were prejudicially misleading; and (5) the use of the same jury for both the trial on the theft offenses and the trial on the ancillary indictment deprived the Defendant of his constitutional right to a fair trial on the habitual theft charge.

We sustain the appeal, finding prejudicial error in the court's jury instructions.

The facts of the case may be readily summarized. On January 29, 1979, Edward P. Wynn, Jr., discovered missing from his automobile a gray tool box with a dent over the latch and several tools inscribed with his name. Two months later, on March 26, 1979, Merlin Campbell discovered missing from the dash of his pickup truck a C. B. radio. The same day David W. Gray discovered missing from his automobile a Hy-Gain antenna, a steering wheel knob, and an emergency light. The next morning Janice Kwiatkowsky discovered that twenty-four 8-track tapes, a tape case, and a tote bag had been removed from her automobile.

During the afternoon of April 2, 1979, while on routine patrol, Officer Donald R. Rhodes of the Old Town Police Department observed the Defendant's automobile backed into the driveway of the Donald Ewer residence on Route 43. Aware of the Defendant's involvement in thefts in the past, Officer Rhodes suspected a possible break into the fairly new house. After observing the residence for a few minutes, he blocked the driveway with his cruiser and proceeded to investigate. Approaching the automobile to see if any household items had been removed from the house, he noticed a C. B. antenna on the vehicle's roof, and looking through its windows saw a C. B. radio and 8-track tape player on the dash, several tools on the floor, and a hammer, dented tool box, tape case with tapes, and tote bag in the back seat. The officer knew that items similar to these had been reported stolen.

The Defendant came to the door of the Ewer residence and told Officer Rhodes that he was babysitting for his sister. Officer Rhodes then left in his police cruiser and drove fifty yards down the road. From there he watched the Defendant run to his vehicle and "hurriedly" do something inside of it for about five minutes.

Detective Patrick Murray arrived on the scene and with Officer Rhodes approached the Defendant's vehicle. The Defendant got out of his automobile, locked its doors, and went inside the house after refusing to talk to Officer Rhodes and Detective Murray. Officer Rhodes again looked through the windows of the automobile and observed that the C. B. radio and the tape player had been "ripped out from underneath the dash" and placed on the floorboard "underneath the driver's side of the seat."

The Defendant having refused to turn over his keys to his automobile, Detective Murray called the District Attorney's office and received permission to have the vehicle towed to the police station. The locked car was removed to the station where, following the procurement of a search warrant, it was opened and its contents inventoried by Detective Murray. Among the items found were tools inscribed with "E. Wynn" or "Ed Wynn," a Hy-Gain antenna, an emergency light, a C. B. radio, a steering wheel knob, a tote bag containing personal papers of Janice Kwiatkowsky, and a gray tool box. Subsequent to this search, the four victims previously mentioned visited the police station and identified their respective personal property.

On May 7, 1979, the Defendant was indicted by a grand jury on four counts of theft and charged on an ancillary indictment with habitual theft. Following a not guilty plea, the Defendant filed a motion to suppress the evidence seized on grounds that it was obtained illegally without a warrant. This motion was denied at a suppression hearing held on August 8, 1979. At the Defendant's jury trial the seized items were introduced and admitted as evidence.

Following conviction on all four counts of theft, the Defendant pleaded not guilty at his arraignment on an ancillary indictment for habitual theft. Trial on the habitual theft charge was held the next day, and the Defendant was found guilty by the same jury. Evidence presented at this trial established that the Defendant had been convicted twice before of theft on October 13, 1977, and December 6, 1978.

Search and Seizure of the Defendant's Automobile

At the threshold we note that on oral argument the State for the first time questioned the Defendant's standing to have contested the warrantless search and seizure of his automobile and urges us to address the standing issue on our own motion. The issue, however, was not preserved for appellate review. Standing in this instance is not jurisdictional; it pertains only to the admissibility of evidence. The question of whether the Defendant had standing to challenge the warrantless seizure of his automobile was lost by the State's procedural default. See State v. Blais, Me., 416 A.2d 1253, 1256 n.2 (1980).

The Defendant raises three arguments in support of his contention that the warrantless seizure of his automobile infringed upon his state and federal constitutional rights ³ and that the evidence obtained pursuant thereto should have been suppressed. As previously noted, the items found in his automobile were introduced and admitted into evidence at trial. ⁴

The Defendant argues that Officer Rhodes's initial investigation of his motor vehicle was an improper intrusion upon his reasonable expectation of privacy, constituting an unreasonable search for constitutional purposes. We find, to the contrary, that Officer Rhodes's initial entry onto the Ewer property was proper, given the suspicious circumstances existing at the time. While on afternoon patrol, Officer Rhodes observed the automobile, which he knew belonged to the Defendant, backed into the private driveway of the rural residence of the Ewer family. Given the officer's knowledge of the Defendant's involvement in past thefts, the relative newness of the house, and problems with break-ins in that particular area of the city, Officer Rhodes reasonably determined the need to investigate. His actions, in this instance, were nothing more than the proper, routine investigatory duties of a patrolling officer.

Furthermore, the items inside the automobile, observed by Officer Rhodes through the windshield, were not at that moment the subject of a search; they were in plain view, easily seen from a vantage point open to the public. See Arkansas v. Sanders, 442 U.S. 753, 764 n.13, 99 S.Ct. 2586, 2593-94 n.13, 61 L.Ed.2d 235 (1979). Evidence in plain view discovered inadvertently by a police officer who has a legal justification to be where he is when he comes across the evidence, is subject to seizure. Coolidge v. New Hampshire, 403 U.S. 443, 465-66, 91 S.Ct. 2022, 2037-38, 29 L.Ed.2d 564 (1971). Evidence observed in such a manner is not the subject of a search. See, e. g., State v. Poulin, Me., 277 A.2d 493, 495 (1971); State v. MacKenzie, 161 Me. 123, 137-38, 210 A.2d 24, 32-33 (1965).

We conclude that the Defendant had no justifiable privacy interest, given Officer Rhodes's proper entry onto the premises to investigate suspicious circumstances. We find, further, that the initial discovery of the items in the Defendant's automobile did not constitute a search. The Defendant cannot claim constitutional protection where "a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object." Coolidge v. New Hampshire, supra 403 U.S. at 466, 91 S.Ct. at 2038. Cf. United States v. Lisk, 559 F.2d 1108 (7th Cir. 1977) (inadvertent discovery of a pipe bomb).

The Defendant next contends that the police lacked probable cause to seize his automobile and its contents. At the time of Officer Rhodes's initial observation of the items in the Defendant's vehicle, he was aware that those items matched the description of previously reported stolen goods. When Officer Rhodes returned to the automobile a second time after having watched the Defendant "hurriedly" do something inside his car, he saw that the Defendant had removed and attempted to conceal beneath the driver's seat a C. B. radio and a tape player, both of which Officer Rhodes suspected to be stolen property.

At the suppression hearing, the presiding justice found that the foregoing factors generated a reasonable belief on the part of Officer Rhodes that the items in the Defendant's automobile were stolen. A "reasonable belief" is the essence of probable cause. State v. Walker, Me., 341 A.2d 700, 703 (1975). In the landmark case of Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 283, 69 L.Ed. 543 (1925), the United States Supreme Court addressed the "reasonable belief" which constitutes probable cause:

(T)he true rule is that if the search...