State v. Smith

• Decision Date: 04 November 1977
• Citation: State v. Smith, 379 A.2d 722 (Me. 1977)
• Parties: STATE of Maine v. Charles L. SMITH.
• Court: Maine Supreme Court

Page 722

379 A.2d 722

STATE of Maine v.Charles L. SMITH.

Supreme Judicial Court of Maine.

Nov. 4, 1977.

David M. Cox, Dist. Atty., John A. Woodcock, Jr., Asst. Dist. Atty. (orally), Glen L. Porter, Intern, Bangor, for plaintiff.

Ford & Hall by Eugene W. Ford, Bangor (orally), for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY, GODFREY and NICHOLS, JJ.

McKUSICK, Chief Justice.

In July 1976 a Penobscot County grand jury indicted the defendant, Charles L. Smith(in testimony referred to informally as "Chuckie" Smith), for possession of a firearm by a felon in violation of 15 M.R.S.A. § 393.¹The defendant moved in advance of trial to suppress the use of a revolver, holster, and belt as evidence against him.After hearing, the presiding justice denied the motion, and the case proceeded to trial before a jury.The defendant appeals from the judgment entered upon the jury's verdict of guilty, alleging as error the refusal of the presiding justice to grant the suppression motion and the alleged insufficiency of the evidence to sustain the verdict.

We deny the appeal.

At approximately 1:30 a. m. on July 4, 1976, Officer Frank Crowley of the Bangor Police Department was informed by the police dispatcher that one Chuckie Smith had been reported to be at Grant's Trailer Park "walking around with a gun strapped on him."Officer Crowley knew a Chuckie Smith, who was also known to him to have a felony record.Office Crowley, then in plainclothes, immediately drove his unmarked cruiser to Grant's Trailer Park to investigate the report.At the park entrance, the officer encountered a resident of the park, who identified himself as Tom Patterson and who, on inquiry, said that he knew a Chuckie Smith.Patterson suggested the officer would find Smith at the trailer on Lot 73 and stated that Smith was "strung out" and had "a gun strapped on him."Proceeding immediately to Lot 73, the officer spied two individuals at the trailer door.One he instantly recognized as the Chuckie Smith whom he knew.Smith, the defendant, was wearing a belt and a holster that contained what "appeared to be a western-type revolver," although the revolver itself was apparently obscured by the holster.At that moment, Officer Crowley was joined by Officer Nye, who arrived in a marked cruiser.Both officers approached the door but were refused entry by an unknown man who denied that Smith was present.Officer Crowley went around to the back of the trailer and through the bedroom window saw Chuckie Smith again, but could not see his waist and below.

Shortly thereafter, Officer Nye informed Officer Crowley that the owner of the trailer had given his permission to their entry.Upon entering, the officers went immediately to the rear of the trailer where Officer Nye ordered the defendant out of the bedroom.As the defendant moved into the hallway, Officer Crowley stepped behind him into the bedroom and spotted a gun belt and holster, containing a revolver, resting on the floor in open view, only some five feet from the hallway door.Observing that the ensemble resembled that which he had seen Smith wearing only minutes before in the trailer doorway, Officer Crowley seized the revolver, a Ruger .44 magnum, along with the gun belt and holster.After noting that the gun was loaded, the officers immediately placed the defendant under arrest for possession of a firearm by a felon.

I

The appellant asserts error in the presiding justice's denial of his pre-trial motion to suppress.This court will reverse that ruling only if it is clearly erroneous.State v. McLain, Me., 367 A.2d 213(1976);State v. Walker, Me., 341 A.2d 700(1975).On the defendant's appeal, the State advances three familiar rationales to justify this warrantless search in the face of constitutional attack: (1) search based upon probable cause and exigent circumstances; (2) search incident to arrest; and (3) search based upon a valid consent.It is unnecessary to reach the latter grounds, since we find the first asserted justification sufficient.

Probable cause to search exists when the officers' personal knowledge of facts and circumstances, in combination with any reasonably trustworthy information conveyed to the police, would warrant a prudent person believing that the search would disclose criminal conduct or items that would aid in identifying a criminal or establishing the commission of a crime.State v. Walker, supra;State v. Heald, Me., 314 A.2d 820(1973).Similarly, officers possess probable cause to arrest "where the facts and circumstances within the knowledge of the officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent and cautious man in believing that the arrested person had committed or was committing a felonious offense."State v. Smith, Me., 277 A.2d 481, 488(1971).Accord, e. g., State v. LeBlanc, Me., 347 A.2d 590(1975).

A review of the evidence produced by the State at the suppression hearing clearly shows that Officers Crowley and Nye possessed probable cause to arrest the defendant, Chuckie Smith, prior to the time they entered the trailer at Lot 73.Officer Crowley knew of the appellant and his previous felony conviction.Going to Grant's Trailer Park in response to the police dispatch (itself triggered by information received from a source not identified at the suppression hearing), Officer Crowley encountered Patterson, who told him he had observed Chuckie Smith a short time earlier "strung out" at Lot 73 and wearing a gun.Although other information then within the officer's possession did not decisively establish reliability and credibility of the source of his knowledge of the probable crime, information given police by a citizen who is an eyewitness or a victim carries certain inherent indicia of trustworthiness, and may be considered as part of the evidentiary chain establishing probable cause.As the Second Circuit has said:

"In this case, (the informer) was not an anonymous paid informer, but an identified bystander with no apparent motive to falsify.The report of such a person has a 'peculiar likelihood of accuracy' . . . ."United States v. Rollins, 522 F.2d 160, 164(2d Cir.1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1122, 47 L.Ed.2d 324(1976).

Accord, United States v. Mahler, 442 F.2d 1172, 1174-75(9th Cir.1971), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545(1971)(victim).Without specific comment, this court in the recent past has in fact applied the rule expressly stated by those circuits.Probable cause has been found on the basis of information furnished by a victim or eyewitness, without independent verification of its trustworthiness.State v. Babcock, Me., 361 A.2d 911(1976)(victim);State v. LeBlanc, supra at 594(eyewitness);State v. York, Me., 324 A.2d 758(1975)(eyewitness).Armed with the foregoing information, Officer Crowley drove directly to Lot 73.As he drove up, he saw the appellant, Chuckie Smith, standing in the doorway wearing a belt and holster which appeared to contain a gun.At that moment, if not well before, the totality of the facts and circumstances within the officer's knowledge ripened without the slightest doubt into probable cause to arrest the appellant without a warrant for the offense of possession of a firearm by a felon.

The same factors that established probable cause to arrest also created an atmosphere of exigency which justified the officers' warrantless intrusion into the trailer in search of the appellant.Probable cause existed to believe that the appellant, a known felon, possessed a dangerous weapon.The officers were also told that he was "strung out," from which they could reasonably conclude he was in an especially dangerous condition.After the officers arrived, Smith retreated into the trailer where Officer Crowley again saw him through the rear bedroom window.The officers knew that other persons were present in the trailer and possibly imperiled by the presence of an armed felon who was attempting to evade the police.Under all these circumstances, it was sound police practice to make an immediate warrantless entry and search.Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782(1967);State v. Cress, Me., 344 A.2d 57(1975);State v. Walker, supra;State v. Stone, Me., 294 A.2d 683(1972), application for bail denied, 409 U.S. 908, 93 S.Ct. 212, 34 L.Ed.2d 169(1972).

The situation of exigency which justified the initial entry and search for the appellant also legitimated the subsequent seizure of the firearm itself.At the time of the seizure Chuckie Smith had, only moments before, left the bedroom, and the officers had reason to anticipate the presence of a firearm, either on his person or within the limited confines of the trailer hall or bedroom.Officer Crowley was acting reasonably under all the circumstances and in light of what he had been told and had observed when he stepped into the bedroom to look for the weapon.

"The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape."Warden v. Hayden, supra, 387 U.S. at 298-99, 87 S.Ct. at 1646, 18 L.Ed.2d at 787.

Because possession of the weapon by Smith constituted the crime, the police were entitled to seize the revolver for subsequent use in evidence against him.State v. Stone, supra.

No constitutional infirmity having tainted the search, seizure, or arrest in this case, the presiding justice correctly denied the appellant's motion to suppress.

II

Having preserved the issue for appellate review by making appropriate motions at trial (Rule 29(a),...