State v. Thibodeau

• Decision Date: 22 March 1974
• Citation: 317 A.2d 172
• Parties: STATE of Maine v. Raymond V. THIBODEAU.
• Court: Maine Supreme Court

Page 172

317 A.2d 172

STATE of Maine v. Raymond V. THIBODEAU.

Supreme Judicial Court of Maine.

March 22, 1974.

Thomas E. Delahanty, II, County Atty., Auburn, for plaintiff.

Gaston Dumais, Lewiston, for defendant.

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

DUFRESNE, Chief Justice.

On October 3, 1972 Raymond V. Thibodeau, the defendant, was convicted in a jury-waived trial of knowingly receiving stolen property in violation of 17 M.R.S.A. § 3551. ¹ Sentenced to the Men's Correctional Center, the defendant appealed from the judgment, alleging five areas of error which he contends the Court below committed in connection with his trial. We disagree and deny the appeal.

The record reveals the following scenario:

On the morning of August 15, 1972 one Victor Kral, the manager of the Knox Mining Corporation, discovered a break at the company's offices in Rockland, Maine. Observing that the place was in disarray with papers strewn around and drawers open, he particularly noticed that several pieces of equipment were missing from the office vault and from the drawers of his own desk. He made an inventory of the missing equipment and alerted the police.

Later that same day one Edward Maynard, a salaried undercover agent attached to the Lewiston Police Department, on his return home, observed in his apartment at 77 Pierce Street in Lewiston a large quantity of equipment with which he was unfamiliar. The defendant, who for approximately three weeks had been residing in the apartment and sleeping in one of the bedrooms with Maynard's permission, was there with several other people.

Maynard testified that, although he permitted other individuals to sleep in the apartment from time to time, he alone paid the rent.

Suspecting that the property might have been stolen, Maynard sought to get information concerning the same. The defendant, in discussing the matter with the undercover agent, fetched from his bedroom a particular piece of equipment which he showed to Maynard. Both then went to the bedroom, where the defendant, after taking up another piece of equipment described as a radioactive tester, explained to Maynard several of the component parts of the article. When asked what he could do with all of this, Thibodeau answered, according to Maynard, that he wanted to 'cannibalize' the parts in order to make other things.

Further noticing the other individuals present in the apartment taking turns at typing out payroll checks on blank forms bearing the name of a mining company, Maynard became increasingly suspicious respecting the possible theft of the goods displayed in the rent. He made overtures for the purchase of some of the equipment. The defendant, although present, was not shown to be an active participant in the negotiations that followed.

Leaving the apartment with the typewriter, an adding machine and a jigsaw, for the ostensible purpose of fencing the same, Maynard, instead, called the Lewiston police and conveyed to them his previous observations, supplying them with an inventory of the equipment he had seen and informing them where the various pieces were located in the apartment. Meeting with two Lewiston detectives by prearrangement, the undercover agent exchanged the typewriter and adding machine for $105 in bills of various denominations the serial numbers of which had been recorded.

Returning to the apartment with the money and the jigsaw, Maynard handed the money to one of the persons in the apartment. This individual, after counting it, turned the money over to one of the others. Maynard testified that he did not see any of the money being given to the defendant prior to his departure from the apartment some forty-five minutes following the concluded transaction.

In the meantime, the Lewiston Police Department, made aware of a break in the Rockland area, was furnished a list of the equipment taken in the break by the Rockland Police Department and the State Police, and this included an adding machine, a typewriter and a jigsaw which the undercover man had offered to the Lewiston officers at their predetermined rendez-vous.

Pursuant to a search warrant obtained on the same day, several members of the Lewiston Police Department set out that evening to execute the warrant at the apartment located at 77 Pierce Street, where they were met by two unidentified males and one female. Immediately prior thereto, however, Mr. Kral had identified the typewriter and adding machine, which the Lewiston officers had purchased from Mr. Maynard, as part of the loot stolen from his company. The defendant was not on the premises when the police arrived, but got there shortly thereafter. Upon arrival, he was arrested and searched. This resulted in the recovery of $40 of the marked money from Thibodeau's pocket. Various pieces of equipment were then seized by the police and brought to the police station in Lewiston where Mr. Kral identified the same either as his own property or that of the mining company for which he worked.

1. motion to suppress/

The defendant's first claim of error attackes the lower Court's denial of his pretrial motion to suppress the equipment seized by the police. Although the Justice below ruled that the search warrant was defective, ² nevertheless, he denied the motion to suppress in light of his specific finding that

'they (the police) didn't need a search warrant because the man in the apartment (Maynard) was a police officer known by police officers to be a police officer, and by feeding the information to other police officers he (Maynard) as much as impliedly gave them consent to go in and search the apartment. He (Maynard) is the only one who has standing to object. They (the defendant and others) are all in there, it is not their apartment in the first place.

From the evidence presented the apartment belonged to the police informer, and he is the only who had a right to object to the entrance.'

At the hearing on the merits, the Justice below, on the defendant's motion for acquittal, further stated in relation to the alleged tainted evidence obtained in the search:

'And as to your argument relative to the illegality of the search, even if I were to reopen the hearing we had the other day on your offer of proof as to the interest that this defendant has in the premises, the evidence does not in any way indicate that he had such an interest, . . ..'

(Emphasis supplied.)

The defendant had standing to question the legality of the search. The search warrant identified him as the occupant of the apartment and the person against whom the search was directed. Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. Thibodeau is charged with having knowingly received stolen property. The very nature of prosecutions for illicit possession of property accords the accused sufficient standing to invoke Rule 41(e) as 'a person aggrieved by an unlawful search and seizure.' State v. Cadigan, 1969, Me., 249 A.2d 750.

Even though the Justice below and the parties related to the issue in terms of standing, it is obvious that the defendant was afforded the opportunity to question the search and that the issue was resolved, not on the basis of lack of standing, but rather, on the ground that the defendant's interest in the apartment was not such as could prevent Maynard's consent from legitimizing the search, notwithstanding the Court's invalidation of the search warrant.

This Court has upheld searches and seizures based on defendant's consent. See, Papolas v. State, 1967, Me., 235 A.2d 533; State v. Littlefield, 1965, 161 Me. 415, 213 A.2d 431. The issue of third-party consent in connection with one's constitutional right to be secure in one's house, papers and effects, against unreasonable searches and seizures has not, however, been extensively discussed by this Court.

In State v. Niemszyk, 1973, Me., 303 A.2d 105, we upheld a warrantless search of an apartment where the search was conducted with the express consent of the woman who resided in, and apparently was the principal tenant of, the rent. No question was raised, however, as to the right of the tenant to consent to the search of the apartment of which the defendant had been an occupant at least temporarily, where the search resulted in the seizure of evidence that contributed to his conviction. Previously, in State v. Brochu, 1967, Me., 237 A.2d 418, the issue whether a nineteen year old daughter could give valid consent to the search of her father's home was not resolved, since this Court ruled that the daughter's submission to the officers' apparent legal authority under a search warrant did not rise to the dignity of consent to search and could not validate a police search executed under an invalid warrant.

The defendant contends the evidence supports his argument that his relationship respecting the apartment was that of co-tenant with Maynard, the undercover man. The Justice below found otherwise and, in this, we cannot say that he was clearly erroneous. Furthermore, where two or more persons occupy a dwelling place jointly, the general rule is that a joint tenant can consent to police entry and search of the entire house or apartment, even though they occupy separate bedrooms, and the evidence obtained by the officers is admissible against the other joint tenant, although the police had no warrant and there was no emergency. United States v. Fentress, 1971, 9 Cir., 452 F.2d 609, cert. denied 405 U.S. 1045, 92 S.Ct. 1331, 31 L.Ed.2d 587; United States v. Cataldo, 1970, 2 Cir., 433 F.2d 38; Wright v. United States, 1968, 8 Cir., 389 F.2d 996. Thus, the defendant's contention of co-tenancy would gain him nothing.

True, the defendant is entitled to the protection conferred by the Fourth-Fourteenth Amendments to the Constitution of the United States and by Article I, Section 5 of the Constitution of Maine. The rationale which permits a joint tenant to give a valid consent to...