STATE of Maine v. Frederick J. DUBAY
Supreme Judicial Court of Maine
Jan. 10, 1974
313 A.2d 908
Paine, Cohen, Lynch, Weatherbee & Kobritz, by Peter M. Weatherbee, Bangor, for defendant.
Before DUFRESNE, C. J., and WERNICK, ARCHIBALD, POMEROY and WEBBER, JJ.
WERNICK, Justice.
This case arises from an indictment charging that defendant had committed the felony of being in possession of “LSD-25“, (
“legality of the custodial search of the defendant‘s personal belongings raised within the Agreed Statement of Facts.”
On February 23, 1972 defendant was arrested for being intoxicated in Millinocket, Maine. Taken into police custody, he was transported to the Millinocket Police Station where he was “booked” and “locked-up.”1 Before defendant was confined, a member of the Millinocket police depart
Defendant was thereafter arrested on a warrant charging him with the felony of possession of “LSD-25” in contravention of
Pursuant to Rule 41 M.R.Crim.P., on September 25, 1972, defendant moved in the Superior Court to suppress, for use as evidence against him, the crushed orange pill (as alleged to be “LSD-25“) on the ground that it had been “seized from his wallet as the result of an illegal search and seizure.”
Defendant‘s claim of illegality is predicated entirely upon asserted violations of the Fourth Amendment, as binding upon the States by incorporation into the Due Process Clause of the Fourteenth Amendment, of the Constitution of the United States.
Since it has been generally recognized that one lawfully arrested on a charge of criminal conduct and lawfully to be detained by incarceration pending disposition of the charge may, in contemplation of such confinement, be subjected to a warrantless search of his person consistently with federal Fourth-Fourteenth Amendment guarantees,3 defendant here concedes that
“the Millinocket Police officers were justified in conducting a custodial search . . . [of defendant‘s person] to check for any personal items which might be used in escape or to hurt himself or others or introduce contraband . . . [in] the lock-up area.”
Defendant maintains that there was an infringement upon his federal Fourth-Fourteenth Amendment protections, however, when the police officer, after he had removed the wallet from defendant‘s person and control, (1) thereupon made a sep
As mentioned in footnote 3, ante, this Court decided in State v. Estabrook, Me., 241 A.2d 880 (1968) that when a defendant is lawfully arrested on a charge of crime and is transported to a jail at which, without interruption of the police custody, he is ultimately confined for detention pending disposition of the criminal charge, a search of defendant‘s person conducted prior to such incarcerative detention--notwithstanding that the police station search occurs
“some hour and thirty-seven minutes after the arrest” (Estabrook at p. 881)
--is justified as a search “incident” to the lawful custodial arrest. The further question presently before us was not reached in Estabrook since, there, the money alleged to have been unlawfully seized was found during the search of defendant‘s person without need that any container, or its contents, be separately explored to bring the money into view.
Yet, on the Estabrook justification of the stationhouse search of defendant‘s person as a search “incident” to lawful custodial arrest, two recent decisions of the Supreme Court of the United States, United States v. Robinson, --- U.S. ---, 94 S. Ct. 467, 38 L.Ed.2d 427 (1973), and Gustafson v. State of Florida, --- U.S. ---, 94 S. Ct. 488, 38 L.Ed.2d 456 (1973), mandate that the issue now being raised by defendant be decided against him.
Robinson and Gustafson establish two principles as controlling under the Constitution of the United States.
The first is that
“a search incident to . . . [lawful] arrest requires no additional justification . . .” (United States v. Robinson, --- U.S. ---, 94 S. Ct. 469)
and, therefore,
“. . . in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment . . .” (emphasis supplied) (United States v. Robinson, --- U.S. ---, 94 S. Ct. 477).
The second critical aspect of Robinson and Gustafson is their categorical denial of the proposition that once effects, in the form of containers, have been removed from the defendant‘s person and control, the subsequent opening of the containers and examination of their contents is a separate and independent search of property which requires separate and independent Fourth-Fourteenth Amendment justification. Mr. Justice Marshall, on behalf of himself and two other Justices dissenting in Robinson and Gustafson, had strongly asserted, and extensively analyzed, the affirmative of the proposition--summarized by Mr. Justice Marshall as follows:
“[the search] . . . did not merely involve a search of respondent‘s person. It also included a separate search of effects found on his person. And even were we to assume, arguendo, that it was reasonable . . . to remove the object . . . felt in respondent‘s pocket, clearly there was no justification consistent with the Fourth Amendment which would authorize . . . opening the package and looking inside.” (United States v. Robinson, --- U.S. ---, 94 S. Ct. 486)
To this contention of the dissenting Justices, precisely the position which defendant advances in the case at bar, the majority in Robinson and Gustafson answered, and decided, that if
“. . . in the course of a lawful search . . . [of the person incident to lawful custodial arrest]” (United States v. Robinson, --- U.S. ---, 94 S. Ct. 477)
the searching officer should “come upon” effects on the person
“he . . . [is] entitled to inspect [them]; and when his inspection [has] revealed . . .” (United States v. Robinson, --- U.S. ---, 94 S. Ct. 477)
a drug, not immediately identifiable but
“. . . believed to contain an unlawful substance” (Gustafson v. State of Florida, --- U.S. ---, 94 S. Ct. 488, 492),
the officer is
“. . . entitled to seize . . . [it] as ‘fruits, instrumentalities or contraband’ probative of criminal conduct.” (Gustafson v. State of Florida, --- U.S. ---, 94 S. Ct. 492)
Thus, on the Estabrook “incident to custodial arrest” approach to authorize the full search of defendant‘s person in the case at bar Robinson and Gustafson squarely compel the conclusion that here, the exploration of the contents of the wallet found on defendant‘s person and the unravelling of the ball of tinfoil discovered inside the wallet were, even if lacking in independent “probable cause” justification, consistent with the protections guaranteed defendant by the federal Fourth-Fourteenth Amendments.
It may be thought, however, that Estabrook unreasonably stretches the “incident to arrest” concept by extending it to incarcerative detention situations; and that searches conducted in anticipation of such confinement of defendant are more properly to be justified on other grounds dictated by the forthcoming incarceration rather than the already completed arrest--i. e., the legitimate governmental interests in protecting the security of the confinement area, the safety of the defendant once confined and the integrity of the police administrative handling of the personal belongings of defendant while he remains incarcerated.
Even so, Robinson and Gustafson require rejection of defendant‘s contentions in the case at bar.
The ultimate theoretical foundation of Robinson and Gustafson is the existence of the right of governmental officials to assert, and effectively maintain, a custodial control of defendant‘s person. Given such right as continuingly operative, Robinson and Gustafson hold: (1) the lawful governmental authority to take, and effectively maintain, custodial control of defendant‘s person is itself the “reasonable” intrusion permissible under the Fourth-Fourteenth Amendments by virtue of which--absent extrinsically operative
“. . . extreme or patently abusive characteristics which . . . [might be] held to violate the Due Process Clause of the Fourteenth Amendment [as] in Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L.Ed. 183 (1952) . . .” (United States v. Robinson, --- U.S. ---, 94 S. Ct. 477)--
“. . . a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment” (emphasis supplied) (United States v. Robinson, --- U.S. ---, 94 S. Ct. 477);
(2) accordingly, whenever
“in the course of . . . [such] lawful search . . .” (United States v. Robinson, --- U.S. ---, 94 S. Ct. 477)
of the person of defendant the searching officer should “come upon” effects on the person of the defendant--notwithstanding that he has removed them from defendant‘s person and control--the officer is entitled to inspect them and to seize, as believed to be (or contain) an unlawful substance, an unidentified drug revealed by such examination.
Defendant‘s motion to suppress as evidence against him the crushed orange pill, as claimed by the State to be “d-lysergic acid diethylamide (LDS-25)“, must be denied.
The entry is:
Case remanded to the Superior Court for entry of an Order denying defendant‘s motion to suppress; and for further appropriate proceedings.
All Justices concurring.
WEBBER, J., sat at argument but retired before the decision was rendered.
WEATHERBEE, J., did not sit.
POMEROY, Justice (concurring).
I concur with the majority opinion in this case.
I agree that in the posture in which this case is before us the result is compelled by the December 11, 1973, decisions of the Supreme Court of the United States in United States v. Robinson, --- U.S. ---, 94 S. Ct. 467, 38 L.Ed.2d 427 (1973), and Gustafson v. Florida, --- U.S. ---, 94 S. Ct. 488, 38 L.Ed.2d 456 (1973).
Lest a casual reader might draw unwarranted conclusions from this opinion and from the majority-opinion in Gustafson, I desire to restate for emphasis that which is clearly stated in the majority opinion in this case and which is readily apparent from a careful reading of Robinson and Gustafson.
In this case:
(a) the defendant does not dispute that his incarceration was lawful;
(b) in this case defendant‘s claim of illegality is predicated entirely upon asserted violations of the Fourth Amendment as binding on the states by incorporation into the Fourteenth Amendment of the Constitution of the United States.
The majority opinion does not suggest, nor should it, what position we would take if the claim of illegality was predicated on the provisions of Sec. 5, Art. I, of the
I would also emphasize that in Gustafson, although the defendant was taken into custody for the offense of driving his automobile without a valid operator‘s license, the defendant conceded the constitutional validity of his custodial arrest and thus removed the issue from the case.
I finally emphasize that in Robinson, the Court in footnote 2 took pains to point out that the standard operating procedures of the Metropolitan Police Department required a full custody arrest in the circumstances there described.2