STATE vs. BRADFORD E. DUFOUR
206 A.2d 82
Supreme Court of Rhode Island
JANUARY 8, 1965
PRESENT: Condon, C. J., Roberts, Paolino, Powers and Joslin, JJ.
Included in the bill, however, are two other exceptions taken before trial to rulings of another justice denying defendant‘s motions to quash the indictment and to suppress the evidence obtained by the state as the result of an alleged illegal search. On our view of such exceptions it will not be necessary to consider any of the exceptions taken during the trial.
It appears from the record that defendant was prosecuted
At the trial in the district court defendant waived examination, was adjudged probably guilty and bound over to appear in the superior court to be holden in Providence on the first Monday in March, A. D. 1962, on which day the grand jury for Providence County returned the instant indictment. On April 11, 1962 defendant was arraigned in the superior court and pleaded not guilty.
Thereafter on May 7, 1962 he filed a motion to suppress the evidence obtained by the search and also a motion to quash the indictment. On March 21, 1963 a hearing was had only on the motion to suppress, it being decided by the justice who presided that the decision thereon would be dispositive also of the motion to quash. The parties concurred in that view.
The motion to suppress alleged in substance that the indictment was based upon an illegal search and seizure of defendant in violation of art. I, sec. 6, of the state consti-
Three members of the Pawtucket police department, Detective McCarron, Lieutenant Ogni and Captain Marshall, testified in support of the validity of defendant‘s arrest and the search of the automobile that yielded the evidence upon which the indictment was based. As a result of information from an informer the detective and the lieutenant went to the vicinity of the Novelty Park Club on Division street at about 9:30 o‘clock on the night of September 27, 1961.
From their automobile parked on Brewster street which runs off Division street they saw an automobile pull up to the curb at the Peerless A. C. adjacent to the Novelty Park Club and defendant come out of the car with a brown package which he placed on the ground outside the club while he went in. They then saw him come out of the club, pick up the package, throw it on the back seat of the automobile, and walk across the street to a pay telephone.
In the meantime Detective McCarron had gotten out of the police car and walked to a point on the street where he could see into the Peerless A. C. While standing there he testified that defendant came up to him and asked if he was “waiting for Jack.” He testified that he did not reply and that defendant then said: “I have the film, * * * show me some identification and I will give you the film. * * * For all I know you may be John Law. I could be handing you the film and you put the handcuffs on me.” When
Lieutenant Ogni testified that he observed defendant stop and talk to Detective McCarron and then enter the Peerless A. C. Thereupon Captain Marshall was called on the police radio and told what the officers had observed. Shortly thereafter the captain arrived at the scene, talked with them, and then all three officers entered the Peerless A. C. where they found defendant and his father Henry J. Dufour. The captain then asked them who owned the car parked out in front. The father answered that it was his car, whereupon the captain asked them to accompany him and the other officers to the police station. The father went in his car driven by one of the officers and defendant went with one of the detectives in the police car.
After they arrived at the station all the officers interrogated the father. He was asked to give them the key to his car which had been parked at the rear of the station and locked. Upon the conclusion of the questioning Captain Marshall then said he was going to get a search warrant to search the car. Sometime later at what time is not precisely fixed in the testimony, although the captain said it was approximately eleven o‘clock, the car was searched.
After the search the father was released without any charge being brought against him while defendant was then formally placed under arrest and charged with the offense alleged in the complaint. At this time he was interrogated further and admitted that he was the owner of the film. Later his admission was reduced to a written confession which he signed.
It does not appear that anytime before or during the interrogation he asked for the assistance of counsel or was advised of his right to counsel. The police apparently proceeded on the theory that defendant and his father had only been requested and not compelled to go to the police
Neither in his brief nor in the oral argument does defendant contend that the confession was invalid because he was not assisted by counsel during the investigation or because he was not advised of his right to counsel. His contention on this point is that his arrest was without probable cause prior to the state‘s knowledge of the evidence obtained by the search and therefore it was illegal and void. Predicated on this contention he argues further that evidence obtained by search warrant incident to a void arrest cannot be used to justify the void arrest as he asserts was done by the police here.
We shall of course consider such contention but we are of the opinion that we should also consider the validity of the confession in the light of its having been obtained without the police previously advising defendant of his right to have assistance of counsel. We are impelled to this course by reason of the recent enunciation by the supreme court in Escobedo v. State of Illinois, 378 U. S. 478, 84 S.Ct. 1758, of a defendant‘s right to counsel before he may be subjected to interrogation in an accusatory investigation while in custody of the police.
In Escobedo the defendant requested the assistance of counsel and was refused. In this respect that case differs from the case at bar but in the course of its opinion the supreme court made it clear, we think, that the defendant in such circumstances must not only have been advised of his right to assistance of counsel when requested but he must also have been warned of his right to remain silent. “We hold, therefore,” the court said, “that where, as here the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police
Our view of the thrust of Escobedo has recently been applied by the California supreme court in People v. Dorado, 40 Cal. Reptr. 264, 394 P.2d 952. In that case as in our case the defendant failed to request counsel but the court was of the opinion that this did not distinguish the case from Escobedo saying: “We find no strength in an artificial requirement that a defendant must specifically request counsel; the test must be a substantive one; whether or not the point of necessary protection for guidance of counsel has been reached.”
In Escobedo the point of such necessary protection was reached in the opinion of the supreme court when the investigation began to focus on a particular suspect then in police custody. This was unquestionably the situation of defendant in the case at bar. For this reason his confession was inadmissible and should have been suppressed.
But aside from that reason we are also of the opinion that the confession and the evidence obtained by the search should have been suppressed because, as defendant rightly contends, at the time of his arrest the evidence shows that the officers had no reasonable grounds to believe that a felony had been committed or was being committed or that defendant had committed or was about to commit it. Until defendant‘s written statement was admitted over his
The state seeks to justify the arrest on the ground that defendant was under suspicion and the evidence disclosed by the search under the search warrant furnished probable cause for placing him under arrest and charging him with the offense alleged in the complaint. This is a mistaken view of the law of arrest and directly contrary to what the supreme court held in Henry v. United States, 361 U.S. 98, wherein at page 104 it said: “To repeat, an arrest is not justified by what the subsequent search discloses. Under our system suspicion is not enough for an officer to lay hands on a citizen. It is better, so the Fourth Amendment teaches, that the guilty sometimes go free than that citizens be subject to easy arrest.”
When defendant was taken to the police station for questioning, regardless of whether he was requested rather than ordered to go, and was subjected to an accusatory investigation focused upon him, he was under arrest. State v. Mercurio, 96 R. I. 464, 194 A.2d 574. That he did not protest the officer‘s taking him to the police station does not alter the case. The supreme court has long since held that probable cause for arrest could not be inferred from defendant‘s failure to make such protest. United States v. Di Re, 332 U. S. 581. There it said at page 594: “It is the right of one placed under arrest to submit to custody and to reserve his defenses for the neutral tribunals erected by the law for the purpose of judging his case.” In that case the government sought to do what the state is seeking here, support its arrest by means of evidence obtained by a search subsequent to the arrest. But the supreme court disposed
In State v. Mercurio, supra, the defendant was taken to police headquarters where he was questioned and made incriminating statements. He was then fingerprinted and released but was arrested the next day on a warrant procured on the basis of such statements. We held that the arrest was unlawful in violation of
In the case at bar the officers observed no such overt acts but acted upon mere suspicion in taking defendant to the police station. In other words at that time they were without any grounds of probable cause that a felony had been committed or that defendant was committing one. “It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion, see Henry v. United States, 361 U. S. 98, 101, though the arresting officer need not have in hand evidence which would suffice to convict. The quantum of information which constitutes probable cause—evidence which would ‘warrant a man of reasonable caution in the belief’ that a felony has been committed, Carroll v. United States, 267 U. S. 132, 162—must be measured by the facts of the particular case.” Wong Sun v. United States, 371 U. S. 471, 479.
In our opinion the evidence in the case at bar and the confession of defendant were the fruits of an unlawful
The defendant‘s exceptions 1 and 2 are sustained, and the case is remitted to the superior court with directions to quash the indictment and discharge the defendant.
PAOLINO, J., concurs in the result.
JOSLIN, J., concurring. I would not quash the indictment, but would grant the defendant a new trial and remit the case to the superior court for further proceedings. I base my conclusion on the fifth amendment to the federal constitution.
Specifically, I find error in the procedure followed by the trial court on the question of the voluntariness of defendant‘s confession. Since defendant did not testify, and his father when called as a witness by the state advantaged himself of his constitutional right not to incriminate himself, the only testimony as to voluntariness came from the police officers. They testified that defendant‘s confession was made approximately five hours after his original detention and at a time when he had not yet been advised that he was under arrest; that his father, who was ill, had been taken into police custody at the same time that defendant was and that he was released without charges being preferred against him, but only after defendant had confessed; that defendant was subjected to neither duress nor compulsion; and that the confession contained the
When the voluntariness of a confession has been put in issue, the practice in this state requires that the trial justice hold a preliminary hearing on that question in the absence of the jury at which he should determine the coercion issue; that thereafter further testimony be presented to the jury; and that then the issue be submitted to the jury with proper instructions. State v. Boswell, 73 R. I. 358; State v. Prescott, 70 R. I. 403; State v. Adams, R. I., 121 A. 418; State v. Mariano, 37 R. I. 168; State v. Jacques, 30 R. I. 578. Our opinion in State v. Crough, 89 R. I. 338, is distinguishable. I do not reach the question of whether our procedure meets the federal standards enunciated in Jackson v. Denno, 378 U. S. 368, 84 S.Ct. 1774, and followed in Boles v. Stevenson, 379 U. S. 43, 85 S.Ct. 174, though whether it does is open to question.
The record here discloses that a preliminary examination was conducted in the absence of the jury at the conclusion of which the trial justice, without making any findings on the coercion issue, ruled in substance that the question of how the confession had been obtained was one of fact for the jury. Thereafter, essentially the same evidence as had been proffered at the preliminary hearing was presented to the jury. In submitting the case to the jury, however, the trial justice did not instruct that it was for them to determine whether defendant‘s statement had been freely and voluntarily given according to law. The
It matters not that defendant neither requested an instruction as to the voluntariness of the confession nor excepted to the trial justice‘s failure to charge thereon. His failure to submit that issue to the jury “made the whole proceeding a mere pretense of a trial and rendered the conviction * * * wholly void.” Brown v. Mississippi, 297 U. S. 278, 286. When we are satisfied that a defendant‘s constitutional rights have been violated in this manner in a criminal case, we are not justified in sanctioning those violations because of the defendant‘s failure to observe procedural technicalities. Id. at 287. Nor should we compel a defendant because of a rigid adherence to those technicalities to resort to proceedings for post conviction relief, as he may under Fay v. Noia, 372 U. S. 391, 83 S.Ct. 822, in order to correct the abuse when it is now within our power to do so. The conviction cannot stand.
I come now to the reasons advanced by the majority for reversal. It finds reversible error in the denial of defendant‘s motion to suppress. I am unable to agree that Escobedo v. State of Illinois, 378 U. S. 478, 84 S.Ct. 1758, in the posture in which this case is here, required a suppression of defendant‘s confession or that either
The motion to suppress was directed not to defendant‘s confession, but to the product of the search. The record of the pretrial hearing on that motion discloses that the arguments of counsel as well as the decision of the trial justice
The majority, however, considers that the question of the suppression of the confession was before the trial court. Without reference to State v. Olivieri, 86 R. I. 211, which it overrules, the majority relying on “the thrust of Escobedo” hold that under any circumstances the confession of an accused made while in police custody and after becoming suspect should be suppressed unless prior to the making of the statement he has been given an opportunity to consult with counsel and has been advised of his constitutional rights. The implication of the decision is that the “critical stage” at which the right to counsel attaches occurs when an investigation loses its character as a general inquiry into an unsolved crime and focuses upon a suspect in police custody.
In my opinion the majority unduly extends Escobedo beyond where the highest authority stopped. That decision commences with the supreme court saying:
“The critical question in this case is whether, under the circumstances, the refusal by the police to honor petitioner‘s request to consult with his lawyer during the course of an interrogation constitutes a denial of ‘the Assistance of Counsel’ * * *.” (italics mine)
The phrase “under the circumstances” or words of similar import appear elsewhere in the opinion. Id. at 1761, 1763 and 1766. Such words are not included, much less reiterated, in an opinion without reason. Mr. Justice White in his dissent recognizes their purpose when he says, “Although the opinion purports to be limited to the facts of this case * * *” Id. at 1767.
To the suggestion that he confess guilt, he responded that he wanted to speak to his retained lawyer. The request was several times repeated. Notwithstanding that his attorney was at the place of interrogation and had been denied the opportunity to consult with Escobedo, he was told his lawyer “didn‘t want to see” him. Id. at 1760. Indeed, at one point the lawyer and Escobedo “came into each other‘s view for a few moments * * *.” Id. at 1760.
In addition, there was testimony that the attorney had been told he would not be allowed to speak to Escobedo until the police interrogation had been completed. Finally, after Escobedo made statements implicating himself in the murder, an experienced assistant state‘s attorney “‘took’ petitioner‘s [Escobedo‘s] statement by asking carefully framed questions apparently designed to assure the admissibility into evidence of the resulting answers.” Id. at 1761. Moreover, throughout the entire course of the interrogation, Escobedo was not advised of his constitutional right to remain silent.
The majority also holds that the films seized during the search of the father‘s automobile should have been suppressed. The decisive question on that issue is whether defendant was a victim of the search and seizure. The motion to suppress as well as the evidence at the hearing thereon do not disclose that defendant either alleged or established a possessory or proprietary interest in the automobile searched or in the films seized. In fact, at the pretrial hearing on the motion to suppress, the defendant testified that when he was confronted by the police with the package containing the films and asked whether it was his, the answer was: “I don‘t know, what is it?” In these circumstances the rule which generally prevails, absent a controlling statute, is that one not a member of the class for whose benefit the constitutional protection exists is without standing to urge the suppression of that which was seized. Annos. 96 L.Ed. 66 et seq., 50 A.L.R.2d 577 et seq. Contra: People v. Martin, 45 Cal.2d 755; Traynor, Mapp v. Ohio At Large In The Fifty States, 1962 Duke L.J. 319, 335 et seq. This is the rule which the supreme court in Goldstein v. United States, 316 U. S. 114, 121, said has been adopted by “the federal courts in numerous cases, and with unanimity * * *,” and which in Jones v. United States, 362 U. S. 257, 261, it summarized as follows:
Under this rule, defendant does not qualify as a victim.
The rule, however, is not without exception. In Jones v. United States, supra, the prosecution was for violation of the federal narcotics law and the statutory provisions permitted conviction upon proof of possession without more. There, as here, on the motion to suppress the accused neither alleged nor established a possessory interest in the premises searched or in the property seized. His failure so to do there, as here, was undoubtedly induced by the dilemma with which he was “pinioned.” If he admitted possession on the motion to suppress in order to establish “standing,” then the prosecution might have offered that admission against him at the trial on the merits. That dilemma, the court in Jones observed, had been “pointedly put” by Judge Learned Hand in Connolly v. Medalie, 58 F.2d 629, at page 630.
“Men may wince at admitting that they were the owners, or in possession, of contraband property; may wish at once to secure the remedies of a possessor, and avoid the perils of the part; but equivocation will not serve. If they come as victims, they must take on that role, with enough detail to cast them without question. The petitioners at bar shrank from that predicament; but they were obliged to choose one horn of the dilemma.”
The supreme court found, however, that “Judge Hand‘s dilemma is not inescapable,” id. at 263, and it relaxed the construction usually given to Rule 41(e) of the Federal
Jones v. United States, supra, does not help this defendant even if under our procedure consideration of the motion to suppress could have been deferred until conclusion of the state‘s case, thereby freeing defendant from his dilemma. In Jones conviction could have been obtained solely upon proof of possession; here proof of possession of the obscene films without more was not enough to convict. This defendant was charged with possession for the purpose of loan in violation of
Mapp does not change the requirement as to “standing.” That decision makes binding upon the state the constitutional prohibition against convicting an accused “of crime by using testimony or papers obtained from him by unreasonable searches and seizures as defined in the Fourth Amendment.” Ker v. California, 374 U. S. 23, 30. In my opinion, federal standards do not confer on this defendant standing to invoke the guarantee of the fourth amendment.
The majority, however, in addition to finding a violation of defendant‘s safeguards under the fourth amendment also grounds its decision on
“In the trial of any action in any court of this state, no evidence shall be admissible where the same shall have been procured by, through or in consequence of any illegal search and seizure as prohibited in section 6 of article I of the constitution of the state of Rhode Island.”
That section was enacted prior to the decision in Mapp
So viewed, the legislative intent was to remedy what Mr. Justice Condon, now chief justice, in his dissent in Olynik characterized at page 48 as “a massive breach in that bulwark of liberty [sec. 6, art. 1, of the state constitution]” which gave license to “lawless enforcement officers that they may invade any man‘s home and rummage among his private papers and possessions * * *.” (italics mine) It was a victim‘s right of privacy which was the subject matter of the legislative concern and not the protection of one not a member of the class entitled to claim the benefits of the constitutional guarantee. I see no reason for extending the benefits of
ROBERTS, J., concurs in the opinion of Joslin, J.
J. Joseph Nugent, Attorney General, Stephen F. Mullen, Special Counsel, for State.
Ralph Rotondo, Arthur M. Merolla, for defendant.