State v. Dubay

338 A.2d 797, 1975 Me. LEXIS 347

Opinions

ARCHIBALD, Justice.

The defendant, Frederick J. Dubay, was indicted for illegal possession of d-lysergic acid diethylamide (LSD-25) in contravention of 22 M.R.S.A. § 2212-B. Pursuant to M.R.Crim.P., Rule 37A, the presiding Justice below reported for determination by the Law Court the issue of the legality of the search of the defendant’s personal belongings prior to his lawful incarceration.¹ Dubay contends that the search and seizure of the contents of his wallet are forbidden by Article I, § 5 of the Maine Constitution.²

Previously, the defendant challenged the instant search as violating federal constitutional principles. That claim was resolved against him in State v. Dubay, 313 A.2d 908 (Me.1974). Since the facts surrounding the search in question were fully discussed and analyzed in that opinion, we do not deem it necessary to reiterate them.

It is unquestioned, as the defendant concedes,³ that the police may con-conduct a warrantless, pre-incarceration search of the person of one who has been validly arrested.⁴ Such a search is reasonable in view of 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.”

State v. Dubay, 313 A.2d 908, 911 (Me. 1974); see also Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); United States v. Pennington, 441 F.2d 249 (Sth Cir. 1971), cert. denied, 404 U.S. 854, 92 S.Ct. 97, 30 L.Ed.2d 94 (1971); Smith v. State, 1 Md.App. 297, 229 A.2d 723 (1967). However, the defendant claims that the State’s interest was achieved once the wallet was removed from his person, and that, therefore, there was no need to examine the contents of the wallet or the tin foil packet found therein.

We do not find this argument persuasive. The packet could have contained, for instance, a small gem or a plastic explosive. If such were the case, removal of the wallet only, without an investigation of its contents, would not adequately protect the jailer and inmates from dangerous substances, the contents of the defendant’s wallet from theft by an unscrupulous police officer or the police from a false claim of theft of those contents. Thus, weighing the defendant’s right to be secure in his possessions against the interests sought to be advanced by the State, we hold that the search complained of does not offend Article I, § 5 of the Maine Constitution.⁵ Other jurisdictions have found similar pre-in-carceration searches constitutional. State v. Woodall, 16 Ohio Misc. 226, 241 N.E.2d 755 (1968); State v. Stevens, 26 Wis.2d 451, 132 N.W.2d 502 (1965).

The defendant in his brief also questions which party bears the burden of persuasion when a hearing is held pursuant to the filing of a motion to suppress evidence (M. R.Crim.P., Rule 41(e)). This issue is not properly before this Court in that the lower Court has not reported this question for our decision. M.R.Crim.P., Rule 37A.

Since the issue reported was whether the tin foil packet should be suppressed, and since we have held it to be admissible in evidence, the entry is:

Remanded to the Superior Court for further proceedings.

WEATHERBEE, J., did not sit. DUFRESNE, C. J., concurring.

Footnotes

1

. The legality of the initial arrest is not before us since the agreed statement of facts, submitted as part of the record in this ease, clearly states that the defendant was “validly arrested.”

2

. “The people shall be secure in their persons, houses, papers and possessions from all unreasonable searches and seizures; and no warrant to search any place, or seize any person or thing, shall issue without a special designation of the place to be searched, and the person or thing to be seized, nor without probable cause — supported by oath or affirmation.” Me.Const. art. I, § 5.

3

.In his brief, the defendant admits that the police were justified in conducting a search of his person prior to his incarceration in order to check for and remove from his person and control items which might be used to introduce contraband into the prison or to aid in escape. See State v. Dubay, 313 A.2d 908 (Me.1974).

4

. Such a procedure is modern police practice. See Charles v. United States, 278 F.2d 386, n. 2 at 389 (9th Cir. 1960).

5

. Since we have characterized the search as one prior to incarceration, it is not necessary to decide whether Article I, § 5, would permit a search, conducted incident to a valid arrest, which is as broad in scope as those approved in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) and Gustafson v. State of Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973).