State v. Dufour

206 A.2d 82, 99 R.I. 120, 1965 R.I. LEXIS 405

• Court: Supreme Court of Rhode Island
• Decided: January 8, 1965
• Docket: Ex. No. 10575
• Status: Published

Opinions

Condon, C. J.

This is an indictment which charges the defendant with knowingly having in his possession three feels of obscene motion picture film for the purpose of loan in violation of G. L. 1956, §11-31-1, as amended. The case was tried on the merits to a justice of the superior court and a jury which returned a verdict of guilty. Thereupon the defendant moved for a new trial which was denied. The ease is here on his bill of exceptions containing an exception to such denial, an exception to his motion for a directed verdict and numerous other exceptions duly taken to rulings on the admission of evidence.

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 originally on a criminal complaint and warrant issued out of the district court of the tenth judicial district on September 28, 1961. On September 27, 1961 the same court had issued a warrant to search the automobile of Henry J. Dufour for the above-described film which it was alleged in such warrant was in the possession of said Henry J. Du-four. The return discloses that Captain John J. Marshall searched the automobile on that date and found “three film cans, each containing a pornographic motion picture film, each 8MM Film. Also a paper bag.” It also appears therefrom that the officer summoned “the within named Bradford, [sic] E. Dufour, alias John Doe” to appear before the district court as by law required. Bradford E. Dufour is nowhere named in the body of the complaint and warrant to search for obscene motion picture film. On the contrary, as stated above, Henry J. Dufour is the person named therein as the registered owner of the automobile to be searched.

At ithe 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 constitution and that evidence thus obtained is expressly declared to be inadmissible “In the trial of any action in any Court of this State * * *” by G. L. 1956, §9-19-25. The motion to quash alleged .that- the officer who arrested defendant did not at such time have reasonable ground to believe a felony had been committed or that defendant had committed or was committing it, .and that the arrest was illegal and void in violation of P. L. 1941, chap. 982, now G. L. 1956, chap. 7 of title 12.

Three members of the Pawtucket police department, Detective MoCarron, 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 MoCarron 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: “T 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 puit the handcuffs on me.’ ” When defendant got no response he went into .the Peerless A. C, 'and sat at the bar.

Lieutenant Ogni testified that he observed defendant átop 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 H'enry J. Du-four. 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 w-as 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 station for the purpose of questioning in connection with a general investigation and not to accuse either one at that' time of any crime.

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 w.e 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 carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of 'Counsel’ in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S., at 342, 83 S.Ct., at 795 and that no- statement elicited by the police during the interrogation may be used against him at a criminal trial.”

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 ease 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 suieh 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 bad committed or was about to commit it. Until defendant’s written statement was admitted over his objection there was no evidence in the record tending to ¡prove the corpus delicti. Captain Marshall testified that he placed defendant under arrest after the search was made and after defendant’s “verbal confession” but before his “•written confession was taken.” All of the state’s testimony was to the same effect.

The state seeks to justify the larrest 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 of this contention in short order saying: “We have had frequent occasion to point out that a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success.”

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 §12-7-3, and that the arrest was violative of the fourth amendment to the federal constitution which is applicable k> arrests as well as to unreasonable searches and seizures, citing Giordenello v. United States, 357 U. S. 480. We also' pointed out that Ker v. California, 374 U. S. 23, was distinguishable in that there the officer observed overt acts of the defendant which led him to’ believe an offense was being committed.

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 c'ommitting 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 Ibar and the` confession of defendant were the fruits of an unlawful arrest and therefore on timely motion 'by defendant should have been suppressed. To admit them was clearly a violation of §9-19-25 because such evidence was obtained in a manner not consistent with the provisions of art. I, sec. 6, of the constitution of this state and the fourth amendment to the federal constitution made applicable to the states by the fourteenth amendment. In a very recent case which on its facts is dosely analogous to the case at bar the United States Supreme Court reiterated what it had held in Giordenello and Wong Sun, supra. Beck v. State of Ohio, 379 U. S. 89, 85 S.Ct. 223.

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.