State v. Parkinson

GODFREY, Justice,

concurring in the result:

I reach the same result but on different grounds.

I. Probable Cause

Appellant challenges the trial court’s determination that the police had probable cause to arrest him and urges that evidence obtained as a result of the arrest should have been suppressed. The trial court’s decision had to be based on facts that the court found were known to the police at the time of the arrest. Probable cause to arrest may be based on the collective knowledge of the police, rather than solely on that of the arresting officer, when there is some degree of communication between the two. United States v. Vasquez, 534 F.2d 1142 (5th Cir. 1976); United States v. Nieto, 510 F.2d 1118 (5th Cir. 1975), cert. denied, 423 U.S. 854 , 96 S.Ct. 101 , 46 L.Ed.2d 78 (1975). The police may communicate a conclusion and the recipient may rely on it, but the basis of the conclusion is subject to scrutiny in determining probable cause. Whiteley v. Warden, 401 U.S. 560 , 91 S.Ct. 1031 , 28 L.Ed.2d 306 (1971). The law enforcement authorities are also entitled to some leeway when they communicate among themselves. Thus, when there is some communication unspoken but implied, details may be shown *14 to justify probable cause. Smith v. United States, 123 U.S.App.D.C. 202 , 358 F.2d 833 , cert. denied, 386 U.S. 1008 , 87 S.Ct. 1350 , 18 L.Ed.2d 448 (1967). Dicta in State v. Smith, Me., 277 A.2d 481, 488-489 (1971) might be construed as indicating that no communication is required. However, the cases discussed and relied upon in State v. Smith do not depart from the rules set out above. The issue concerns the import of the Fourth Amendment and is a federal constitutional question.

The majority opinion assumes that all information known to the various police officers at the time of the arrest can be relied on to show probable cause, disregarding the fact that there had been no communication of certain parts of that information by the time of the arrest. The opinion also relies in part on facts which were not yet known to the police at the time of the arrest and which could not be properly inferred from facts which the trial court might have found. The case is complicated by the absence of testimony of the dispatchers. The trial court was required to infer what the dispatcher knew from testimony of the complainant.

The testimony at the suppression hearing tended to show that on the afternoon of October 23, 1975, the Portland police received a call concerning an attempted break-in. The woman caller apparently said that two men had just tried to open the back door of her apartment at 120 Dartmouth Street. She apparently told the dispatcher that the two men had just left in a light blue car with license number Me. 547-687. At trial, the complainant testified that she gave the police a description of the two men. She did not indicate the nature of that description nor was she specific concerning the exact time when she gave the description. At the earlier suppression hearing she stated specifically that she did not give a description to the police until they arrived at her house. 1 The testimony indicated that by the time the officers arrived at the house appellant and his companion had already been arrested.

Before the officers interviewed the complainant at the scene, the police dispatcher had promptly sent out on police radio an all-points bulletin which called for all ears to be on the lookout for a light blue vehicle with Maine license number 547-687, advising that the vehicle with the two persons in it had just been involved in an attempted break into an apartment at 120 Dartmouth Street. Within minutes, Officer Bowring stopped a car meeting the description on Forest Avenue, with the defendant Parkinson seated on the passenger side of the front seat. Parkinson’s companion, Basil Ward, was driving the automobile, which belonged to Ward. Officer Bowring promptly placed appellant and Ward under arrest. Appellant and Ward were subsequently taken to 120 Dartmouth Street for identification, and tangible evidence was found as a result of the arrest and the impoundment of the car.

If the police were justified in relying on the information concerning the break, they undoubtedly had cause to make an investigatory stop of the car. It had been sighted within minutes of the complaint and met the description. The majority opinion contains an analysis purporting to show that the dispatcher was warranted in crediting *15 the information from the caller. However, the analysis relies, in part, on information not known to the police at the time of the arrest. The testimony did not establish that the complainant gave detailed information before the time of the arrest. It did not establish, for example, that before then the police knew the complainant was upset. The record shows that appellant and his companion had been stopped before the police interviewed the complainant at the scene. In addition, the record affirmatively shows that information from that interview had not been communicated to the arresting officers before the arrest.

The police were justified in relying on the information concerning the break. Since information from anonymous informants is somewhat suspect, the informant’s reliability must be shown and the information corroborated to some extent. Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969). The testimony in the present case indicates that at the time of the initial communication the police were justified in believing that their informant was the victim of the crime. Though the police may not have had her name, they had her address, and she appeared to be an ordinary citizen. Where a citizen informant, as distinguished from a “police informer”, reports a crime committed in his presence of which he is the victim, it is reasonable for police officers to rely on such statements because they tend to be reliable. Brown v. United States, 125 U.S.App.D.C. 43 , 365 F.2d 976 (1966). See, United States v. Easter, 552 F.2d 230 (8th Cir. 1977); People v. Ramey, 16 Cal.3d 263 , 127 Cal. Rptr. 629 , 545 P.2d 1333 (1976). In the present case the police were justified in relying on the information actually provided by the citizen informant because, in the circumstances, they were entitled to believe it without corroboration.

The question thus becomes whether the police, having information that two people in a blue vehicle with stated license number have just been involved in an attempted break, have probable cause to arrest two occupants of a vehicle meeting the description sighted nearby within minutes of the report. In view of the close proximity in place and time and the precise identification of the car, the finding of probable cause for arrest was justified.

II. Standing to Object to Search and Seizure

The majority opinion also deals with appellant’s attempt to suppress the fruits of an inventory search of the car after it had been impounded. The opinion asserts .that appellant lacks standing to object to the inventory because he had no ownership interest in the car and was no longer in it. On the facts of this case, I cannot agree.

Ordinarily, a guest does not have standing to object to a search after he has moved on. However, that rule is based on the fact that he has abandoned the place that he left. Under Alderman v. United States, 394 U.S. 165 , 89 S.Ct. 961 , 22 L.Ed.2d 176 (1969) a person has standing to object to a search if he has a reasonable expectation of privacy in the place searched. A guest has such an interest in the private place he occupies. Though this interest ends when the guest leaves in the natural course of events, there is no reason why the interest should cease when the guest is compelled to leave by an arresting police officer.

In addition, appellant may also have been entitled to automatic standing under Jones v. United States, 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960). But see Brown v. United States, 411 U.S. 223 , 93 S.Ct. 1565 , 36 L.Ed.2d 208 (1973). The automatic-standing cases grant standing when the person is charged with personally possessing the challenged evidence. Here it appears that the evidence was used against appellant to establish his possession in order to justify an inference of burglary from the possession of recently burgled goods.

Since, in my opinion, appellant had standing to suppress the fruits of an illegal search of the ear, the legality of the search must be examined. Testimony at the suppression hearing which the trial justice was entitled to credit tended to support the following conclusions of fact: Appellant *16 and his companion were arrested when the car they were riding in was stopped on Forest Avenue in Portland. After the arrest the police had the car towed to police headquarters. The police were unable to get the car into the police garage, and it was determined that the car would have to be stored on an open lot. Before moving the car to the storage lot the police removed items which were sitting on the front seat and put them in the property room. They did not then search the car or secure any items that were not visible from outside the car. In his motion to suppress, appellant objected to the introduction of the items removed from the front seat of the car.

Securing of property in a lawfully impounded automobile in accordance with standard police procedures is not an unreasonable search and seizure under the Fourth Amendment. South Dakota v. Opperman, 428 U.S. 364 , 96 S.Ct. 3092 , 49 L.Ed.2d 1000 (1976). The trial court was justified in finding that the impoundment was lawful and that the items were removed in a legitimate attempt to secure the car. They were properly admitted in evidence.

. The proposed opinion of the court properly points out that a reviewing court may rely on facts developed at trial to justify a finding that the police acted with probable cause. However, where, as here, the witness specifically and clearly testified on the matter at the suppression hearing and then later gave ambiguous testimony which could conceivably be viewed as contradicting the previous story, the clear, specific testimony must be taken as the testimony of the witness. By the time of trial, the suppression issue had already been determined; so appellant’s counsel had no reason to clarify a possible ambiguity in the witness’s testimony concerning the times of her communication with the police. Further examination concerning her prior statements might have clarified the testimony but might also have strengthened the testimony of the witness in the eyes of the jury.