State v. Paris

WERNICK, Justice.

On August 9, 1973 defendant Vincent Paris was found by a trooper of the Maine State Police to be operating a motorcycle in violation of law in that: (1) defendant lacked a proper license to operate, and (2) the motorcycle had an inadequate exhaust system. The officer thereupon made an arrest of the defendant and elected to take the defendant into custody. Incident to such custodial arrest, the trooper ordered defendant to empty his pockets and place the contents on the hood of the State Police cruiser. He then subjected defendant to a “pat down” during which he felt a small hard object in the right front pocket of defendant’s pants. Believing it to be a weapon, the officer removed the object from the' pocket and saw that it was a plastic cylindrical container. He opened the container and observed in it pink tablets in three glassine-type bags, which he seized. Subsequent chemical • analysis established that the tablets were phencycli-dine, an hallucinogenic drug.

On September 5,'1973 an indictment was returned against defendant in the Superior Court (York County) charging him with possession of phencyclidine in violation of 22 M.R.S.A. § 2212-B. Defendant was arraigned and entered a plea of not guilty. Subsequently, on April 1, 1974, defendant filed a motion to have suppressed as evidence against him

“a substance alleged to be phencyclidine . . . found in [defendant’s] wallet”

during a

“warrantless search, incident to the arrest, [of defendant].”

The motion made no reference to any violation of the Constitution of the United States. Illegality was asserted only by reference to Article I, Section 5 of the Constitution of Maine as rendering the search illegal because it

“ . . . went beyond the permissible scope of a search incident to arrest

Moreover, the motion to suppress raised no issue as to whether the trooper, even though he may have had a right to arrest, acted unlawfully in making the arrest, custodial.

A Superior Court Justice heard the motion to suppress and denied it. The Justice concluded that there was no “unreasonable search and seizure . . . [violative of] Article One, Section Five of the Maine Constitution.”

Upon motion of the defendant filed pursuant to Rule 37A(b) the presiding Justice, believing that his decision concerned questions which

“ . . . are of substantive importance and merit and require immediate review by the Law Court . . . ”,

ordered the case

“reported to the Law Court for an interlocutory ruling on the issues of law raised in Defendant’s motion to suppress.”

Since the interlocutory report thus confines the issues to be decided by the Law Court to those raised by defendant’s motion to suppress and said motion made no attack on the legality of the arrest as a custodial arrest, we are called upon to decide only whether this Court, in interpreting Article I, Section 5 of the Constitution of Maine, will deviate from the United States Supreme Court’s interpretations of the federal Constitution as embodied in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). Specifically, we are called upon to decide whether Article I, Section 5 of the Maine Constitution requires that scope limitations be imposed upon warrantless searches made incident to valid custodial arrests.¹

With the issue thus defined, this case is now precedentially controlled by State v. Dubay, Me., 338 A.2d 797 (1975) holding that a warrantless search conducted incident to a legally valid custodial arrest will be evaluated under Article I, Section 5 of the Constitution of Maine in accordance with the principles of United States v. Robinson and Gustafson v. Florida. By this standard, as explicitly delineated by the majority in State v. Dubay, supra,

“there is no scope limitation on a search of the person incident to a valid arrest” (p. 800)

because

“ . . . the validity of the custodial arrest per se . . . ” (p. 800)

provides the “sufficient justification” for “unlimited, . . . search of the person” (subject only to general “due process” requirements). (p. 800)

The entry is:

The Superior Court’s ruling denying defendant’s motion to suppress is sustained.

Case remanded to the Superior Court for further proceedings.

DUFRESNE, C. J., and POMEROY, DELAHANTY and WERNICK, JJ., con- • curring.

ARCHIBALD, J., concurring opinion, WEATHERBEE, J., joining in separate concurring opinion.

1 . The brief of defendant mentions particular circumstances testified to by the arresting officer leading to his decision to make the arrest in this instance a custodial arrest. Defendant, however, adverts to these facts not to support a claim that the arrest, because made ' custodial, was thereby illegal but rather only to illustrate the “potential discriminatory abuse the holding[s] . . . [of Robinson and Gustafson] could lead to” — thus to seek to induce this Court tó decline to read the Robinson-Gustafson federal doctrine into Article I, Section 5 of the Constitution of Maine.

Even were we to treat defendant’s brief as seeking to raise the issue that the arrest of defendant became an illegal arrest because the circumstances did not justify making it a custodial arrest, we may not, in further-anee of a sound appellate practice, here take cognizance of the contention. Defendant had failed to raise this issue in his motion to suppress. Hence, the question of the legality of the arrest, as taking a custodial form, has not been reported to us for decision. The interlocutory report by which we have the ease before us is confined to the issues raised in the motion to suppress.