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State v. Carroll4/29/1981
the time the Mace was identified at the police station.
We find that defendant was charged with the commission of offenses which occurred at different times and places and under different circumstances. Our rationale is based primarily on the fact that the arresting officer failed to recognize the illegal nature of the cannister at the time of the search for weapons. As a result, defendant's possession of the Mace continued after his initial arrest, until the subsequent discovery and identification at the police station.
While it is true that the possessory offense can be traced to the time of the first arrest, we cannot say that the possessory charge should be deemed effective as of the time of that arrest. The point in time at which the Mace was identified is important because prior to the identification, the facts and circumstances within the first arresting officer's knowledge did not afford probable cause to believe that an offense other than Attempted Criminal Property Damage in the Second Degree had been committed. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881 (1964); Carroll v. United States, 267 U.S. 132, 45
S.Ct. 280 (1925); State v. Chong, 52 Haw. 226, 231, 473 P.2d 567, 571 (1970). The facts can be distinguished from those in State v. Matischeck, 531 P.2d 737 (Or. App. 1975), where the police officer's immediate seizure of the vial indicated that he had probable cause to suspect contraband. In contrast to the case at bar, the identification of the contraband in Matischeck served to verify the earlier suspicion.
Furthermore, under HRS § 701-108(4), an offense of a continuing nature such as the possession of Mace is deemed to be committed at the time when the course of conduct is terminated.
Not only did the offenses occur at different times and places, but they were discovered under different circumstances which resulted in arrests by different police officers. We therefore conclude that the offenses were so separate in time and place and so distinct in circumstances that the acquittal on the possessory charge did not bar prosecution for the Attempted Criminal Property Damage in the Second Degree.
Reversed and remanded for further proceedings not inconsistent with this opinion.
Disposition
Reversed and remanded for further proceedings not inconsistent with this opinion.
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