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STATE v. WARNER12/26/1967
es, 93 U.S.App.D.C. 1, 206 F.2d 476
(1953); Harris v. United States, 125 U.S.App.D.C. 231,
370 F.2d 477 (1966); Nunez v. United States, 370 F.2d 538 (5th Cir.
1967); United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71
L.Ed. 1202 (1927); United States v. Paradise, 334 F.2d 748, 750
(C.A. 3, 1964).
After Officer Nelson placed the defendant under arrest for operating while under the influence, he went back to the defendant's car and on examining it found three cans and one bottle of beer on the back seat of the defendant's car and several beer bottle caps on the floor in front. Although neither the beer itself nor the bottle caps were offered in evidence, Officer Nelson testified concerning their presence there. As to the finding of the beer and caps there was a search involved. The Fourth Amendment to the United States Constitution and Art. I, Sec. 5, of the Constitution of Maine forbid only unreasonable searches and seizures.
"The overriding function of the Fourth Amendment is to protect
personal privacy and dignity against unwarranted intrusion by
the State." Schmerber v. State of California, 384 U.S. 757,
767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966).
Search and seizure incident to a lawful arrest has long been recognized as an integral part of law enforcement procedures by the United States Supreme Court as well as the courts of the various states. Harris v. United States, 331 U.S. 145, 154, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). Although the presiding justice did not specifically find as a fact that Officer Nelson had probable cause to arrest the defendant for operating while under the influence and that he did thus arrest the defendant, such findings are necessarily implicit in his overruling of the defendant's objections to the reference question. The testimony abundantly supports the State's contention that the defendant was lawfully arrested by Officer Nelson upon probable cause and that the search was incident to that arrest. We will explain our conclusion that probable cause existed for Officer Nelson's arrest of the defendant in our consideration of defendant's Point No. 24.
The defendant contends that even if Officer Nelson was making a lawful arrest (which defendant does not concede), the beer and beer caps were "merely evidentiary materials" and not subject to seizure and that testimony as to their presence in the defendant's car should have been excluded under the "fruit from the poisoned tree" doctrine. Silverthorne Lumber Company v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920).
The practice of examining the interior of an automobile in search of intoxicating liquor by an officer who has made a lawful arrest of the driver for operating while under the influence is one that has long prevailed here. The practice of admitting into evidence liquor bottles, empty or full, which were found in the vehicle, or testimony concerning them, has long been followed in our trial courts. A logical relation exists between the possession of liquor and the condition of the driver as to sobriety which may be of considerable or very minimal probative value as the circumstances vary. The probative value of an unopened can of beer is doubtless less than that of a half consumed can but the jury may decide what weight, if any, should be given to it when examined with the other facts of the case.
This is the first time this court has been required to examine the propriety of admission of such evidence and we do it in the light of a constitutional interpretation by the United States Supreme Court involving a distinction which we have never adopted, which briefly became binding upon us and which has since been ab
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