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State v. Werner6/5/2003
of the suspect, the identification of the vehicle, the association of the vehicle with Keith Werner, all establish probable cause to believe that the suspect Werner and the man with the gun, in the language of the affidavit, were "ONE IN THE SAME." The material contained in the affidavit concerning the outstanding warrant issued by the City of New York is surplusage, as are the further facts concerning a 1974 black Chevrolet Monte Carlo parked in the driveway of 14B Brookside Avenue. The heart of the affidavit is the portion that unequivocally established that a crime had been committed and the further statement, "BASED ON A DESCRIPTION GIVEN BY WITNESSES AT THE SCENE OF THE SHOOTING, IT APPEARS THE SUSPECT WERNER AND THE MAN WITH THE GUN, ARE ONE IN THE SAME."
All these facts had been established before the police arrested Werner. Thus, the probable cause set forth in the affidavit was in no way derived from Werner's arrest. The trial justice's comments are instructive.
The trial justice, after hearing evidence to support a motion to suppress as well as a defense motion to dismiss, made the following comments:
"The Court also finds that had the arrest been based solely on the New York warrant that they would [have] indeed resulted in a State v. Taylor[, 621 A.2d 1252 (R.I. 1993)] situation because our case law still is clear that you must have the warrant for review by the court in order to establish appropriate probable cause. But the Court finds in this case that that is not the situation here, that regardless of the fact that the police may have felt that they were operating on a valid New York warrant, they also were independently acting upon probable cause which they had developed from their investigation from the time of the shooting in the early morning hours through the ten o'clock hour when the arrest was effectuated.
"And also as the Court has also indicated, the Court finds as fact for the purposes of this hearing that the arrest was made without a warrant upon probable cause outside of the building. The Court does not find any fundamental unfairness in the arrest or the process used to arrest this defendant. It was a pl thora of evidence available and discoverable by the police which did lead to the defendant's arrest and apprehension and certainly did, in this Court's view, amount to probable cause."
In the course of the hearing, the trial justice found the testimony of the police to be credible and consistent. He rejected the testimony of defendant and his witnesses as unreliable.
The evidence found in Apartment 14B consisted of six shotgun shells --four live and two spent -- a box containing one shell, and a shotgun cleaning kit. Police also seized photographs of Werner holding a shotgun. The photographs were taken from the door of the refrigerator in the apartment. The police further found a plastic garbage bag similar to the bag witnesses described as having contained the shotgun. This was found in a common hallway in plain view.
Certainly, the warrant issued by a justice of the Superior Court is entitled to all deference from this Court in terms of its validity and its basis upon probable cause. The respect accorded to a warrant issued by an impartial judicial officer has been set forth numerous times by the Supreme Court of the United States and particularly eloquently in United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965), in which courts were admonished to give such a warrant and the affidavit that supports it a common-sense interpretation.
The trial justice also relied on New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990) as i
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