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State v. Ditren

Supreme Court of Rhode Island

November 2, 2015

George L. Ditren

Providence County Superior Court (P2/11-2516B) Associate Justice Stephen P. Nugent

For State: Lauren S. Zurier Department of Attorney General

For Defendant: Kara J. Maguire Office of the Public Defender

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.



The defendant, George L. Ditren (Ditren or defendant), appeals from a finding that he violated his probation. This matter came before the Supreme Court on September 29, 2015, pursuant to an order directing the parties to appear and show cause why the issues raised should not be summarily decided. After hearing the arguments of counsel and reviewing the memoranda submitted on behalf of the parties, we are satisfied that cause has not been shown. Accordingly, we shall decide the matter at this time without further briefing or argument. For the reasons set forth herein, we affirm the judgment of the Superior Court.

I Facts and Travel

On June 19, 2013, at approximately 9:08 p.m., Providence Patrolman Michael Clary (Officer Clary) stopped a vehicle driven by Michael Clemente (Clemente) for failing to obey a yield sign while coming onto the Point Street Bridge and for crossing the center line of the road.[1]The defendant was a passenger in the vehicle, which belonged to Clemente's girlfriend. Officer Clary testified that as he approached the vehicle, he noticed defendant was "moving around a lot" and, more specifically, that defendant "made a movement towards the rear driver's side towards the leg compartment" of the vehicle. Concerned for his safety, Officer Clary called for backup, to which Officer Robert Kells (Officer Kells) responded.

Upon Officer Kells's arrival, the two patrolmen approached the vehicle – Officer Clary approached Clemente on the driver's side and Officer Kells approached defendant on the passenger's side. Officer Clary testified that Clemente appeared nervous, was sweating, and avoided eye contact, while Officer Kells testified that defendant also appeared to be nervous and sweating, and his "non-verbal body language" indicated that he was "hiding something." When Officer Kells asked where they were coming from, defendant said that they were coming from his cousin's house on Public Street; but, as Officer Kells noted, the vehicle was traveling in the "totally opposite direction" of Public Street.

Both men were ordered out of the vehicle and were subjected to a Terry[2] pat-down.[3] No weapons were found on either Clemente or defendant. The two were then placed in the back seats of separate patrol cars. Although they were not handcuffed, Officer Clary did testify that the back doors of the patrol cars were locked such that they could not be opened from the inside, so defendant and Clemente were, in effect, unable to get out of the cars. Officer Clary testified that neither Clemente nor defendant was under arrest at this time. A search of the rear driver's side area of the vehicle – the area that Officer Clary observed defendant reaching into – revealed an Apple MacBook laptop and a Sony PlayStation 3 video game console. Officer Kells also observed a maroon pillowcase located underneath the front passenger seat where defendant was sitting.

When asked, Clemente said that the laptop belonged to his cousin, Bernardino, and, at Officer Clary's request, he turned it on. Saved on the desktop of the computer was a résumé with the last name "Calcagni." Officer Kells called the phone number listed on the résumé and spoke to a man who identified himself as Anthony Calcagni, a recent graduate of Brown University. Calcagni verified that he owned the type of laptop and video game console that were found in the vehicle. The officers agreed to meet Calcagni, who had left home sometime around 8:20 that evening, at his apartment on Power Street.

Upon arriving home, Calcagni and the officers noticed that the air-conditioning unit in the bay window of his apartment was pushed inward from the window and onto the floor, presumably from someone breaking in. Officer Clary showed Calcagni the items found in the vehicle, which Calcagni identified as his. Notably, the laptop was inscribed with the last six digits of Calcagni's Brown University student identification number, and he was indeed missing a maroon pillowcase from his bedroom. Clemente and defendant were ultimately transported to the Providence police station.

Detective Charles Boranian (Det. Boranian), who had also responded to the scene earlier, testified that he read defendant his Miranda rights at the police station. Detective Boranian further testified that, while defendant was cooperative at first, he became increasingly less obliging, especially when Det. Boranian asked for his girlfriend's contact information to verify his assertion that he was with her earlier in the evening before "a friend" called him to "go for a ride." A criminal complaint was filed against defendant charging him with burglary.

A combined bail and violation hearing was held in Providence County Superior Court on September 6, 9, and 10, 2013. The hearing justice found that the stop was legal and that defendant lacked standing to challenge the search of the vehicle because he was merely a passenger in it, neither he nor Clemente owned the vehicle, and he had never driven it or kept any personal property in it. Furthermore, the hearing justice found that, even if defendant did have standing to challenge the search, it was "certainly * * * justified" based on defendant's "so-called furtive movements" and his reaching toward the area behind the driver's seat and under the passenger compartment. This, the hearing justice stated, was "enough to raise a reasonable and articulable suspicion in [Officer] Clary's mind that there may be [weapons] or contraband or evidence of a crime being hidden under the ...

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