State v. Barclay

• Court: Supreme Judicial Court of Maine (US)
• Writing for the Court: Before McKUSICK; POMEROY
• Citation: 398 A.2d 794
• Parties: STATE of Maine v. Scott BARCLAY.
• Decision Date: 07 March 1979

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398 A.2d 794 STATE of Maine
v.
Scott BARCLAY. Supreme Judicial Court of Maine. March 7, 1979.

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Thomas E. Delahanty, II (orally), Dist. Atty., Auburn, for plaintiff.

Cloutier & Joyce by Edward S. David (orally), Livermore Falls, for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, GODFREY and NICHOLS, JJ.

POMEROY, Justice.

In the District Court, Barclay was adjudicated to have committed a civil violation by possessing a usable amount of marijuana in violation of 22 M.R.S.A. § 2383 (Supp.1978). ¹ His appeal to the Superior Court from such

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adjudication was there denied. He now appeals from such denial.

We deny the appeal.

A court approved stipulation of facts reveals the following. In the early evening of October 30, 1976, Officer Richard Comstock of the Livermore Falls Police Department stopped a vehicle for what he believed was a faulty exhaust system. See 29 M.R.S.A. § 1364. As he approached the vehicle, Officer Comstock recognized defendant as the driver, thereby obviating the necessity of verifying defendant's name and address from the license and registration that were offered. At no time was there any question as to the safety of Officer Comstock or the occupants of the vehicle.

Upon arriving at the driver's side of the car, Officer Comstock smelled what he believed was marijuana smoke emanating from the interior of the vehicle. He immediately ordered the occupants out of the car and commenced a nonconsensual search of its interior. In the course of that search, Officer Comstock opened the unlocked glove compartment and found therein a cellophane bag containing two pipes and several "roaches". The bag and its contents were seized. Laboratory analysis later confirmed Officer Comstock's initial belief that it contained a usable amount of marijuana. Defendant was issued a Uniform Traffic Ticket and Complaint for the violation of 22 M.R.S.A. § 2383, a civil violation. See 17-A M.R.S.A. § 17 (Supp.1978) and Rule 80H, D.C.Civ.R.

During the proceedings in the District Court, defendant moved to have the marijuana suppressed on the grounds that it was the product of an unlawful search and seizure. See 17-A M.R.S.A. § 4(3) (Supp.1978). The motion was denied and defendant was adjudged to have committed a civil violation. A timely appeal was taken to the Superior Court pursuant to Rules 80H(j) and 73, D.C.Civ.R. Defendant there argued that the District Court Judge had erred in denying the motion to suppress. Faring no better in the Superior Court than he had in the District Court, defendant now seeks in this court a determination of the legality of the search.

Defendant premises his claim that the search and seizure was illegal on the fact that a civil violation is noncriminal in nature. This, he argues, sets this case apart from the well established body of case law dealing with Fourth Amendment searches and seizures.

The contention that the Fourth Amendment applies only to criminal cases has been raised and rejected by both this Court, See State v. Richards, Me., 296 A.2d 129 (1972) and the United States Supreme Court, See Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (overruling Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959)). ² As we said in Richards,

(i)t is thus now abundantly clear that even if governmental rummaging about in a citizen's personal belongings lacks the purpose of seeking violation of law for which criminal sanctions are to be imposed, such intermeddling with the privacy of personal beongings (sic) Is a "search" Within the meaning of the Fourth Amendment.

296 A.2d at 134 (footnote omitted). Officer Comstock's search must, therefore, either stand or fall on whether those protections afforded by the Fourth Amendment were violated.

It has been noted in cases too numerous to mention that the Fourth Amendment protects against only "unreasonable" searches. In determining what is "unreasonable" in any given case, we are guided by the principle that

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Any search is Per se unreasonable if it lacks two essentials (1) the existence of probable cause, and (2) the prior determination of such probable cause by a neutral and detached magistrate whose determination is reflected in the issuance of a search warrant this latter requirement of a search warrant being expendable only if there are exigent circumstances in which procurement of a warrant would have strong likelihood of frustrating the fulfillment of the governmental interest conferring the probable cause to intrude upon the privacy of property. (emphasis in original).

State v. Richards, supra at...