State v. Boilard

• Decision Date: 15 March 1985
• Citation: 488 A.2d 1380
• Parties: STATE of Maine v. Donald BOILARD.
• Court: Maine Supreme Court

Page 1380

488 A.2d 1380

STATE of Maine v. Donald BOILARD.

Supreme Judicial Court of Maine.

Argued Sept. 7, 1984.

Decided March 15, 1985.

Michael Saucier, David D. Gregory (orally), Asst. Dist. Attys., Alfred, for plaintiff.

Ahlgren & Perrault, John Perrault (orally), Portsmouth, for defendant.

Before McKUSICK, C.J., ROBERTS, VIOLETTE, GLASSMAN and SCOLNIK, JJ., and DUFRESNE, A.R.J.

DUFRESNE, Active Retired Justice.

Donald Boilard appeals from his convictions in the Superior Court (York County) on the charges of assault, 17-A M.R.S.A. § 207 (1983), and of obstructing government administration, 17-A M.R.S.A. § 751 (1983), both Class D crimes. On appeal, Boilard challenges the denial of his motion in the District Court (Kittery) to dismiss the charges against him, or to suppress evidence of the two crimes, because of the allegedly illegal police entry into his home which accounted for his confrontation with these public servants and led police to his arrest. We reverse the finding of the suppression judge to the effect that the police lawfully entered Boilard's home. This ruling, however, does not entitle the defendant to have the evidence of the stated charges suppressed, nor to have the complaints dismissed. The majority of the court affirms the judgments of conviction.

In the early evening of August 20, 1983, the South Berwick Police Department received a call on the telephone from an individual who reported disturbing shouting from the Boilard home between Donald Boilard and one of his children. The caller did not immediately identify himself, but when pressed admitted that he was William Straub, a neighbor of Mr. Boilard. At trial, Mr. Straub testified that he did not see Boilard, nor his children, on August 20th, but was concerned because of the loudness of the argument.

The police dispatcher radioed Officer Peter Gagnon, who was on cruiser patrol at the time, and informed him of a domestic disturbance at the Boilard residence on Old South Road. Asking for details, Gagnon was told that it sounded as if Boilard was beating his kids. Within minutes, the officer was there, arriving shortly after 6:30 p.m. As he was walking toward the front door of the house, Gagnon admitted that all was quiet. The officer already knew Mr. Boilard, having had several contacts with him in the past. Whether he had time to knock on the door, the officer was not sure, but he testified that the front door was thrown open by Boilard, who told him very excitedly "to get----off his property." The officer then advised Boilard that the police had received a complaint that he was beating his kids and that he, Gagnon, was there to check on it and all he wanted to do was to see the children and if they were fine, he would leave. Boilard did not see it that way. He told the officer again to get off his property, that it was his house and that he did not have to show him the kids if he did not want to. The defendant then tried to close the door on the officer, but the agile policeman had already placed his foot in the doorway to prevent its closing shut and with the necessary "beef" forced his way into the front entryway to the Boilard home.

The officer's presence in the house got the children to start yelling, screaming and crying. Gagnon was urging the defendant to let him see the children as the police had received this complaint that he was beating his kids. Boilard would not hear of it and kept telling the officer that he was trespassing and to get off his property and that, if he did not, it would cost the officer his job. He did manage to tell the officer that all he did was that he had spanked his kids. Officer Gagnon then attempted to move from the hallway of the house into the living room where Boilard's two sons of school age and some guests were sitting. The defendant tried to prevent this by pushing the officer out of the house, but in this he did not succeed, and the officer threatened Boilard with arrest, if he resisted further. By this time, Boilard had ordered his children to go upstairs. Adamant in seeing, and talking with, the two sons, asserting this a police routine practice in domestic cases in South Berwick, Officer Gagnon pushed his way to the living room, where after some scuffle Boilard was placed under arrest with the help of backup police for assault and obstruction of government administration. After Boilard was properly secured in the police cruiser, Officer Gagnon returned to the house and had the children come down. They told the officer that their father had spanked them for being bad boys. The spanking had left no bruises, so far as the officer could see.

1. Warrantless Entry

The defendant's motion before the judge of the District Court sought dismissal of both charges against him or, in the alternative, suppression of all evidence of the happenings inside the house because of Officer Gagnon's alleged illegal entry into his home. The District Court judge denied the motion, ruling that the police entry was not illegal and that, even if it were, evidence of crimes committed after an illegal entry would not be suppressable as such. We agree with this ruling insofar as it denied the motion to suppress, but disagree with the judge's conclusion that the policeman's forceful entry into the Boilard residence was legal.

Both the constitutions of Maine and of the United States prohibit unreasonable searches and seizures in the homes of our people. This treasured freedom is protected by the warrant requirements of section 5 of article I of the Maine Constitution and of the fourth amendment to the United States Constitution. ¹ Warrantless searches are per se unreasonable, subject to a few specifically established, carefully drawn and much guarded exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); State v. Johnson, 413 A.2d 931, 933 (Me.1980). Warrantless entries into private homes for purposes of search, or arrest for that matter, are equally unreasonable, except in those circumstances wherein an exception to the warrant requirements has been carefully drawn and guarded as previously stated. See Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 1374-75, 63 L.Ed.2d 639 (1980), where the United States Supreme Court held that "the Fourth Amendment ... prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." As stated in State v. Smith, 379 A.2d 722, 725-26 (Me.1977), it was sound police practice presenting no constitutional infirmity for the police to make an immediate warrantless entry and search in a situation of exigency as existed in that case. The principle of law ensuring privacy in one's home and giving to every man the right to repel intruders by force, if necessary, and which is usually expressed in the familiar maxim, "Every man's house is his castle," still remains in full force and vigor and is recognized in both our State and Federal Constitutions. What was true in 1925, as this Court then pronounced, is still true in this age. See Marshall v. Wheeler, 124 Me. 324, 326, 128 A. 692, 693 (1925).

Recognized exceptions to the warrant requirements of the constitutions exist in situations where the entry and subsequent search by law enforcement officers are incidental to hot pursuit of a fleeing felon. See Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Also, our Court has expressly noted that a search conducted by police pursuant to a valid consent, upon unopposed entry into the home, is constitutionally permissible and is an established exception to the warrant requirement of the federal constitution. State v. Koucoules, 343 A.2d 860, 866 (Me.1974) citing Vale v. Louisiana, 399 U.S. 30, 35, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409 (1970). In a similar situation, we said in State v. McLain, 367 A.2d 213, 216 (Me.1976) that the entry into a person's home without a warrant was unreasonable in itself unless justified under one of a few exceptions to the requirement of a warrant issued by a disinterested magistrate on a showing of probable cause; an established exception to the warrant requirement is a search conducted pursuant to a valid consent.

Our Court has recognized an additional exception to the warrant requirements in situations where exigent circumstances exist. See State v. Dunlap, 395 A.2d 821, 824 (Me.1978). But, before reaching the issue of the existence vel non of exigent circumstances underlying the dispensation with the warrant requirement in police intrusions upon private property, such as in this case the undertaking by a law enforcement officer of forceful entry into a private dwelling-house, the officer must have knowledge of facts supporting a proper determination of probable cause. Indeed, it is the coexistence of probable cause and exigent circumstances that will justify the warrantless entry of a home and a subsequent search or arrest therein. See State v. Barclay, 398 A.2d 794, 796-97 (Me.1979); State v. Libby, 453 A.2d 481, 484 (Me.1982). The issue of whether exigent circumstances exist excusing the procurement of a search warrant becomes relevant only if there has been a threshold finding that there was probable cause for the entry and search. State v. Sweatt, 427 A.2d 940, 950 (Me.1981). Hence, in the instant case, the burden is on the State to prove by a preponderance of the evidence that Officer Gagnon's forceful entry into the Boilard home in search of the children for investigative purposes was made with probable cause that a crime had been committed and that the circumstances were such that it was impracticable for the officer to postpone his entry and search until he obtained a warrant to do so. The burden is on the State to prove the underlying facts bringing the case within one of the exceptions to the warrant requirement. State v. Philbrick, 436 A.2d 844, 854 (Me.1981); State v. Dunlap, 395 A.2d 821, 824 (Me.1978); ...