State v. Boilard
| Decision Date | 24 September 2019 |
| Docket Number | CUMCR-18-3666 |
| Parties | STATE OF MAINE, v. JEFFREY BOILARD Defendant |
| Court | Maine Superior Court |
MaryGay Kennedy, Justice.
Pending before the Court is Defendant Jeffrey Bollard's Motion to Suppress evidence found during a warrantless search in die backyard of 32 Hennessey Avenue in Brunswick, Maine ("32 Hennessey")- Defendant also asserts that evidence obtained from his arrest should be suppressed because the arresting officers lacked probable cause, A hearing was held on July 25, 2019.
As a preliminary matter, the State challenged the Defendant's standing to contest the warrantless search of 32 Hennessey on Fourth Amendment grounds. The State argued that Defendant was not an overnight guest of Jonathan "Eric" Hummel ("Hummel"), who resides in Apartment "D" at 32 Hennessey, and therefore did not have a legitimate expectation of privacy in the premises, [1] Based on the Defendant's testimony, the Court found that the Defendant was an overnight guest of Hummel.[2] As such, the Court concluded that the Defendant had an expectation of privacy in Hummer's residence.
The State next contends that 32 Hennessey is a multi-unit apartment building and challenges whether the Defendant has a reasonable expectation of privacy in the backyard of 32 Hennessey. Defendant asserts there is no evidence to support that 32 Hennessey is a multi-unit apartment building and even if it is, there is no evidence that any of the other units at 32 Hennessey are occupied.[3] Accordingly, Defendant argues that the search was conducted in the curtilage of 32 Hennessey and must be suppressed. In addition, the Defendant asserts that law enforcement lacked probable cause and, therefore, seeks suppression of evidence obtained in the warrantless arrest of the Defendant.
The Court heard testimony from Jerod Verrill and Chad Carleton, both Special Agents with the Maine Drug Enforcement Agency. The Court also heard testimony from the Defendant. The Court admitted into evidence State's Exhibit #1 (an aerial photograph of the property at 32 Hennessey), Defendant's Exhibit #1 (a photograph of the property taken from Hennessey Avenue), Defendant's Exhibit #2 (an aerial photograph of the property at 32 Hennessey), Defendant's Exhibits #'s 3 and 4 (two images of the Town of Brunswick Tax Assessor Map of the property at 32 Hennessey) and Defendant's Exhibit #5 (a recording of the police interview of Johnathan "Eric" Hummel.)
In mid-June 2018, Agent Verrill received information from a concerned citizen that Hummel was selling cocaine and heroin at 32 Hennessey Avenue in Brunswick, Maine.[4]
On July 5, 2018, Agent Verrill learned from Agent Carleton that a source of information ("SOI") had been at 32 Hennessy earlier that day and observed Hummel selling drugs.[5] The SOI told Agent Carleton that Hummel's supplier, a man named "Jeff," was also present. He told Agent Carleton that he had seen them at 32 Hennessey in the vicinity of a digital scale and approximately ten grams of cocaine. He described "Jeff" as a man in his mid-forties with brown hair, 5'8" to 5'10. He thought "Jeff" was from New Hampshire. He had seen a truck with New Hampshire plates and a Harley Davidson motorcycle at 32 Hennessey.[6] On July 7, Agent Carleton heard from the SOI that more product was coming. On July 9, the SOI confirmed that "Jeff, ” Hummel's supplier, was at 32 Hennessey and had cocaine to sell.
Acting on this information, Agents Carleton and Verrill conducted surveillance of 32 Hennessey from the parking lot of the Women's Fitness Center and Spa, which is located on the other side of the railroad tracks in back of 32 Hennessey. (See St. Ex. 1.) From this location, they had a fairly unobstructed view, both with and without the use of binoculars, into the backyard of 32 Hennessey and could see the long driveway, with other homes off of it.[7]
The Agents confirmed that Hummel was at 32 Hennessey. Agent Carleton saw a man who matched the SOI's description of "Jeff." The Agents also observed approximately six to eight other people in the back yard. Some of the individuals were known to the Agents to be drug users in the Brunswick area. They observed two tents set up in the backyard by the railroad tracks.[8]
During the two hours of surveillance in the early afternoon, the Agents also observed pedestrians walking into and out of the backyard as well as number of vehicles coming and going from 32 Hennessey. These individuals would stay for a short duration and then leave. They testified this is indicative of "typical drug deal behavior." They also saw a red Harley Davidson motorcycle that they suspected belonged to "Jeff."
The SOI agreed to participate in an arranged "buy" in the parking lot of Shaw's in Brunswick. The SOI contacted Hummel who agreed to sell him 3.5 grams of cocaine for $300. The Agents saw a Ford Focus pull up to 32 Hennessey. They observed Hummel get into the car and followed it to Shaw's. Hummel got out and met with the SOL After the exchange was made, the Agents and other law enforcement approached Hummel and the driver.[9] Hummel was found to be in possession of a small baggie containing 3.5 grams of white powder. A field test of the powder came up positive for cocaine.
Hummel was arrested, read Miranda and questioned. The Agents' focus was on "Jeff."[10] Hummel acknowledged that "Jeff" Boilard was back at the residence. He said he would help them but wanted a "deal" first, which they declined to make. He said Jeff showed up that day, brought cocaine, and he (Hummel) would sell it for him. He did not know the amount of drugs Jeff had with him. He said that Jeff was leaving soon and if he didn't get back in two minutes, he'd be f***ked." (Def.'s Ex. 5.) He confirmed that Jeff drives a motorcycle.[11]
The Agents determined they would drive by 32 Hennessey to see if Defendant's motorcycle was still there and then return to the Brunswick Police Department to formulate a plan. After seeing the motorcycle was still there, they decided to go 32 Hennessey, contact the Defendant and secure the residence in anticipation of obtaining a search warrant.
Instead of walking the full length of the driveway, Agents Carleton and Verrill along with several other officers, came in from the side and walked up to 32 Hennessey.[12] As they walked up the driveway, Agent Carleton recognized the Defendant sitting on a bench in the backyard. He called out, "Jeff?" to which the man responded, "Bollard?"
Agent Carleton testified that he "saw [the Defendant] move something in his hand to the side and watched as a dark object fell through the bench slats, landing slightly under and to the back of the bench."[13] Agent Carleton called out, "I see what you dropped there." He told him to stand up. He patted him down, placed him in handcuffs and placed him under arrest. While the Defendant was handcuffed and standing next to another officer, Agent Carleton found the dark object - a pouch with a zipper. He opened the pouch and discovered twenty-five bags of cocaine. The Defendant was taken to the Brunswick Police Department.
While the plan had been to secure 32 Hennessey in anticipation of a search warrant, Agents Verrill and Carleton and the other officers involved determined that what they seized from Mr. Boilard was all that was likely to be found on the premises.[14] Agent Carleton testified, "we had what we came here for."
The critical issue is whether the tenant of an apartment building has a reasonable expectation of privacy in a shared backyard. Specifically, whether the backyard of a multi-unit apartment qualifies as "curtilage" for purposes of the Fourth Amendment. The Supreme Court follows "a two-part test for analyzing the expectation of privacy question: first whether the movant has exhibited an actual, subjective, expectation of privacy; and second, whether such subjective expectation is one that society is prepared to recognize as objectively reasonable." United States v. Rheault, 561 F.3d 55, 59 (2009). It is well established that a person has a reasonable expectation of privacy in the "curtilage" of one's home. Specifically, "the areas 'immediately surrounding and associated with the home' are 'part of the home itself for Fourth Amendment purposes.'" Florida v. Jardines, 569 U.S. 1, 6 (2013) (quoting Oliver v. United States, 466 U.S. 170, 180 (1984). As stated in Jardines, "[t]his right would be of little practical value if the State's agents could stand in a home's porch or side garden and trawl for evidence with impunity . . . ." Id. As such, warrantless searches within the curtilage of one's home "are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well delineated exceptions." Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States, 232 U.S. 383, 392 (1914).
Typically, when a defendant seeks suppression of evidence obtained from a warrantless search "the government bears the burden of demonstrating that the search was lawful." Id. However, the burden remains with Bollard, an overnight guest, to demonstrate the search occurred in a constitutionally protected area.
In this case, the backyard and bench area where the search and arrest occurred may very well be considered curtilage for purposes of a single-family dwelling. See United States v Dunn, 480 U.S. 294, 301 (1987) (). However, as Defendant correctly points...
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