State v. Bouchles

• Decision Date: 08 March 1983
• Citation: 457 A.2d 798
• Parties: STATE of Maine v. George S. BOUCHLES.
• Court: Maine Supreme Court

Page 798

457 A.2d 798

STATE of Maine v. George S. BOUCHLES.

Supreme Judicial Court of Maine.

Argued Sept. 7, 1982.

Decided March 8, 1983.

Janet T. Mills, Dist. Atty., Geoffrey Rushlau, Asst. Dist. Atty. (orally), Auburn, for plaintiff.

Petruccelli, Cohen, Erler & Cox, George F. Petruccelli (orally), Portland, for defendant.

Before McKUSICK, C.J., and GODFREY, NICHOLS, ROBERTS, CARTER and WATHEN, JJ.

McKUSICK, Chief Justice.

Defendant George Bouchles was charged by indictment with trafficking in a Schedule W drug (cocaine), 17-A M.R.S.A. § 1103 (Pamph.1982). In its interlocutory appeal pursuant to 15 M.R.S.A. § 2115-A (1980 & Supp.1982-1983), the State asserts that the Superior Court (Androscoggin County) erred in suppressing evidence seized by police officers during a warrantless search of defendant's van. The evidence suppressed was the contents of several plastic bags found in a box under the front seat of the van. ¹ The Superior Court's order, entered on March 10, 1982, was premised on its conclusions that the search was "designed to locate ... cocaine which the [police] had probable cause to believe was inside the van," and that as a result "the State's characterization of the search as an inventory was pretextual." On its appeal, the State contests that finding and also argues that, regardless of the validity of the search as an inventory, the search nevertheless falls within the "automobile exception" to the warrant requirement of the fourth amendment as recently delineated by the United States Supreme Court in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

We reverse the suppression order on the authority of Ross, which was decided on June 1, 1982, subsequent to the Superior Court's entry of its suppression order. We reject defendant's argument that article I, section 5 of the Maine Constitution, our state counterpart to the fourth amendment, demands on the present facts the application of any higher standard than that laid down for the United States Constitution by Ross. In view of our decision, we have no occasion to decide whether the suppression justice erred in characterizing the "inventory search" as pretextual.

Kenneth MacMaster, an undercover agent for the Maine State Police Division of Special Investigation, sought to arrange to buy a large quantity of cocaine from one Garth Murray. On the evening of September 11, 1980, MacMaster met with Murray in a restaurant parking lot in Auburn. Some time later, defendant George Bouchles drove his van into the parking lot. Murray stated, "This is it," or words to that effect. Murray then met one Kenneth Sprague between the van and MacMaster's car, and then both men returned to the car, where Sprague passed to MacMaster a one-ounce bag of what appeared to be cocaine. Murray said that the rest was in the van. At that point, MacMaster told other officers, who had been nearby observing, to arrest the van's driver. Bouchles was arrested and the van was taken to the Auburn Police Department where several officers, including MacMaster, immediately searched it without a warrant. Under the front seat in a closed box, they found the plastic bags, apparently containing cocaine, that are the subject of the Superior Court's suppression order and of this appeal.

I.

By principles of federal constitutional law as most recently expounded by the United States Supreme Court in Ross, the search of the closed box under the front seat of the Bouchles van was not violative of the fourth amendment.

Under the long-established automobile exception to the warrant requirement of the fourth amendment, a search of a vehicle is permitted without a warrant if the searching officers have probable cause to believe that it contains contraband and exigent circumstances exist preventing the officers from getting a warrant in time. The search can be either on the road, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), or, as here, at a secure location to which the vehicle is moved after seizure, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

The warrantless search of the Bouchles van was undoubtedly valid under the automobile exception. As the suppression justice found, MacMaster and the other officers had probable cause to believe that the van contained cocaine. Thereupon, the officers could constitutionally make an immediate search of the van without first obtaining a warrant. The fact that they elected to move the van to a secure location before searching it does not cut off their right to carry through with a warrantless search. Id.; 2 W. LaFave, Search and Seizure § 7.2, at 512-19 (1978). The only question then becomes whether their warrantless search of the Bouchles van could validly extend to the closed box found under the front seat.

On the basis of our reading of earlier pronouncements of the United States Supreme Court, see, e.g., Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), we had understood, prior to the Ross decision of June 1, 1982, that a warrantless search under the automobile exception could not go beyond seizure of a closed container found in the vehicle; that "the police ... must await the issuance of a warrant before opening" the closed container. State v. Hassapelis, 404 A.2d 232, 237 (Me.1979) (zippered gym bag); see also State v. Patten, 436 A.2d 387 (Me.1981) (closed brown paper bag), vacated, 457 U.S. 1114, 102 S.Ct. 2919, 73 L.Ed.2d 1325 (1982), on remand, 457 A.2d 806 (Me.1983) (suppression order reversed); State v. Blais, 416 A.2d 1253 (Me.1980) (rolled up, opaque plastic bag). That, we now know, is not so. In its decision, the United States Supreme Court in United States v. Ross, 456 U.S. at 825, 102 S.Ct. at 2172, 72 L.Ed.2d at 594, declared that under the fourth amendment

the scope of the warrantless search authorized by [the automobile exception recognized in Carroll,] is no broader and no narrower than a magistrate could legitimately authorize by warrant. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.

The Court further explained its Ross holding, as follows:

[T]he decision in Carroll was based on the Court's appraisal of practical considerations viewed in the perspective of history. It is therefore significant that the practical consequences of the Carroll decision would be largely nullified if the permissible scope of a warrantless search of an automobile did not include containers and packages found inside the vehicle.... The Court in Carroll held that "contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant." 267 U.S., at 153, 45 S.Ct. 280 [at 285], 69 L.Ed. 543 (emphasis added). As we noted in Henry v. United States, 361 U.S. 98, 104, 80 S.Ct. 168 , 4 L.Ed.2d 134, the decision in Carroll "merely relaxed the requirements for a warrant on grounds of impracticability." It neither broadened nor limited the scope of a lawful search based on probable cause.

A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search.... When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.

Ross, 456 U.S. at ----, 102 S.Ct. at 2170, 72 L.Ed.2d at 590-91. In Ross, the concurring justices emphasized that it is "important ... not only for the Court as an institution, but also for law enforcement officials and defendants, that the applicable legal rules be clearly established," 456 U.S. at 825, 102 S.Ct. at 2173, 72 L.Ed.2d at 594 (Blackmun, J.), and that "it is essential to have a Court opinion in automobile search cases that provides 'specific guidance to police and courts in this reoccurring situation'," 456 U.S. at 826, 102 S.Ct. at 2173, 72 L.Ed.2d at 595 (Powell, J.) (emphasis in original). Thus, as a matter of federal constitutional law, Ross establishes a bright-line rule that permits a warrantless search of an automobile under the Carroll exception to extend to any containers, found within the vehicle, that could be the hiding place of the suspected contraband.

In the case at bar, the police clearly had probable cause to search the Bouchles van for drugs, and they furthermore were faced with exigent circumstances that did not permit them time to obtain a search warrant. By the new enlightenment provided in Ross by the ultimate arbiter of federal constitutional law, the police did not violate the fourth amendment by pushing their search of the van into the closed box within the van. ²

Defendant argues that Ross should not be applied in this case because the search in question occurred before Ross was decided. This argument finds little support in the case law. It is well settled that modifications of search and seizure rules that narrow defendants' rights are applied to pending cases. See, e.g., Taylor v. Arizona, 471 F.2d 848 (9th Cir.1972). Such retroactive application "does not in any meaningful way conflict with the deterrence objective of the Fourth Amendment exclusionary rule." 3 W. LaFave, Search and Seizure § 11.5, at 699 (1978). Moreover, as the Ross court stated, "[a]ny interest in maintaining the status quo that might be asserted by persons who may have structured their business of distributing narcotics ... on the basis of judicial precedent clearly would not be legitimate." 456 U.S. at 824 n. 33, 102 S.Ct. at 2172 n. 33, 72 L.Ed.2d at 593...