State v. Brochu

• Decision Date: 12 December 1967
• Citation: 237 A.2d 418
• Parties: STATE of Maine v. Armand BROCHU.
• Court: Maine Supreme Court

Page 418

237 A.2d 418

STATE of Maine v. Armand BROCHU.

Supreme Judicial Court of Maine.

Dec. 12, 1967.

Ronald E. Ayotte, County Atty., Alfred, Richard S. Cohen and Daniel G. Lilley, Asst. Attys. Gen., Augusta, for plaintiff.

William P. Donahue, Roger C. Nadeau, Biddeford, Charles W. Smith, Saco, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, DUFRESNE and WEATHERBEE, JJ.

WILLIAMSON, Chief Justice.

This case is before us on report from an interlocutory order or ruling denying a motion to supress evidence obtained on an allegedly unlawful search and seizure. Maine Rules of Criminal Procedure, Rule 37A(b) (appeal of interlocutory ruling), and Rule 41(e) (search and seizure); U.S.Constitution, Fourth Amendment, and Maine Constitution Article I, Sec. 5 (unreasonable searches and seizures).

The facts found by the Court below stand unless clearly erroneous. State v. MacKenzie, 161 Me. 123, 210 A.2d 24. See Robbins v. MacKenzie (CA 1) 364 F.2d 45. In accepting the facts so found by the Court in testing the decision on the motion to suppress, we do not thereby indicate that the same facts necessarily should be found by a jury. Our problem involves only the disposition of a preliminary or interlocutory motion designed to govern the case in this respect in the event of a jury trial.

Mr. Monique Brochu, wife of the defendant, died on November 24, 1966 from the ingestion of methyl alcohol on November 18, 1966. In the investigation of her death, required under the circumstances, the defendant was requested to meet with the police and the county attorney at the police station in Biddeford on his return from Canada on December 5, 1966, a few days after his wife's funeral. The case was in the investigatory stage. The defendant did not then stand as an accused. Understandably, to use the words of the police, 'in a case of this nature, everyone is a suspect.' At the time the husband met with the police, however, it was unknown whether the death by poisoning was accidental or was a homicide.

The defendant consented to the authorities searching his home in Biddeford, and indeed urged that they do so, indicating his desire that the cause of his wife's death be established. Thereupon, in the early afternoon of December 5 police went to the defendant's home and found nothing pointing to the cause of death. However, they took five whiskey and vodka bottles with them on returning to the police station at about 4:30 P.M.

At about five o'clock Nancy, the twelve year old daughter of the defendant came to the police station in the company of an aunt. There she gave a statement to the police implicating her father in her mother's death through the preparation of a drink taken by her mother on November 18 prepared from a liquid poured from a vodka bottle by her father and said by him, so Nancy said, to be pure alcohol. At 7:30 or 8 o'clock in the evening on the strength of an affidavit by Nancy, a search warrant was obtained for 'a container or vile containing methyl alcohol' on 'the premises known as the dwelling of Armand A. Brochu located at 20 Forest Street, in the City/Town of Biddeford, County of York and State of Maine, said premises being owned/occupied by Armand A. Brochu.' At 8:40 in the evening the defendant was arrested at his home and taken to the police station, and later in the evening to the county jail. The defendant's nineteen year old daughter Charlene returned to the home from work in the evening after the arrest of her father. Throughout the remainder of the period in which we are interested, Charlene was at the home with her twelve year old sister Nancy, a younger brother and two aunts who came to be with the children after the defendant was arrested. The warrant ran in the daytime and no action was taken thereon that night.

On the morning of December 6, a Lieutenant and the Chief of Police, of the Biddeford police, and a representative from the Attorney General's office came to the defendant's home. Charlene met them at the kitchen door and on their request invited them into the house. In the presence of Charlene, two aunts, and the two younger children, the police lieutenant said that he had a search warrant. It does not appear that the aunts had any conversation with the officers, and in any event they made no objection to the search.

The officers found and took with them property now in possession of the State consisting of a funnel, three small glass jars, a cloth, and of particular significance a vodka bottle which contained, as shown by later laboratory tests, a small quantity of methyl alcohol. The funnel, jars and cloth (the items other than the vodka bottle) were not, it will be noted, described in the search warrant. The vodka bottle was found stuffed in the upholstery of a chair in the defendant's garage, a building on the premises not physically connected with the dwelling house proper.

After hearing, the Court ruled that the consent of the defendant to search his home applied not only to the search made before his arrest, but as well to the search and seizure on the following day after his arrest and the issuance of the search warrant.

In the words of the Court, 'this consent was valid and viable and remained valid and viable until specifically revoked, or its purpose accomplished.' We are unable to agree with his conclusion that defendant's consent continued beyond the search of December 5. Without question, the consent was 'unequivocally, specifically and intelligently' given. United States v. Thompson (CA 2) 356 F.2d 216. Cf. State v. Thompson, 273 Minn. 1, 139 N.W.2d 490, 504, 506.

The officers entered the defendant's home on the 5th under the protection of his consent. By nightfall, however, the defendant had ceased to be the husband assisting in the solution of his wife's death and had become the man accused of his wife's murder by poison held under arrest for hearing.

When the defendant became the accused, the protective cloak of the Constitution became more closely wrapped about him. For our purposes we need consider only the Federal Constitution. Like principles are applicable under our State Constitution. Article I, Section 5. There is a particularly heavy burden on the State to show consent to a search and seizure without a warrant when the defendant is under arrest. Burke v. United States (CA 1) 328 F.2d 399; Judd v. United States, 89 U.S. App.D.C. 64, 190 F.2d 649.

The consent of December 5 in our view should be measured on the morning of the 6th by the status of the defendant as the accused. There is no evidence whatsoever that the consent of the 5th was ever discussed with the defendant at or after his arrest, or that he was informed of the State's intent to enter and search his home on the 6th on the strength of a continuing consent. We conclude, therefore, that the consent of the defendant had ended by December 6, and accordingly the officers were not protected thereby on the successful search of the 6th.

The case, however, does not end at this point. The decision may not be sustained for the reason given, but under familiar principles it stands if valid on other grounds. The test is whether the result is sound.

The State further urges as an independent ground for the denial of the motion to suppress that the nineteen year old daughter Charlene gave a valid consent to the search of her father's home. For purposes of this issue we assume the search was, in absence of such consent, unlawful.

The argument of the State fails to convince us. In the first place the consent was in submission to apparently legal authority, that is, to officers with a search warrant. If the warrant was valid, no consent to enter and search was necessary. The officers' authority was contained in the warrant. Charlene's consent under such circumstances was of no more consequence than would have been an objection on her part. If the warrant was not valid-and this is the assumption made on this issue-the principle is operative that submission to the presence of police does not rise to the dignity of consent to search. United States v. Linderman (U.S.D.Ct.N.Y.) 32 F.Supp. 123. The officers with a search warrant were at the door; they intended to enter and search; they informed Charlene of the warrant; she consented to their entry and search. No stronger case of submission to entry under a search warrant can well be put. The consent of Charlene has no meaning apart from the search warrant.

The third issue for decision on the report is whether the search was 'made pursuant to a valid search warrant obtained under Rule 41 of the Maine Rules of Criminal Procedure.' The defendant's objection to the warrant is limited to a claim of invalidity arising from insufficiency of description of the place to be searched.

The garage was plainly part of the defendant's house in which he was secure against unreasonable searches and seizures under both Federal and State Constitutions. Rosencranz v. United States (CA 1) 356 F.2d 310; United States v. Sims (U.S.D.C.Tenn.) 202 F.Supp. 65; 5 Orfield, Criminal Procedure Under The Federal Rules § 41:12. There is no suggestion by the State that the officers had a right to enter and search the garage in the absence of consent or a valid search warrant.

We hold that the garage came within the meaning of the phrase of the Fourth Amendment, 'particularly describing the place to be searched,' and to like effect, of our Maine Constitution in Article I, Section 5, 'without a special designation of the place to be searched.'

The test of sufficiency of description is that the officers thereby are enabled to ascertain and identify the place intended by reasonable effort. Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757; Metcalf v. Wood, 66 N.H. 176, 19 A. 1091 ('the premises now occupied by Parker Metcalf, situated in Haverhill,' sufficient on its face). Reasonable certainty is required to meet the constitutional safeguards. A technical...