State v. Fredette

• Decision Date: 28 September 1979
• Citation: 411 A.2d 65
• Court: Maine Supreme Court
• Parties: STATE of Maine v. Nancy A. FREDETTE.

Page 65

411 A.2d 65

STATE of Maine v. Nancy A. FREDETTE.

Supreme Judicial Court of Maine.

Sept. 28, 1979.

Richard S. Cohen, Atty. Gen., William R. Stokes (orally), Asst. Atty. Gen., Augusta, for plaintiff.

Glassman, Beagle & Ridge by Caroline Glassman (orally), C. Alan Beagle, Portland, for defendant.

Before McKUSICK, C. J., and ARCHIBALD, POMEROY and WERNICK, JJ. and DELAHANTY, A.R.J.

ARCHIBALD, Justice.

On September 8, 1978, Nancy A. Fredette was indicted for the May 26, 1978, murder ¹ of her husband, Frederick R. Fredette, which allegedly "was committed with the use of a firearm." That indictment remains untried because of the two interlocutory rulings now under consideration here.

On January 25, 1979, Mrs. Fredette filed two motions to suppress evidence, namely:

1. Evidence of her "personal or family financial transactions or condition" obtained without a search warrant from "banks or other savings institution"; and

2. "All personal and intangible property seized" without a search warrant "from (her) premises located at 55 Birch Street, Biddeford, Maine after 7:34 a. m. on May 26, 1978."

A justice of the Superior Court ordered:

1. The State may not use as evidence . . . records of Defendant's financial affairs and transactions obtained by the State from banks or other savings institutions . . . .

2. The Defendant's motion to suppress evidence obtained from a warrantless search of her home is denied.

The State, as authorized by 15 M.R.S.A. § 2115-A (1978 Supp.) and Rule 37A(d), M.R.Crim.P., seasonably appealed from that part of the interlocutory ruling adverse to it, namely, suppressing the defendant's bank records. The defendant successfully moved for an interlocutory order reporting the denial of her motion to suppress the evidence obtained in the warrantless search of her house. Rule 37A(b), M.R.Crim.P.

We sustain the State's appeal. We affirm the decision of the justice below in refusing to suppress the evidence obtained in the warrantless search of the defendant's house.

SUPPRESSION OF FINANCIAL RECORDS

In concluding that the bank records should be suppressed, the justice premised that result on the assumption that "the search and seizure of a Defendant's records from his bank must be accomplished by the use of appropriate legal process." Since the State had "failed to present evidence to the court At the hearing " that legal process was used, the justice ordered the evidence suppressed, citing as ultimate authority United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) and Burrows v. Superior Court of San Bernardino County, 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590 (1974). ²

Miller, construing the Fourth Amendment to the Constitution of the United States, flatly holds that a bank depositor has no interest protected by that constitutional amendment that would entitle him to challenge the method by which information revealed by his bank transactions was obtained. In short, "The depositor takes the risk, in revealing his affairs to another (e. g., a bank employee), that the information will be conveyed by that person to the Government." 425 U.S. at 443, 96 S.Ct. at 1624. Lest it be argued that the legal rule espoused in Miller should be reviewed as no longer viable, we note its recent citation with approval in Smith v. Maryland, 442 U.S. 735, 743, 99 S.Ct. 2577, 2581, 61 L.Ed.2d 220 (1979).

Defendant argues, however, that the right of privacy secured by Article I, Section 5 ³ of the Constitution of Maine mandates the suppression of bank records obtained by the State without legal process. It has been the consistent position of this court not to adopt an exclusionary rule pursuant to our Constitution when the United States Supreme Court has not applied such a rule to the states under the Fourth and Fourteenth Amendments to the Constitution of the United States. See, e. g., State v. Foisy, Me., 384 A.2d 42, 44 n.2 (1978); State v. Stone, Me., 294 A.2d 683, 693 n.15 (1972); State v. Hawkins, Me., 261 A.2d 255, 258 n.3 (1970).

We see no reason to depart from this established policy. ⁴ Since Mrs. Fredette had no expectation of privacy in her bank records that was constitutionally protected, their revelation to police agencies, whether by subpoena or otherwise, cannot be suppressed. Thus, the presence, or absence, in the record of the hearing below of legal process, defective or otherwise, becomes an improper basis for the suppression of those records. The justice below erroneously ordered the suppression of the defendant's bank records.

REFUSAL TO SUPPRESS EVIDENCE SEIZED IN A WARRANTLESS SEARCH

OF DEFENDANT'S HOME

In denying the defendant's motion to suppress evidence obtained through the warrantless search of the Fredette residence, the presiding justice declared:

With respect to the search of Defendant's home, the court believes that Defendant consented to the police investigation of her home. In response to a call from a woman claiming that someone had just shot her husband, police arrived at Defendant's home and entered without objection from Defendant. In fact, Defendant fully cooperated with all of the investigative efforts of the police. Her conduct throughout conveyed only approval and encouragement of the police in their search. Since the court finds that Defendant consented to the search of her home, it need not reach the further question whether the police could constitutionally search the home without a warrant.

The presiding justice acts as a finder of fact in preliminary proceedings relating to the admissibility of evidence. His findings will not ordinarily be set aside unless clearly erroneous. See, e. g., State v. Carter, Me., 391 A.2d 344, 346 (1978); State v. McLain, Me., 367 A.2d 213, 217 (1976); State v. Fernald, Me., 248 A.2d 754, 763 (1968).

Well settled is the rule of law that a search conducted without a warrant is Per se unreasonable unless the search comes within one of a few specifically established exceptions to the rule. A search conducted pursuant to consent is one of those clearly delineated exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Mitchell, Me., 390 A.2d 495, 499 (1978); State v. McLain, 367 A.2d at 216. Upon a motion to suppress the fruits of a warrantless search the State carries the burden of demonstrating by a preponderance of the evidence (Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); State v. Koucoules, Me., 343 A.2d 860, 872 (1974)) that an objective manifestation of consent was given by word or gesture by one bearing an appropriate relationship to the property searched. See, e. g., State v. McLain, 367 A.2d at 217. The consent must be shown to have been free and voluntary and not the product of coercion, whether express or implied. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

A somewhat detailed factual summary is required to demonstrate that the justice below correctly applied the foregoing legal standards in arriving at his ultimate conclusion.

Not in issue in the instant case is that Mrs. Fredette, who certainly bore an appropriate relationship to the searched residence, consented voluntarily by word and gesture to the Entry of her home by the Biddeford police department on the morning of May 26, 1978.

Having received two telephone calls from a person ultimately determined to be the defendant, the Biddeford Police Department arrived at the defendant's home in the early morning of May 26, 1978. Defendant was crying and appeared to be hysterical, claiming that her husband had been shot. In response to questioning, the defendant denied knowledge of the assailant but stated that this person had left through a side entrance. She then ushered the police to the bedroom where her husband lay wounded, unconscious, but still alive. ⁵ After assisting ambulance attendants in moving Mr. Fredette to the ambulance, an officer ordered the home secured, which included placing officers at the entrances thereto. Mrs. Fredette was then told that the premises were to be searched and that other officers from other departments were being called for assistance. Mrs. Fredette did not object by either gesture or word to the statement of the police.

A Maine State Police officer somewhat later that same morning interviewed Mrs. Fredette at the Portland hospital. Mrs. Fredette asked, "Have they found anything at my home to indicate who would be responsible for what they have done to my husband?" Being informed that the officers were in the process of searching her home, Mrs. Fredette then said, "(I)f you find anything out there, would you let me know?" At no time during this conversation did Mrs. Fredette indicate any objection to the continued search of her home but, to the contrary, indicated a desire to know what the results might be.

During that day the premises were effectively secured by the police and Mrs. Fredette was informed that the purpose in so doing was to protect whatever evidence might exist relating to the shooting of her husband. Mrs. Fredette indicated her understanding of that situation. She said or did nothing to indicate her objection thereto.

While the premises were secured Mrs. Fredette on at least two occasions sought permission to re-enter the premises to obtain clothing for herself and her children. On both occasions she was accompanied by a police officer who expressly inventoried each item she removed. On neither of these occasions did she indicate any objection to the presence of the police in her home or their purpose in being there. Her attitude toward the police was completely cooperative. On one occasion on her return to her premises she inquired explicitly from the police if they had discovered anything to identify the perpetrator of the suspected murder, but she did not indicate, either by word or conduct, any desire to have the officers discontinue their...