State v. Harriman

• Decision Date: 04 November 1983
• Citation: 467 A.2d 745
• Parties: STATE of Maine v. David J. HARRIMAN and Joseph W. Wadman.
• Court: Maine Supreme Court

Page 745

467 A.2d 745

STATE of Maine v. David J. HARRIMAN and Joseph W. Wadman.

Supreme Judicial Court of Maine.

Argued Sept. 19, 1983.

Decided Nov. 4, 1983.

Michael E. Povich, Dist. Atty., Sophie L. Spurr, Asst. Dist. Atty. (orally), Ellsworth, for plaintiff.

Peter R. Roy (orally), George P. Kesaris, Ellsworth, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, VIOLETTE, WATHEN and GLASSMAN, JJ.

GLASSMAN, Justice.

On August 3, 1982, the defendants, David J. Harriman and Joseph W. Wadman, were indicted for a violation of 17-A M.R.S.A. § 1103 (Pamph.1982), unlawful trafficking in a schedule Z drug. Contending that the seizure of two pounds, nine ounces of marijuana from their vehicle violated the Fourth Amendment proscription against unreasonable search and seizure, the defendants filed a pretrial motion to suppress.

The Superior Court (Hancock County), ruling that the initial "plain view" seizure of a small baggie of marijuana from the defendants' van was tainted by the seizing officer's improper motives in looking into the van, and thus the police lacked probable cause for the subsequent warrantless search of the entire vehicle, suppressed all evidence obtained as a result of the search. The state, pursuant to 15 M.R.S.A. § 2115-A (1980), appeals that order. We sustain the appeal, holding that the Superior Court improperly focused on the motives of the seizing officers, and remand the case for a further hearing on probable cause.

The court below could have found that at approximately 12:15 a.m. on July 24, 1982, Officer Kane of the Ellsworth Police Department was clearing the Maine Coast Mall parking lot of vehicles gathered in the lot after closing. Ellsworth police performed this function nightly at the request of the mall manager. Walking up to the driver's side of the van occupied by the defendants, Officer Kane observed defendant Wadman behind the wheel, apparently quite intoxicated. Using a flashlight to illuminate the interior of the vehicle, the officer also noticed several empty beer cans and an empty pint liquor bottle on the van console. According to Kane, he then requested the keys to the van from Wadman to avoid a later arrest of Wadman for operating under the influence, and Wadman promptly complied. Officer Kane informed Wadman that another officer would return the keys after Wadman had become sober. Kane thereafter summoned Officer Jameson to the scene, who apparently would return the keys to Wadman. After conferring with Kane and having been informed that Wadman was the driver, Officer Jameson, despite already knowing Wadman, approached the vehicle on the passenger side in order, according to Jameson, to "make sure who was driving the vehicle so I knew who to return the keys to ...." Illuminating the front interior portion of the van with his flashlight to see Wadman, Officer Jameson observed a small baggie containing what was later determined to be marijuana lying on the van console. Jameson then seized the baggie. ¹ Additionally, Jameson noticed defendant Harriman lying in the back of the van asleep. Both officers were aware that Harriman and Wadman had been previously convicted on a drug trafficking charge.

Shortly thereafter, the officers conducted a warrantless search of the entire van for additional drugs. Both officers testified that they believed probable cause for the search to be present, given the late hour, their opinion that drug trafficking at the Maine Coast Mall parking lot was a common occurrence, ² the defendants' past convictions for drug trafficking, and the small bag of marijuana taken from the console. As a result of the search, the officers discovered an open styrofoam cooler containing nearly three pounds of marijuana.

The Superior Court suppressed the evidence found in the defendants' van. Although the justice's reasons for granting the motion to suppress are not clear from the record, the court found that the officers were looking for a reason to search the defendants' vehicle. The suppression justice suggested that Officer Jameson's approach to the van, illumination of the interior, and seizure of the small baggie of marijuana was a pretext for the full-scale search. Summing her views, the suppression justice observed:

The so-called plain view was not just a chance, that a flashlight happened on the plastic bag. They [the police] were looking for a reason to get in. They had no probable cause.

The one clear finding of fact the Superior Court made was that Officer Jameson shone his flashlight into the defendants' vehicle not to identify the driver but in the hope of uncovering a reason to search the entire van.

A finding of fact supporting a suppression order will not be disturbed on appeal unless "clearly erroneous," that is, lacking any competent evidence in the record to support it. State v. Thornton, 453 A.2d 489, 492 (Me.1982), cert. granted, 460 U.S. 1068, 103 S.Ct. 1520, 75 L.Ed.2d 944 (1983); Harmon v. Emerson, 425 A.2d 978, 981 (Me.1981); see also Lewisohn v. State, 433 A.2d 351, 354 (Me.1981) (Law Court does not sit as trier of fact). Due regard is accorded the trial court to judge the credibility of witnesses. Qualey v. Fulton, 422 A.2d 773, 775 (Me.1980); State v. MacKenzie, 161 Me. 123, 134-35, 210 A.2d 24, 31 (1965). The trial court is not required to believe testimony albeit uncontradicted. Qualey, 422 A.2d at 775.

Given this limited standard of review, we cannot say it was "clearly erroneous" for the trial court to find that Officer Jameson's testimony regarding the reasons for shining his flashlight into the van was not credible. Officer Kane had already informed Jameson that Wadman was the driver of the van, and Jameson knew Wadman from previous experience. Therefore, the court could reasonably have rejected Jameson's testimony that he walked over to the van and illuminated the interior so he would know whom to return the keys later, and concluded instead that Jameson's actions were merely a pretext for a larger search. The inquiry, however, does not end with a finding that police looked into a parked vehicle in the hope of finding some inculpatory evidence which might justify a full-scale search. We must now consider whether such action constitutes an unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution.

An individual who exposes an object to public view has no reasonable expectation of privacy in that object. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983) (plurality); Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). Where such expectancy is lacking, the observation of the object does not constitute a search within the meaning of the Fourth Amendment, regardless of whether the observation is made by a police officer or private citizen. Brown, 103 S.Ct. at 1542; State v. Sapiel, 432 A.2d 1262, 1266 (Me.1981); State v. Cowperthwaite, 354 A.2d 173, 176 (Me.1976). Recently, when considering whether a warrantless seizure from an automobile of an opaque party balloon commonly used to package narcotics violated the Fourth Amendment, the United States Supreme Court stated:

There is no legitimate expectation of privacy ... shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers. In short, the conduct that enabled Maples to observe the interior of Brown's car and of his open glove compartment was not a search within the meaning of the Fourth Amendment.

Brown, 103 S.Ct. at 1542. It is of no relevance that artificial illumination is used to enable an officer to view during the night that which could have been seen plainly during the day. Id. at 1541; State v. Rand, 430 A.2d 808, 819 (Me.1981); State v. Chattley, 390 A.2d 472, 476 (Me.1978).

The question of the lawfulness of the view, however, differs from that of the lawfulness of the seizure. 1 W. LaFave, Search and Seizure § 2.2, at 243 (1978); Moylan, The Plain View Doctrine: Unexpected Child of the Great "Search Incident" Geography Battle, 26 Mercer L.Rev. 1047, 1096 (1975); cf. Washington v. Chrisman, 455 U.S. 1, 11, 102 S.Ct. 812, 819, 70 L.Ed.2d 778 (1982) (White, J., dissenting) ("plain-view" doctrine does not authorize entry into dwelling to seize contraband merely because such contraband is visible from outside of dwelling). Where the probable evidence is discovered in a constitutionally nonprotected area, it may be seized without a warrant. Simply, the Fourth Amendment affords no protection to property which has been abandoned, or which lies in an "open field." Hester v. United States, 265 U.S. 57, 58-59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924); State v. Thornton, 453 A.2d at 495; see Payton v. New York, 445 U.S. 573, 586-87, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980) (weapons found in public place may be seized without first obtaining warrant). Moreover, when police lawfully enter a constitutionally protected area, and subsequently, evidence of crime comes into "plain view," such may be seized without a warrant. ³ Brown, 103 S.Ct. at 1540-41; Coolidge v. New Hampshire, 403 U.S. 443, 465-67, 91 S.Ct. 2022, 2037-39, 29 L.Ed.2d 564 (1971) (plurality); State v. Sapiel, 432 A.2d at 1266. For example, if police enter a dwelling with a warrant, or without a warrant but on the basis of an exception to the warrant requirement, or stop an automobile based on an articulable suspicion, evidence may be seized which subsequently falls into "plain view." See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (articulable suspicion).

A different problem arises when police are outside a constitutionally protected area looking into a place in which an individual has a reasonable expectation of privacy. The plain view sighting of contraband or evidence of crime does not, standing alone, give rise to a right to enter a...