State v. Sullivan

• Decision Date: 15 March 2018
• Docket Number: Docket: Aro–17–98
• Citation: 181 A.3d 178
• Parties: STATE of Maine v. David L. SULLIVAN
• Court: Maine Supreme Court

181 A.3d 178

STATE of Maine

v.David L. SULLIVAN

Docket: Aro–17–98

Supreme Judicial Court of Maine.

Submitted On Briefs: October 24, 2017

Decided: March 15, 2018

John W. Tebbetts, Esq., Smith & Associates, Presque Isle, for appellant David L. Sullivan

John M. Pluto, Asst. Dist. Atty., Prosecutorial District No. 8, Caribou, for appellee State of Maine

Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

SAUFLEY, C.J.

[¶ 1] David L. Sullivan appeals from a judgment of conviction for aggravated trafficking in scheduled drugs (Class A), 17–A M.R.S. § 1105–A(1)(I) (2017), unlawful possession of a scheduled drug (Class C), 17–A M.R.S. § 1107–A(1)(B)(3) (2017), and unlawful possession of oxycodone (Class C), 17–A M.R.S. § 1107–A(1)(B)(4) (2017), entered by the court (Aroostook County, Stewart, J. ) following a jury trial. Sullivan argues that the court (Soucy, J. ) erred in denying his motion to suppress evidence that was found in the curtilage of his home and that the trial court abused its discretion when it denied his motion to exclude other evidence on the basis of a discovery violation. We affirm the judgment.

I. BACKGROUND

[¶ 2] After conducting a hearing on Sullivan's motion to suppress, the court found the following facts, which are supported by the record viewed in the light most favorable to the court's order.¹ See State v. Kierstead , 2015 ME 45, ¶ 2, 114 A.3d 984. On March 27, 2013, a woman² was arrested outside of a Bangor motel after attempting to buy a large quantity of oxycontin pills. Her arrest gave rise to probable cause to search her home in Caribou, which she shared with Sullivan. Two law enforcement officers, a special agent from the Maine Drug Enforcement Agency and a sergeant from the Aroostook County Sheriff's Office, went to the Caribou home pending issuance of a search warrant. Their purpose in going to the home was to conduct a "security check" and thereby prevent the destruction of evidence and ensure the safety of officers arriving at the home with the anticipated warrant.

[¶ 3] Sullivan's Caribou home is a mobile home with a porch on the front and an addition extending from the back. It is located down a long driveway and is surrounded by woods. When the officers arrived at the home shortly after 7:30 p.m., it was dark outside, and they observed several security cameras mounted around the house.

[¶ 4] The officers knocked on the front door and announced their presence. A dog barked from inside the house, but no one answered. The officers then left the front porch and walked around the house to see if there was a rear door. As they walked around the side of the house, within a few feet of the home, the officers came upon two plastic shopping bags that were sitting on the ground. The bags were nearly translucent, and it was immediately apparent that they contained drug paraphernalia. The bags emitted a strong odor of marijuana. Because the bags sat atop fresh snow and had no footprints around them, it appeared that they had recently been thrown from a window. The officers took the bags back to their vehicle, searched the bags' contents, and discovered contraband. Eventually, the home was searched on the basis of the warrant obtained that evening.

[¶ 5] A year later, on March 7, 2014, Sullivan was charged by indictment with trafficking and possession. He pleaded not guilty to all charges and moved to suppress the evidence of the two bags discovered outside of his home. After a hearing, the court (Soucy, J. ) denied the motion.³

[¶ 6] Almost three years after the indictment, the court (Stewart, J. ) held a three-day jury trial in January 2017.⁴ Immediately before trial, Sullivan moved to exclude the testimony of a pharmacist as a discovery sanction on the ground that the State had substituted the witness for another pharmacist the day before trial. The court denied the motion, the pharmacist testified, and Sullivan cross-examined her vigorously.

[¶ 7] The jury found Sullivan guilty of all three charges. The court sentenced him to twelve years of imprisonment with all but four years suspended and three years of probation for the aggravated trafficking charge. The court also sentenced Sullivan to one year of imprisonment for each of the other charges, to be served concurrently with the sentence for aggravated trafficking. Sullivan timely appealed. See 15 M.R.S. § 2115 (2017) ; M.R. App. P. 2(b)(2)(A) (Tower 2016).⁵

II. DISCUSSION

A. Denial of the Motion to Suppress

1. Standard of Review

[¶ 8] We review the denial of a motion to suppress by applying the familiar appellate process—the motion court's factual findings are reviewed for clear error and its legal conclusions are reviewed de novo. State v. Prinkleton , 2018 ME 16, ¶ 17, 178 A.3d 474. A finding of fact is clearly erroneous only if the record lacks any competent evidence to support the finding. State v. Harriman , 467 A.2d 745, 747 (Me. 1983). Once the facts have been established, a motion court's ultimate determination that evidence was located within or outside the curtilage of a home—as well as its conclusion that a search was or was not reasonable—is a conclusion of law and is subject to de novo review. United States v. Brown , 510 F.3d 57, 64 (1st Cir. 2007).

2. Sullivan's Motion

[¶ 9] Sullivan's central argument is that evidence obtained as a result of the officers' search of the bags they discovered within his "curtilage" should have been excluded because the officers had not obtained a warrant and no exception to the warrant requirement applied.

[¶ 10] The Fourth Amendment of the United States Constitution sets limits on warrantless law enforcement searches of the "curtilage."⁶ State v. Trusiani , 2004 ME 107, ¶ 10, 854 A.2d 860 ; Oliver v. United States , 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). As always, the touchstone of a Fourth Amendment inquiry is whether the actions of the State were reasonable, Ohio v. Robinette , 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996), but a person's reasonable expectation of privacy in the space outside his home is not identical to the expectation of privacy he has in his home. See Trusiani , 2004 ME 107, ¶ 15, 854 A.2d 860 ("Although the curtilage of the home is protected from unreasonable entries and searches ... the State is allowed to intrude into the home's curtilage under certain circumstances, including accessing the entry to a dwelling while conducting legitimate law enforcement activities.").

[¶ 11] When a defendant seeks to suppress evidence found during a warrantless search alleged to have taken place within the curtilage, the motion court will first determine whether the evidence at issue was found within the defendant's curtilage. Id. ¶ 11. If the evidence was found within the curtilage, the court must determine, as a matter of law, whether the search was undertaken consistent with the Constitution—that is, whether the search was otherwise reasonable, falling within an exception to the warrant requirement. See id. ¶¶ 11, 15.

[¶ 12] In the matter before us, we begin by examining the motion court's determination that the bags observed by the officers were within Sullivan's curtilage. If the bags were within the curtilage, we must determine whether the officers' actions were reasonable in light of two well-recognized exceptions to the warrant requirement: (i) the plain view exception, and (ii) the exception for a temporary seizure to secure a residence. We also consider whether, if the ensuing search of the bags was unlawful, the evidence is nonetheless admissible pursuant to the inevitable discovery doctrine.

a. Defining the "Curtilage"

[¶ 13] The motion court concluded, with little discussion, that the bags were located within Sullivan's curtilage.⁷ The "extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself." United States v. Dunn , 480 U.S. 294, 300, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). The "central component of this inquiry [is] whether the area harbors the intimate activity associated with the sanctity of a man's home and the privacies of life." Id. (quotation marks omitted). Four nonexclusive factors will guide the court in determining whether an area is within the curtilage: (1) the proximity of the area to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) steps taken by the resident to protect the area from observation by people passing by. State v. Boyington , 1998 ME 163, ¶ 7, 714 A.2d 141 ; see also Dunn v. Commonwealth , 360 S.W.3d 751, 758-59 (Ky. 2012) (discussing the United States v. Dunn factors).

[¶ 14] Here, the bags at issue were found in plain view on the ground. The record does not identify any fence or other obstruction that might indicate an intent to keep the area private, and the boundaries of Sullivan's land are not identified.⁸ Nor is there evidence of any steps taken to protect the area from observation. There is evidence, however, to support the conclusion that the bags were within the curtilage of the home given their proximity to the window from which they had apparently been recently discarded and the fact that they were located toward the rear of the home within the "L" created by the addition. Because the State did not affirmatively dispute that the bags were within the curtilage, we do not disturb the court's conclusion that the bags were within the curtilage when first observed by the officers.

b. Applicability of Exceptions to the Warrant Requirement

i. The Plain View Exception

[¶ 15] We next consider whether, given their placement within the curtilage, the bags could be seized by the officers in the absence of a warrant. The pertinent exception to the warrant requirement here is the plain view exception, pursuant to which objects falling into the plain view of an officer who is legitimately in a position to...