State v. Thornton

• Decision Date: 06 December 1982
• Citation: 453 A.2d 489
• Parties: STATE of Maine v. Richard THORNTON.
• Court: Maine Supreme Court

Page 489

453 A.2d 489

STATE of Maine v. Richard THORNTON.

Supreme Judicial Court of Maine.

Argued Sept. 22, 1982.

Decided Dec. 6, 1982.

David W. Crook (orally), Dist. Atty. (orally), John Alsop, Asst. Dist. Atty., Skowhegan, Edward Morin, Law Student, for plaintiff.

Doyle, Fuller & Nelson, Donna Zeegers (orally), Augusta, for defendant.

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

CARTER, Justice.

The defendant was charged with unlawfully furnishing scheduled drugs in violation of 17-A M.R.S.A. § 1106 (1981). The defendant filed a motion to suppress the observations made and the items seized at the defendant's property by the police. After a suppression hearing in Superior Court (Somerset County), the justice granted the defendant's motion. The State appeals, pursuant to 15 M.R.S.A. § 2115-A (Supp.1979) and Rule 37B, M.R.Crim.P., the suppression order. We deny the appeal.

An unidentified informant contacted Hartland Constable Arnold Hartford. The informant stated that he had been in a wooded area off the Davis Corner Road and had seen what he thought was marijuana growing in back of a mobile home in the area. Hartford contacted State Trooper Crandall. Both officers talked to the informant, who did not want to be involved in any prosecutorial activity and who did not know who owned the property on which the marijuana was growing.

On July 31, 1981, Trooper Crandall and Constable Hartford left the Davis Corner Road and walked across the property ¹ between the mobile home and an adjacent house until they reached an overgrown woods road, used only as a footpath. The men continued up the woods road and found marijuana growing in two clearings fenced in with chicken wire. This entire area was heavily wooded, except for the two clearings for the marijuana patches; it was not possible to see the patches from the defendant's house, from his driveway, from the public road, or from neighboring land. In fact, a person would have had to search to find the way to the patches.

An old stone wall, an old barbed wire fence and No Trespassing signs exist around the perimeter of the defendant's property, including a sign where the woods road enters the defendant's property. It was, however, possible to enter the defendant's property without observing anything except the stone wall. The defendant did not let people walk routinely through his property and the officers had no consent to enter the property on July 31, 1981. Although Trooper Crandall did not observe any boundaries or signs indicating the limits of the defendant's property, Trooper Crandall "figured" the marijuana was growing on the defendant's property because Crandall had observed marijuana on defendant's property in 1980.

After determining that the plants were marijuana, the officers left the property. Trooper Crandall checked maps at the Town Office to "find out for sure" who owned the property on which the plants were growing. On August 3, 1981, Trooper Crandall filed an affidavit and obtained a warrant to search the defendant's property for marijuana. Trooper Crandall based his belief of probable cause to search on his 1980 observations of marijuana on the defendant's property, on the July 31, 1981 observations, and on the information supplied by a "reliable, cooperating citizen." When asked by the suppression court justice why a warrant had not been procured before the July 3, 1981 visit to the property, Trooper Crandall replied: "I didn't know exactly where the marijuana was. I didn't know whose property it was on, and I didn't feel without checking it that I had enough information." Later, on August 3, 1981, the officers returned to the clearings on the defendant's property and seized the marijuana.

In his order, the suppression court justice found that because the District Attorney had abandoned any effort to prove probable cause for the warrant based on the informant's testimony, sufficient probable cause for a valid warrant depended on Crandall's observations. The justice further found that because the District Attorney had conceded that Crandall's July 31 visit was a warrantless search, the central issue in the motion to suppress determination was whether the July 31 search came within an exception to the warrant requirement.

The suppression court justice concluded that the two officers had entered the defendant's property, which was posted with a number of signs prohibiting trespassing and hunting, by walking part way along the defendant's property and then crossing a stone wall, which was in a state of disrepair. The officers entered the property without license in order to corroborate the informant's tip. The secluded location, chosen by the defendant for the patches, and the defendant's efforts to exclude the public from his property evidenced the defendant's reasonable expectation of privacy on his property. Because the officers were not innocently on public property, property of unknown ownership, or neighboring property and because no other exception ² to the warrant requirement was applicable, the justice found that the officers' July 31 visit to the defendant's property was an unlawful search. After finding that the information obtained in Crandall's 1980 search was stale in 1981 and may also have been obtained during an unlawful search and that the observations made during the July 31 unlawful search could not supply probable cause, the justice ruled that the warrant issued for the August 3 search and seizure was invalid. He, therefore, suppressed evidence of observations made and items seized on the defendant's property on August 3.

On appeal, the State contends: (1) three of the suppression court justice's findings of fact are clearly erroneous; (2) the defendant could have had no reasonable expectation of privacy; and (3) the suppression justice erred in questioning and failing to apply the "open fields" doctrine. We disagree.

I. Findings of Fact

The State challenges as clearly erroneous three findings of fact by the suppression justice. Findings of fact supporting a suppression order by a Superior Court justice will not be set aside unless clearly erroneous. State v. Dunlap, 395 A.2d 821 (Me.1978). The justice found that the defendant's property was posted with signs prohibiting trespassing and hunting. The defendant's wife testified directly to the fact that such signs were posted on the defendant's property. The defense also offered in evidence a photograph of a No Trespassing sign on the defendant's property.

Second, the justice found that the two officers went partly up the defendant's driveway en route to the marijuana patches during the July 31 visit. In fact, the officers denied using that driveway. Evidence was introduced that they had used some driveway. The suppression justice was not compelled to accept the officer's testimony on the point, even if it was uncontradicted. Qualey v. Fulton, 422 A.2d 773, 775 (Me.1980). The suppression court's finding, even if erroneous, was, however, harmless error. M.R.Crim.P., Rule 52(a); State v. True, 438 A.2d 460, 467 (Me.1981) (preserved error harmless if 'appellate court believes it highly probable that the error did not affect the judgment'). Even absent this finding, there was sufficient evidence to support the justice's conclusions that the officers were not properly on property open to the public, were not on property of unknown ownership, and were not lawfully on neighboring property. This evidence included the findings that the property was posted and surrounded by a wall; that Crandall "figured" the marijuana was on the defendant's property; that Crandall had seen marijuana on the defendant's property in 1980; that Crandall wanted to check the property in order to get more information for the warrant; and that the marijuana patches could not be seen from neighboring land.

Third, the justice found that the two officers crossed a stone wall in disrepair when entering the defendant's property. The defendant's wife testified that although the stone wall was dilapidated, a person would know he was going over a wall when entering the property in the area where the officers entered the property. Trooper Crandall's testimony that he did not see any fences or boundaries did not compel rejection by the suppression justice of the testimony of the defendant's wife. The finding of the justice was not clearly erroneous. State v. McKenzie, 161 Me. 123, 134-35, 210 A.2d 24, 31 (1965) (clearly erroneous test is that " 'due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses' ").

II. Reasonable Expectation of Privacy

The suppression court justice found that the defendant's effort to conceal the patches and to exclude the public from his land evidenced a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The officers' warrantless search was, therefore, an unreasonable invasion of the defendant's privacy. State v. Blais, 416 A.2d 1253, 1256 (Me.1980). This violation of the defendant's fourth amendment rights also tainted the subsequent warrant and search. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The State relies on Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); State v. Peakes, 440 A.2d 350 (Me.1982); and State v. Dow, 392 A.2d 532 (Me.1978) and argues that the defendant could not have a reasonable expectation of privacy in an area accessible to the public because fourth amendment protection does not extend to "open fields" and similar areas. The State concludes, therefore, that there was no search by the officers on July 31, ³ Peakes 440 A.2d at 353; that they observed only what was "open and patent," State v. Poulin, 268 A.2d 475, 480 (Me.1970), and that these observations provided the basis for a valid search warrant used on August 3.

The State misconstrues these...