State v. Ullring

• Decision Date: 15 December 1999
• Citation: 741 A.2d 1065,1999 ME 183
• Court: Maine Supreme Court
• Parties: STATE of Maine v. David G. ULLRING.

741 A.2d 1065

1999 ME 183

STATE of Maine v. David G. ULLRING.

Supreme Judicial Court of Maine.

Argued October 4, 1999.

Decided December 15, 1999.

Norman E. Croteau, District Attorney, David W. Fisher, Asst. Atty. General (orally), Auburn, for State.

Walter Hanstein III (orally), Joyce, Dumas, David & Hanstein, P.A., Farmington, for defendant.

Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

CALKINS, J.

[¶ 1] David Ullring appeals from the judgment of conviction for trafficking in marijuana entered in the Superior Court (Franklin County, Warren, J.). Ullring contends that it was error for the court (Marden, J.) to deny his motion to suppress. He also argues that the evidence at trial did not support a verdict of guilt beyond a reasonable doubt. We affirm the conviction.

[¶ 2] On December 5, 1997 Ullring's home was searched, pursuant to a search warrant, by six law enforcement officers, most of whom were agents of the Maine Drug Enforcement Administration (MDEA). Ullring was not home when the search was conducted. The officers found approximately thirteen ounces of marijuana, a triple beam scale and plastic sandwich bags. Ullring was arrested five days later and taken to the Franklin County jail where he was released after posting $400 bail and signing a bail bond. A condition of his bail required him to submit to random searches of his person, residence, and vehicle.

[¶ 3] On January 14, 1998, an MDEA agent returned to Ullring's home to conduct a search. The agent did not have a warrant and had no evidence of any wrongdoing on the part of Ullring. The agent based his search on the authority created by Ullring's bail condition. This search revealed that Ullring was in possession of four bags of marijuana, each containing one-eighth of an ounce, and $421 in cash. Ullring was arrested and appeared in court that same day. This was his first court appearance since his initial arrest on December 10.

[¶ 4] Ullring was indicted by the Franklin County grand jury on January 28, 1998 on two counts of trafficking in marijuana in violation of 17-A M.R.S.A. § 1103 (Supp.1999) (Class D). The first count was alleged to have occurred on December 5, 1997 and the second count on January 14, 1998. He was also indicted on one count of violation of bail conditions, 15 M.R.S.A. § 1092 (Supp.1999) (Class E). Prior to trial, Ullring filed a motion to suppress the evidence gathered from the second search of his home, and a motion to sever the charges arising from the January 14 search from the charge stemming from the December 5 search. The court denied both motions.

[¶ 5] Ullring was tried on all three of the charges. The jury returned a verdict of guilty on the offense of trafficking occurring on December 5,¹ and not guilty on both of the January 14 offenses.

[¶ 6] Even though Ullring was acquitted on both charges stemming from the search of his home on January 14, 1998, we must address the appeal of the denial of his suppression motion because the January 14 charges were tried together with the December 5 charge. If we were to conclude that the evidence from the January 14 search should have been excluded because the search violated Ullring's constitutional rights, we would have to determine whether the unconstitutionally obtained evidence was harmless beyond a reasonable doubt. See State v. Hassapelis, 620 A.2d 288, 291 n. 4 (Me.1993). Because that evidence consisted of small bags of marijuana and cash in Ullring's possession, it is unlikely that we would be able to conclude, beyond a reasonable doubt, that the verdict was unaffected by that evidence.

I. LEGALITY OF THE JANUARY 14 SEARCH

[¶ 7] Ullring's motion to suppress the evidence obtained from the January 14 search of his home and his person was submitted to the court on a written stipulation of facts. The parties agree that Ullring was held in custody after his arrest on December 10, 1997 until he signed the bail bond. The bail bond is on a printed form. Immediately after the printed words "Additional conditions which I agree to obey are:" appear the following in handwriting: "No use or poss. of illegal drugs — no use + poss. firearms or other dangerous weapons — Must submit to random search and/or testing of person, residence and/or vehicle." Both Ullring and the bail commissioner signed the bail bond. The parties stipulate that the only basis for the search of Ullring and his residence on January 14 was the bail condition and that the MDEA agent had no evidence of any wrongdoing by Ullring.

[¶ 8] We review the legal conclusions of the court on a motion to suppress de novo, although we review historical facts found by the court deferentially. See State v. Storey, 1998 ME 161, ¶ 8, 713 A.2d 331, 333. Here there was no testimonial hearing on the motion to suppress. The facts were agreed upon, and no additional facts were found by the court. There are no factual findings to be reviewed, and we review the legal conclusions de novo.

A. Consent to Search

[¶ 9] The State argues that the January 14 search was pursuant to the consent of Ullring and that his consent was manifested by the bail bond and, in particular, his agreement to abide by the condition of random searches. Ullring argues that the bail condition is illegal because it is not authorized by statute and unconstitutional because it violates his rights under the Fourth Amendment of the United States Constitution.

[¶ 10] When the State relies upon consent as the justification for the lawfulness of a warrantless search, the State has the burden of proving that the consent was voluntary. See Schneckloth v. Bustamonte, 412 U.S. 218, 222, 248, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The State was required to prove by a preponderance of the evidence that Ullring objectively manifested his consent by word or gesture. See State v. Cress, 576 A.2d 1366, 1367 (Me.1990). A voluntary consent is one that is not the result of duress or coercion, express or implied, and that is, in fact, voluntarily given. See Schneckloth.412 U.S. at 248,93 S.Ct. 2041. Whether a consent is voluntary is to be determined from all the circumstances. Id. at 248-49, 93 S.Ct. 2041. In this case there are few facts bearing on the voluntariness of the consent: (1) the bail bond was signed by Ullring and in it he stated that he agreed to obey the random search condition; and (2) he was in custody when he signed the bond on December 10.

[¶ 11] Ullring suggests that a defendant who is in custody and who is required to sign a bail bond with conditions before being released is signing the bond under coercion. The mere fact that Ullring was in custody at the time the consent was given does not demonstrate that the consent was coerced. See United States v. Watson, 423 U.S. 411, 424-25, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (holding that warrantless search of defendant's vehicle was legal because defendant's consent was voluntary even through he was in police custody at the time of giving consent). Ullring's written statement that he agreed to the conditions raises an inference that he was voluntarily agreeing to the conditions.² As the California Supreme Court said: "Although it may be true that a defendant who is faced with the choice of agreeing to the challenged conditions or remaining incarcerated has a considerable incentive to agree to the conditions, that circumstance, alone, does not render the consent coerced or involuntary." In re York, 9 Cal.4th 1133, 40 Cal.Rptr.2d 308, 892 P.2d 804, 814 (1995).

[¶ 12] We conclude that Ullring's signature on the bail bond is a sufficient manifestation of his voluntary consent to the January 14 search provided that the condition itself is legal. Ullring argues that there was no consent to search because the bail commissioner had no authority to impose the bail condition and the bail condition itself violated Ullring's Fourth Amendment rights. We agree that if the bail condition is unauthorized or unconstitutional, it cannot form the basis for the consent.

B. Bail Condition Authorized by Statute

[¶ 13] We next examine whether the bail condition requiring Ullring to submit to random searches of his residence and person is permitted by the Maine Bail Code, 15 M.R.S.A. §§ 1001-1104 (Supp. 1999). The legislative findings and statement of purpose for the bail code are as follows:

It is the purpose and intent of this chapter that bail be set for a defendant in order to reasonably ensure the appearance of the defendant as required, to otherwise reasonably ensure the integrity of the judicial process and, when applicable, to reasonably ensure the safety of others in the community. It is also the purpose and intent of this chapter that the judicial officer consider, relative to crimes bailable as of right preconviction, the least restrictive release alternative that will reasonably ensure the attendance of the defendant as required, or otherwise reasonably ensure the integrity of the judicial process. Finally, it is also the intent and purpose of this chapter that a defendant, while at liberty on bail, refrain from committing new crimes.

Id. at § 1002. Although the statement of purpose gives four purposes, only two are listed in the preconviction bail section: (1) ensure the appearance of the defendant; and (2) ensure the integrity of the judicial process. See § 1026. The setting of postconviction bail, however, requires a judge to consider the other two purposes; that is, to ensure the safety of others in the community and to keep a defendant from committing new crimes while at liberty on bail. See § 1051(2). [¶ 14] The bail code authorizes judicial officers to impose conditions on the preconviction release of persons on bail. See 15 M.R.S.A. § 1026(1)(C).

If the judicial officer determines that the release . . . will not reasonably ensure the appearance of the defendant as required or will not otherwise reasonably ensure the integrity of the judicial process, the

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