MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2024 ME 29 Docket: Ken-23-12 Argued: October 5, 2023 Decided: April 18, 2024
Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.*
STATE OF MAINE
v.
ROGER OUELLETTE
STANFILL, C.J.
[¶1] Roger Ouellette appeals from a judgment of conviction of OUI
entered in the trial court (Kennebec County, Cashman, J.) upon a conditional
guilty plea. Ouellette entered the plea after the court (Stokes, J.) denied his
motion to suppress evidence the police obtained after stopping him in his
driveway. On appeal, Ouellette raises an argument he did not present to the
suppression court: that the stop was an unreasonable seizure under the
Fourth Amendment to the United States Constitution because it occurred
within the curtilage of his home without a warrant and without any applicable
exception to the warrant requirement. We affirm the judgment because we
conclude that the court’s failure to grant Ouellette’s motion on that ground did
* Although Justice Jabar participated in this appeal, he retired before this opinion was certified. 2
not constitute obvious error and because the court did not err in determining
that the stop was otherwise justified.
I. BACKGROUND
[¶2] The suppression court found the following facts, which are
supported by competent evidence in the record and which we view in the light
most favorable to the court’s decision. See State v. McNaughton, 2017 ME 173,
¶¶ 10, 28, 168 A.3d 807; State v. Connor, 2009 ME 91, ¶ 9, 977 A.2d 1003.
During the evening of February 1, 2020, a police officer was patrolling
Route 126 in Litchfield, looking for impaired drivers coming from a local
restaurant that he had heard was overserving alcohol. As the officer was
heading west toward the restaurant, he observed a vehicle driving east toward
him. The vehicle crossed over the center yellow double line and traveled
partially in the officer’s lane, enough so that the officer needed to move over in
his lane to pass the vehicle safely. The officer considered that the driver’s
operation was a violation of 29-A M.R.S. § 2051(1) (2023).
[¶3] The officer continued driving west until he lost sight of the vehicle’s
lights and then turned his cruiser around. After heading east for a short
distance, he regained sight of the vehicle and saw that it was parked, with its
lights still on, near a building that looked like a residence. The officer pulled 3
over and watched the vehicle for a few minutes to see if it would move. He then
continued driving east, past the vehicle, and pulled over at a side road and
waited again. After about ten minutes, he drove west past the vehicle again,
which was still parked with its lights on, and then turned around, parked, and
continued to watch.
[¶4] At some point, the officer saw the vehicle drive quickly across
Route 126 onto an icy “camp road” that was directly across from where the
vehicle had been parked. The officer followed the vehicle onto that road, and
he thought that it was driving faster than he would have expected, given the
conditions. He saw the vehicle turn into a driveway, and he then saw the
driver’s side door open and the driver, Ouellette, get out and slip on the icy
surface. He pulled into the driveway behind Ouellette’s vehicle, activated his
cruiser’s blue emergency lights, and then “approached [Ouellette] in the
driveway and questioned him.”
[¶5] Based on evidence obtained as a result of the stop, the State charged
Ouellette by complaint with OUI (Class D), 29-A M.R.S. § 2411(1-A)(A),
(5)(A)(3)(a)(i) (2023). After pleading not guilty, Ouellette filed a motion to
suppress evidence, arguing only that the officer lacked reasonable articulable
suspicion of wrongdoing sufficient to justify the stop under the United States 4
and Maine Constitutions. See State v. Sylvain, 2003 ME 5, ¶ 11, 814 A.2d 984
(describing the objectively reasonable articulable suspicion that must exist to
justify a brief, warrantless, investigatory vehicle stop).
[¶6] The court held an evidentiary hearing on Ouellette’s motion. During
the hearing, the parties and the court discussed, at some length, the legal basis
for Ouellette’s motion. Ouellette ultimately stated that his argument was
“twofold”: “the lack of [reasonable articulable suspicion], but it’s also a lack of
probable cause for . . . this seizure . . . [, which] turns into a de facto arrest with
. . . how the conversation unfolds.” The parties did not present oral closing
arguments; instead, they agreed to submit written memoranda after the
hearing.
[¶7] In his memorandum, Ouellette first argued that the officer lacked
reasonable articulable suspicion of either OUI or a traffic violation to support
the stop. He then argued that the stop was not one that could be justified absent
reasonable articulable suspicion because the severity of the officer’s
“interference with [his] liberty interests” outweighed the “gravity of the public
interest served by the investigatory stop.” In making this second argument,
Ouellette cited a line of cases in which we and the United States Supreme Court
have held that “that even in the absence of reasonable articulable suspicion, a 5
seizure for information-seeking purposes” may still be reasonable for
Fourth Amendment purposes. State v. LaPlante, 2011 ME 85, ¶ 8, 26 A.3d 337
(emphasis added); see State v. Whitney, 2012 ME 105, ¶ 10, 54 A.3d 1284
(“[S]pecial law enforcement concerns will sometimes justify highway stops
without individualized suspicion.” (quoting Illinois v. Lidster, 540 U.S. 419, 424
(2004))); Lidster, 540 U.S. at 424-27. Ouellette did not argue at any time in the
trial court that the seizure was unlawful even if it was supported by reasonable
articulable suspicion or probable cause because it had occurred within the
curtilage of his home without a warrant or an exception to the warrant
requirement.
[¶8] The court denied Ouellette’s motion in a written order. The court
concluded that no constitutional violation had occurred because the stop was
supported by reasonable articulable suspicion that Ouellette had violated the
motor vehicle statute requiring vehicles to be “operated as nearly as practical
entirely within a single lane” on a divided, two-lane public way, 29-A M.R.S. §
2051(1). Addressing Ouellette’s second argument, the court determined that it
therefore did not need to examine whether the stop would have been justified
even absent reasonable articulable suspicion of any wrongdoing. The court did
not make findings relevant to whether the stop was within the curtilage of the 6
home or to any exceptions to the warrant requirement, and Ouellette did not
move for further findings. Cf. M.R.U. Crim. P. 41A(d); State v. Sasso, 2016 ME 95,
¶¶ 18-19, 143 A.3d 124.
[¶9] Ouellette entered a conditional plea of guilty, and the court
(Cashman, J.) entered a judgment of conviction and imposed a sentence (stayed
pending appeal) of twenty days in jail, a $500 fine, and a license suspension.
Ouellette appeals. See M.R.U. Crim. P. 11(a)(2); 15 M.R.S. § 2115 (2023).
II. DISCUSSION
[¶10] Before us, Ouellette argues that the officer’s seizure of him was
unlawful under the Fourth Amendment to the United States Constitution
because it took place in an area that was part of his home’s curtilage without a
warrant and that no exception to the warrant requirement applied.1 The State
argues that Ouellette’s argument is unpreserved, that the trial court’s failure to
grant Ouellette’s motion on these grounds did not amount to obvious error, and
that the court correctly concluded that the stop was supported by reasonable
articulable suspicion.
1Ouellette relies on only the Fourth Amendment; he has not developed a specific argument that the Maine Constitution requires suppression of the evidence in this case. See State v. Wai Chan, 2020 ME 91, ¶ 18 n.10, 236 A.3d 471. 7
A. Standards of Review
[¶11] “We will uphold the court’s denial of a motion to suppress if any
reasonable view of the evidence supports the trial court’s decision.” State v.
Wai Chan, 2020 ME 91, ¶ 13, 236 A.3d 471 (quotation marks omitted).
Generally, “we review the trial court’s factual findings for clear error and its
legal conclusions de novo.” Id. Absent a motion for further findings, we assume
the court found the facts necessary to support its judgment as long as the record
contains evidence that would support those assumed findings. Sasso, 2016 ME
95, ¶ 19, 143 A.3d 124; see State v. Cefalo, 396 A.2d 233, 239 n.12 (Me. 1979);
M.R.U. Crim. P. 41A(d).
[¶12] “An issue is preserved for appellate review if there is a sufficient
basis in the record to alert the trial court and the opposing party to the
existence of the issue.” State v. Reeves, 2022 ME 10, ¶ 35, 268 A.3d 281. “[T]he
suppression movant must articulate in his motion with sufficient particularity
the specific reason on which he bases his claim that the seizure without warrant
was illegal, so that the court will recognize the issue to be decided.”2 State v.
Desjardins, 401 A.2d 165, 169 (Me. 1979); see M.R.U. Crim. P. 41A(a), (c). Issues
that are unpreserved for appeal are reviewed only for obvious error, State v.
2 Ouellette acknowledges that his preservation-related “task” was, in his words, “to alert the State
to the factual record it might need to create to rebut a suppression argument.” 8
True, 2017 ME 2, ¶ 15 & n.6, 153 A.3d 106; see M.R.U. Crim. P. 52(b), which is
an error that “is plain, affected substantial rights, and seriously affected the
fairness and integrity or public reputation of judicial proceedings,” Reeves,
2022 ME 10, ¶ 37, 268 A.3d 281 (alterations and quotation marks omitted). “An
error cannot be plain unless the error is so clear under current law that the trial
judge and prosecutor were derelict in countenancing it.” Id. (alteration and
quotation marks omitted).
B. Curtilage
1. Preservation
[¶13] As we have discussed, the central argument that Ouellette raises
on appeal is that he was seized within the curtilage of his home, an area
afforded special protection under the Fourth Amendment, and that therefore a
warrant supported by probable cause (or an exception to the warrant
requirement) was required for the intrusion to be lawful. Ouellette did not
discuss any of the critical components of this argument at any time in the trial
court, nor did he move for further findings. The trial court was therefore never
asked to make findings relevant to the issues Ouellette now contends are
dispositive—for example, findings relevant to determining whether the seizure
occurred within the home’s curtilage or to whether exigent circumstances or 9
some other exception to the warrant requirement existed. See, e.g., State v.
Boyington, 1998 ME 163, ¶ 7, 714 A.2d 141 (discussing the factors relevant to
the highly fact-specific determination of whether an area constitutes part of a
home’s curtilage); State v. Arndt, 2016 ME 31, ¶¶ 2-3, 9-11, 133 A.3d 587
(affirming a suppression court’s determination that exigent circumstances
existed based on the specific facts of the case, as described in the suppression
court’s findings).
[¶14] We cannot agree with Ouellette’s contention that the second
argument presented to the suppression court in his post-hearing brief
preserved the argument he raises on appeal. He argued to the suppression
court that this case did not belong in the category of factual scenarios in which
a warrantless, information-seeking stop is permissible even absent reasonable
articulable suspicion of wrongdoing or a safety threat. See, e.g., Whitney, 2012
ME 105, ¶ 10, 54 A.3d 1284. Having concluded that the officer did have
reasonable articulable suspicion justifying the stop, the court explained that
there was no reason to address whether the stop could have been permissible
even absent that suspicion. Raising that argument did nothing to alert the State
or the court of the existence of the issue the Ouellette raises now: that the
seizure occurred within the curtilage of Ouellette’s home and was therefore 10
unconstitutional based on the special privacy protections afforded to the home
and its curtilage. See, e.g., Reeves, 2022 ME 10, ¶¶ 35-36, 268 A.3d 281. The
argument raised on appeal is unpreserved, and we therefore review it for
obvious error.3 See True, 2017 ME 2, ¶ 15 & n.6, 153 A.3d 106; M.R.U. Crim. P.
52(b); see also, e.g., United States v. Lewis, 62 F.4th 733, 741 n.1 (2d Cir. 2023);
State v. Eklund, 2000 ME 175, ¶ 7 n.2, 760 A.2d 622; State v. Cumming, 634 A.2d
953, 956 (Me. 1993); State v. Herbest, 551 A.2d 442, 444 (Me. 1988); State v.
Clark, 483 A.2d 1221, 1224 n.1, 1226 (Me. 1984); State v. Beathem, 482 A.2d
860, 862 (Me. 1984); Desjardins, 401 A.2d at 169.
2. Merits
[¶15] “It is beyond question that a person’s home, and the rights of an
individual within that home, have a special place in our jurisprudence.” State v.
Boilard, 488 A.2d 1380, 1388 (Me. 1985). “[T]he ultimate touchstone of the
Fourth Amendment is reasonableness,” and “searches and seizures inside a
home without a warrant are presumptively unreasonable.” State v. Akers,
We agree with Ouellette that his failure to preserve the issue did not constitute an affirmative 3
waiver and therefore his argument is subject to appellate review. See, e.g., State v. True, 2017 ME 2, ¶ 15, 153 A.3d 106 (“[W]hen fundamental constitutional rights are at stake, every reasonable presumption is made against a finding of waiver.” (quotation marks omitted)); cf. State v. Ford, 2013 ME 96, ¶ 15, 82 A.3d 75 (explaining that “obvious error review is precluded when a defendant expressly waives a jury instruction” (quotation marks omitted)). This case is unlike State v. Wilcox, 2023 ME 10, ¶ 9 n.4, 288 A.3d 1200, in which the appellant advanced a position on appeal that was directly contrary to the position taken before the trial court. 11
2021 ME 43, ¶ 26, 259 A.3d 127 (quotation marks omitted). “The curtilage—
that is, the ‘area adjacent to the home and to which the activity of home life
extends’—is considered part of a person’s home and enjoys the same
protection against unreasonable searches as the home itself.” United States v.
Alexander, 888 F.3d 628, 631 (2d Cir. 2018) (quoting Florida v. Jardines,
569 U.S. 1, 7 (2013)); see State v. Trusiani, 2004 ME 107, ¶ 10, 854 A.2d 860
(“[T]he Fourth Amendment protects the curtilage of a house from unreasonable
searches and seizures.”). Therefore, a search or seizure within the curtilage
“that occurs without a warrant based on probable cause or an exception to the
warrant requirement violates the Fourth Amendment.” Alexander, 888 F.3d at
631. “By contrast, that portion of private property that extends outside a
home’s curtilage—what the caselaw terms an open field—is beyond the
purview of the Fourth Amendment, and can be warrantlessly and
suspicionlessly searched without constitutional impediment.” Id. (quotation
marks omitted); see Boyington, 1998 ME 163, ¶ 6, 714 A.2d 141 (“[O]ne’s claim
of protection under the Fourth Amendment depends not upon a property right
in the invaded place . . . but rather upon whether the person has a legitimate
expectation of privacy in the invaded place.” (alteration and quotation marks
omitted)). 12
[¶16] Here, a seizure within the meaning of the Fourth Amendment
undeniably occurred when the officer activated his cruiser’s emergency lights
and detained Ouellette to question him.4 See State v. Wilcox, 2023 ME 10, ¶ 11,
288 A.3d 1200. Therefore, the next question in our analysis is whether the
seizure occurred within the curtilage of Ouellette’s home.
[¶17] Before us, Ouellette bases his argument on the assumption that a
driveway is always within the curtilage of the home. To the contrary, “the reach
of the curtilage of a home depends on the facts of each case.” Boyington, 1998
ME 163, ¶ 7, 714 A.2d 141 (quotation marks omitted); see United States v.
May-Shaw, 955 F.3d 563, 570-71 (6th Cir. 2020) (“[E]very curtilage
determination is distinctive and stands or falls on its own unique set of facts.”
(quotation marks omitted)); Commonwealth v. Wittey, 210 N.E.3d 355, 370
(Mass. 2023) (“Applying the [relevant legal anlysis] to a driveway may yield
different results based on the circumstances present in each case.”). Relying on
United States v. Dunn, 480 U.S. 294, 301 (1987), we have outlined four factors
4 The State does not contend otherwise. Its argument that no warrant or exception was required
because administering field sobriety tests does not constitute a search or an arrest for Fourth Amendment purposes is misplaced in this context—an investigatory stop constitutes a seizure, United States v. Arvizu, 534 U.S. 266, 273 (2002), and the warrant requirement applies to seizures within the home or curtilage, see United States v. Perea-Rey, 680 F.3d 1179, 1188–89 (9th Cir. 2012); cf. Arizona v. Hicks, 480 U.S. 321, 326-29 (1987). 13
that are relevant to determining whether an area constitutes part of a home’s
curtilage:
(1) [the] proximity of [the] area claimed to be curtilage to the home; (2) whether [the] area claimed to be curtilage is included within an enclosure surrounding the home; (3) [the] nature of the uses to which the area is put; and (4) [the] steps taken by the resident to protect the area from observation by people passing by.
Boyington, 1998 ME 163, ¶ 7, 714 A.2d 141 (quotation marks omitted).
[¶18] Ordinarily, on appeal, a trial court’s factual findings relevant to a
determination regarding curtilage are reviewed for clear error, and its
application of legal standards to those findings is reviewed de novo. Trusiani,
2004 ME 107, ¶ 9, 854 A.2d 860; see State v. Reynoso-Hernandez, 2003 ME 19,
¶¶ 10-12, 816 A.2d 826; Ornelas v. United States, 517 U.S. 690, 696-99 (1996).
Here, our ability to conduct that review is impeded because the trial court did
not analyze the issue, not having been asked to, and did not (intentionally or
incidentally) make the relevant findings of historical fact. Moreover, Ouellette
has not presented a developed, case-specific analysis of the curtilage issue in
his brief; rather, his arguments proceed from the assumption that the seizure
occurred within the curtilage of his home. We are not at liberty to make the
relevant factual findings on our own. Harvey v. Dow, 2011 ME 4, ¶ 8, 11 A.3d
303 (“It is not our place, as an appellate court, to make findings of fact.”). 14
[¶19] Upon reviewing the entire suppression record, we cannot conclude
that it was plain error for the trial court to fail to determine, sua sponte, that
the investigatory stop in the driveway occurred in a place “so intimately tied to
the home itself that it should be placed under the home’s umbrella of
Fourth Amendment protection,” Dunn, 480 U.S. at 301 (quotation marks
omitted), or in a place that “harbors the intimate activities associated with the
sanctity of a home and the privacies of life,” Boyington, 1998 ME 163, ¶ 8, 714
A.2d 141 (quotation marks omitted). See Reeves, 2022 ME 10, ¶ 37, 268 A.3d
281 (describing the nature of plain error); Lewis, 62 F.4th at 741 n.1 (reviewing
an unpreserved curtilage argument for plain error and noting that “a curtilage
analysis is fact-specific and often requires the defendant to bring forward facts
establishing that his or her curtilage extended to a given area—a record that
[the defendant] failed to develop”); see also United States v. Vasquez,
No. 22-1294, 2024 WL 34132, at *2-3 (10th Cir. Jan. 3, 2024) (concluding, based
on the particular facts of the case, that a driveway was not curtilage);
United States v. Stephen, 823 F. App’x 751, 754-55 (11th Cir. 2020) (same);
Wittey, 210 N.E.3d at 369-74 (providing a comprehensive curtilage analysis,
concluding that the driveway at issue was not curtilage, and collecting cases
and determining that the “majority of Federal circuit cases discussing a 15
driveway curtilage question have found that the area at issue was not part of
the curtilage of the home”). We conclude that it was not obvious error for the
trial court not to grant Ouellette’s motion to suppress based on a curtilage
argument that was neither made nor developed.
C. Reasonable Articulable Suspicion
[¶20] The remaining question is whether the officer otherwise had a
basis sufficient under the Fourth Amendment to stop Ouellette. See, e.g., State v.
Barclift, 2022 ME 50, ¶ 8, 282 A.3d 607. We agree with the State that the trial
court did not err when it determined that the stop was justified. “In order to
support a brief investigatory stop of a motor vehicle, . . . a police officer must
have an objectively reasonable, articulable suspicion that either criminal
conduct, a civil violation, or a threat to public safety has occurred, is occurring,
or is about to occur. The officer’s suspicion that any of these circumstances
exist must be objectively reasonable in the totality of the circumstances.”
Sylvain, 2003 ME 5, ¶ 11, 814 A.2d 984 (footnote and quotation marks omitted).
[¶21] Title 29-A M.R.S. § 2051(1) provides that “[w]hen a public way has
been divided into 2 or more clearly marked lanes for traffic, . . . [a] vehicle must
be operated as nearly as practical entirely within a single lane.” The court
found, with support from the evidentiary record, that the officer had witnessed 16
Ouellette cross the center line and travel partially in the lane of oncoming traffic
such that the officer had to move to the side to pass by Ouellette’s vehicle safely.
This observation was sufficient to generate an objectively reasonable suspicion
that a civil violation or a threat to public safety had occurred.5 See id.; Sylvain,
2003 ME 5, ¶ 11, 814 A.2d 984; State v. Pinkham, 565 A.2d 318, 319 (Me. 1989)
(“Safety reasons alone can be sufficient if they are based upon specific and
articulable facts.” (quotation marks omitted)).
The entry is:
Judgment affirmed.
Jamesa J. Drake, Esq. (orally), Drake Law LLC, Auburn, for appellant Roger Ouellette
Jacob Demosthenes, Asst. Dist. Atty. (orally), Prosecutorial District IV, Augusta, for appellee State of Maine
Kennebec County Unified Criminal Docket docket number CR-2020-1445 FOR CLERK REFERENCE ONLY
5 Before the trial court, Ouellette relied on State v. Caron, in which we concluded that “[a] vehicle’s
brief, one time straddling of the center line of an undivided highway is a common occurrence and, in the absence of oncoming or passing traffic, without erratic operation or other unusual circumstances, does not justify an intrusive stop by a police officer.” 534 A.2d 978, 979 (Me. 1987). The trial court did not err in distinguishing Caron on the grounds that the circumstances in Caron, unlike in this case, involved “no oncoming traffic in sight” and no “violation of any traffic law.” Id.