State v. Bailey

2012 ME 55, 41 A.3d 535, 2012 Me. 55, 2012 WL 1227710, 2012 Me. LEXIS 55
CourtSupreme Judicial Court of Maine
DecidedApril 12, 2012
DocketPen-11-16
StatusPublished
Cited by29 cases

This text of 2012 ME 55 (State v. Bailey) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bailey, 2012 ME 55, 41 A.3d 535, 2012 Me. 55, 2012 WL 1227710, 2012 Me. LEXIS 55 (Me. 2012).

Opinions

JABAR, J.

[¶ 1] Jack D. Bailey II appeals from a judgment of conviction of ten counts of gross sexual assault (Class A), 17-A M.R.S. § 253(1)(B) (2011); 17-A M.R.S.A. § 253(1)(B) (Supp.2003),1 and two counts of unlawful sexual contact (Class C), 17-A M.R.S. § 255-A(l)(E) (2011); 17-A M.R.S.A. § 255(1)(C) (Supp.2002),2 entered in the Superior Court (Penobscot County, Anderson, J.). Bailey argues that the court erred in denying his motion to suppress live-witness testimony because the testimony should have been suppressed as “fruit of the poisonous tree” in violation of the Fourth Amendment of the United States Constitution and article I, section 5 of the Maine Constitution. The State contends that the court erred in granting Bailey’s motion to suppress evidence discovered during a police search of Bailey’s residence. Finding no error, we affirm the judgment.

[537]*537I. BACKGROUND

[¶ 2] On November 26, 2008, the Superior Court denied Bailey’s motion to suppress with respect to Detective Brent Beaulieu’s search of Bailey’s home computer. In State v. Bailey, 2010 ME 15, ¶ 30, 989 A.2d 716 (Bailey I), we vacated the court’s judgment and remanded the case back to the court for a hearing to determine whether the physical evidence gathered from Bailey’s home immediately after the computer search and the testimony of the witnesses identified from that evidence should be suppressed. On remand, the court granted Bailey’s motion to suppress with respect to the physical evidence seized from Bailey’s home after the illegal computer search, but denied his motion to suppress with respect to the testimony of the witnesses identified as a result of the search. Bailey then entered into a conditional guilty plea on all twelve counts and was sentenced to twenty years imprisonment, with all but eight years suspended, and six years of probation. Bailey is also required to comply with the Sex Offender Registration and Notification Act, 34-A M.R.S. §§ 11201-11256 (2011), as a lifetime registrant.

[¶ 3] We view the record in a light most favorable to support the court’s order on the motion to suppress, and find that the record supports the following facts. See Bailey I, 2010 ME 15, ¶ 3, 989 A.2d 716. The initial illegal computer search was conducted after Detective Beaulieu investigated a residence in Bangor for child pornography shared on the Internet. After determining that the residence’s computer did not access or share any child pornography, Detective Beaulieu began to canvass the neighborhood in an attempt to determine whether a neighbor was accessing the residence’s unsecured wireless router. During the canvass, Detective Beaulieu obtained permission to enter Bailey’s apartment, conducted a search of Bailey’s computer, and discovered thumbnails depicting videos of child pornography. In Bailey I we concluded that this search of Bailey’s home computer exceeded the scope of Bailey’s consent. 2010 ME 15, ¶¶ 27-28, 989 A.2d 716.

[¶ 4] After discovering the videos on Bailey’s computer, Detective Beaulieu spoke with Bailey for a few minutes about the situation,3 and then called another detective and requested that she deliver a written consent form to Bailey’s apartment. Before receiving the written consent form, but after obtaining Bailey’s verbal consent, Detective Beaulieu began to search the apartment. When the officer arrived with the written consent form Detective Beaulieu reviewed its contents with Bailey. Bailey then signed the written consent form, which informed him that he could refuse to give consent and require the police officers to obtain a warrant, that he could consult with someone else before giving consent, and that anything found during the search was subject to seizure.

[¶ 5] Bailey was unrestrained and free to move around the apartment during the entirety of the search. In conducting the search, and after Bailey signed the written consent form, Detective Beaulieu discovered seven eight-millimeter videotapes in Bailey’s bureau. Detective Beaulieu asked Bailey if he could take the videotapes, and Bailey responded affirmatively.

[¶ 6] Detective Beaulieu reviewed the videotapes several days after obtaining them. Most of the videotapes displayed a scene indicating that what was previously recorded on the videotapes had been taped over. However, one videotape “depicted [538]*538sexual displays and inappropriate activity involving two young girls.” Detective Beaulieu cropped headshots of the two girls in the videotape and showed the headshots to Bailey’s daughter. His daughter immediately recognized and identified the two victims.

[¶ 7] Detective Beaulieu obtained permission from the first victim’s mother to speak with her about possible abuse and proceeded to speak with her for about forty minutes. Detective Beaulieu asked her if she knew Bailey’s daughter, and she answered that she had spent the night at Bailey’s house in the past. Detective Beaulieu asked her if there was anything that happened at the Bailey residence that she would consider inappropriate; she answered the question affirmatively, and told Detective Beaulieu about some “acts” that the second victim had disclosed to her. Detective Beaulieu “did not indicate anything about the videotape,” but showed the first victim the headshot, and she confirmed that the picture was of her.

[¶ 8] Detective Beaulieu next contacted the second victim and interviewed her for about forty minutes as well. She confirmed that she also frequently spent the night at the Bailey household. When told that Detective Beaulieu was investigating “improper conduct” at Bailey’s house, she was visibly shaken and began to cry. She told Detective Beaulieu “that Mr. Bailey had engaged in various forms of sexual activity with her and had done similar things to [the first victim].” Detective Beaulieu interviewed the first victim again based on the information he received from the second victim, and the first victim confirmed that Bailey had also engaged in sexual activity with her.

[¶ 9] The videotape is date-stamped July 27, 2004. Both victims were under the age of fourteen at the time of the alleged acts.

[¶ 10] At the second suppression hearing, both girls testified that no one forced them to testify, and that they were not coerced into answering Detective Beau-lieu’s questions when he interviewed them. Neither girl reported the incidents before Detective Beaulieu spoke with them, and the second victim testified that she might not have come forward if Detective Beau-lieu had not contacted her, but stated that he helped give her the courage to come forward and talk about the incidents. The only pressure Detective Beaulieu applied was telling the girls that it was important to cooperate, but he also told both girls that they did not have to testify if they did not want to.

[¶ 11] After holding the hearing on the motion, the court issued an order granting the motion to suppress the videotape and denying the motion to suppress the testimony of the two victims. Specifically, the court applied the factors identified in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), and concluded that “Bailey’s consent to search his apartment was not voluntary,” and that “his consent manifested a submission to authority created by the prior illegality.” However, after applying the factors relevant to live-witness testimony identified in United States v. Ceccolini,

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Cite This Page — Counsel Stack

Bluebook (online)
2012 ME 55, 41 A.3d 535, 2012 Me. 55, 2012 WL 1227710, 2012 Me. LEXIS 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bailey-me-2012.