State v. Patten

457 A.2d 806, 1983 Me. LEXIS 633

• Court: Supreme Judicial Court of Maine
• Decided: March 8, 1983
• Status: Published

Opinions

McKUSICK, Chief Justice.

This appeal by the State from a pretrial suppression order, which was previously denied by this court in State v. Patten, 436 A.2d 387 (Me.1981) (Patten I), is back to us on remand from the Supreme Court of the United States for reconsideration in light of United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). By Ross it is now clear that the police officers did not violate the fourth amendment to the federal constitution by searching the brown paper bag that they came upon in connection with their permissible warrantless search of Patten’s automobile. Since the Superior Court entered, and the Law Court affirmed, the suppression order on the basis of a view of federal constitutional law now shown by Ross to be erroneous, we reverse that order.

I.

On November 27, 1979, around 8:00 p.m., Deputy Carl McHatten of the Aroostook County Sheriff’s Department received a telephone call from an informant. The informant identified himself to McHatten and stated that Michael Patten, now the defendant in this case, had told him that upon leaving work at Loring Air Force Base at 10:30 that evening, he (Patten) would first go home to rest and then go to Bangor in the morning to procure marijuana. The informant had provided the deputy with reliable information on at least four prior occasions. Placing defendant under surveillance, McHatten observed defendant arrive at his Limestone home at 10:35 p.m. and leave the next morning at 8:15 with another person. Defendant headed south on Route 165, in the general direction of Bangor. Other members of the sheriff’s department were alerted, and at 9:30 a.m. they observed defendant traveling south on Route 1 in Montieello. McHatten calculated that if defendant did go to Bangor, a round trip requiring about five hours, he would pass through Montieello again between 2:00 and 3:00 p.m. on his way back to Limestone.

At 2:50 p.m. defendant was spotted again in Montieello, heading north on Route 1, and a sheriff’s deputy followed him. After some evasive driving behavior that indicated to the deputy that defendant suspected that he was being followed, defendant pulled off the road to “an area obscured from the view of persons traveling along U.S. Route 1 and an area where commerce does not take place under normal circumstances.” There, sheriff’s deputies detained and identified him. Shortly, McHatten arrived and began a search of the automobile without defendant’s consent. Observing a jacket partially concealing a brown paper bag on the back seat of the car, McHatten opened the bag and discovered a plastic bag filled with what he believed to be marijuana.¹ McHatten seized the bag and contents and escorted defendant to the sheriff’s office, where he was formally arrested.

Defendant was charged with furnishing scheduled drugs in violation of 17-A M.R. S.A. § 1106 (Pamph.1979). Pursuant to M.R.Crim.P. 41(e), Patten moved to suppress the marijuana that the police found in the closed brown paper bag that they opened in the course of their warrantless search of his automobile. The Superior Court held that the police were justified in searching Patten’s automobile without a warrant because, so it found from the evidence, 1) the State had probable cause to believe the car contained marijuana at the time of the search, and 2) exigent circumstances existed to justify the search without a warrant. The Superior Court, however, held, on the authority of State v. Blais, 416 A.2d 1253 (Me.1980), that, absent a warrant specifically for the search of the closed brown paper bag, the police could seize it, but not search it. The Superior Court therefore granted defendant’s motion to suppress the contents of the paper bag.

On appeal by the State to this court in Patten I, we affirmed the suppression order in a memorandum of decision that cited Blais, and State v. Hassapelis, 404 A.2d 232 (Me.1979). The Law Court issued its decision in Patten I on October 30, 1981.

While the State’s petition for certiorari to the United States Supreme Court was pending, that Court on June 1, 1982, held in United States v. Ross, that if probable cause and exigent circumstances justify the warrantless search of an automobile for contraband, that search may extend to every part of the vehicle and its contents, including any closed container that might conceal the contraband. On June 14, 1982, the Supreme Court granted the State’s petition for certiorari, summarily vacated the Law Court’s judgment in Patten I, and remanded the case to us “for further consideration in light of United States v. Ross ....” Maine v. Patten, 457 U.S. 1114, 102 S.Ct. 2919, 2920, 73 L.Ed.2d 1325, 1325 (1982).

II.

It is obvious that the Supreme Court acted to vacate and remand, rather than to reverse, the Law Court’s affirmance of the suppression order because it was uncertain whether our decision in Patten I was premised solely upon the United States Constitution. See R. Stern and E. Gress-man, Supreme Court Practice § 3.32, at 235-36 (5th ed. 1978). We do not share that uncertainty. While this court found Patten I to be controlled by two Maine cases, Blais and Hassapelis, those cases were in turn based exclusively upon our understanding of the “closed container exception” to the “automobile exception” as developed in federal constitutional law.² Thus, Patten I represented our view of federal law — a view that, according to the holding of Ross, mistakenly limited the scope of a valid war-rantless automobile search. Since the Supreme Court plainly intends the Ross decision to apply to any pending cases (including convictions that were not yet final at the time of the decision), 456 U.S. at 824 n. 33, 102 S.Ct. at 2172 n. 33, 72 L.Ed.2d at 593 n. 33; see also United States v. Johnson, 456 U.S. -, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), we now must reverse the Superior Court’s suppression order — exactly as the Supreme Court itself undoubtedly would have done had we originally been more explicit about the exclusive federal foundation of Patten I.

Before directing entry of our mandate of reversal, however, we must address defendant’s argument that Ross should not be applied here to validate the search of the brown bag, for a reason that he has not before asserted in this court. Defendant now argues that in any event the warrant-less search of any part of his automobile violated the fourth amendment because no exigent circumstances existed to prevent the timely obtaining of a search warrant for the automobile. We review the contrary finding of the Superior Court only for clear error. See State v. Dunlap, 395 A.2d 821, 824 (Me.1978).

Under the well-recognized “automobile exception,” a warrantless search of a vehicle is valid only if, inter alia, exigent circumstances exist that make the obtaining of a warrant impracticable. Blais, 416 A.2d at 1256-57. Defendant contends that the search of his automobile was invalid because the sheriff’s deputies had time to get a warrant before the search, and their failure to do so created the exigent circumstances now relied upon by the State to validate the warrantless search. Specifically, defendant asserts that the deputies had probable cause to obtain, and should have sought, a search warrant at 9:30 a.m., five and one half hours before the search, when defendant was observed traveling through Monticello in the direction of Bangor. Defendant attempts to derive some support for his cause from Dunlap, which held that “an exigency that will justify a warrantless search cannot be one which was created by unreasonable delay on the part of law enforcement authorities.” 395 A.2d at 825 (emphasis added). The Dunlap court found that the trial court had acted properly in suppressing “the challenged items upon the ground that there was no objectively justifiable explanation for the State’s failure to obtain a search warrant.” Id.

Defendant’s reliance upon Dunlap is misplaced. Several important differences distinguish Dunlap from the case at bar. In Dunlap, as the suppression justice later found, the police had probable cause, sufficient to obtain a warrant to search a package, on the evening before the day of the search. 395 A.2d at 823-25. However, with “no objectively justifiable explanation,” the police, and the assistant district attorney with whom they worked the next morning in preparing an affidavit to support a search warrant, did nothing to seek out a District Court judge until both Bangor-based judges were unavailable during the noon hour. Thus unable to get a warrant at that late time, the police intercepted and searched the package without one. Id. During the 15-hour delay, the police neither obtained nor sought to obtain additional evidence to strengthen the proof of probable cause that they already had. Id. at 825. That the police at their leisurely pace did try to get a warrant without further investigation suggests that they themselves were satisfied that a warrant would issue based on the facts available to them some 15 hours earlier. Thus, the Dunlap court labeled the delay unreasonable, negating any exigent circumstances to justify a warrant-less search. Id.

In contrast, the Superior Court was justified in concluding that it was reasonable for the deputies in the instant case to try to gather more evidence to present to a magistrate. In Dunlap itself, this court, citing United States v. Ferrara, 539 F.2d 799 (1st Cir.1976), carefully noted that “where there is a fairly minimal factual basis for probable cause, the police may continue to investigate without first seeking a search warrant.” 395 A.2d at 825. Since the facts in Ferrara, a recent decision in this federal circuit, are similar to those of the case at bar, an exposition of those facts is in order. The First Circuit found that federal agents had probable cause sufficient to obtain a warrant at least 16 hours both before one was sought and before the search of the vehicle involved in the case.³ However, the agents had not sought a warrant immediately, but rather they had delayed, placed the suspects under surveillance, and tried to “increase the quantum of evidence which they could present to the magistrate.” Ferrara, 539 F.2d at 802. Before a warrant was obtained, exigent circumstances compelled a search of the vehicle. Id. at 803. Although the agents in fact gathered no further evidence during their surveillance, the court concluded that the delay was justifiable because the probable cause was not self-evident and the police could not have predicted with a reasonable degree of certainty that they would be able to obtain a search warrant. Id. at 802.

Just so, it was not clear error for the Superior Court to conclude that the deputies in the instant case, unlike the police in the Dunlap case, were never in a position where they could predict with a reasonable degree of certainty that they would be able to obtain a warrant; until defendant arrived in Monticello on his return trip from Bangor — only minutes before the search— and commenced his evasive driving behavior, the probable cause was not self-evident. At 9:30 a.m. on the day of the search the deputies were armed with only three bits of information: 1) the informant’s merely predictive statement that defendant would go to Bangor for drugs; 2) the fact that defendant went home immediately after work, as the informant had predicted; and 3) the fact that defendant commenced a trip south, in the general direction of Bangor. The probable cause, if any, existing at that point was weak indeed. The Superior Court was perfectly justified in not faulting the deputies for placing defendant under surveillance rather than acting immediately to seek a warrant solely on the informant’s tip. That defendant went home immediately after work proves nothing; that is not an unusual occurrence. That the following morning defendant traveled toward a point south of Limestone is an almost equally slender thread upon which to hang a search warrant request; the larger part of Maine, and indeed of the entire country, lies south of Limestone; defendant might have been going to any number of places. Thus, although it is possible that probable cause existed at 9:30 a.m., we cannot say that the suppression justice clearly erred by concluding that the deputies acted reasonably in making the judgment to bide their time before requesting a warrant and to seek further confirmation that defendant was indeed in the process of procuring drugs from Bangor.

Unlike the officers in Dunlap, who had no justifiable explanation for their delay, the deputies acted reasonably in investigating further and, in fact, did obtain the confirmation that they sought; defendant returned to Monticello after a lapse of time exactly equal to that required for a round trip from Monticello to Bangor, and, when the deputies started to follow him, defendant began to drive in an evasive manner, indicating that he suspected he was being followed, and ultimately drew off the road to a hidden area.⁴

We emphasize that the Superior Court was not by this record compelled to reach the conclusion that it did. In determining whether exigent circumstances are present, the trial judge must use his own judgment, applied to the evidence before him; we review his decision only for clear error. Similarly, we will not invalidate a warrantless search merely because, with our 20-20 hindsight, we would conclude that a warrant could have been obtained before the search. See Dunlap, 395 A.2d at 825. Unless the probable cause is self-evident on an objective basis and the police could be reasonably certain of obtaining a warrant, delay in moving for one, while they diligently seek further proof, does not require suppression of the fruits of a war-rantless automobile search.

Only one further matter remains for comment. On this remand from the United States Supreme Court, defendant also adopts — in his oral argument, though not in his brief — the contention of the amicus’s brief that article I, section 5 of the Maine Constitution prohibited the warrantless search of the brown paper bag, even if the fourth amendment per Ross did not. In order to meet this contention on its merits, we assume, without deciding, that if the search of the brown paper bag found in the course of searching Patten’s automobile violated the Maine Constitution, this court would fashion and apply a state exclusionary rule as a sanction for that illegal police conduct. In any event, we find on the facts of this case no violation of the Maine search-and-seizure clause. For the reasons stated in this court’s opinion issued today in State v. Bouchles, 457 A.2d 798, 800 (Me.1983), we hold that a warrantless search of a vehicle for contraband, that is constitutionally permissible under the long-established “automobile exception,” may be validly extended to a container, found in the vehicle, that is capable of containing the contraband. In this regard we find no reason to construe article I, section 5 of the State Constitution any differently than the fourth amendment of the federal constitution.

The entry must be:

Appeal of the State sustained.

Pretrial order suppressing contents of the closed brown paper bag found in the automobile search reversed.

GODFREY, ROBERTS and WATHEN, JJ., concurring.

1 . Marijuana, a scheduled Z drug, is contraband that may be seized and confiscated by the State. 17-A M.R.S.A. §§ 1114, 1102(4)(B) (1983); 22 M.R.S.A. § 2383 (1980).

2 . Patten I also cited Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744, reh’g denied, 453 U.S. 950, 102 S.Ct. 26, 69 L.Ed.2d 1036 (1981), with the introductory signal “See also.”

3 . Whether the warrant issued before the search is unclear. United States v. Ferrara, 539 F.2d 799, 800 (1st Cir.1976). In any event, the Ferrara court treated the search as a warrantless one.

4 . Unlike the Dunlap officers, the objective conduct of the deputies in the case at bar never, prior to the northward return of Patten’s car, indicated that they thought they had sufficient proof to get a warrant. Although the agents in Ferrara, with only the same probable cause that had existed some 16 hours earlier, did seek a warrant, Ferrara is distinguished from Dunlap in a critical respect: the Ferrara agents made every effort to increase the amount of evidence with which to approach a magistrate; only after their efforts failed did they apply for a warrant with the information available to them, in order not to lose all opportunity to apprehend the suspects.