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State v. Boyington
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 163
Docket:	Lin-97-394	
Argued:	February 3, 1998
Decided:	June 30, 1998

Panel:	WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and	SAUFLEY, JJ.

STATE OF MAINE

v.

RALPH L. BOYINGTON, JR.

LIPEZ, J.

	[¶1]  Ralph L. Boyington, Jr. appeals from the judgment entered in the
Superior Court (Lincoln County, Brodrick J.) following his conditional guilty
plea to Trafficking by Cultivation in violation of 17-A M.R.S.A. § 1103 (1983
& Supp. 1997).  Boyington contends that the Superior Court (Lincoln
County, Calkins J.) erred in denying his motion to suppress evidence seized
at his residence.  We disagree and affirm the judgment.

I.

	[¶2]  On July 8, 1996, at approximately 9:18 p.m., an officer of the
Waldo County Sheriff's Department was on routine patrol when he observed
a vehicle proceeding in a jerky manner, with a revved-up engine, for forty to
fifty feet.  The officer also observed that the occupants of the vehicle were
not wearing seatbelts.  The officer followed the vehicle and pulled in behind
it when the vehicle entered a driveway, notwithstanding the fact that the
jerky operation had ceased.  When the occupants denied that the vehicle
contained any drugs or alcohol, the officer asked Boyington, the vehicle's
operator, for permission to conduct a search.  According to the officer,
Boyington consented.  Ultimately, the officer discovered fifty-one marijuana
plants in the trunk and arrested Boyington and his passenger. 
	[¶3]  At approximately 10:30 p.m., the sheriff's department
communicated information concerning Boyington's arrest to Officer Rice of
the Waldoboro Police Department.  At approximately 11:30 p.m., the
sheriff's department notified Officer Rice that Boyington was about to call
home from the jail.  Officer Rice then proceeded to the public road adjacent
to the Boyington residence.  Using a night scope, Officer Rice, who was
approximately 100 feet away from the residence, observed Boyington's wife,
Phoebe, exit a barn and carry a tray of plants to a pond located on the
property.  Phoebe threw the tray into the pond, returned to the barn, exited
again with a tray of plants, and threw that tray into the pond.  Officer Rice
then walked up to the pond and observed plants floating in the water that he
identified as marijuana. 
	[¶4]  Phoebe met Officer Rice at the front door of the house.  After
expressing concern for her children and speaking with Boyington on the
telephone, Phoebe consented to a search of the premises.  One-half hour
later, Officer Rice obtained a consent form; at approximately 2 a.m., Phoebe
signed this form and a waiver of her Miranda rights.  During the subsequent
search, officers seized 351 marijuana plants from the barn, the pond, a
lobster boat, and a nearby wooded area. 
	[¶5]  The District Court (Belfast, Staples, J.) granted Boyington's
motion to suppress the evidence seized from his car, finding that the
sheriff's department officer lacked a reasonable articulable suspicion to stop
Boyington's vehicle.  On the basis of the evidence seized at Boyington's
residence, the State obtained a grand jury indictment charging him with
trafficking by cultivation in violation of 17-A M.R.S.A. § 1103.  Boyington
then moved to suppress the evidence seized at his residence, arguing that
this evidence was a "fruit" of the illegal stop of his vehicle.  After the
Superior Court denied his motion to suppress, Boyington entered a
conditional guilty plea.  This appeal followed.

II.

	[¶6]  The Fourth Amendment establishes the right of persons to be
secure in their homes against unreasonable searches and seizures.  U.S.
Const. amend. IV; see State v. Philbrick, 436 A.2d 844, 854 (Me. 1981). 
"Fourth amendment protection extends not only to the interior of a
dwelling but also to the 'curtilage,' that is, to the land immediately
surrounding and associated with the home."  State v. Cloutier, 544 A.2d
1277, 1279 (Me. 1988).  We have observed that "[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 . . . ."  Philbrick, 436 A.2d at 854.   
	[¶7]  Boyington challenges the court's conclusion that the pond
searched by Officer Rice is outside the curtilage of Boyington's home.  "A
ruling on a motion to suppress evidence based on uncontroverted facts
involves a legal conclusion that we review independently on appeal."  State v.
Stade, 683 A.2d 164, 165 (Me. 1996).  We have noted that "the reach of the
curtilage of a home depends on the facts of each case."  State v. Cayer, 617
A.2d 208, 209 (Me. 1992).  We have identified four factors that are useful
analytical tools for evaluating whether an area is within the curtilage:

(1) proximity of area claimed to be curtilage to the home; (2) whether
area claimed to be curtilage is included within an enclosure
surrounding the home; (3) nature of the uses to which the area is put;
and (4) steps taken by the resident to protect the area from
observation by people passing by.

Id. (citing United States v. Dunn, 480 U.S. 294, 301 (1987)).  None of these
factors is dispositive.  See United States v. Dunn, 480 U.S. 294, 301 (1987)
("We do not suggest that combining these factors produces a finely tuned
formula that, when mechanically applied, yields a 'correct' answer to all
extent-of-curtilage questions.").  To the contrary, these factors facilitate a
curtilage analysis "only to the degree that, in any given case, they bear upon
the centrally relevant consideration -- whether the area in question is so
intimately tied to the home itself that it should be placed under the home's
'umbrella' of Fourth Amendment protection."  Id.  The State bears the
burden of proving that an area is outside the curtilage.  See Philbrick, 436
A.2d at 854 (noting that the State bears the burden of proving an exception
to the general rule that warrantless searches are per se unreasonable).
	[¶8]  The court determined correctly that the pond is not within the
curtilage of Boyington's home.  The pond is separated from Boyington's
house by a driveway and by a few yards of grass with cattails.  The distance
between the pond and the house is, at the pond's nearest edge, between
thirty and forty feet, and, at its furthest edge, between eighty and ninety
feet.  The pond is located between the driveway and the public road, is not
contained within any form of enclosure, and is plainly visible from the public
road.  Although the State did not introduce any evidence as to the use of the
pond, the facts in the record refute any contention that the pond "harbors
the intimate activities associated with the sanctity of a home and the
privacies of life."  State v. Martin, 553 A.2d 1264, 1264 (Me. 1989).  Officer
Rice's observation that the plant material floating in the pond was marijuana
did not constitute an illegal search.  

III.

	[¶9]  Boyington argues alternatively that Phoebe's consent to the
search of their residence was void because it was tainted by the prior illegal
stop of his vehicle.  "Pursuant to the exclusionary rule the State is
prohibited from using evidence obtained in violation of the Fourth
Amendment against a defendant in a criminal proceeding."  State v. Hunt,
682 A.2d 690, 692 (Me. 1996).  The exclusionary rule applies to "indirect
evidentiary fruits" of governmental misconduct and prohibits the use at trial
of evidence obtained as a result of an unconstitutional stop.  Id.; see also
State v. McKenzie, 440 A.2d 1072, 1076 (Me. 1982).   Not all evidence,
however, "is 'fruit of the poisonous tree' simply because it would not have
come to light but for the illegal actions of the police."  Wong Sun v. United
States, 371 U.S. 471, 488 (1963).  We must determine "'whether, granting
establishment of the primary illegality, the evidence to which instant
objection is made has been come at by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the primary
taint.'"  State v. LeGassey, 456 A.2d 366, 368 (Me. 1983) (quoting Wong
Sun, 371 U.S. at 488).  A consent to a search may purge the taint of a stop or
arrest that was conducted in violation of the Fourth Amendment.  See
McKenzie, 440 A.2d at 1077. 
	[¶10]  Our prior cases have set forth five factors, originally articulated
by the Supreme Court in Brown v. Illinois, 422 U.S. 590, 603-04 (1975), to
determine whether evidence should be suppressed as a "fruit" of the initial
illegality:  (i) the voluntariness of consent; (ii) the proximity in time between
the illegal stop and the search; (iii) the presence of intervening
circumstances; (iv) the purpose and flagrancy of police misconduct; and (v)
police compliance with Miranda.  See, e.g., McKenzie, 440 A.2d at 1077.   
In Brown, the police arrested the defendant without probable cause and
without a warrant.  See 422 U.S. at 591.  After the police fully apprised the
defendant of his Miranda rights, he made two inculpatory statements.  See
id.  The state court determined that the defendant's statements were not a
"fruit" of his illegal arrest because the administration of Miranda warnings
sufficed to break the causal connection.  See id. at 597.  The Supreme Court
rejected this determination, reasoning that "Wong Sun requires not merely
that the statement meet the Fifth Amendment standard of voluntariness but
that it be 'sufficiently an act of free will to purge the primary taint.'"  Id. at
602 (quoting Wong Sun, 371 U.S. at 486).  The Court concluded that police
compliance with Miranda is "an important factor" to determine "whether a
confession is the product of a free will under Wong Sun," but it is not the
only factor.  Id. at 603 (emphasis added).	
	[¶11]  Brown was a case "at the crossroads of the Fourth and the Fifth
Amendments." Id. at 591.{1}  This case, in contrast, is only about the Fourth
Amendment.  Boyington seeks the suppression of physical evidence that the
police discovered as a result of Phoebe's consent to a search.  He does not
seek to suppress any of her statements.  Police compliance with Miranda,
therefore, did not further the attenuation between the illegal stop and her
consent.  Cf. id. at 600 (stating that the Miranda warnings function "as a
prophylactic rule and as a procedural safeguard employed to protect Fifth
Amendment rights against the compulsion inherent in custodial
surroundings").  Although police compliance with Miranda prior to a
consent to search may be relevant to the voluntariness of that consent, see 3
Wayne R. LaFave, Search and Seizure § 8.2(j), at 692 (3d ed. 1996),
Boyington does not dispute that Phoebe's consent was voluntary, and the
State does not dispute that Phoebe's consent preceded the Miranda
warnings.  Therefore, to determine whether Phoebe's consent was obtained
by exploitation of the prior illegality, we must examine only the remaining
three factors identified in Brown as relevant to the "fruit of the poisonous
tree" analysis:  the purpose and flagrancy of the police misconduct, the
proximity in time between the illegal stop and her consent, and the
presence or absence of intervening circumstances.{2}  See 422 U.S. at 603-04.  
	[¶12]  Although the sheriff's department officer lacked the requisite
degree of suspicion to stop Boyington's vehicle, there is nothing in this
record that suggests flagrant police misconduct.  Approximately four hours
elapsed between the stop of Boyington's vehicle and Phoebe's consent. 
During that time period, the police conducted additional, lawful investigative
activities that led to the discovery of additional evidence of criminal activity. 
Cf. State v. Cloutier, 678 A.2d 1040, 1041 (Me. 1996) (affirming suppression
of evidence seized during the second of two arrests, because officer's second
arrest of the defendant was based solely on evidence obtained as a result of
the prior illegal stop, rather than on any additional investigation or
observation of criminal conduct).
 	[¶13]  Boyington vigorously disputes that Officer Rice's observation of
the marijuana plants that Phoebe threw into the pond qualifies as an
intervening event sufficient to attenuate the connection between the illegal
stop and the consent to search.  We acknowledge that Officer Rice
proceeded to the public road adjacent to the Boyington residence only after
receiving information from the Waldo County Sheriff's Department
concerning the seizure of marijuana from Boyington's car.  Nevertheless, the
officer was positioned legally on that road when he observed Phoebe
throwing plants into the pond.  Although the officer suspected that those
plants were marijuana because of the information that he received from
Waldo County, he did not, upon observing Phoebe discard the plants, ask her
to consent to a search.  Instead, he proceeded lawfully to the edge of the
pond, a vantage point outside the curtilage, and made the additional
observation that the plants were in fact marijuana.  This additional
observation of criminal activity prompted the officer to request Phoebe's
consent to a search.  The evidence seized at Boyington's residence was not a
"fruit" of the prior illegal stop.  The Superior Court did not err when it
denied Boyington's motion to suppress.
	The entry is:
				Judgment affirmed.
                                                                                                                       
Attorneys for the State:

Geoffrey A. Rushlau, Esq.
District Attorney
Patricia A. Mador, Esq.  (orally)
Assistant District Attorney
Lincoln County Courthouse
High St.
Wiscasset, Maine 04578

Attorney for the Defendant:

John P. Gause, Esq.  (orally)
Berman & Simmons
129 Lisbon St.
P.O. Box 961
Lewiston, Maine 04243