upholding the warrantless seizure of a thermos stuffed with baggies of marijuana found 250-300 yards from the defendant's home
How later courts described this case
- upholding the warrantless seizure of a thermos stuffed with baggies of marijuana found 250-300 yards from the defendant's home
Written by the judges who cited it.
The opinion
STATE OF MAINE SUPERIOR COURT
WASHINGTON, 55. Docket No. WASCD-CR-19-221
)
STATE OF MAINE, )
)
)
v. )
) Ot·der on Motion to Suppress
)
Wayne Smeal, )
)
Defendant. )
)
)
)
Introduction
Defendant has moved to suppress evidence seized pursuant to a warrant
authorizing the search of a vacant lot he owns in Steuben. An evidentiary hearing was
held on March 15, 2021 and September 27, 2021. All briefing is now complete, and the
court has considered the evidence and arguments presented by the parties. A decision is
in order.
Police received information about Defendant's possible involvement in d1ug
trafficking from at least two citizen informants, the first of whom contacted police on
May 26, 2019. The first citizen believed Defendant was hiding drugs in a camper trailer
parked on property across from Parritt's Auto Body in Steuben and conveyed that
information to an officer.
The second citizen informant, later identified aq Michael Hubisz, reached out to
Jaw enforcement on June 3, 2019. Hubisz explained he learned from a third-party source
that Defendant had been visiting the land across from Parritt's Auto Body. Hubisz and
the third-party then traveled to the property where they located a plastic container
buried in the soil. They proceeded to photograph the container and rebury it, after
which Hubisz shared his photograph with an officer. Police believed the photograph
depicted a container of heroin.
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An investigating agent, Agent Day, then applied for a warrant to search the
properly. The search warrant affidavit described various features of the properly,
provided directions to the land with reference to Parrilt's Auto Body, and cited the book
and page number of a deed recorded in Washington County. A different deed-which
apparently described a parcel adjacent to Defendant's property-was mistakenly
attached to the affidavit.
As Agent Day attempted to secure a search warrant, two other agents conducted
surveillance in the area surrounding Defendant's parcel of land. These agents witnessed
Defendant park at Parritt's Auto Body, cross the road, and return to his car. Defendant
was then detained and handcuffed, after which the agents observed a baggie of brown
powder fall from Defendant's pantleg. The resultant search of Defendant's person
yielded a .357 Magnum revolver.
Agent Day eventually arrived with a signed search warrant, and a search of
Defendant's property commenced. The unmarked land was described as a "vacant lot"
with tall grass, woods, and an overgrown driveway. A trailer frame-which lacked any
habitable spare-was situated on the property and appeared to have been burned at
some point in the past. Police observed no other physical structures.
During the search, one agent noticed "a tiny bit of blue poking up" from beneath
the ground. She dug away the surrounding dirt and discovered a container with several
baggies of suspected heroin inside.
Discussion
Defendant challenges the lawfulness of the warrant authorizing the search of his
vacant lot, arguing it was unsupported by probable cause and failed to describe the
searchable area with particularity. The State counters that no warrant was needed in the
first place because the "open fields" doctrine justified a warrantless search.
Ihe "special protection accorded by the Foul'lh Amendment to the people in
their persons, houses, papers, and effects is not extended to the open fields." Oliver v.
United States, 466 U.S. 170, 176 (1984) (internal quotation marks omitted). "An'open
field' is that area outside the curtilage." State v. Pease, 520 A.2d 698, 699 (Me. 1987).
Individuals have "no legitimate expectation. that open fields will remain free from
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warrantless intrusion by government officers." Oliver, 466 U.S. at 181. Accordingly,
officers may "enter and search a[n open] field without a warrant." Id. at 173. Moreover,
"[e]vidence found lying in'open fields' ... is not considered to be the product of a
search of a house for constitutional purposes and may be seized without a warrant."
State v. Pelletier, 673 A.2d 1327, 1329 (Me. 1996) (upholding the warrantless seizure of a
thermos stuffed with baggies of marijuana found 250-300 yards from the defendant's
home).
In this case, Defendant's vacant, wooded lot fits within the definition of an "open
field." Only an overgrown driveway and burned trailer frame existed on site. There
were no signs of habitation and the land was not posted against trespassers. The court
therefore concludes Defendant's uninhabited land was an "area outside the curtilage"
to which no reasonable expectation of privacy attached. Pease, 520 A.2d at 699.
Defendant advances a second argument, that the open fields doctrine is limited
to "sight-based observational surveillance" of the area within the open field. He
contends that police exceeded the scope of this limitation by digging in the ground to
retrieve the container. With no apparent Law Court decisions addressing this issue,
Defendant directs the court to decisions of various federal circuit courts, which have
declined to extend !he open fields doctrine "beyond observational searches." Kee i1. City
ofRowlett, 247 F.3d 206,217 n. 21 (5th Cir. 2001). The Fifth, Sixth, and Eighth Circuits
appear to adhere to this "observational search" rule. See, e.g., United States v. Pennington,
287 F.3d 739, 745 (8th Cir. 2002); Husband v. Bryan, 946 F.2d 27, 29 (5th Cir. 1991);
Allinderv. Ohio, 808 F.2d 1180, 1185 (6th Cir. 1987). The State, meanwhile, points to the
First Circuit's decision in United States v. Fahey, which held that the open fields doctrine
permitted the goven,ment to remove soil samples from the ground beneath an open
field. 769 F.2d 829, 837-38 (1st Cir. 1985).
The court can envision scenarios in which the search and seizure of property
buried and out of sight in an open field would necessitate a warrant. But the court does
not think the rule adopted by the he Fifth, Sixth, and Eighth Circuits limits police to the
type of cursory sight-based inspection advocated by Defendant. See, e.g., Pennington, 287
F.3d at 745-46; United States v. Ishmael, 48 F.3d 8501 853 (5th Cir. 1995). For instance, in
Pennington, the Eight Circwt acknowledged that the open fields doctrine was limited to
"a search of what is in plain view," but nevertheless upheld the warrantless search of an
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underground bunker given its location "in an open field, its readily visible entryway
with an unprotected ladder facilitating access to the tunnel, and [the absence of a] lock
or door impeding access." 287 F.3d at 745-46.
In this case, the container was partially visible from the vantage point of a person
standing in the "open field." Indeed, although the container was mostly buried, one of
the agents observed "a tiny bit of blue poking up" above the soil. There was no
obstruction that prevented the agent from brushing away the dirt and retrieving the
item from the shallow hole in the ground. Under these circumstances, Defendant cannot
demonstrate that any expectation of privacy in the container was objectively reasonable.
The court is therefore satisfied that police did not need a warrant to search defendant's
"open field" and remove the container from the ground.
For the reasons above, Defendant's motion to suppress is DENIED.
The Clerk may incorporate this Order upon the docket by reference.
Dated: April 20, 2022
e Hon. Bruce C. M ee _____......
stice, Maine Superior Court
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