# State v. Trusiani > Supreme Judicial Court of Maine · August 13, 2004 · 854 A.2d 860 URL: https://www.frixlaw.com/law-library/cases/9754101 ## Case - **Full name:** STATE of Maine v. Michael TRUSIANI - **Court:** Supreme Judicial Court of Maine - **Decided:** August 13, 2004 - **Citations:** 854 A.2d 860; 2004 ME 107; 2004 Me. LEXIS 126 - **Precedential status:** Published - **Opinion:** Dissent by Levy - **Judges:** Saufley, Clifford, Rudman, Dana, Alexander, Levy - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9754101 ## Opinion text LEVY, J., dissenting. [¶ 30] I respectfully dissent. [¶ 31] Entering an individual’s home without a warrant or pursuant to an exception to the warrant requirement is strictly forbidden under the Federal and State Constitutions. For purposes of the Fourth Amendment, no protected setting is “more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home.” Payton v. New York, 445 U.S. 573, 589 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980). A garage is “plainly part of [a] defendant’s house in which he [is] secure against unreasonable searches and seizures under both Federal and State Constitutions.” State v. Brochu, 237 A.2d 418, 422 (Me.1967). Reasonable law enforcement officers know, or should know, that they can only enter a person’s home with a warrant or pursuant to an exception to the warrant requirement. [¶ 32] The Topsham police officer testified that he made his unannounced and warrantless entry into the garage in order to find the driver of the vehicle, whom he thought might be in the garage. This entry into the bounds of a residence through a closed door was clearly purposeful. 4 [¶ 33] The entry was also a flagrant constitutional violation. Flagrancy is measured by the obviousness of the official’s misconduct. Brown v. Illinois, 422 U.S. 590, 605 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975) (finding that “[t]he impropriety of the arrest was obvious” because “the two detectives ... acknowledged, in their testimony, that the purpose of their action was ‘for investigation’ or for ‘questioning’”). Even in the absence of bad faith, an obvious constitutional violation is flagrant. See United States v. Yousif, 308 F.3d 820, 831 (8th Cir.2002) (finding that despite the absence of bad faith, the officers’ search of the defendant’s vehicle after the defendant consented to the search “resulted from an exploitation of illegal circumstances,” i.e., the illegal vehicular stop). [¶ 34] Here, the officer did not express any confusion or misunderstanding regarding the applicable constitutional standard, nor was there any basis for a good-faith misunderstanding of the constitutional propriety of entering a private residence through a closed exterior door. When considered from the perspective of established Fourth Amendment principles, the constitutional violation was flagrant. [¶ 35] The Court suggests that the constitutional violation was not flagrant because “[although access to the interior door through the garage may not have been a normal route of access to the house, the officer could have believed that such access was proper.” The officer testified, however, that he entered the garage to search for a suspected drunk driver, not *869 because he believed or had reason to believe that by entering the garage he could gain access to an internal door providing access to the residential portion of the dwelling. See United States v. Heath, 259 F.3d 522, 533-34 (6th Cir.2001) (finding that officers’ illegal entry into an apartment building’s common hallway undertaken for the purpose of gaming access to defendant’s apartment door, where consent to search was obtained, required suppression of the fruits of the search). [¶ 36] All of the applicable Brown and Boyington factors weigh in favor of suppression. See Brown, 422 U.S. at 603-04 , 95 S.Ct. 2254 ; State v. Boyington, 1998 ME 163, ¶ 10 , 714 A.2d 141, 144 . The officer entered the garage for the purpose of finding Trusiani and without probable cause to search or to arrest, the illegal entry occurred just moments before the officer received consent to enter the kitchen from the garage, 5 and there were no intervening circumstances between the illegal entry and the consent to enter. 6 Trusiani’s right to be free from unreasonable government intrusion into his home, a right that is at “ ‘the very core” ’ of the Fourth Amendment, was violated. Kyllo v. United States, 533 U.S. 27, 31 , 121 S.Ct. 2038 , 150 L.Ed.2d 94 (2001) (quoting Silverman v. United States, 365 U.S. 505, 511 , 81 S.Ct. 679 , 5 L.Ed.2d 734 (1961)). “With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” Id. The evidence resulting from th e intrusion into Trusiani’s home should be suppressed. . Although there was a dispute in the testimony as to whether the passage door was open or closed, the suppression court concluded that “I am not satisfied that the status of the garage door as being opened has been established.” . See United States v. Cantu, 230 F.3d 148, 157-58 (5th Cir.2000) (stating that "a brief period of time standing alone is almost enough to vitiate any attenuation claim”). . The consent obtained in this case stands in marked contrast with that considered in Boy-ington. In Boyington , the officer arrived at the front door of the defendant's residence approximately four hours after an unlawful stop of the defendant’s vehicle. 1998 ME 163, ¶¶ 3-4, 12 , 714 A.2d 141, 142, 145 . The officer was met at the front door by Boying-ton’s wife. Id. ¶ 4, 714 A.2d at 142 . The officer then presented her a written consent form authorizing the officer to search the premises, which she signed. Id. In this case, the officer entered the kitchen moments after his unlawful entry into the garage. He described his entry into the kitchen from the garage as follows: Q. What happened when you knocked on that door? A. A female came over to the door and opened the door, and she opened the door pretty far, it being late September, and I asked her who was operating the Ford pickup truck. Q. What did she say? A. She said my son. Q. What else or what other conversation did you have with her at that door? A. I asked her where he was and she said that he was in the bathroom. I can’t recall if I asked her to go get him or she just volunteered to go over to get him but she started to head over towards the door to the bathroom area. Q. What were you doing at this time? A. I was — I had already stepped into the kitchen area and as she was walking down to the bathroom I shut the door from the kitchen to the garage because it was late September and my mother always told me we are not heating the outdoors so I— so out of courtesy I shut the door. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9754101. Public record. Not legal advice.