State v. Caron

STATE Maine R.

Alan CARON Allen Caron. a/k/a

Supreme Court of Judicial Maine.

March

er the Bancrofts had identified as their property the items apartment, found in the defendant was arrested on a charge of “breaking entering with intent to com- larceny.” mit While defendant was being held custody at the Waterville Police Station, a person, search was made of his and the search disclosed a ring diamond similar to taken one from the Bancroft home and later identified the property as of the Bancrofts.

On October 1971 defendant in- was dicted, accused “breaking entering larceny” intent to commit Marden, Donald H. County Atty., Au- of 17 M.R.S.A. 754. gusta, § plaintiff. for Sherman,

Alan Waterville, C. for Upon arraignment pleaded defendant fendant. guilty, and on December defend- ant jury went to trial. After the been had DUFRESNE, Before J.,C. and WEA- duly impanelled and sworn but before THERBEE, POMEROY, WERNICK, prosecutor begun presentation had ARCHIBALD, DELAHANTY, JJ. case, (in defendant moved State’s suppression jury)

absence of the for the as of all the articles in his seized WERNICK, Justice. ring apartment wife’s and the diamond Defendant, Caron, Alan appealed R. by police person. taken The from his judgment Superior from a theory support suppression the claimed (Kennebec County) which terminated his was that: the search warrant was de- (1) status as a and committed him fective the affidavit because to the Men’s Correctional Center in execu- probable inadequately rested reflected tion of a previously imposed sentence and, therefore, in the cause the articles suspended execution of had been apartment products illegal of an were the when placed probation.1 defendant was search; deprived on police with the (2) apart- the benefit of the items found July On several articles—in- ment, probable lacking cause cluding jewelry, guns cameras and —were hence, and, custodial arrest of defendant taken from the home of Denni- Waterville person police the search of his at the sta- later, son sparsely Bancroft. A week ring tion was unlawful and the diamond informant, formed an unnamed the Wa- disclosed search was ille- such unlawful police terville obtained a search warrant. gally seized. Pursuant to it apartment searched an occupied by rented and presiding granted defendant’s wife frequently used defendant.2 The motion and ordered the articles apartment seized'items disclosed and the the search taken from the diamond fitting general description Thereupon, as ring suppressed of the ar- as evidence. ticles prosecutor taken from the that the indictment Bancroft Aft- moved home. February placed 1. In on two defendant bad been fendant was guilty years. “concealing found of the crime of stolen property” in violation of 17 M.R.S.A. years age. suggests and his defendant He was then 19 He was sen The record living together a full-time tenced Men’s Center but were not Correctional wife suspended execution of sentence was and de- basis. police testimony relating pre- evidence of tó the dismissed. against defendant be having prop- and dis- Bancrofts’ identified as their motion siding Justice indictment, erty and defendant was the articles which been found in missed the apartment of defendant’s wife well discharged. found ring the diamond on defendant’s day, the same Probation Later person. ground objec- of defendant’s probation-viola- a and Parole Board filed testimony tion that the was was offered in Superior report (Ken- the “hearsay” Despite “hearsay” form. the had County) alleging that defendant nebec presid- the testimony nature of the of his the terms and conditions “violated ing pur- ruled it the admissible for Justice probation” in that: poses probation. hearing of a to revoke 26, 1971, at July July “On Wa- appeal In defendant claims that the posses- . . terville, . was [he] foregoing rulings presiding two the of Jus- under circum- property, sion of stolen requiring tice were error reversal such he it was stolen. stances that knew judgment probation revoking his and com- possession jew- On he was 7-22-71 mitting him to the Men’s Correctional Cen- camaras, gun; elry, and a and on 7-26- ter. ring, all the possession 71 was he deny appeal. We of Dennison Bancroft which property Waterville, home in was taken from his

Maine, July hearing On December Brewer, Morrissey defendant’s termine whether (1972), 33 L.Ed.2d 484 deal should be revoked was held before process require ing due with constitutional who, Superior five same Court Justice pa operative in ments as revocation days earlier, suppressed evidence had as Scarpelli, context, Gagnon role apartment of taken articles L.Ed.2d ring the diamond defendant’s wife conceptual frame extending the (1973), person on defendant’s found —and proceed Morrissey work of v. Brewer alleg- and Parole was Probation Board which, ings revocation of possessed by ing property the stolen as incident here, as has been an knowledge was stol- that it defendant with imposition, suspension of exe en. cution, crime, guilt of a sentence for es (1) instant revocation of tablish that: (anew) hearing At defendant moved stage probation proceeding was not “a apartment at the that articles seized prosecution” (2) on de- ring and the diamond discovered deprivation potential to result in of de suppressed evidence person fendant’s liberty, fendant’s the federal constitutional pro- purposes for the of the revocation law”, guarantee process con of “due extended discussion hearing. After bation governmen require fundamental ceived to protections concerning the constitutional fairness, tal mandates hearing, a defendant available to embody denied presiding suppress. The taken articles motion to “ struc- hearing an . . . informal ring apartment and the diamond from the finding of a assure that tured to into evidence subsequently admitted were on veri- be based . violation will objection. over defendant’s of dis- and that exercise fied facts an accurate will be informed cretion hearing course of the During the further [probation- the . . knowledge into objected admission defendant (p. informality (emphasis expedition behavior." supplied) desirable er’s] U.S., p. 484 of 408 for the S.Ct.) 2602 of 92 kind of revocation of scrutiny; now under therefore, we Insofar as the instant revocation see prohibit hearsay reason probation hearing stage was not “a in such proceeding to the same extent it is prosecution” and is to be viewed prohibited prosecution. in a criminal We as calculated to achieve “informal” man caveat, however, add the if, given in a expeditious ner an determination of wheth context, the hearsay evidence is unreasona- probationer’s er the activities were viola- bly abundant and its reliability substantive tive of the conditions which he was highly suspect, a decision founded on it allowed to be free of confinement well may be subject to vitiation for violation of as whether his behavior was such as to process “due of law” fairness standards. move Court to exercise a discretion to confinement, return the to Clearly, there was no such abuse there neither nor constitutional sound here, in either terms of the or the amount policy require transpo reason to automatic reliability hearsay substantive testi proceeding body sition to the of the entire mony. presiding acted without Justice evidentiary conventionally opera of rules admitting in error it as evidence. prosecution. tive in a criminal “hearsay” As to the rule of evi complex is the issue More raised although particular, in in dence a point appeal:—whether fendant’s second of prosecution may part in it be embraced “suppressed” evidence because obtained in guarantee within the constitutional of a pro- the “search and seizure” confrontation”, “right potential no such tections Fourth Amendment to the when, constitutional sanction can attach as may Constitution of the United States here, stage is not “a of a hearing proba- admitted in a to revoke a prosecution.” Further, the use of imposi- as an incident of the “hearsay” is, se, per evidence consistent tion, execution, suspension of a with constitutional fairness fundamental sentence for guilt of crime. process” guarantees applicable “due as ato probation granted proceeding to revoke a 41(e) governs Rule M.R.Crim.P. imposition, as an incident of and sus procedure “suppression” for of evi execution, pension sentence of a dence, stating: guilt proceeding for (or for of crime a Reed, Hyser revocation of 115 parole). v. person aggrieved by “A an unlawful U.S.App.D.C. (1963) F.2d 225 318 move and seizure nom., cert. sub. et al. v. den. Jamison suppress anything for use as Chairman, Chappell, of Parole U. S. Board so . obtained . .” al., 84 11 et L.Ed. elucidates, how- As Rule 1 Freeman, M.R.Crim-.P. Arciniega (1963); 2d 316 v. 439 ever, 41(e) Rule M.R.Crim.P.—as (9th 1971). Cir. F.2d 776 general—applies only “criminal” rules policy, Morrissey terms of a use of proceedings.” minor “criminal Under hearsay can testimony Gagnon Scarpelli, supra, be consistent with Brewer and v. v. Morrissey which, here, 3. The v. Brewer came decision that case as involved a revoca- probation proceeding occurring prior probation proceeding after the revocation of tion of holding explicitly Accordingly, Morrissey. opinion here at issue. While not we Morrissey requirements approach the instant case terms of the hearing, nature, “hearing” Morrissey and its should be con- criteria as to given retrospectivity, Gagnon Scarpelli stitutionally required full v. for revo- applied Morrissey “hearing” (or parole). criteria cation of

499 plicability hearing for revocation of granted in- hearitig to revoke imposi- probation granted incident to the imposition, suspension cident to execution, of a tion, suspension execution, guilt of a for sentence (or for guilt for of crime revoca- prose- sentence stage a criminal crime not “a parole). meaning tion of of the Consti- cution” within tution of the United States. Guided state, Courts, which have federal and analogy, we now decide that such have, virtual question considered the with proceeding” is not “criminal negative. unanimity, answered Rule M.R.Crim.P. 41(e) to which Hill, (7th 817 Cir. States v. 447 F.2d was, applicability.4 presiding Sperling v. 1971); United States ex rel. that: therefore correct his conclusions (2d 1970); Cir. Fitzpatrick, 426 F.2d 1161 purposes (1) suppression ruling Allen, F.Supp. United States 749 349 prosecution defendant for ex rel. (N.D.Cal.1972); United States entering “breaking crime of intent F.Supp. (E.D.La.1970), Heyd, 648 Lombardino v. larceny” carry-over commit was without d., (5th Cir. 438 F.2d aff' probation hear- effect to the revocation Colo., Atencio, People 525 P.2d 1971); ; ing and under 41 M.R.Crim.P. (2) (e) Rule People Dowery, Ill.App. (1974); procedure of motion re In Mar (1974); 3d N.E.2d separate independent not available tinez, Cal.Rptr. 1 Cal.3d use defendant’s revocation nom., Mar (1970), cert. P.2d 734 den. sub hearing. Craven, 851, 91 S.Ct. tinez v. (1970). L.Ed.2d 88 “suppression” procedures That is the The rationale of decisions benefits by as afforded Rule M.R. 41(e) “evi- the Federal Fourth Amendment Crim.R. were the instant available dence-exclusionary” operative rule is how-, is, probation hearing revocation prosecutions”, in all “criminal event ever, ultimately fur The dispositive. policy its the additional furtherance of question ther remains whether the “evi objectives the rule extending achieved rule, independ dence-exclusionary” as an hearings probation (or revocation of to operative ently the remedy for violations of justify is to the con- parole) insufficient Fourth Amendment to the Constitution impairment proper of the func- comitant the

the United on binding States made tioning probation-parole system.5 of the Ohio, by Mapp v. States ap- agree.6 We (1961), 6 L.Ed.2d 1081 custody placed in the 32(f) those useful lives 4. Rule M.R.Crim.P. —relative Judg- general Board. To subject-matter, and] Parole [Probation “Sentence exclusionary apply ment”, par- rule to addressed Rule with 32—deals procedure [probation] aspects would revocation ticular for “revocation [probation] probation.” By . . . tend obstruct 'of fails itself this to warrant pur- system accomplishing proceeding remedial that a revoca- conclusion poses. probation tion of a with connection application suspension need for double “There of the execution a sentence exclusionary rule, using actually imposed . . proceed- it first . itself “criminal preventing prosecution ing” rules, of the all to which the criminal relevance, [probationer] applicable. time at and a second . . . hearing. [probation] revocation exclusionary purpose language point The deterrent is the Illustrative adequately Sperling Fitzpatrick, the exclusion rule is served ex United States supra:- rel. unlawfully evidence seized prosecution.” (pp. pro- [probation] “A revocation F.2d.) ceeding proceeding. is not an adversarial only [It] concerned not with protecting society, also, Simultaneously, have in mind warn- im- we and most restoring Judge rehabilitating ing portantly, in his concur- Lumbard of Chief presiding acted without error ment to United States Constitution and in allowing I, into at Article Section 5 of the Constitution of revocation the articles Maine.1 apartment seized of defendant’s wife present issue is whether the Court ring the diamond taken defend- below was in error in refusing apply person. ant’s termi- entry is: nate one’s for alleged violation conditions, itsof only where the evidence to

Appeal denied. support the fruit violation was the of an concurring. Five unreasonable and unconstitutional search Justices evidence, and seizure. tainted Such

objection, should have been excluded DUFRESNE, J., meaningful protection C. dissents. probationer’s privacy and the de- appeal fendant’s should be sustained. DUFRESNE, (dissenting). Chief Justice Initially, I take notice the reference appeal an revok- This is an from order constitutionally activating resulted in ing of, and in the seizure did not out arise previously suspended and in sentence of, supervisory course the execution of commitment turn caused the defendant’s M.R.S.A., pursuant duty to 34 § At the Men’s Correctional Center. probation-parole su designated to officer pro- charge of violation of hearing on pervise by the probationer-defendant M.R.S.A., bation under 34 § under 34 Director of Probation and Parole support thereof Court below received M.R.S.A., but, rather, carried objection ev- over the defendant’s the same by police City of Wa- out officers of earlier, sup- which, days it had idence five out crime.” competitively “ferreting terville pressed with the of Ca- connection trial proba is if a There no need consider entering breaking ron for crime of and constitutionally tion-parole may officer larceny intent under 17 M. to commit effects, person, his probationer’s search R.S.A., previous suppression 754. The obtaining a first and home without ground on the ob- was the evidence was and, so, warrant, if under what cir search through an and tained unreasonable search would be cumstances in violation of the Amend- seizure Fourth reasonable.2 ring opinion Sperling estoppel States ex rel. jeopardy collateral would and double supra: Fitzpatrick, v. proceedings violation be available may time when “The come the balance will decided, was not since the issue need not be widespread police People shift. Proof of harass- affirmatively. however, See, v. raised [probationers] of September 1974, ment would Grayson, 17, Opinion 58 Ill (rehearing cause such a shift since the 260, 319 43 denied No .2d N.E.2d is a be used 26, deterrent should 1974). vember clearly when the need for deterrence Simms, 1974, 2. 10 In case of State (p. F.2d.) shown.” 1166 of 426 Washing- 1088, Wash.App. 75, P.2d 516 opened jury.

1. that, though The case The mo even warrant- Court held ton parolee’s may tion to heard was then and residence less search of a jury. something taken out the absence of When less than tradi- conducted suppressed evidence, nevertheless, cause, the Court probable the State before a tional forcibly moved to parole dismiss the indictment. defend The residence officer enter the expressly objection parolee warrant, ant he stated that had no he must at of without Thereupon, suspicion to the dismissal. the indictment based on least have a well founded dicharged carry- was dismissed personal and the defendant or information observation on day. parole reliability without ing Whether under circum some that a indicia stances the instant case the doctrines occurred.

501 Also, judicial diametrically this not a case in which the inconsistent Such in the privilege of on the stance use of evidence obtained through constitutionally sub- express condition that defendant necessarily search and seizure must reflect any mit at time ato warrantless search probation-parole po- judiciary, officers or other introduction See, Mason, 1971, provision Fourth authority. People against Amendment lice 759, excep- Cal.Rptr. 302, privacy, 5 vidious invasions of an Cal.3d P.2d is, tion, houses, persons, pa- that the possessions probationers

pers and privacy, right imbedded parolees are excluded the mandated and in our Maine Fourth Amendment own protection of guaranty the constitutional Constitution, is one of the valuable most to determine whether rights of the citizens of this and of Nation guilty of violating the conditions of their States, this State. Weeks v. United parole. or 232 U.S. S.Ct. 58 L.Ed. The Fourth Amendment privilege guaranty per- The constitutional of one’s face embracing. is all It declares that the personal security, liberty private sonal right people to be secure in their property unreasonable searches persons, houses, effects, papers, and is unconditional and the bene- seizures seizures, against unreasonable searches and everyone. Except fit of for searches violated, shall not he and this without compliance made in seizures with the con- exception race, sex, color, pre based on provisions probable stitutional cause servitude, vious status as or supported by affirmation, oath or other all parolee. or universality the Fourth searches are in violation of the law of Amendment right persons pro in terms of land.3 undisputed. tected it is As stated Agnello States, 1925, v. United 1973, Me., Gallant, 308 A.2d pro L.Ed. prohib- that a search is Court said tection Fourth Amendment extends there Amendment if Fourth by the ited equally suspected to all justly those or —to justi- of one’s reasonable a violation accused, as well as to the innocent. Go- Surely, in the privacy. expectation of fied Bart Importing States, Co. v. United question can be no case there instant 344, 357, 153, 158, U.S. 51 S.Ct. L. violation Caron’s the constitutional 374, 382; California, 1963, Ed. Ker v. police. by the privacy Waterville 1623,1629, 10 L.Ed.2d an the search recognized below 726, 737. one, but refused to unreasonable involving proceeding a fruits in dwelling without private The search of it probation, while charge itself unreasonable. is in warrant valid prosecu- exclusionary rule in a applied probationer is person that a fact dis- of the crime the commission tion for his deprive him of does by against unreasonable searches by and seizure. guaranty closed the search I, the State of the United 3. Amendment Constitution Constitution IV. Article 5. prohib- and seizures searches Maine —Unreasonable States —Searches ited per- people people secure in their to be secure shall be “The “The effects, possessions persons, houses, papers, sons, papers houses, and and their seizures, seizures; against and searches and and all unreasonable searches any any place, violated, shall or seize and no search not be Warrants no warrant to shall by special upon probable cause, supported person thing, issue, issue without or shall but searched, particularly place affirmation, designation and to be and or Oath thing seized, person scribing place searched, nor without to be and or to be by supported probable af- things persons oath or be seized.” or cause — firmation.” 502 person his was Legislature officers of home or cases made aft-

against ensuing unreasonable seizure of er our had indicated ju- that this True, goods person. his his status as risdiction the common law sanc- rule which may admissibility illegal- is a factor which tioned the of evidence ly prevailed. cause establishing probable considered in obtained for issuance of a search and seize or McCann, 1873, 116, In State v. 61 Me. See, Martin search warrant therefor. v. this Court said: 1950, 436, States, Cir., 4 F.2d 183 439, 904, denied, cert. objected “It is that the seizure was il- 1974, 280, Gansz, 654; State 95 L.Ed. v. legal, proceeded the officer having Fla.App., 614. 297 So.2d search any Suppose without warrant. so, was that is no defense for the de- probation is not a criminal Violation fendant’s violation of law. If the sher- power suspend offense itself. iff responsible has violated law he is imposed upon execution sentence one violation, for such not con- that will offense, grant a criminal convicted any justification stitute for or excuse probation subsequently revoke it defendant.” See, statutory after is matter. Again, Plunkett, 1874, State Me. v. 529, Allen, 1967, Me., State 235 A.2d v. 534, Court, citing after Commonwealth 530, recognized It is that statuto Dana, 1841, Mass., 329, 337, v. 2 Metcalf generis judicial is “sui ry — restated its adherence to the common law rather than administrative rule, adding by way : of illustration inconsequential stage means but not a Russo, proceedings.” complaint “If a is made one Me., 140; Oliver, 1969, 260 A.2d State v. larceny and warrant 1968, Me., 122; State, Skidgell 247 A.2d granted, goods found, and the stolen 1970, Me., see, Mempa 8. But A.2d thief is not discharged to be when his Rhay, established, guilt fully because the of- L.Ed.2d serving may ficer in the warrant authority, complain- his exceeded or the probation system Our was first estab- ant not have had sufficient reasons lished Public Laws but that c. complaint upon for the belief which his original legislation provide did not pp. was based.” Id. at 537-538. hearing when charged the probationer was having officer with violat- Finally, Schoppe, in State v. ed probation.4 conditions of his It 92 A. this Court reiterated the Me. (Public only Laws, c. 3) espoused common law rule in McCann and termination of conditioned justified It admissibility Plunkett. upon shown,” being “cause intoxicating liquors evidence of seized Laws, (Public complaints c. 1—otherwise cases s. without a warrant R.S., 27-A, 8) identified as c. keeping intoxicating s. li- charging the empowered quors Court was to revoke intended for unlawful sale hearing.” “after provided: statute which appreciate I legislative change deposit- that the “Intoxicating liquors kept and requiring a hearing proba- in revocation of ed in state intended for unlawful sale the any respondent sentence, if “And at time has been continued for or cause probation, respondent violates the terms shall all other cases order the to forth- comply duty original with with sentence, be the of the to forth- the officer and in report the to the which been im- same court final- all whether sentence has not cases ly impose cause, may posed, the and sen- tried the court shall have court forthwith the authority thereupon to decree said tence.” ended, impose sentence, and either the if the state, States, 1928, the and the 438, 467, vessels which contained, they 564,569, are are contraband and 48 S.Ct. 72 L.Ed. 944. forfeited to the county they However, Mapp Ohio,

kept at the time are seized when U.S. 81 S.Ct. the L.Ed.2d chapter. all under And in cases common rule law nullified re- been (cid:127)where an seise may intoxicating officer specting admissibility ob- evidence them, liquors containing or vessels tained a as result of an unreasonable warrant, upon a may he seise same seizure, search Supreme and because the warrant, keep a without and them Court of the United there held States place some safe for a reasonable time right privacy embodied in the feder- procure can until he such warrant.” al Fourth Amendment is enforceable (Emphasis added). against Thus, Schoppe States. presently cision is not viable in Schoppe Court, cases ap- in addition to searches and proving seizures deemed the McCann Plunkett unreasonable and rule that under the activity admissible, evidence of Fourth-Fourteenth Amendments. notwithstanding that such evidence stated that Mapp Court further unlawfully

have been obtained offi- Fourth privacy in the embodied cers, also endorsed the alternative basis for against is enforceable Amendment admissibility evidence, of such “in the manner vidious same was, invasion that intoxicating liquors pos- in one’s se- rights as all to like effect” other basic purposes session of unlawful sale were Clause, and that cured the Due Process by statute property contraband seizable part of exclusionary an essential warrant, without and thus were outside Amend- both the Fourth and Fourteenth protection prohibi- of the constitutional of an un- only if the ments'. It is fruits against tions unreasonable searches and inadmissible are made constitutional search seizures. concluded justice, as evidence in a court of previous cases Schoppe, Court, that all inducement Mapp which treated issue connection with precepts be com- evade constitutional will intoxicating liquors, seems the Court pletely eliminated. prohibi- have construed the prohi the constitutional essence of against all searches tion bition unreasonable searches concept of seizure unitary seizures as implemented seizures, by the effectively preceded search, by as such did rule, exclusionary merely that “evi is not seizure of statutorily apply to authorized acquired used before dence shall not be so liquors prior search. without contraband used that it at the court but shall not Schoppe of the If such is intendment States, 1963, Wong all.” Sun v. United ruling, present-day consti- it will stand L. generally analysis, since it is now tutional Ed.2d 441. prohibi- recognized that the constitutional case of seizure applies alike in the rule, Any objection police ac- when without warrant as it does Hawkins, 1970, pointed out State v. tivity consists of warrantless Me., 261 A.2d seizure. suprema- academic because the “becomes cy unquestioned Schoppe It is that the view clause Constitution represented (Article VI) requires law rule to the ef- obe- common United States change every admissibility fect dience State officials to. page illegality not affected means Fourth Amendment law.” Id. See, by which it was obtained. Olmstead

504 Hawkins,

Again quoting supra, tertained Even though towards him. page 257: proceeding is non-criminal and generis sui nature, in it is clear that it has some fea- instance, “While in legali- the first pertinent tures ato criminal case. Viola- ty of a search must and seizure be deter- proceedings prose- law, mined under the State stand- cuted by and they trig- the State serve to ard can be than no lower the constitu- ger the imposition service or the of a sen- applicable proceed- tional standards tence for the commission It crime. ings in the Federal Courts under Federal an integral procedural part of the sentenc-

prosecutions.” ing process. ap The exclusionary rule has been made I take great notice that the majority of plicable proceedings. Peo noncriminal jurisdictions which have considered Moore, 674, ple 1968, 69 Cal.2d 72 Cal. question opted against application Rptr. 800, (commitment 446 P.2d for 800 of the exclusionary rule where evidence addiction); Plymouth narcotic One 1958 support violation-of-probation charge Pa., 1965, Sedan v. Commonwealth 380 was obtained in violation of Fourth U.S. S.Ct. L.Ed.2d 170 rights. Nevertheless, my Amendment (civil forfeiture); Municipal Camara v. opinion humble impera- constitutional Court, 1967, 87 S.Ct. tive of the Fourth our Amendment and of L.Ed.2d 930 of health and (enforcement provision own unrea- safety Marsh, 1968, regulations); In re sonable compels searches and seizures (juvenile proceed Ill.2d N.E.2d rejection of the rationales ings). justified courts have the non-application of rule. It proceedings is true that to determine violation of probation are not criminal arguments One of the is that a motion to trials; original are distinct from the suppress obtained an unconsti- prosecution thus for crime and the full tutional search seizure does not lie panoply rights a defendant accused due a revocation-of-probation proceeding, since crime in his the conduct of trial does it is not a agree I trial. that Rule apply hearings. revocation M.R.Crim.P., 41(e), contemplate does Gagnon Scarpelli, 411 U.S. suppress use of the proce- motion as a See, Morrissey 36 L.Ed.2d 656. anticipation dural tool in of a criminal Brewer, 1972, trial, since it states: 2593,33 (parole). L.Ed.2d 484 prop- the motion “[I]f Nevertheless, the interest the nature of erty shall unless be restored otherwise in his continued condi- subject to lawful detention and it shall as, liberty greater if not great tional is as be admissible evidence at than, on trial the accused proceeding.” (Emphasis add- probationer’s potential crime. loss ed). person similar accused of to that of indeed, violation, crime; he if found Also, 54, M.R.Crim.P., affirmatively Rule employment and gainful stands to lose his provides apply rules “these all crim- the normal freedom all members of Superior inal ... is, fami- society enjoy, that live with his . ..” ly and his As a associate with friends. But, generis sui where in a exposure fact, to a life of matter of his character, to determine violation greater, confinement is probation, need to evi- there is probably his more than may, inva- procured dence in an unconstitutional not, result breach confinement privacy, Superior sion of previously en- faith which the Court probationer against hearings protect its over cases to in inherent control process rights, due jurisdiction may fashion the its violation of within hold against unconstitutionally 32(f), I would proper relief ob- Rule M.R.Crim.P. pre-trial revocation-of-probation proceeding that a by analogy to tained evidence procedure provided by 41(e). is within the Rule 41. scope Rule in in- justified, relief be Such refused which jurisdictions The case, M.R. either under Rule stant exclusionary rule violation- apply the Crim.P., proce- says which that “when on so have done of-probation proceedings prescribed court specifically dure is supplemental deterrent grounds, 1) the two manner not proceed any lawful shall will police conduct that on effect future with the Constitution consistent proceed- flow from the exclusion Maine, rules, any applica- or these State of searches ings of the fruits of unreasonable statutes,” 7(b), or Rule M.R. under ble minimal to warrant seizures too application Civ.P., provides “an that application, at 2) the societal interest by shall be mo- the court an order outweighs salutary purposes stake which, during a made tion unless argument is persuasive rule. The writing trial, shall be made or aspect. either M.R.Civ.P., .,” 43(e), Rule or under di- solely exclusionary rule hot a motion based states “when misconduct, rected deterrence record the court appearing on facts only method is at same time present- affidavits may hear the matter their whereby may discharge the courts respective but the court parties, ed express duty of mandate support to wholly be heard may direct the matter our As stated depositions.” Constitutions. testimony partly on oral or or Brennan in his dissent United States fact, the abil As a matter of Calandra, U.S. S.Ct. ity to obtain is not relief confined 38 L.Ed.2d 561. expressly instances covered Rule rule, perfect, if not exclusionary “The suppress evidence, The rule to termed enabling goals of accomplished the twin Katzenbach, 1965, Smith v. 122 U.S.App. part- the taint of judiciary avoid crystallization D.C. 351 F.2d “is a of as- nership in lawlessness official principle of a equity jurisdiction. That potential victims suring people equity jurisdiction persists as to situations —all government conduct—that of unlawful not specifically covered Al Rule. government profit from would not ternatively the same result be can reached behavior, minimizing the its lawless thus by a broad reading of the Rule.” undermining popular of seriously risk Our given expand- Court has 41 an Rule in government.” trust provide ed reach to pre-trial relief in rela- “part exclusionary parcel rule is the admissibility of confessions and the Fourth Amendment’s limitation in-court or out-of-court identifications. privacy.” encroachment of individual See, Fernald, 1968, Me., 248 A.2d 643, 651, Mapp Ohio, 754; Barlow, 1974, Me., State v. 320 A.2d 1684, 1689, 6 L.Ed.2d 1081. 895, 903. applied rule must Notwithstanding generis the sui charac- revocation-of-probation attempt- ter of all proceedings, where State is ing integrated have been of an fully use fruits our criminal rules concept within the and seizure so as of “all to insure criminal proceedings” “imperative judicial under Rule maintenance of the integrity” our criminal provide (Elkins States, rules do v. United expressly procedures 206, 222, certain to be observed in such 4 L. of sion and criminal offenders. dissipate any inferen- conviction 1669) thus Ed.2d and hand, police On the other when the take themselves do that courts tial notion nothing gain something to lose and fol- prohibitions when- leave of constitutional lowing privacy, an invidious intrusion of ever deem to do so. advisable police activity extent the the bears some the effect of Furthermore, deterrent fruit, the be it cause the only to misconduct official exclusionary rule on probation to proba- be terminated and the result, if, lost, end in the completely will be past tioner to be incarcerated for criminal the reimprisonment the police obtain conduct, impossible it seems to view the investigation sus- in their end result of the enforcement authorities’ part. That pected activity on operations criminal complete less than near satis- frequently probation officers police and goals faction of the original of the re- of their together work in the execution partial action. suspension of the ex- Re- spective undisputed an fact. duties is clusionary rule and of the Fourth Amend- po- known to cidivism is a fact of life ment right of privacy in the case proba- officer; probation lice as well as to the tioners must needs widespread result in po- suggest cooperative ef- this in itself would lice harassment of large class citizens segments forts of law between these two whose rehabilitation depend, would seem to M.R.S.A., 1551, enforcement. so Under 34 the contention goes, in judicial agencies “law enforcement non-recognition of constitutional mandates. cooperate shall I [parole] with the board cannot application subscribe to the of the administration,” exercising parole platter” its “silver doctrine in revocation-of- being board relationship with the close proceedings. Director of the Division of Probation The second rationale advanced setting, imperative Parole. In such a it is application forthright cooperation agen- between probation-revocation hearings is that cies within the constitutional standard prevent rule would the court from consid- reasonable searches and pro- seizures be ering significant evidence, relevant and fostered, moted and and that all induce- and, in doing, so would undermine leg- subterfuge ment to be evasion with- islatively ordained sentencing process by drawn. restricting grants initial seriously interfering with rise gave All of the reasons which rehabilitative purposes of the justice system. creation and criminal application of exclusion- ary rule sei- condonation unreasonable searches and official lawlessness Judicial is conceivably acceptable pro- zures even less by public" prose- officers apply cutions bation-revocation equal with force to revoca- than in crim- trials; inal f-probation tions goals proceedings. theory rehabilitative probation system necessarily of deterrence must respect for the constitu- sub- stantially prohibitions tional frustrated gravely when a probationer would be endan- observes that gered if law person- official enforcement activity violation of nel can violate rights Fourth appar- Constitution used, Amendment with could be ent impunity despite especially unavailability strictly court prosecutions, sanction. probationer’s to effect a

equally grievous forfeiture of his condi- Supreme I realize Court of tional freedom. States has denied “cert” United Heyd, 1970, States ex guar-

The violation Lombardino v. fundamental rel. denied, just great E.D.La., antees of privacy F.Supp. for the cert. 160; individual purpose when for the used S.Ct. L.Ed.2d Martinez, incarceration breach re 1 Cal.3d 83 Cal. object Rptr. 382, when cert. denied sub apprehen- to secure the P.2d the Okla- language fully approve I Craven, 400 U.S. Martinez v. nom. State, in Michaud v. homa Court if we Even 27 L.Ed.2d Okl.Cr., 1399: 505 P.2d pro- indicates assume that such should square- approval when the issue spective obtained “The exclusion nevertheless, Court, ly before can- through an unconstitutional situation, held Court, analogous in an just rule another not be considered Collins, 1972, Me., A.2d (See, v. State fundamental, rather, procedure; is a free, interpre- this State 620) that right. significant constitutional It provisions, of our own constitutional tation in vio- evidence ‘was when the obtained compliance higher adopt a standard not lation of constitutional prohibition, Fed- requirements the minimal of the than Moreover, procedure. merely a rule of proper assess- eral Constitution to reflect a exclusionary rule with which we are re- public ment this State policy part concerned is a of the constitutional specting high the intended commit- priority right, merely of evidence rule ment, which, embracing because of its all adopted in supervisory the exercise of a tenor, I, Article Constitu- Section 5 of the power.’ States, v. Verdugo United wit, that, receive, Maine should tion of F.2d (9th 610-611 1968). Cir. Ac- security of the protection full cordingly, the distinction between a houses, persons, papers and people in their criminal trial and a revocation the fruits all unreasonable possessions, abrogate does not the Fourth Amend- and seizures shall not be available searches ment.” government proceeding. also, See Brennan’s dissent in Unit Justice Schoppe, su- that State v. the extent To ed States Calandra, v. supra; Pe Schoppe the cases which pra, and ters’ dissent in In re Martinez, supra; Jus follow, a con- express purported Court tice Grimes’ dissent in Shea, 1973, Stone v. respecting the reasonableness trary view N.H., 304 A.2d Judge Fairchild’s mean- within seizures of searches dissent in United States Hill, 1971, I, the Con- 5 of Section Article ing of Cir., 447 F.2d 817. ap- concerning Maine stitution of I would sustain the appeal. to ev- plicability of in violation idence obtained privacy, I would them.

overrule Supreme holding of the Calandra, supra, is

United States position. my present consistent STATE of Maine that a witness case, majority held testify before appear and summoned ques- answer may not

grand jury refuse B. Grover BRAGG. on evi- ground based tions on Supreme Judicial Court of Maine. unlawful dence obtained from an Indeed, illegally 2, seizure. April fruits thereof seized evidence prosecu- used future

could not be

tion, standing to invoke Calandra grand exclusionary rule before defendant, other

jury. on the The instant

hand, through the use faced incarceration of his

of evidence obtained in violation rights.

Fourth Amendment

Case Details

Case Name: State v. Caron

Court Name: Supreme Judicial Court of Maine

Date Published: Mar 3, 1975

Citation: 334 A.2d 495

Court Abbreviation: Me.