State of Maine v. Boildard

STATE OF MAINE UNIFIED CRIMINAL DOCKET
CUMBERLAND, ss. STATE OF MAINE DOCKET NO.: CUMCR-18-3666
ss, Clerk's Office

STATE OF MAINE, Ep
)
)
v. ) ORDER ON DEFENDANT'S
) MOTION TO SUPPRESS
JEFFREY BOILARD )
)
Defendant )

I. Procedural Background

Pending before the Court is Defendant Jeffrey Boilard's Motion to Suppress

evidence found during a warrantless search in the backyard of 32 Hennessey Avenue in

Brunswick, Maine ("32 Hennessey"). Defendant also asserts that evidence obtained from

his arrest should be suppressed because the arresting officers lacked probable cause. A

hearing was held on July 25, 2019.

As a preliminary matter, the State challenged the Defendant's standing to contest

the warrantless search of 32 Hennessey on Fourth Amendment grounds. The State

argued that Defendant was not an overnight guest of Jonathan "Eric" Hummel

("Hummel"), who resides in Apartment "D" at 32 Hennessey, and therefore did not have

a legitimate expectation of privacy in the premises. 1 Based on the Defendant's testimony,

1 The Fourth Amendment of the United States, and as similarly stated in the Maine
Constitution, provides that "[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated ..."
U.S. Const. amend. IV. However, in order to contest the admission of the evidence on
Fourth Amendment grounds the defendant must demonstrate that he had a legitimate
expectation of privacy in the place searched. See State v. Carton, 2016 ME 119, '[ 15, 145
A.3d 555 ("this authority applies to defendants who have a legitimate expectation of
privacy in the location of the search."). It is well settled law that an individual's status as
1 of 15
the Court found that the Defendant was an overnight guest of Hummel.2 As such, the

Court concluded that the Defendant had an expectation of privacy in Hummel's

residence.

The State next contends that 32 Hennessey is a multi-unit apartment building and

challenges whether the Defendant has a reasonable expectation of privacy in the

backyard of 32 Hennessey. Defendant asserts there is no evidence to support that 32

Hennessey is a multi-unit apartment building and, even if it is, there is no evidence that

any of the other units at 32 Hennessey are occupied. 3 Accordingly, Defendant argues

that the search was conducted in the curtilage of 32 Hennessey and must be suppressed.

In addition, the Defendant asserts that law enforcement lacked probable cause and,

therefore, seeks suppression of evidence obtained in the warrantless arrest of the

Defendant.

The Court heard testimony from Jerod Verrill and Chad Carleton, both Special

Agents with the Maine Drug Enforcement Agency. The Court also heard testimony from

the Defendant. The Court admitted into evidence State's Exhibit #1 (an aerial photograph

an overnight guest is enough to show he had a reasonable expectation of privacy in a
third persons' home. Minnesota v. Olson, 495 U.S. 91, 96-97 (1990).
2 Defendant testified that he and Hummel have been best friends since they were

9-years-old. Over the years, Hummel has lived at a number of places in Brunswick and
Defendant has stayed at all of them. Defendant testified that he has stayed at Hummel's
current residence on 5 or 6 occasions. On July 8, 2018, Defendant arrived at Hummel's
residence, stayed the night, and remained at the residence until his arrest on July 9, 2018.
3 In a post-Miranda interview, Hummel acknowledged that he lives in apartment "D" at

32 Hennessey. He stated that he primarily uses the back window facing the railroad
tracks to enter the apartment instead of the front door because of his roommate, "Crazy
Stacey." It is unclear from the testimony and aerial photographs of 32 Hennessey just
how many apartments are in this particular structure. Agent Carleton, however,
identified the apartment's designation of "D" in front of one of the entrances, and inferred
that 32 Hennessey contained at least four individual units. Despite their respective
arguments, neither party presented direct evidence as to the number of units in the
apartment building nor the presence of other tenants.

2 of 15
of the property at 32 Hennessey), Defendant's Exhibit #1 (a photograph of the property

taken from Hennessey Avenue), Defendant's Exhibit #2 (an aerial photograph of the

property at 32 Hennessey), Defendant's Exhibits #'s 3 and 4 (two images of the Town of

Brunswick Tax Assessor Map of the property at 32 Hennessey) and Defendant's Exhibit

#5 (a recording of the police interview of Johnathan "Eric" Hummel.)

II. Findings of Fact

In mid-June 2018, Agent Verrill received information from a concerned citizen that

Hummel was selling cocaine and heroin at 32 Hennessey Avenue in Brunswick, Maine. 4

On July 5, 2018, Agent Verrill learned from Agent Carleton that a source of

information ("SOI") had been at 32 Hennessy earlier that day and observed Hummel

selling drugs. 5 The SOI told Agent Carleton that Hummel's supplier, a man named "Jeff,"

was also present. He told Agent Carleton that he had seen them at 32 Hennessey in the

vicinity of a digital scale and approximately ten grams of cocaine. He described "Jeff" as

a man in his mid-forties with brown hair, 5'8" to 5'10. He thought "Jeff" was from New

Hampshire. He had seen a truck with New Hampshire plates and a Harley Davidson

motorcycle at 32 Hennessey. 6 On July 7, Agent Carleton heard from the SOI that more

4 Later that month, his source said other drugs, including, methamphetamines (uppers),
opiates (downers), suboxone (boxes) and morphine (morphs) were being sold out of 32
Hennessey.
5 Agent Carleton testified that between July 5 and July 9, 2018, he talked to and/ or texted

his SOI several times a day.
6 Defendant testified that his girlfriend owned a Ford pick-up truck and that he or she

had driven it to 32 Hennessey on July 8th. He also testified that he had a Harley Davidson
motorcycle that he had driven to 32 Hennessey sometime around the 3rd to the 5th of July.
Apparently, the motorcycle had broken down and he had left it at 32 Hennessey. He had
it repaired and had come back to retrieve it.
3 of 15
product was coming. On July 9, the SOI confirmed that "Jeff," Hummel's supplier, was

at 32 Hennessey and had cocaine to sell.

Acting on this information, Agents Carleton and Verrill conducted surveillance of

32 Hennessey from the parking lot of the Women's Fitness Center and Spa, which is

located on the other side of the railroad tracks in back of 32 Hennessey. ( See St. Ex. 1.)

From this location, they had a fairly unobstructed view, both with and without the use of

binoculars, into the backyard of 32 Hennessey and could see the long driveway, with

other homes off of it.7

The Agents confirmed that Hummel was at 32 Hennessey. Agent Carleton saw a

man who matched the SOI's description of "Jeff." The Agents also observed

approximately six to eight other people in the back yard. Some of the individuals were

known to the Agents to be drug users in the Brunswick area. They observed two tents set

up in the backyard by the railroad tracks. 8

During the two hours of surveillance in the early afternoon, the Agents also

observed pedestrians walking into and out of the back yard as well as number of vehicles

coming and going from 32 Hennessey. These individuals would stay for a short duration

and then leave. They testified this is indicative of "typical drug deal behavior." They also

saw a red Harley Davidson motorcycle that they suspected belonged to "Jeff."

The SOI agreed to participate in an arranged "buy" in the parking lot of Shaw's in

Brunswick. The SOI contacted Hummel who agreed to sell him 3.5 grams of cocaine for

7 32 Hennessey is the second house at the end of a long driveway. (Def.'s Ex. 2- 4.) The
residence has trees on both sides, and railroad tracks run behind it. (Def.'s Ex. 2). There
is no fence or other structure that obstructed their view.
8
At hearing, the Defendant's testimony confirmed that six to eight friends of Hummel
were in the backyard, including Stacey, who lived upstairs, at 32 Hennessy. He said there
were two tents set up in the backyard. He knew one of the people living in one of the
tents but did not know who lived in the other. (Emphasis supplied.)
4 of 15
$300. The Agents saw a Ford Focus pull up to 32 Hennessey. They observed Hummel get

into the car and followed it to Shaw's. Hummel got out and met with the SOI. After the

exchange was made, the Agents and other law enforcement approached Hummel and

the driver. 9 Hummel was found to be in possession of a small baggie containing 3.5

grams of white powder. A field test of the powder came up positive for cocaine.

Hummel was arrested, read Miranda and questioned. The Agents' focus was on

"Jeff." 10 Hummel acknowledged that "Jeff" Boilard was back at the residence. He said he

would help them but wanted a "deal" first, which they declined to make. He said Jeff

showed up that day, brought cocaine, and he (Hummel) would sell it for him. He did not

know the amount of drugs Jeff had with him. He said that Jeff was leaving soon and if he

didn't get back in two minutes, he'd be f***ked." (Def.'s Ex. 5.) He confirmed that Jeff

drives a motorcycle. 11

The Agents determined they would drive by 32 Hennessey to see if Defendant's

motorcycle was still there and then return to the Brunswick Police Department to

formulate a plan. After seeing the motorcycle was still there, they decided to go 32

Hennessey, contact the Defendant and secure the residence in anticipation of obtaining a

search warrant.

Instead of walking the full length of the driveway, Agents Carleton and Verrill

9
Michael Bourgoin was the driver of the Ford Focus. He was subsequently found to be
in possession of heroin. He was summonsed and released. The Agents were concerned
that Mr. Bourgoin would get word back to the people at 32 Hennessey about the drug
bust at Shaw's.
10 Among other things, Hummel was told, "We want the main guy and the rest of the

drugs."
11 Hummel was subsequently taken to the Brunswick Police Department and booked.

5 of 15
along with several other officers, came in from the side and walked up to 32 Hennessey. 12

As they walked up the driveway, Agent Carleton recognized the Defendant sitting on a

bench in the backyard. He called out, "Jeff?" to which the man responded, "Boilard?"

Agent Carleton testified that he "saw [the Defendant] move something in his hand

to the side and watched as a dark object fell through the bench slats, landing slightly

under and to the back of the bench." 13 Agent Carleton called out, "I see what you

dropped there." He told him to stand up. He patted him down, placed him in handcuffs

and placed him under arrest. While the Defendant was handcuffed and standing next to

another officer, Agent Carleton found the dark object - a pouch with a zipper. He opened

the pouch and discovered twenty-five bags of cocaine. The Defendant was taken to the

Brunswick Police Department.

While the plan had been to secure 32 Hennessey in anticipation of a search

warrant, Agents Verrill and Carleton and the other officers involved determined that

what they seized from Mr. Boilard was all that was likely to be found on the premises. 14

Agent Carleton testified, "we had what we came here for."

III. Conclusions of Law

A. Fourth Amendment Protection Within the "Curtilage" of a Dwelling

12 The side of the driveway is lined with trees. They had observed other people walking
through them to get to the house. They did not encounter a fence, gate, large dog, or
"no trespass" or "private property" signs.
13 The Defendant denies he dropped anything.
14 Based on his training and experience, Agent Verrill stated that drug dealers will keep

the drugs close to them.
6 of 15
The critical issue is whether the tenant of an apartment building has a reasonable

expectation of privacy in a shared backyard. Specifically, whether the backyard of a

multi-unit apartment qualifies as "curtilage" for purposes of the Fourth Amendment.

The Supreme Court follows "a two-part test for analyzing the expectation of privacy

question: first, whether the movant has exhibited an actual, subjective, expectation of

privacy; and second, whether such subjective expectation is one that society is prepared

to recognize as objectively reasonable." United States v. Rheault, 561 F.3d 55, 59 (2009). It

is well established that a person has a reasonable expectation of privacy in the "curtilage"

of one's home. Specifically, "the areas 'immediately surrounding and associated with the

home' are 'part of the home itself for Fourth Amendment purposes."' Florida v. Jardines,

569 U.S. 1, 6 (2013) (quoting Oliver v. United States, 466 U.S. 170, 180 (1984). As stated in

Jardines, "[t]his right would be of little practical value if the State's agents could stand in

a home's porch or side garden and trawl for evidence with impunity ...." Id. As such,

warrantless searches within the curtilage of one's home "are per se unreasonable under

the Fourth Amendment - subject only to a few specifically established and well

delineated exceptions." Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United

States, 232 U.S. 383,392 (1914).
Typically, when a defendant seeks suppression of evidence obtained from a

warrantless search "the government bears the burden of demonstrating that the search

was lawful." Id. However, the burden remains with Boilard, an overnight guest, to

demonstrate the search occurred in a constitutionally protected area.

B. Reasonable Expectation of Privacy in Single-Family and Multi-Unit Dwellings

In this case, the backyard and bench area where the search and arrest occurred

may very well be considered curtilage for purposes of a single-family dwelling. See

United States v. Dunn, 480 U.S. 294, 301 (1987) (detailing four factors courts should
7 of 15
consider to determine whether an area qualifies as curtilage). However, as Defendant

correctly points out, for purposes of a Fourth Amendment analysis, the distinction

between a single-family home and a multi-unit apartment building is relevant to

determine whether one's expectation of privacy in certain shared spaces is reasonable.

The First Circuit has held that "a person cannot have a reasonable expectation of

privacy . . . in such a well-travelled common area of an apartment house or

condominium." United States v. Cruz Pegan, 537 F.2d 554, 558 (1· Cir. 1976) (a common

basement area did not form part of the defendant's curtilage). More clearly stated," .. .in

this circuit ... a tenant lacks a reasonable expectation of privacy in the common areas of

an apartment building." United States v. Hawkins, 139 F.3d 29, 32-33 (1" Cir. 1998). Indeed,

"[i]n a modern urban multi-family apartment house, the area within the 'curtilage' is

necessarily much more limited than in the case of a rural dwelling subject to one owner's

control." Cruz Pegan, 537 F.3d at 558 (quoting Commonwealth v. Thomas, 358 Mass. 771,

774-75, 267 N.E. 2d 489 (1971).

In United States v. Constant the United States District Court for the District of Maine

held that a defendant does not have a reasonable expectation of privacy in the back porch

of a multi-unit apartment. United States v. Constant, No. 2:12-cr-0065-NT, 2013 U.S. Dist.

LEXIS 15524, at *15-16 (D. Me. Feb. 5, 2013), aff'd, remanded for sentencing, 814 F.3d 570 (1"

Cir. 2016). Relevant to the court's determination was the absence of any evidence the

tenant had the exclusive right to exclude others from the porch. Id. The court articulated

its reasoning as follows:

Because the area in question is both open to the public and potentially shared by
occupants of the second apartment, the Court finds that any subjective expectation
of privacy is not objectively reasonable. Neither can the back entryway and porch
be considered part of the curtilage of the Defendant's apartment.

8 of 15
Id. With this directive in mind, the Court's reasonableness analysis must focus on

whether the tenant possessed the exclusive authority to exclude others from the area

searched.

It is clear that when a dwelling is divided into multiple self-contained apartments,

a tenant does not have exclusive control over common areas shared by other tenants. See

e.g. Hawkins, 139 F.3d 29 at 32. It is less clear, however, whether Hummel, and by

extension his overnight guest, did or did not have exclusive control over the backyard at

32 Hennessey.

From the evidence presented, it is unclear how many units there are at 32

Hennessey. There is evidence, however, that Hummel lives in apartment "D" and,

although they would use different entrances (she the front door and he the window in

the back), he has a roommate, Stacey. From Hummel's statement to police that he lives

in apartment "D" and Agent Carleton's testimony that he saw a "D" on one of the unit

entrances, it is reasonable to infer that there are other apartments, presumably "A," "B"

and "C," at 32 Hennessey. Albeit scant, from the evidence presented and the reasonable

inferences that may be drawn, there is sufficient evidence for this Court to determine that

32 Hennessey is not a single-family dwelling, but rather a multi-unit apartment building.

Even accepting this conclusion, Defendant asserts that if the other units are vacant,

Defendant is nevertheless entitled to a reasonable expectation of privacy in the backyard.

Essentially, Defendant argues that because there are no other tenants, there can be no

shared common spaces. Despite the apparent, but not proven, absence of other tenants,

the underlying justifications limiting the curtilage of 32 Hennessey appear to be satisfied.

For instance, the other apartments could become occupied by tenants at any time and

those tenants would have the right to use the backyard. The landlord or owner of 32

Hennessey could enter or occupy the other apartments and would have the right to use
9 of 15
the backyard. Accordingly, Hummel does not have the right to exclude others from the

backyard; and, any subjective expectation of privacy is not objectively reasonable.

Based on this finding, the Court need not delve into whether the Agents truly

entered the premises "in anticipation" of a search warrant, because the search did not

occur in the curtilage of Hummel's apartment at 32 Hennessey. Because the search did

not occur in a constitutionally protected area, the State's minimal intrusion into the

backyard of 32 Hennessey did not result in a Fourth Amendment violation.

C. The Agents Were Lawfully on the Premises

Even if the Court were to find the search and subsequent arrest took place within

the "curtilage" of 32 Hennessey, the Agents warrantless entry would still be considered

reasonable on two separate grounds. First, an exception to the warrant requirement

permits officers to lawfully enter a home's curtilage to secure the residence in anticipation

of a search warrant. Specifically, the Law Court stated:

Officers may temporarily secure a residence if (1) the officers have probable cause
to believe the home contains evidence of a crime; (2) the officers have reason to
believe that evidence could be destroyed before they obtain a warrant; (3) the
officers make reasonable efforts to reconcile their law enforcement needs with the
demands of personal privacy; and (4) the time period lasts no longer than
reasonably necessary for the police to obtain a warrant.

State v. Sullivan, 2018 ME 37, 'l[ 17, 181 A.3d 178 (citing Illinois v. McArthur, 531 U.S. 326,

331-33 (2001). Applying the Sullivan factors to this case, the Agents had probable cause

to believe the home contained drugs. On July 9, Agent Carleton was informed that drugs

and the alleged supplier, "Jeff", were at 32 Hennessey that day. The Agents then

observed several known drug users on the premises, as well as pedestrians and vehicles

coming and going for short durations. Agent Verrill testified that based on his

experience, these quick visits were indicative of drug deals. And, in a post-Miranda

interview, Hummel informed the Agents Boilard was at his house and that he brings

10 of 15
drugs and [Hummel] sells them. Based on the foregoing, is was reasonable to believe that

drugs were still on the premises. As such, the Agents had probable cause to believe drugs

would be found at 32 Hennessey.

Regarding the second prong of Sullivan, the Agents had reason to believe that

evidence would be destroyed before they obtained a warrant. The Agents testified that

the arranged buy at Shaws was not discreet. Similarly, the man who drove Hummel to

Shaws was released after receiving a summons. He certainly had the opportunity to either

return to 32 Hennessey or at the very least inform those present at 32 Hennessey about

the drug bust. Given these possibilities, and based on their experience of being "burned"

in the past, the Agents reasonably believed word of the arrest could get back to 32

Hennessey and that evidence could be destroyed prior to obtaining a search warrant.

As for Sullivan's third prong, the Agents made reasonable efforts to reconcile their

law enforcement needs with the demands of personal privacy. This prong is satisfied

primarily from the fact that the intrusion onto 32 Hennessey was only minimally

invasive. The Agents made no attempt to enter the residence. They were simply on their

way to locate and secure the apartment's rear window entrance.

Lastly, the Agents did not secure the premises for an unreasonable amount of time.

There was only a brief window of time between when the Agents first had an opportunity

to obtain a search warrant to when they abandoned their plan to obtain the warrant

shortly after arresting Boilard. 15

15 Although it could be argued that the officers were never truly securing the premises

in "anticipation" of a search warrant because one was never actually issued or sent for,
"[i]t is not incumbent upon the law enforcement authorities to obtain a search warrant
as soon as probable cause arises." See State v. Dunlap, 395 A.2d 821, 824 (Me. 1978).
11 of 15
Having determined that the Agents were lawfully on the premises to secure the

residence in anticipation of a warrant, the Court finds it necessary to discuss an additional

justification, namely, an officers implied invitation to approach a home. The implied

invitation is articulated as follows:

[T]he owner impliedly invites to intrude upon his or her property only those with
a legitimate social or business purpose. Id. Moreover, the implied invitation
extends only to recognized access routes reasonable under the circumstances, id. at
818-19; Lorenzana v. Superior Court, 9 Cal. 3d 626,511 P.2d 33, 42, 108 Cal. Rptr. 585
(Cal. 1973), and to reasonable times of day, again depending on the
circumstances, Brown v. State, 392 So.2d 280, 284 (Fla. App. 1980). As to someone
present on the property under the implied invitation, the property owner has no
reasonable expectation of privacy from observations made by that invitee. Rand,
430 A.2d at 819.

State v. Cloutier, 544 A.2d 1277, 1280 (Me. 1988). In this case, the Agents were conducting

legitimate police business and entered through the side of the driveway, a route they

observed others use to access the backyard that day. The Agents observed Boilard drop

the black zippered pouch. There was no reasonable expectation of privacy from that

observation. There is also "no expectation of privacy in a driveway that is completely

and easily visible form a public street," meaning it does not fall within the home's

curtilage. See United States v. Roccio, 981 F.2d 587, 591 (l• Cir. 1992). Anyone from the

public could observe or access the residence from the driveway. The residents of 32

Hennessey took no steps to discourage the public from entering through the driveway or

observing the goings on at 32 Hennessey. The Agents approach to the backyard of 32

Hennessey was in keeping with the normal route of access to Hummel's residence.

Hummel stated in the interview that his apartment entrance was through a window

located in the rear of the building. The Agents were simply approaching Hummel's

primary entrance.

12 of 15
Accordingly, even if the Court did find the search took take place in the curtilage

of 32 Hennessey, there was no Fourth Amendment violation because the Agents were

lawfully on the premises, either to secure the premises, or under their implied invitation.

IV. Probable Cause and the Search Incident to Arrest Doctrine

A. Probable Cause

Defendant argues that the Agents lacked probable cause to arrest Boilard and

seeks to suppress the evidence on that ground. To that end "[t]he standards to support

probable cause to arrest are well established." State v. Journet, 2018 ME 114, 'l[ 15, 191

A.3d 1181. "Probable cause exists where facts and circumstances of which the arresting

officer has reasonably trustworthy information would warrant an ordinarily prudent and

cautious police officer to believe the subject did commit or was committing a crime. State

v. Boylan, 655 A.2d 1016, 1019 (Me. 1995).

In this case, the Agents relied on information from the SOI, information gathered

from their own observations, and the interview with Hummel. Taken together, the

Agents had sufficient information to support their probable cause determination. Agent

Carleton received information from a SOI on July 5, who personally observed Hummel

selling drugs out of 32 Hennessey with a man named "Jeff," who the SOI believed to be

Hummel's supplier. 16 The SOI notified Agent Carleton that "Jeff," the alleged supplier,

would be returning soon with more drugs, and on July 8, "Jeff" did in fact return with

more drugs. On July 9, after receiving this information from the SOI, Agents Carleton

and Verrill conducted their own surveillance at 32 Hennessey. Based on their

observations and experience, the Agents reasonably inferred that drugs were being sold

out of 32 Hennessey. Agent Carleton also confirmed the presence of a man matching the,

16 One can infer that the SOI was at 32 Hennessey to purchase drugs.

13 of 15
admittedly vague, description of "Jeff." Additionally, the Agents did not rely solely on

the SOI and their own observations. It was later confirmed by Hummel that "Jeff" was

in fact Jeffrey Boilard, who brought drugs that Hummel would sell.

B. Application of the Search Incident to Arrest Exception

Having concluded that the search did not occur in a constitutionally protected

area, the Agents lawfully entered 32 Hennessey to attempt to contact the Defendant and

secure the premises in anticipation of a warrant. Once Agent Carleton identified the man

sitting by the bench as Boilard and observed him drop the black zippered pouch, Agent

Carleton seized Boilard and subsequently conducted a lawful search incident to arrest.

The search incident to a lawful arrest doctrine is an exception to the warrant

requirement. The exception arose out of the concern that incident to a lawful arrest, the

arrestee could gain access to dangerous weapons or destructible evidence. See Chime/ v.

California, 395 U.S. 752, 763 (1963). However, this authority is not absolute. For the search

to be proper, officers must first establish that they had probable cause at the outset of the

search. State v. Le Blanc, 347 A.2d 590, 593, 594 (Me. 1975). Although the arrest can come

after the search, the search must be "sufficiently contemporaneous with the arrest that

both together constituted a single incident." Id. With these conditions satisfied, "incident

to a lawful arrest, police may, without a warrant, search an arrestee's person and items

immediately associated with the person, and seize weapons, items of contraband, or

evidence of a crime found in the search. State v. Fagnani, 2018 ME 129, 'I[ 19, 193 A.3d 823

(citing Riley v. California, 573 U.S. 373, 381-86 (2014) ).

Regarding the scope of the search, officers can search the area within the arrestee's

"immediate physical control," which has been interpreted by the Law Court as the area

within the arrestee's "conceivable control." Le Blanc, 347 A.2d at 595. Furthermore, even

if items are not within the arrestee's "conceivable control," officers may still lawfully
14 of 15
search items that were "associated" with the arrestee's person at the time of the arrest or

when they were told they were under arrest. Id. 'II 24.

In this case, Boilard was handcuffed and in the presence of another officer at the

time Agent Carleton searched the black zippered pouch. The search was

contemporaneous with the arrest. Although the black zippered pouch may not have been

within Boilard' s "conceivable control," it likely remained "associated" with his person.

Id. (a search of defendant's jacket was lawful even though "[defendant] removed the

jacket before being handcuffed, she had been told she was under arrest before she

removed the jacket, and the jacket, though she was no longer wearing it, remained

associated with her person."). Moreover, even if the circumstances of this search do not

fit squarely into either category, the Court may consider whether the application of the

search incident to arrest doctrine would "untether the rule from the justifications

underlying the Chime/ exception." Id. 'II 21. With that directive in mind, Agent Carleton's

search of the black zippered pouch would not "untether the rule from the justifications

underlying the Chime/ exception."

III. Conclusion

For the foregoing reasons, defendant's Motion to Suppress is DENIED.

The Clerk is directed to incorporate this Order into the doc//reference pursuant to

Maine Rule of Civil Procedure 79(a). ~

1

Dated: Cj / c) i /; 2
_,_,,;~'-----'7--"--+-­

15 of 15