from the cruising-the-perimeter-of-the-4th-is-not-the-same-as-being-inside-it dept
Adding to the case law of small, but significant, Fourth Amendment law is this decision [PDF] handed down by a Maine federal court. (h/t FourthAmendment.com)
The Fourth Amendment makes things pretty clear: to perform invasive searches, cops need warrants. But over the years since the erection of that standard, we’ve seen it loosened. A host of exceptions exists. If it’s a “Third Party record,” the Fourth (in most cases) won’t cover it. If it’s a car on a public road, the Fourth rarely covers it. If things seem to be going bad in a hurry (“exigent circumstances“), the Fourth won’t cover it. If reasonable suspicion develops (but not actual probable cause), the Fourth (sometimes) won’t cover it. If it’s in “plain view,” the Fourth often won’t cover it. If an officer’s nose (“odor of marijuana“) or an officer’s dog (“probable cause on four legs“) says it’s cool to perform a warrantless search, the Fourth won’t cover it. And, if all else fails, the Fourth might be violated, but the violators will be granted preemptive forgiveness with the application of qualified immunity.
Do you see that? That’s a pretty long paragraph. And that doesn’t even cover other things like border security, national security, transportation security, or any other rationale that might allow the government to pretty much pretend (with courts’ blessings!) the Fourth Amendment doesn’t exist.
Given this wealth of options, it’s always strange (but never a surprise) when law enforcement officers still choose (repeatedly!) to violate the Fourth Amendment when they could have achieved the same results lawfully with extremely minimal effort. And why wouldn’t they just do the bad thing and roll the dice? Case law also shows ignoring this plethora of options rarely results in any direct harm to cops or the agencies that employ them.
So, that’s why small-ish decisions like these count. It establishes — or at least reiterates — the confines of the Fourth Amendment, ensuring future violations won’t be considered mere mistakes of law by law enforcement officers.
In this one, we start with someone already convicted of a crime, which means the Constitutional deck is stacked against them. Randolph Bourgoin had served his prison time. But he was still serving his “free” time: three years of supervised release. He was, more or less, treated no differently that someone riding out their sentence on parole.
As a convicted felon, he was forbidden to possess firearms or ammunition. (Or vote, etc.) All of this began with what was basically a traffic stop, even though said “traffic” had already been “stopped” by something other than a Maine state trooper.
The evening of May 19, 2022, a complainant reported that a tractor trailer hit a tree on Springy Pond Road in Otis, Maine. According to the complainant, a tractor trailer hit a tree and blew a tire. Trooper Travis Chapman began driving to Springy Pong Road, a narrow dirt road, to respond to the complaint. He found it unusual for a tractor trailer to be on a narrow dirt road, especially at nighttime.
The list of things officers “find unusual” encompasses pretty much any conceivable activity engaged in by human beings. That assertion means nothing more than the trooper wanted to go off task with a fishing expedition. Tractor trailers, especially in rural areas or farming communities, are on “narrow dirt roads” frequently.
From that point of not-all-that-unusual activity, things got a whole lot weirder… at least according to the trooper’s report and testimony.
Upon arriving at Springy Pong Road around 10:30 p.m., Trooper Chapman saw a tractor trailer along the road about fifty or sixty yards from a mobile home with its interior and exterior lights on. From inside his cruiser, Trooper Chapman looked for identifying information about the tractor trailer. He first ran the license plate, which he could only partially read, and there was no match. Next, Trooper Chapman drove around the tractor trailer and saw the blown tire. As he reached for his PA to identify himself and request the tractor’s operator to speak with him, Trooper Chapman heard a gunshot from the direction of the residence. Trooper Chapman retreated from the scene and informed others about the incident.
A tractor trailer with a blown tire. A residence located in a completely non-suspicious place (literally anywhere). An alleged gunshot from said trailer. None of these things could be considered parts of cohesive, suspicious whole. And yet, that’s exactly where this went.
If there was a shot from the trailer home (not the tractor trailer), the most immediate problem was the residence, not the “suspicious” vehicle on a dirt road.
And, at first, the Maine state police focused their attention on the residence, albeit for extremely specious reasons, (alleged) gunshot notwithstanding.
While Trooper Chapman waited nearby for more officers to assemble, Sergeant Gavin Endre told him that one of the occupants of 760 Springy Pond Road was Randy Spencer, who Trooper Chapman knew from previous encounters. The officers knew that Spencer disliked law enforcement.
You know what’s not a crime, much less reasonably suspicious? Disliking law enforcement. A mere dislike of law enforcement does not suggest a person is willing to shoot and/or kill law enforcement officers. Millions of Americans dislike law enforcement. Yet, every year, only a very small percentage of law enforcement officers are actually killed by criminal suspects.
Also note that the defendant in this case isn’t Randy Spencer, The Man Who Disliked Law Enforcement. It’s Randy Bourgoin, who was driving the tractor trailer with the flat tire when the trooper reported he heard a gunshot originating from Spencer’s residence. Bourgoin, for his part, cooperated fully. He told the troopers he was headed to Spencer’s home to fix his car. He also volunteered that Spencer once told him he had shot at a car (but apparently not a law enforcement car) and (allegedly) sold a bit of meth.
Using this information, the troopers applied for a warrant. But the warrant asked to search things that were not Spencer’s residence. The affidavit asked to search the trailer home and Bourgoin’s tractor trailer for evidence of a firearms discharge, “driving to endanger,” and “reckless conduct with a deadly weapon.”
That’s quite the mishmash of probable cause. At the point the troopers encountered Bourgoin, he was no longer driving, much less “driving to endanger.” That the tractor trailer was on a dirt road and the plate was illegible did not create probable cause to search the vehicle for evidence of [checks court ruling] “driving to endanger.”
Another warrant was obtained to search the Spencer residence and any outbuildings. That affidavit was apparently supposed to include a request to search Bourgoin’s truck, but that was (supposedly mistakenly) omitted from the second warrant request.
The searches were carried out, despite a whole lot of missing assertions and/or probable cause statements.
Sergeant Endre and two other state troopers executed the search warrant. While on the scene, Sergeant Endre learned that the tractor trailer belonged to Aggregate Solutions and that it was assigned to Bourgoin, who was on federal probation for stealing a firearm. The officers first searched Spencer’s residence, finding counterfeit money and marijuana—but no firearm. Next, the officers searched Bourgoin’s tractor trailer. They found ammunition and a methamphetamine- or cocaine-base pipe. Along with the ammunition, officers allegedly discovered two receipts from Old Town Trading Post. Eventually, law enforcement went to Old Town Trading Post with these receipts, where store personnel used the timestamp to get a picture of Bourgoin purchasing the ammunition.
So, first we have a search of a mobile home and outbuildings where a state trooper claimed he heard a gunshot originate from — one that failed to produce a firearm or ammunition. Then there’s the search of Bourgoin’s truck, which did produce contraband, but no contraband related to the alleged crime: “driving to endanger.”
But the discovery of ammunition and drug paraphernalia was enough to revoke Bourgoin’s probation, leading to this challenge.
The government argued against Bourgoin’s suppression motion, despite admitting it did not have probable cause to search his truck. It instead argued case law allowed it perform a warrantless search. It cited the automobile exception, which lowers the bar to reasonable suspicion, and the good faith exception, which says officers too stupid to understand the law can’t be sued as long as they rely on a warrant obtained by another officer too stupid to understand the law and that has been signed by a judge who can only work with what’s been handed to them by officers too stupid to understand the law and, in too many cases, can’t even be bothered to challenge the boiler plate assertions that tend to make up the bulk of search warrant affidavits.
Wrong on both counts, says the federal court. If you want to pull crimes out of the air to justify searches, then your affidavit better make it clear that evidence of the supposed crime will be found in the place you intend to search.
[T]he officers lacked probable cause to believe that evidence concerning driving to endanger would be found inside the tractor trailer. Maine law criminalizes driving with criminal negligence4 and “endanger[ing] the property of another or a person, including the operator or passenger in the motor vehicle being driven.” 29-A M.R.S. § 2413(1). While the officers knew that the tractor trailer had recently hit a tree, they had no reason to think that evidence concerning this offense would be found inside the tractor trailer. The most probative evidence of this crime was the blown tire—which was, naturally, on the outside of the vehicle.
And from there, the assertions of the troopers gets even worse.
Second, the officers did not have probable cause to believe that evidence of reckless conduct with a dangerous weapon, 17-A M.R.S. § 211, would be found in the tractor trailer. While near the tractor trailer, Trooper Chapman heard shots from the direction of the residence.
Banging the point home:
Third, and for the same reasons, the officers did not have probable cause to conclude that evidence regarding the discharge of a firearm near a dwelling, 12 M.R.S. § 11209, would be found in the tractor trailer.
Adding it all up, these assertions cannot be given credence by any court of law in the United States. It’s bullshit. And it’s dangerous bullshit if courts decide it’s okay for cops to cite literally any crime to support search warrant requests.
The upshot of all this is that warrantless searches of automobiles do not survive constitutional rigor on the close-enough-is-good-enough model. That the suspected criminal activity occurred in the neighborhood of an automobile does not, standing alone, supply the connective tissue necessary to dispense with the warrant requirement to search all the automobiles in the neighborhood.
If “close enough” isn’t “good enough,” then it’s too far away from any law enforcement notions of “faith” to be considered “good faith:”
The Government appears to argue that close only counts in horseshoes, hand grenades and warrantless searches so long as the police work was not hallmarked by nefarious intent. I do not believe the state troopers’ conduct was based on anything other than a mistaken belief, albeit unjustified, that the particulars of the warrant included the tractor trailer, just as the application materials had. However, that reflection of reality fails to get at the heart of the Leon rule and it does nothing to ameliorate the search of property that was not included at all, much less with particularity, in the warrant.
Sure, the troopers here weren’t necessarily intending to violate rights. But they were either too quick or too careless to avoid doing that. Either way, it’s the same thing: violated rights and… the loss of their evidence. The court says the evidence is suppressed. Bourgoin is free to go, or at least as free to go as anyone on probation is.
It’s a small win but it has larger repercussions. The automobile exception has its limits clearly defined. Officers are put on notice (yet again) that particularity matters when it comes to requesting search warrants. And, on top of everything else, it makes it clear the government can’t get away with rights violations simply because it wasn’t being deliberately evil. Even the more, shall we say, “innocent” violations are just as likely to empty the government’s evidentiary pockets as the more nefarious ones. And that’s something the government would be well-served to remember.
Filed Under: 4th amendment, maine, probable cause, randy bourgoin, warrant, warrentless searches