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State v. David Ullring
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 183
Docket: 	Fra-98-682
Argued:	October 4, 1999
Decided:	December 15, 1999




	[¶1]  David Ullring appeals from the judgment of conviction for
trafficking in marijuana entered in the Superior Court (Franklin County,
Warren, J.).  Ullring contends that it was error for the court (Marden, J.) to
deny his motion to suppress.  He also argues that the evidence at trial did
not support a verdict of guilt beyond a reasonable doubt.  We affirm the
	[¶2]  On December 5, 1997 Ullring's home was searched, pursuant to
a search warrant, by six law enforcement officers, most of whom were
agents of the Maine Drug Enforcement Administration (MDEA).  Ullring was
not home when the search was conducted.  The officers found
approximately thirteen ounces of marijuana, a triple beam scale and plastic
sandwich bags.  Ullring was arrested five days later and taken to the Franklin
County jail where he was released after posting $400 bail and signing a bail
bond.  A condition of his bail required him to submit to random searches of
his person, residence, and vehicle.
	[¶3]  On January 14, 1998, an MDEA agent returned to Ullring's home
to conduct a search.  The agent did not have a warrant and had no evidence
of any wrongdoing on the part of Ullring.  The agent based his search on the
authority created by Ullring's bail condition.  This search revealed that
Ullring was in possession of four bags of marijuana, each containing one-
eighth of an ounce, and $421 in cash.  Ullring was arrested and appeared in
court that same day.  This was his first court appearance since his initial
arrest on December 10. 
	[¶4]  Ullring was indicted by the Franklin County grand jury on
January 28, 1998 on two counts of trafficking in marijuana in violation of
17-A M.R.S.A. § 1103 (Supp. 1999) (Class D).  The first count was alleged to
have occurred on December 5, 1997 and the second count on January 14,
1998.  He was also indicted on one count of violation of bail conditions,
15 M.R.S.A. § 1092 (Supp. 1999) (Class E).  Prior to trial, Ullring filed a
motion to suppress the evidence gathered from the second search of his
home, and a motion to sever the charges arising from the January 14 search
from the charge stemming from the December 5 search. The court denied
both motions.
	[¶5]  Ullring was tried on all three of the charges.  The jury returned a
verdict of guilty on the offense of trafficking occurring on December 5,{1} and
not guilty on both of the January 14 offenses. 
	[¶6]  Even though Ullring was acquitted on both charges stemming
from the search of his home on January 14, 1998, we must address the
appeal of the denial of his suppression motion because the January 14
charges were tried together with the December 5 charge.  If we were to
conclude that the evidence from the January 14 search should have been
excluded because the search violated Ullring's constitutional rights, we
would have to determine whether the unconstitutionally obtained evidence
was harmless beyond a reasonable doubt.  See State v. Hassapelis, 620 A.2d
288, 291 n.4 (Me. 1993).  Because that evidence consisted of small bags of
marijuana and cash in Ullring's possession, it is unlikely that we would be
able to conclude, beyond a reasonable doubt, that the verdict was unaffected
by that evidence.
	[¶7]  Ullring's motion to suppress the evidence obtained from the
January 14 search of his home and his person was submitted to the court on
a written stipulation of facts.  The parties agree that Ullring was held in
custody after his arrest on December 10, 1997 until he signed the bail bond. 
The bail bond is on a printed form.  Immediately after the printed words
"Additional conditions which I agree to obey are:" appear the following in
handwriting:  "No use or poss. of illegal drugs -- no use + poss. firearms or
other dangerous weapons -- Must submit to random search and/or testing of
person, residence and/or vehicle."  Both Ullring and the bail commissioner
signed the bail bond.  The parties stipulate that the only basis for the search
of Ullring and his residence on January 14 was the bail condition and that
the MDEA agent had no evidence of any wrongdoing by Ullring.
	[¶8]  We review the legal conclusions of the court on a motion to
suppress de novo, although we review historical facts found by the court
deferentially.  See State v. Storey, 1998 ME 161, ¶ 8, 713 A.2d 331, 333. 
Here there was no testimonial hearing on the motion to suppress.  The facts
were agreed upon, and no additional facts were found by the court.  There
are no factual findings to be reviewed, and we review the legal conclusions
de novo.

A.	Consent to Search

	[¶9]  The State argues that the January 14 search was pursuant to the
consent of Ullring and that his consent was manifested by the bail bond and,
in particular, his agreement to abide by the condition of random searches. 
Ullring argues that the bail condition is illegal because it is not authorized by
statute and unconstitutional because it violates his rights under the Fourth
Amendment of the United States Constitution.
	[¶10]  When the State relies upon consent as the justification for the
lawfulness of a warrantless search, the State has the burden of proving that
the consent was voluntary.  See Schneckloth v. Bustamonte, 412 U.S. 218,
222, 248 (1973).  The State was required to prove by a preponderance of
the evidence that Ullring objectively manifested his consent by word or
gesture.  See State v. Cress, 576 A.2d 1366, 1367 (Me. 1990).  A voluntary
consent is one that is not the result of duress or coercion, express or
implied, and that is, in fact, voluntarily given.  See Schneckloth. 412 U.S. at
248.  Whether a consent is voluntary is to be determined from all the
circumstances.  Id. at 248-49.  In this case there are few facts bearing on
the voluntariness of the consent:  (1) the bail bond was signed by Ullring and
in it he stated that he agreed to obey the random search condition; and (2)
he was in custody when he signed the bond on December 10.
	[¶11]  Ullring suggests that a defendant who is in custody and who is
required to sign a bail bond with conditions before being released is signing
the bond under coercion.  The mere fact that Ullring was in custody at the
time the consent was given does not demonstrate that the consent was
coerced.  See United States v. Watson, 423 U.S. 411, 424-25 (1976)
(holding that warrantless search of defendant's vehicle was legal because
defendant's consent was voluntary even through he was in police custody at
the time of giving consent).  Ullring's written statement that he agreed to
the conditions raises an inference that he was voluntarily agreeing to the
conditions.{2}  As the California Supreme Court said:  "Although it may be true
that a defendant who is faced with the choice of agreeing to the challenged
conditions or remaining incarcerated has a considerable incentive to agree
to the conditions, that circumstance, alone, does not render the consent
coerced or involuntary."  In re York, 892 P.2d 804, 814 (Cal. 1995).  	
	[¶12]  We conclude that Ullring's signature on the bail bond is a
sufficient manifestation of his voluntary consent to the January 14 search
provided that the condition itself is legal.  Ullring argues that there was no
consent to search because the bail commissioner had no authority to impose
the bail condition and the bail condition itself violated Ullring's Fourth
Amendment rights.  We agree that if the bail condition is unauthorized or
unconstitutional, it cannot form the basis for the consent.

B.	Bail Condition Authorized by Statute

	[¶13]  We next examine whether the bail condition requiring Ullring
to submit to random searches of his residence and person is permitted by
the Maine Bail Code, 15 M.R.S.A. §§ 1001-1104 (Supp. 1999).  The
legislative findings and statement of purpose for the bail code are as follows: 
It is the purpose and intent of this chapter that bail be set for a
defendant in order to reasonably ensure the appearance of the
defendant as required, to otherwise reasonably ensure the
integrity of the judicial process and, when applicable, to
reasonably ensure the safety of others in the community.  It is
also the purpose and intent of this chapter that the judicial
officer consider, relative to crimes bailable as of right
preconviction, the least restrictive release alternative that will
reasonably ensure the attendance of the defendant as required,
or otherwise reasonably ensure the integrity of the judicial
process.  Finally, it is also the intent and purpose of this chapter
that a defendant, while at liberty on bail, refrain from
committing new crimes.
Id. at § 1002.  Although the statement of purpose gives four purposes, only
two are listed in the preconviction bail section:  (1) ensure the appearance
of the defendant; and (2) ensure the integrity of the judicial process.  See
§ 1026.  The setting of post-conviction bail, however, requires a judge to
consider the other two purposes; that is, to ensure the safety of others in
the community and to keep a defendant from committing new crimes while
at liberty on bail.  See § 1051(2).
	[¶14]  The bail code authorizes judicial officers to impose conditions
on the preconviction release of persons on bail.  See 15 M.R.S.A.
§ 1026(1)(C). 
If the judicial officer determines that the release . . . will not
reasonably ensure the appearance of the defendant as required
or will not otherwise reasonably ensure the integrity of the
judicial process, the judicial officer shall order the pretrial
release of the defendant subject to the least restrictive further
condition or combination of conditions that the judicial officer
determines will reasonably ensure the appearance of the
defendant as required and will otherwise reasonably ensure the
integrity of the judicial process.
§ 1026(3)(A).  Judicial officers include both judges and bail commissioners. 
See § 1003(8).  The phrase "ensure the integrity of the judicial process" is
defined as: 
safeguarding the role of the courts in adjudicating the guilt or
innocence of defendants by ensuring the presence of the
defendant in court and otherwise preventing the defendant from
obstructing or attempting to obstruct justice by threatening,
injuring or intimidating a victim, prospective witness, juror,
attorney for the State, judge, justice or other officer of the court.
§ 1003(5).
	[¶15]  There is no express authorization in the bail code for the
imposition of a condition of submitting to random searches.  On the other
hand, there is nothing in the bail code that prohibits the condition.  The bail
code contains seventeen specific conditions that a judicial officer may
include in a bail order.  See § 1026(3)(A)(1)-(17).  Included among these
conditions are staying in the custody of a designated person or organization;
maintaining employment; maintaining or commencing an educational
program; abiding by restrictions on personal association, place of abode, and
or travel; complying with a specified curfew; refraining from the possession
of a firearm; and refraining from the use of alcohol or drugs.  Id.  Further,
there is a "catch-all" provision which allows a judicial officer to require a
defendant to "[s]atisfy any other condition that is reasonably necessary to
ensure the appearance of the defendant as required and to otherwise
reasonably ensure the integrity of the judicial process."  § 1026(3)(A)(18).  
	[¶16]  Section 1026(4)(C) sets forth numerous factors that the judicial
officer is required to review in setting bail such as the crime charged; the
defendant's criminal history and past conduct including drug or alcohol
abuse; and the defendant's ties to Maine.  The judicial officer is to obtain the
information on which to make the assessment from an interview with the
defendant, information from the State, and the defendant's attorney, and
other reliable information.  See § 1026(4).{3}  No facts were presented in this
case as to the information upon which the bail commissioner based the
conditions which were imposed upon Ullring in the bail bond.{4} 
	[¶17]  The bail code specifically allows a judicial officer to require a
person on preconviction release to refrain from the possession of firearms,
alcohol, or drugs.  See § 1026(3)(A)(7)-(9).  The State argues that the only
effective means of enforcing these conditions is to require the defendant to
submit to random searches and testing.  
	[¶18]  In Oliver v. United States, 682 A.2d 186, 189 (D.C. 1996), the
Court of Appeals for the District of Columbia held that if a court can order
abstention from illegal drug use, it must have the power to enforce
compliance with the order through drug testing.  "Without such testing, the
court ordinarily would have no reasonable means to determine whether the
defendant has complied with the condition of his release proscribing use of
unlawful drugs."  Id.; see also United States v. Kills Enemy, 3 F.3d 1201,
1203 (8th Cir. 1993) (upholding presentence release condition authorizing
warrantless search).  The bail statutes for the District of Columbia expressly
authorized the imposition of a condition of bail that the defendant refrain
from the possession of drugs, although they did not authorize drug testing. 
Oliver, 682 A.2d at 189.  The bail statutes also contained a general provision
allowing for "any other condition that is reasonably necessary to assure the
appearance of the person as required . . . ." Id. (statutory citation omitted)
(emphasis supplied).  The Oliver court reasoned that a legislative purpose in
authorizing the prohibition against drug possession was to prevent
nonappearance in court, and that, therefore, a drug testing condition was
permissible and reasonable in order to enforce the condition prohibiting
possession of drugs.{5}
	[¶19]  In York, the California Supreme Court held that the bail statute
permitted the imposition of bail conditions of warrantless search and
random drug testing.  Although the statute did not expressly authorize the
condition, it authorized a court or magistrate to impose "all reasonable
conditions."  York, 892 P.2d at 807.  The court reviewed the legislative
history and concluded that the legislature intended that conditions that
relate to the safety of the public were included within "all reasonable
conditions."{6}  Id. at 808-11.  It found the conditions permissible under the
statute.  Id. at 811.
	[¶20]  We are not aware of any court which has struck a bail condition
of random search on the grounds that the condition was not authorized by
the bail statute.  We are persuaded that the condition of random search is
authorized by the catch-all provision of the Maine Bail Code,
§ 1026(3)(A)(18), when the judicial officer is of the opinion that (1) the
defendant should be prohibited from possessing illegal drugs; (2) a
condition of random search is necessary to ensure that the defendant will
not violate other conditions; and (3) the conditions of refraining from illegal
drug possession and random search are the least restrictive alternative that
reasonably will ensure the presence of the defendant and the integrity of the
judicial process.  Bail conditions which prohibit illegal drug use and
authorize random searches can serve the purpose of ensuring the presence
of the defendant in court.  The bail condition of random search is not
prohibited by the Maine Bail Code.
C.	The Fourth Amendment

	[¶21]  Ullring argues that even if the bail condition allowing random
searches of his residence is permitted by the Maine Bail Code, the condition
violates his rights under the Fourth Amendment of the United States
Constitution.{7}  The courts that have decided this issue have found that
similar bail conditions did not violate the Fourth Amendment rights of
defendants.  In Oliver, 682 A.2d at 189-190, the court held that substance
abuse testing as a condition of bail was reasonable and a minimal intrusion
that was outweighed by the governmental interest of ensuring the
appearance of the defendant at trial and protecting the public from criminal
activity.  See id.  In York, 892 P.2d at 813, the court held that so long as the
bail conditions which implicate Fourth Amendment rights are reasonable
they do not violate the Fourth Amendment.  Whether the condition is
reasonable "depends upon both the intrusiveness of the state conduct
authorized by the condition and the strength of the state's interest in
imposing such a restriction in the particular circumstances." Id. at 814.  In
a footnote the court further explained that it was not approving random
search and testing conditions in all cases and that "the reasonableness of a
condition necessarily depends upon the relationship of the condition to the
crime . . . charged and to the defendant's background, including his or her
prior criminal conduct."  Id. at 815 n.10.  The premise of the holdings in
both Oliver and York is that the bail conditions do not violate the Fourth
Amendment's prohibition against unreasonable searches.  The courts
concluded that searches that are reasonable are permitted by the Fourth
Amendment, and searches that are authorized by a reasonable bail condition
do not violate the defendant's Fourth Amendment rights.{8}
	[¶22]  Ullring argues that Griffin v. Wisconsin, 483 U.S. 868 (1987)
supports his position that the condition is unconstitutional.  Griffin had been
convicted of a felony and was on probation.  Probation officers searched
Griffin's apartment without a warrant, and they found a gun which served as
the basis for a charge of possession of a firearm by a felon.  Griffin appealed
the denial of his suppression motion, and the Supreme Court held that the
search was reasonable because it was authorized by a valid administrative
regulation which allowed probation officers to search a probationer's home
upon reasonable grounds to believe that contraband was present.  Id. at 880. 
In that case the reasonable grounds consisted of a tip from a police officer
that there might be guns in Griffin's apartment.{9}  Id. at 871. In reaching its
holding the Supreme Court noted that a probationer's home is protected by
the Fourth Amendment, and therefore, any search of the probationer's home
had to meet the "reasonable" requirement of the Amendment.  Id. at 873. 
Although warrantless searches are usually unconstitutional, exceptions to the
warrant requirement are made when special needs make the probable cause
and warrant requirement impractical.  Id.  The Court found that the needs
and purposes of the probation system allowed for searches on less than
probable cause.  Id.
	[¶23]  Griffin makes it clear that probationers do not give up their
Fourth Amendment rights entirely, and if convicted felons who have been
sentenced to probation do not give up such rights, people who have not
been convicted but who are only charged with a crime do not give up such
rights.  Nonetheless, just as the needs and purposes of the probation system
justify searches without probable cause, the bail system has similar purposes
and needs.  We do not read Griffin as requiring "reasonable grounds" before
a search of a probationer's home can be justified.  Instead, Griffin stands for
the proposition that probable cause is not required to search a probationer's
home because of the needs and purposes of the probation system.  Id. at
	[¶24]  The overriding purpose of the bail system in Maine is to ensure
the appearance of the defendant at trial and to do so without incarceration
as long as conditions can be imposed which will fulfill that purpose and the
purpose of ensuring the integrity of the judicial process.  Bail conditions,
such as a prohibition against possession of illegal drugs and searches for
illegal drugs, help to ensure that defendants whose backgrounds and
charges indicate that substance abuse is a significant problem will show up
at court.  It is reasonable to expect that a defendant who maintains sobriety
is more likely to appear in court on the appointed dates than a defendant
who is under the influence of drugs or alcohol.
	[¶25]  A bail condition authorizing random searches can only meet
Fourth Amendment scrutiny if the condition is reasonable under all of the
circumstances.  Just as a random search condition is not likely to be
reasonable in every case, it is also not likely to be unreasonable in every case. 
There are situations in which the history and personal situation of the
defendant, including the charges against him or her, justify a determination
by a judicial officer that a random search condition is both necessary and the
least restrictive alternative that will ensure the defendant's appearance and
the integrity of the judicial process.
	[¶26]  Furthermore, when a judicial officer makes such a
determination and imposes a random search condition, we must assume, in
the absence of evidence to the contrary, that the condition is reasonable.  A
defendant who seeks to challenge such a condition as being unreasonable
has the burden of presenting evidence to demonstrate that the condition in
that individual case is not reasonable.  This is similar to the procedure that
is utilized when a search is executed pursuant to a warrant and a defendant
challenges the issuance of the warrant.  When there is a warrant the
defendant has the burden of proving its illegality.  See State v. Friel, 508
A.2d 123, 127 (Me. 1986).  We assume the validity of the warrant because a
judge or magistrate has acted upon the request for the warrant and has
found probable cause.  Likewise, with bail conditions, a judicial officer has
made a determination that the bail conditions are reasonable.  Although we
ordinarily place the burden upon the State to show consent to a search, we
conclude that the State satisfies its burden by proving the existence of the
bail condition.  The burden of presenting evidence then shifts to the
defendant to show that the conditions are unreasonable.
	[¶27]  Ullring presented no evidence to demonstrate that the bail
condition was unreasonable in his case.  Therefore, we conclude that the
random search condition is not unconstitutional as applied to him.  Because
the Maine Bail Code authorizes the condition and because it is constitutional
as applied to Ullring, we find that Ullring voluntarily consented to the
search.  The Superior Court did not err in denying the motion to suppress.

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