State of Maine v. Richard W. Kelley

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2025 ME 1
Docket: Pen-24-36
Argued: October 10, 2024
Decided: January 2, 2025

Panel: STANFILL, C.J.,1 and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.

STATE OF MAINE

v.

RICHARD W. KELLEY

CONNORS, J.

[¶1] The primary issue presented in this appeal is under what

circumstances a passenger in a motor vehicle has standing under the Fourth

Amendment to challenge a search of the vehicle.

[¶2] Richard W. Kelley appeals from a judgment of conviction of

aggravated trafficking of scheduled drugs (Class A), 17-A M.R.S. § 1105-A(1)(M)

(2024), entered in the trial court (Penobscot County, A. Murray, J.) on Kelley’s

conditional guilty plea.2 Kelley’s indictment followed the stop and search of a

1 Although not available at oral argument, Chief Justice Stanfill participated in the development
of this opinion. See M.R. App. P. 12(a)(2) (“A qualified Justice may participate in a decision even
though not present at oral argument.”).

2 The court also entered an order of criminal forfeiture, 15 M.R.S. § 5826 (2021), not at issue here.

Because 15 M.R.S. § 5826 has since been amended, P.L. 2023, ch. 196, § 1 (effective October 25, 2023)
(codified at 15 M.R.S. § 5826(6) (2024)), we cite the statute in effect when the crime was committed.
2

friend’s vehicle in which Kelley was riding as a passenger. Law enforcement

conducted the search on February 22, 2021, as part of an investigation of the

vehicle’s owner for drug trafficking. As part of this investigation, law

enforcement had obtained a search warrant and two tracking warrants

authorizing the installation and use of an electronic tracking device to monitor

the vehicle’s location.

[¶3] Kelley moved to suppress evidence obtained through the warrants.

He contends that the court (Mallonee, J.) erred when it denied his motion on

standing grounds. Kelley first argues that the trial court should not have

reached the question of his standing because, at the suppression hearing, the

State stipulated that he had a reasonable expectation of privacy in the vehicle.

He then argues that he had a reasonable expectation of privacy in the vehicle

because he had taken several trips as a passenger in the vehicle, including four

trips between Maine and Massachusetts lasting eight to ten hours each, and

because he had stored a “sea bag” and fishing boots in the vehicle for about one

month.

[¶4] We conclude that the court did not err in reaching the question of

standing despite the stipulation because “standing is a threshold issue[,]” and

Maine courts have the authority and the duty to ensure that parties “meet this
3

basic requirement.” See State v. Lovett, 2015 ME 7, ¶ 7, 109 A.3d 1135

(alteration and quotation marks omitted). We also conclude that the court

properly denied Kelley’s motion to suppress because he lacked a reasonable

expectation of privacy in the vehicle and therefore did not have standing to

challenge the warrants. See id. ¶ 8; United States v. Symonevich, 688 F.3d 12,

19-21 (1st Cir. 2012); Rakas v. Illinois, 439 U.S. 128, 148 (1978). Because we

conclude that Kelley lacked standing to challenge the warrants, we do not reach

his arguments about their validity. We affirm the judgment.

I. BACKGROUND

[¶5] We view the evidence “in the light most favorable to the court’s

order on the motion to suppress.” State v. Akers, 2021 ME 43, ¶ 2, 259 A.3d 127.

The following facts are supported by competent record evidence. See id.

[¶6] In 2020, a Maine Drug Enforcement Agency (MDEA) Special Agent

was investigating Keith Wedge for suspected drug-related activity. As part of

his investigation, the Special Agent obtained two warrants authorizing the

tracking of Wedge’s vehicle using an electronic tracking device. In early 2021,

the Special Agent obtained a warrant to search Wedge’s vehicle. When MDEA

agents executed the warrant and conducted the search, Wedge was driving the
4

vehicle and Kelley was a passenger. The search revealed drugs in the vehicle,

and both Wedge and Kelley were arrested.

[¶7] Kelley was charged by complaint on March 11, 2021, and indicted

on May 26, 2021. The indictment charged Kelley with one count of aggravated

trafficking of scheduled drugs (Class A), 17-A M.R.S. § 1105-A(1)(M), and

sought criminal forfeiture of cash discovered during the search, 15 M.R.S.

§ 5826 (2021). On March 30, 2022, Kelley filed a motion to suppress the

evidence obtained through the two tracking warrants and the search warrant.

Kelley made various arguments both in his motion and orally at the suppression

hearing as to why he believed that the warrants were deficient.

[¶8] The court held a hearing on the motion on December 20, 2022.

Kelley and the Special Agent both testified. At the outset of the hearing, the

State declined to stipulate to Kelley’s standing. Hence, the evidence in the

hearing explored the standing issue.

[¶9] Kelley testified that the vehicle was owned by Keith Wedge, that he

had known Wedge “[Kelley’s] whole life,” and that Kelley had ridden as a

passenger in the vehicle “a fair amount,” including on several trips around

Mount Desert Island, on “[a]t least five” trips from Bass Harbor to Bangor, and

on four trips to Massachusetts. Kelley also testified that he had left some
5

“personal belongings” in a “sea bag” in the vehicle for about a month, explaining

that a sea bag is “a fishing bag that you take for spare clothes and takes care of

all your personal belongings, makes it easy to travel with it and bring it from

boat to boat.”3 Kelley did not assert an ownership interest in the vehicle, and

he testified that he had never driven the vehicle.

[¶10] Following Kelley’s testimony, the State “concede[d] for the

purposes of the motion to suppress that [Kelley] ha[d] a reasonable expectation

of privacy” in the vehicle. The parties did not confirm and the court did not

indicate that the court had accepted the stipulation.4 The court then heard oral

argument from the parties about the validity of the warrants.

[¶11] In an order entered on January 18, 2023, the court denied Kelley’s

motion to suppress, concluding that Kelley lacked standing to challenge the

warrants. The court concluded that because Kelley lacked standing, it “need

not address Kelley’s arguments concerning probable cause and the validity of

using data generated out of state.”

3 At oral argument before us, Kelley stated that during the vehicle search, no evidence was
discovered inside his sea bag.

4 Good practice when a stipulation is offered is for the court to indicate on the record whether the

court has accepted the stipulation. Cf. Bonville v. Bonville, 2006 ME 3, ¶ 23, 890 A.2d 263 (“The court
is not required to accept the agreement of the parties, but before it rejects it, the court must give the
parties notice of its intention and an opportunity to present additional evidence on the issue or
issues.” (quotation marks omitted)).
6

[¶12] Kelley filed a timely motion to reconsider, arguing that the court

should decide the motion on its merits “because the State conceded standing at

the hearing, and the evidence presented established standing to challenge the

location searches.” He argued that “[b]ecause the State did not challenge

standing, [he] did not argue it further in closing arguments before the Court.”

Kelley also argued that he had an expectation of privacy “in the tracking of his

movements while a passenger in the [vehicle]” as well as a possessory interest

in the vehicle because he stored his sea bag in the vehicle. Kelley, however, did

not request that the motion record be reopened for the presentation of

additional evidence.

[¶13] The court denied the motion, acknowledging the State’s stipulation

but concluding that Kelley had “fully argued the issue of standing.” The court

explained that “although the State eventually conceded the issue, that

concession was not offered until after Kelley had argued the issue thoroughly

in his brief and had addressed it further at the hearing.” The court added that

Kelley “cite[d] no evidence and advance[d] no legal argument not addressed in

his initial written and oral arguments that might support his contention” that

he had standing.
7

[¶14] The court held a Rule 11 hearing on January 5, 2024, where Kelley

entered a conditional guilty plea to one count of aggravated trafficking in

scheduled drugs. See M.R.U. Crim. P. 11(a)(2). The court accepted Kelley’s plea

and entered a judgment of conviction and an order of criminal forfeiture,

sentencing Kelley to ten years in prison, with all but five years and one day of

the sentence suspended and four years of probation. Kelley timely appealed.

See 15 M.R.S. § 2115 (2024), M.R. App. P. 2B(b)(1).

II. DISCUSSION

[¶15] We begin by considering the effect of the State’s stipulation as to

standing. We then address whether Kelley had a reasonable expectation of

privacy in the vehicle and therefore had standing to challenge the warrants.

A. The State’s stipulation is not dispositive because the stipulation is
not binding upon the court, and Kelley had a full and fair
opportunity to present his evidence and argument as to his standing
to challenge the search at the suppression hearing.

[¶16] Kelley argues that “[t]he lower court should not have denied the

motion on a lack of standing because standing was not a disputed issue.” Kelley

asserts that because the State stipulated to his reasonable expectation of

privacy in the vehicle at the suppression hearing, the court should not have

reached the issue of standing.
8

[¶17] “We review [a] court’s findings on [a] motion to suppress for clear

error and the ultimate decision to suppress de novo.” Lovett, 2015 ME 7, ¶ 6,

109 A.3d 1135.

[¶18] A stipulation between the parties does not preclude a Maine court

from addressing a standing issue. See, e.g., id. ¶¶ 7-9. In Lovett, Lovett appealed

from a judgment of conviction for drug trafficking following the denial of his

motion to suppress. Id. ¶¶ 1-2. Lovett argued that law enforcement had lacked

probable cause to search a vehicle in which he had been riding as a passenger

at the time of the search. Id. ¶¶ 1-3. At the suppression hearing, the State

argued that Lovett lacked standing to challenge the search, but the motion court

did not address standing, instead concluding that the MDEA had had sufficient

probable cause to search the vehicle. Id. ¶¶ 5, 7. The State did not appeal the

court’s ruling, and neither party briefed the issue of standing on appeal. Id. ¶ 7.

We nonetheless addressed Lovett’s standing “because ‘[s]tanding is a threshold

issue and Maine courts are only open to those who meet this basic

requirement.’” Id. ¶ 7 (quoting Lindemann v. Comm’n on Governmental Ethics &

Election Practices, 2008 ME 187, ¶ 8, 961 A.2d 538). As we explained in Lovett,

“[l]itigants and judges at suppression hearings must address the issue of

standing because the inquiry as to whether a defendant’s Fourth Amendment
9

rights have been substantively violated requires a determination as to whether

that defendant’s reasonable expectation of privacy was violated.” Id. ¶ 9; cf.

State v. Cyr, 501 A.2d 1303, 1305 (Me. 1985) (a certificate agreed to by the court

and the State pursuant to M.R. Crim. P. 11(a)(2) is not binding upon this Court);

State v. Drown, 447 A.2d 466, 471 (Me. 1982) (establishing that this Court “will

decide for itself” whether a State’s appeal, even when pursued with the

approval of the Attorney General pursuant to 15 M.R.S. § 2115-A(5) (2024),

meets the statutory standard established by 15 M.R.S § 2115-A(1) (2024));

State v. Placzek, 380 A.2d 1010, 1012 (Me. 1977) (a lower court’s report agreed

to by the State is not binding on this Court).

[¶19] A significant body of federal case law holds that stipulations as to

law are generally not binding on courts,5 although courts will make exceptions

where a stipulation by one party prejudiced the other by inducing him to rely

on that stipulation to his detriment.

[¶20] For example, in United States v. Blanco, 844 F.2d 344, 349 n.4

(6th Cir. 1988), a federal drug case, the Sixth Circuit rejected a defendant’s

5 E.g., United States v. Tortorello, 533 F.2d 809, 812 (2nd Cir. 1976) (“[W]hether [the defendant]
has standing to challenge the legality of the searches is a question of law. A concession by the
Government on a question of law is not binding on the court.”); United States v. Lisk, 522 F.2d 228,
231 n.8 (7th Cir. 1975) (noting that even if a statement by the government could be read as a
stipulation to standing, “[w]e are not bound to accept, as controlling, stipulations as to questions of
law” (quotation marks omitted)).
10

claim that the district court had erred “in allowing the government to withdraw

from a ‘stipulation’ that he had standing,” insisting that “[t]here is no evidence

that [the defendant] and the government had ever so stipulated” and

concluding that “[a]lthough the government did state during the hearing before

the magistrate that it was satisfied that [the defendant] had standing, we see no

prejudice to [the defendant] from the government’s reversal of its position. The

change of position was damaging in that it led to [the defendant’s] conviction,

but it was not prejudicial in the sense that he had relied on the government’s

original position to his detriment.” Id. The Sixth Circuit added that “[i]t is

doubtful, indeed, whether the government has any power to ‘stipulate’ as to

standing; questions of law are not generally subject to stipulation.” Id.

[¶21] Two cases in which federal appellate courts have found that a

stipulation bound the government also indicate that whether a stipulation has

a binding effect hinges on whether enforcing the stipulation would prejudice

the defendant. In United States v. Lott, which involved a motion to suppress

handguns and other evidence gathered during a traffic stop, the First Circuit

held that the government was bound by its stipulation at the suppression

hearing that “for purposes of this hearing . . . both Defendants . . . had []

standing to challenge whether or not they were, in fact, in possession of those
11

firearms.” 870 F.2d 778, 781 n.5 (1st Cir. 1989). The court reasoned that “when

the government has stipulated to standing, thereby obviating the need for a

defendant to present facts relevant to standing, it may not thereafter claim the

defendant lacked standing.” Id. at 781 (emphasis added).

[¶22] Similarly, in United States v. Hernandez, 668 F.2d 824, 826 (5th Cir.

1982), the Fifth Circuit held that the government could not assert on appeal that

the defendants lacked standing under the Fourth Amendment to challenge the

search of a boat partly because at the suppression hearings the government had

stipulated to their standing. Id. The Fifth Circuit reasoned that because of the

government’s stipulation, the defendants “never presented evidence as to their

expectation of privacy in the boat’s cabin,” adding that based on the facts, “[i]t

seems likely that appellants may have been able to demonstrate such a

legitimate expectation.” Id.

[¶23] Here, the court properly identified standing as a threshold issue,

explaining, “Even when the parties do not argue the question of standing in a

motion to suppress, the court must address this issue before determining

whether the motion to suppress has any merit.” See Lovett, 2015 ME 7, ¶¶ 7-9,

109 A.3d 1135. In its denial of Kelley’s motion to reconsider, the court noted

that Kelley had “fully argued the issue of standing” and that the court “fully
12

considered standing.” Kelley presented argument on his standing in his motion

to suppress, in his motion to reconsider, and at his suppression hearing, where

he testified and his attorney presented argument. Further, although Kelley

initially argued at oral argument before us that without the State’s stipulation,

“[p]erhaps . . . we would have wanted to develop [Kelley’s privacy interest]

further in evidence,” Kelley eventually stated that “the record is developed

enough on this issue . . . that standing has been established” and confirmed that

he had presented evidence at the motion hearing prior to the State’s stipulation

and had not identified any additional evidence he would have offered if not for

the stipulation. In other words, Kelley was not prejudiced by the court’s

decision not to accept the State’s stipulation and fully presented his evidence

and argument on the issue of his standing.

[¶24] We therefore conclude that the motion court did not err in

reaching the issue of standing despite the State’s stipulation.6

6 As discussed infra note 7, Kelley has pursued only a federal constitutional claim to challenge the

search. We view the impact of a stipulation in pursuing a federal claim as raising as a question
governed by Maine law. As noted above, however, it is immaterial whether this impact is governed
by Maine or federal law, because the test is the same: stipulations are not binding absent prejudice
to the defendant.
13

B. Kelley lacked a reasonable expectation of privacy sufficient to give
him standing to challenge the search of the vehicle.

[¶25] Kelley argues that he had a reasonable expectation of privacy in

the vehicle because he was “a regular passenger” who “spent hours riding in

the passenger seat” on trips “all around [Mount Desert Island],” to Bangor, and

to Massachusetts and because he stored his fishing boots and sea bag in the

vehicle for about a month.7

[¶26] “If [a] motion to suppress asserts a violation of the Fourth

Amendment, the defendant must demonstrate that his own reasonable

expectation of privacy was violated by the action of the State.” 8 Lovett, 2015

ME 7, ¶ 8, 109 A.3d 1135 (emphasis in Lovett and quotation marks omitted).

7 Although Kelley quotes a decision of ours stating that “[b]oth the United States and Maine
Constitutions guarantee citizens protection against unreasonable searches and seizures,” State v.
Carton, 2016 ME 119, ¶ 15, 145 A.3d 555, Kelley conducts no independent analysis of the Maine
Constitution, and he does not argue that the requirements for establishing a reasonable expectation
of privacy under the Maine Constitution differ from those under the United States Constitution.
Therefore, although “the Maine Constitution may offer additional protections” beyond those
provided by the Fourth Amendment, we decline to analyze Kelley’s claims under the Maine
Constitution and instead analyze them under the United States Constitution. State v. Glover, 2014 ME
49, ¶ 10 n.2, 89 A.3d 1077; see State v. Moore, 2023 ME 18, ¶¶ 19-20, 290 A.3d 533 (declining to
analyze a Maine constitutional claim where the defendant failed to adequately raise the issue before
the trial court or on appeal).

8See also Rakas v. Illinois, 439 U.S. 128, 133-34 (1978) (“Fourth Amendment rights are personal
rights which . . . may not be vicariously asserted.” (quotation marks omitted)); United States v. Payner,
447 U.S. 727, 729, 735-37 (1980) (holding that a defendant lacked standing under the Fourth
Amendment to suppress documents unlawfully seized from a third party despite the “flagrant[]
illegal[ity]” of the underlying search); Alderman v. United States, 394 U.S. 165, 171-72 (1969) (“The
established principle is that suppression of the product of a Fourth Amendment violation can be
successfully urged only by those whose rights were violated by the search itself, not by those who
are aggrieved solely by the introduction of damaging evidence.”).
14

To show a reasonable expectation of privacy in a third party’s vehicle, a

passenger must show a property or possessory interest in the vehicle or “an

interest in the property seized.” Rakas, 439 U.S. at 148; see Lovett, 2015 ME 7,

¶ 8, 109 A.3d 1135. On appeal, we review the trial court’s factual findings for

clear error but review the court’s conclusions of law and ultimate

determination de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996); State

v. Barclift, 2022 ME 50, ¶ 9, 282 A.3d 607.

[¶27] In Symonevich, the First Circuit decided a case with facts similar to

those here. 688 F.3d at 16-17. There, the First Circuit established that a

passenger on “a nearly six hour round-trip drive” between Maine and

Massachusetts who had placed a personal item under the passenger seat lacked

an expectation of privacy in the vehicle. Id. at 20-21. After he was indicted,

Symonevich moved to suppress evidence recovered during the search of the car

in which he had been riding as a passenger on a trip between Maine and

Massachusetts. Id. at 16-20. The traffic stop was unrelated to a separate

ongoing Drug Enforcement Agency investigation that had identified

Symonevich as a caller to a recorded phone line. Id. at 16. Citing Rakas, the

First Circuit concluded that Symonevich lacked standing to challenge the

search. Id. at 19-21.
15

[¶28] Although the First Circuit acknowledged that it had stated

previously “that the fact of a long trip ‘would engender a slightly greater privacy

expectation than would a short trip,’” it rejected Symonevich’s claim that a

passenger on a long ride is comparable to an overnight house guest, explaining,

“We are skeptical about the continued relevance of the type of duration

argument that Symonevich makes” given the Supreme Court’s subsequent case

law “circumscribing the amount of privacy one can expect in a vehicle and

further differentiating searches of automobiles from searches of homes.” Id. at

20 (quoting United States v. Lochan, 674 F.2d 960, 965 (1st Cir. 1982)). The

First Circuit stopped short of “categorically rejecting the relevance of the

duration of a trip in an automobile to the reasonable expectation of privacy

analysis,” but it also concluded that the duration of Symonevich’s six-hour trip

between Maine and Massachusetts “did nothing to enhance [his] expectation of

privacy.” Id. at 21. The First Circuit also concluded that whether Symonevich

had a possessory interest in an item placed under the passenger seat at the time

of the stop and search by law enforcement was irrelevant to whether he had an

expectation of privacy in the space below the seat. Id.; see also United States v.

Almeida, 748 F.3d 41, 47 (1st Cir. 2014) (noting the factors considered when

evaluating whether a person has a reasonable expectation of privacy in a
16

vehicle; that a defendant must show a property or possessory interest in the

vehicle; and that a person who is merely a passenger lacks a reasonable

expectation of privacy in a vehicle).

[¶29] We conclude that the court did not err in determining that Kelley

lacked standing to challenge the warrants here. In Symonevich, the First Circuit

concluded that taking a long trip as a passenger in a vehicle and storing a

personal item in the vehicle had little to no impact on an individual’s

expectation of privacy in that vehicle. Symonevich, 688 F.3d at 20-21. Although

Kelley spent more time in the vehicle here than Symonevich spent in the vehicle

in his case, and unlike the vehicle in Symonevich, the vehicle here was the

subject of electronic tracking, the First Circuit’s holding in Symonevich suggests

that spending long periods in a vehicle and storing personal items in a vehicle

do not create a reasonable expectation of privacy in that vehicle. See id. at

20-21.

III. CONCLUSION

[¶30] For the reasons given above, we conclude that the State’s

stipulation regarding whether Kelley had standing to challenge the search of

Wedge’s vehicle was not binding on the court and that Kelley lacked a

reasonable expectation of privacy sufficient to bestow standing upon him.
17

The entry is:

Judgment affirmed.

Hunter J. Tzovarras, Esq. (orally), Bangor, for appellant Richard W. Kelley

Aaron M. Frey, Attorney General, Jason Horn, Asst. Atty. Gen., and Katie Ann
Sibley, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for
appellee State of Maine

Penobscot County Unified Criminal Docket docket number CR-2021-670
FOR CLERK REFERENCE ONLY