Opinion
AROCD-CR-20-00295
07-12-2021
STATE OF MAINE v. JAMES SAM
ORDER ON MOTION TO SUPPRESS
Defendant was charged by indictment dated October 8, 2020,, with the offenses of (1) Unlawful Possession of Scheduled Drugs- Class C; (2) Violation of Conditions of Release - Class E; (3) Criminal Operating Under the Influence - Class D; (4) Unlawful Furnishing of Scheduled Drugs - Class C; and (2) Criminal Forfeiture. The Defendant has entered pleas of not guilty to all counts set forth in the indictment By Motion to Suppress dated March 30,, 2021, the Defendant claimed constitutional violations regarding the search of his backpack and the chemical analysis/testing of evidence found within the backpack, A hearing on the Defendant's Motion to Suppress was held on July 2, 2021. The Defendant was present and represented by Jeremiah Mcintosh,, Esq. The State was represented by Assistant District Attorney Christiana Rein, Esq. The court received testimony from Douglas Bell of the Caribou Police Department. The court received State's Exhibits 1, 2, 3, 4, 5, 6, and 7 into evidence without objection. The Defendant did not call any witnesses or present any evidence beyond his cross-examination of the officer. The Defendant argued that the search of his backpack was unlawful as incident to arrest and/or was conducted without the Defendant's consent. The State contends that the search was lawful as a search incident to arrest, Based upon the evidence presented at the hearing, the court issues the following findings of fact, conclusions of law, and resulting order:
Findings of Fact
On June 29, 2020 at approximately 11:20 p.m., Officer Douglas Bell (hereinafter "Bell") of the Caribou Police Department was on patrol in a fully marked police cruiser. He observed a vehicle operated by the Defendant blow through a stop sign, failing to stop at the stop sign. Bell immediately turned his cruiser, activated his blue lights, and turned to follow the Defendant's car. The Defendant pulled his car over to the side of the road and Bell conducted a traffic stop.
Bell exited his cruiser and proceeded to the driver's side door of the Defendant's vehicle. Upon approaching the vehicle, Bell observed that the Defendant had glassy eyes, was avoiding eye contact, and that there was an odor of intoxicating liquor. In addition, the Defendant's explanation of where he was going, based upon his location and direction of travel, was nonsensical. Based upon those observations, Bell requested that the Defendant participate in some field sobriety tests outside the vehicle.
Bell conducted the horizontal gaze nystagmus test with the Defendant and observed six (6) clues in both eyes. Bell proceeded to conduct the vertical gaze nystagmus test with the Defendant and observed bouncing in both eyes. Bell next conducted the heal-to-toe test with the Defendant. The Defendant failed to properly place his feet heal to toe at each step and took fewer steps than directed. Bell conducted the one leg stand test with the Defendant, which the Defendant performed well until he reached the count of "20" and stopped reciting the "1000" component of the recitation (1001, 1002, 1003, etc.) and simply counted "21, 22, 23" etc.
Based upon the observations and the performance on the field sobriety tests, Bell informed the Defendant that he was being arrested for operating under the influence and would be transported for an opportunity to perform a breathalyzer test to determine his blood alcohol content. The Defendant was handcuffed and placed in the rear seat of Bell's cruiser.
At this time, there were two other officers on scene assisting Bell. Bell conducted a search of the vehicle for alcohol or alcohol containers. His search revealed a digital scale between the seats, but no alcohol or alcohol containers were located. One of the officers had a drug trained dog and a drug sniff of the Defendant's vehicle was conducted. The dog did not indicate on any portion of the Defendant's vehicle. At that point, the officers had concluded their search of the Defendant's vehicle. One of the other officers, with Defendant's permission, moved the Defendant's vehicle to an adjacent parking lot and locked it up. That officer gave the Defendant's keys back to Bell. The officers then proceeded to leave the scene.
Thereafter, as Bell and the Defendant began to depart the scene in Bell's cruiser, the Defendant was asking Bell about the amount of bail money he would need to be released. The Defendant noted that his money was in his fanny pack, which was inside his backpack, back at his vehicle. The Defendant made a request that he be able to go get the money for bail from his backpack. Bell returned to the Defendant's vehicle, exited his cruiser, went to the Defendant's car to remove the backpack, and brought the backpack over to his cruiser. The Defendant did not request that Bell go and retrieve his backpack, as the discussion was phrased in terms of the Defendant getting is money from the vehicle.
A "fanny pack" is a small fabric pouch worn like a belt around the waist by use of a strap above the hips that is secured usually with some sort of buckle. They were widely used in the late 1980s and early 1990s, but fell out of style in the early 2000s. As of the 2020s, they have apparently made a comeback and are again in use.
Bell proceeded to open the backpack to get the Defendant's money for him. Bell was not granted permission by the Defendant to open the backpack, but the Defendant acquiesced to Bell's access for the sole purpose of Bell retrieving the Defendant's money out of his fanny pack that was inside his backpack. Upon opening the backpack, Bell immediately observed the aforementioned fanny pack and another bag. Defendant was clearly objecting to Bell's rifling through the backpack. Bell thereafter proceeded to paw through the backpack and observed the following; several small containers, a propane torch, aluminum foil that was folded up, brass knuckles, and a bag of marijuana.
By way of his motion to suppress, Defendant contends that the search of his backpack was unlawful.
Discussion
"'The Fourth Amendment requires that all searches be reasonable. U.S. Const, amend. IV. 'Reasonableness is measured in objective terms by examining the totality of the circumstances.' State v. Sargent, 2009 ME 125, ¶ 10, 984 A.2d 831. Reasonableness generally requires a warrant and probable cause, but there are exceptions to that requirement, including when a search is conducted incident to a lawful arrest. Riley v. California, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014); see also United States v. Robinson, 414 U.S. 218, 235-36, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); State v. Toy, 662 A.2d 238, 241 (Me. 1995).'" State v. Pagnani, 2018 ME 129, P15, 193 A.3d 823, 827. The Supreme Court determined in Arizona v. Gant that a search of an automobile is permissible if the government shows that it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Arizona v. Gant, 556 U.S. 332, 343 (2009)(emphasis added)
Based on the totality of the circumstances, there was probable cause for Bell to arrest the Defendant for the charge of operating under the influence. The State has shown that it was reasonable to believe that evidence of operating under the influence, by way of alcohol or alcohol containers, might be found in the vehicle. Such a search was conducted by Bell and no evidence related to the OUI charge was found. The search having been concluded, the vehicle was secured, and the officers were all leaving the scene. At this point, the officers were done with the Defendant's vehicle and it was left in the community for the Defendant to retrieve at a later time.
It was only when the Defendant asked that he be able to go get his money for bail that Bell turned around to return to the vehicle to retrieve the backpack. The return to the vehicle in this case is similar to the return to the vehicle to retrieve a bag by the Defendant in State v, Tales, 540 A.2d 1120 (Me. 1988)(Defendant was arrested for an OUI. The warrantless search of Defendant's bag after a post-arrest return to the vehicle deemed unconstitutional). The search of the backpack was conducted only after the search incident to arrest was completed and concluded. The court must therefore determine whether an exception to the warrant requirement related to the backpack in this case was present, such as consent.
"Consent must be given freely and voluntarily. The State must prove by a preponderance of the evidence that consent was objectively manifested by word or gesture. Consent requires 'more than a mere acquiescence to a claim of lawful authority' and may be found when a person actively assists and cooperates with an investigation." Id. (Citing, State v. Bailey, 2010 ME 15, ¶ 19, 989 A.2d 716 and State v. Cress, 576 A.2d 1366, 1367 {Me. 1990)). In this case, the State has failed to satisfy its burden to show that the Defendant consented to the search of his backpack. The act of telling Bell that he only needed the fanny pack was at most acquiescence to the officer's access to the contents of the backpack. Id., The court further finds that the fanny pack was immediately apparent upon Bell's opening the backpack, therefore to satisfy the task of getting the Defendant's money for him, no further access to the back was necessary or appropriate.
As the search of the backpack was conducted without a warrant and the State has failed to show that an exception to that requirement applies to this case, the Defendant's motion to suppress the evidence obtained as a result of the warrantless search of his backpack is GRANTED.
The entry shall be:
For the foregoing reasons, the Defendant's Motion to Suppress is granted. All evidence obtained as a result of the search of the Defendant's backpack shall be excluded at trial.