Opinion
CR-21-5198
08-29-2023
STATE OF MAINE v. NICHOLAS LORMAN, Defendant
ORDER ON MOTION TO SUPPRESS
HON. JED FRENCH, JUDGE
This matter came before the Court on Defendant's Motion to Suppress, filed December 14, 2022. The Court heard evidence on July 3, 2023. Defendant was present at the hearing with his counsel, Timothy Zerillo, Esq., and the State was represented by ADA Kristen Hughes, Esq. The Court heard testimony from one witness, Detective Stephen Hinkley of the Gorham Police Department. The parties admitted by stipulation Defendant's Exhibits 1 through 3. State's Exhibits 3 through 6 were admitted without objection.
The Defendant was indicted by the Cumberland County Grand Jury on December 9, 2021, for the charges of Gross Sexual Assault, Class A (17-A M.R.S. § 253(1)(B)), Patronizing Prostitution of a Minor, Class C (17-A M.R.S. § 855(1)(B)), and Patronizing Prostitution of a Minor, Class D (17-A M.R.S. § 855(1)(A)). All of these charges stem from the alleged conduct of Defendant on January 30, 2021. Through his motion to suppress, the Defendant seeks suppression of the following evidence:
1. Defendant's statements to law enforcement on March 10, 2021;
2. Seizure of Defendant's cellphone by law enforcement, including Defendant's admission of his passcode for his cellphone;
3. Eyewitness identification of Defendant; and
4. Law enforcement's search of Defendant's cellphone pursuant to a search warrant.
Based on the testimony and exhibits entered at hearing, the court finds the following facts:
On January 31, 2021, Detective Stephen Hinkley of the Gorham Police Department received a request to assist in an investigation stemming from a report that a 13-year-old female had been involved in a sexual assault the night prior, January 30, 2021. The complainant reported that a man came to her home and engaged in a sexual act with the victim, complainant's daughter, in exchange for money. Det. Hinkley is an experienced detective assigned to the Gorham Police Department's Criminal Investigation Division, and the Court finds his testimony to be credible. Det. Hinkley made contact with the victim and the victim's mother on January 31, 2021. The victim spoke briefly with Det. Hinkley, and, according to Det. Hinkley's testimony, disclosed that she used Snapchat "if she was speaking to someone who she did not want to know who she was." The victim's mother then consented to Det. Hinkley's seizure and search of an iPad and phone used by the victim. Search of the victim's iPad and phone led Det. Hinkley to identify the victim's Snapchat username as well as her conversations on January 30, 2021, with another Snapchat user going by the username "nlormann." Det. Hinkley's search showed that on the night of the alleged incident the victim had sent to the user "nlormann" a map from the Walgreens near her home with a line leading to her residence. Based on this finding, Det. Hinkley believed that the Snapchat user, "nlormann" had gone to the victim's home on January 30, 2021.
Victim's mother verbally consented on January 31, 2021, and subsequently provided the Gorham Police Department with a signed consent form to search the same on February 1, 2021.
Based on this information, Det. Hinkley subpoenaed Snapchat for information relating to multiple usernames, including the username, "nlormann." This subpoena was issued pursuant to a search warrant obtained by Det. Hinkley on March 24, 2021. The information Det. Hinkley received from Snapchat included the Internet Protocol (IP) Address as well as subscriber information attached to the Snapchat usernames as requested by Det. Hinkley. The IP address related to the Snapchat username, "nlormann" showed a Comcast IP address out of Bedford, New Hampshire issued to a Tyler Martin. Information provided by Snapchat also confirmed that the username "nlormann" belonged to a Nicholas Lorman. Det. Hinkley then performed a search of "Nicholas Lorman" with the date of birth used to create the Snapchat account via TLOxp, which resulted in the identification of a "Nicholas Lorman" of Manchester, New Hampshire.
Through a Department of Motor Vehicles (DMV) search, Det. Hinkley confirmed that this "Nicholas Lorman" was in fact the Defendant, and also found that the Defendant had a possible relative, Tyler Martin. On March 3, 2021, Det. Hinkley presented two DMV photos to the victim, one of Defendant and one of Tyler Martin. At hearing, Det. Hinkley testified that the purpose of the meeting was to show both photos to the victim in order to exclude Tyler Martin from the investigation "if in fact he was to be excluded." When presenting these two photos to the victim Det. Hinkley testified that he covered any identifying information and stated that these individuals may or may not be involved. The victim identified in one photo that Defendant was "definitely" the same male she interacted with on January 30, 2021, and that Tyler Martin in the other photo was not. State's Ex. 3 and 4. Det. Hinkley only showed the two photos and did not do a formal photo array because his goal was not to identify a suspect, but rather to exclude Tyler Martin as both lived in the same apartment linked to the Comcast IP address. Based on this identification, Det. Hinkley and Det. Sgt. Young drove to Bedford, New Hampshire to make contact with the Defendant. An officer from the Bedford Police Department was also present at the address with the detectives. Once at the apartment, Tyler Martin answered the door and informed the detectives that the Defendant had left and indicated that he would inform the Defendant to call Det. Hinkley. Shortly thereafter, Det. Hinkley received a phone call from Tyler Martin stating that he had spoken with the Defendant and that Tyler Martin would meet the detectives at the Bedford Police Department. Neither detective asked that Defendant meet with them at the police department, nor did they speak with the Defendant on the phone prior to the interview.
Although Det. Hinkley presented these photos to the victim at the Gorham Police Department in the interview room, there is no recording.
Once back at the Bedford Police Department, Det. Hinkley and Det. Sgt. Young met with the Defendant. They brought the Defendant to an interview room to investigate the Defendant's involvement in the alleged January 30, 2021, incident. This interview was recorded. See Defendant's Ex. 2. Both detectives were in plain clothing and had service weapons on their person. During the interview with the Defendant the door to the interview room was closed for the purpose of limiting noise from foot traffic in the hallway and engaging in a private discussion with the Defendant. The duration of the interview was approximately forty-five minutes. At the onset of the interview, Det. Hinkley stated to the Defendant that the purpose of this interview was to gather information and that he was not under arrest and was free to leave at any point in time. During the interview, Det. Hinkley engaged in questioning related to whether the Defendant has a Snapchat account and how he accessed that account. The Defendant stated that he used his cellphone to access his Snapchat account. Det. Hinkley also asked the Defendant whether he had been to Maine. The Defendant responded that he believed he had only been to the State of Maine on three different occasions. Defendant stated that he had gone to Gorham, Maine to "meet up with" the victim. The Defendant was relaxed while speaking with the detectives and Det. Hinkley was polite and non-confrontational but inquisitive. As the interview progressed, the Defendant inquired as to what the interview was about, and Det. Hinkley informed the Defendant that a report had been made by the victim's mother concerning his interactions with her on January 30, 2021.
Thereafter, the interview, the Defendant volunteered that while at the victim's residence he received oral sex from the victim. The Defendant told Det. Hinkley and Det. Sgt. Young that he would tell them "anything." Det. Hinkley then asked the Defendant if he had arranged a deal with the victim to pay or give her anything, to which the Defendant replied, "no." Det. Sgt. Young then asked the Defendant if he had ever paid for sex, and Defendant admitted to doing so one time previously in Hawaii. The Defendant then stated that the victim did ask him to bring nicotine products when he came to her residence, and although he did not, he stated he gave the victim forty or fifty dollars in cash, then said, "anything over $80 isn't me." The Defendant then changed his response to state that he gave the victim whatever he had in his wallet for cash at the time. When asked about the victim's age, the Defendant stated initially that he had been told she was nineteen, then said that he was told by the victim that she was "over eighteen." The Defendant was informed that the victim was 13 years old. Defendant then asked if he was going to need a lawyer, and said, "she's clearly not eighteen." The Defendant did not state that he affirmatively wanted a lawyer or that he was ending the interview, nor did he ever stand up to leave. The Defendant asked, "can I call a lawyer? I feel like I should probably have one." Det. Hinkley told the Defendant that it was entirely up to him as to whether he wanted to call an attorney. However, when the Defendant asked to make a phone call, he stated that he wanted to call his mother. The Defendant also asked to use the restroom, and because of the likelihood of evidence located on his cellphone he was asked to leave it in the interview room. Officer Kennedy of the Bedford Police Department then entered the interview room and the Defendant was asked if he wanted to speak with the officer, use the restroom, or make a phone call. The Defendant chose to speak with the officer. Officer Kennedy was in uniform and had his service weapon on his person. The Defendant voluntarily gave the officer the passcode to his cellphone and consented to the seizure and search of the phone both verbally and in writing. See, State's Ex. 5. The Defendant asked Det. Hinkley if he was going to jail, and Det. Hinkley explained that the information he was gathering during this investigation would be presented to the District Attorney's office to decide what would occur next. When the Defendant did use the restroom, he was escorted by an officer who remained in the bathroom while the Defendant went into a stall. Det. Hinkley testified that he is not familiar with the policy practices of the Bedford Police Department, but that it was common practice for an officer to escort a civilian when in the secured area of a police department. At the end of the interview the Defendant left the police department. At hearing, Det. Hinkley testified that he did not give the Defendant Miranda warnings because he had "no intentions of arresting him or having him placed in custody at all."
The Defendant had also told Det. Hinkley what his passcode was during their interview prior to Officer Kennedy's involvement.
An individual subject to interrogation while in police custody must first be given Miranda warnings for the evidence obtained to be admissible. State v. Holloway, 2000 ME 172, ¶ 13, 760 A.2d 223. In determining the admissibility of evidence obtained by law enforcement, a court must engage in an analysis based on a totality of the circumstances test. State v. Higgins, 2002 ME 77, ¶ 20, 796 A.2d 50; see also, Illinois v. Gates, 462 U.S. 213 (1983). A court must decide whether, based on the totality of the circumstances, a reasonable person would have felt "he or she was not at liberty to terminate the interrogation and leave," and whether there was a formal arrest or a restraint on the freedom of movement consistent with a formal arrest. Holloway, 2000 ME 172, ¶ 14; quoting Thompson v. Keohan, 516 U.S. 99,112-13 (1995). This determination is based on an objective, not subjective, belief of the individual being questioned. Holloway, 2000 ME 172, ¶ 15.
In the case before this Court, the Defendant seeks to suppress the Defendant's statements to law enforcement on March 10, 2021, seizure of Defendant's cellphone by law enforcement, including Defendant's admission of his passcode for his cellphone, eyewitness identification of Defendant, and law enforcement's search of Defendant's cellphone pursuant to a search warrant. The Court considers each in turn.
1. Defendant's statements to law enforcement on March 10, 2021
The United States Supreme Court has made clear that even when a suspect is clearly the focus of a criminal investigation, Miranda warnings are not required to be given to the suspect if they are not in custody or deprived of freedom of action in a significant way. Beckwith v. United States, 425 U.S. 341 (1976). The Court has held that even when an investigating officer believes that a certain person is a primary suspect, a defendant that voluntarily goes to an interview with law enforcement and knows that they are free to leave at any time cannot later suppress statements made to law enforcement even in the absence of Miranda warnings. See, State v. Pinkham, 556 A.2d 658 (Me. 1989). Although the belief of an officer that an individual is a primary suspect does have some bearing on the totality of the circumstances analysis in Maine, it is not a dispositive consideration and only one factor to be considered. State v. Michaud, 1998 ME 251, ¶ 4, 724 A.2d 1222. In Higgins, the Court held that, although the interrogation in that case began to narrow in scope to focus on the defendant's actions as the interrogation progressed, the interrogation remained non-custodial in nature and did not require Miranda warnings. 2002 ME 77, ¶ 18 ("Viewed objectively, the detective's conversation and non-confrontational response would have caused someone in Higgin's position to conclude that, as stated at the onset of the meeting, he remained free to discontinue the interrogation and leave if he so chose."). Furthermore, any statements to law enforcement must be voluntary to be admissible. A statement is voluntary when it is the product of the individuals "exercise of his own free will and rational intellect." State v. Rees, 2000 ME 55, ¶ 3, 748 A.2d 976. At a suppression hearing on this issue, the State bears the burden of proving, beyond a reasonable doubt, that the statements made by a defendant are voluntary. State v. Nadeau, 2010 ME 71, ¶ 56,1 A.3d 445.
Here, the Defendant met with detectives at the Bedford Police Department voluntarily, and Det. Hinkley informed him that he was not under arrest and free to leave at any time. Both Det. Hinkley and Det. Sgt. Young remained calm and pleasant during the interview, and informed the Defendant that they were going to give any information obtained to the District Attorney's office to determine whether a criminal charge would be pursued. Although the Defendant was in the presence of two law enforcement officers in a small interview room with the door closed, he appeared comfortable and calm up until he was informed that the victim was 13 years old. In fact, the Defendant stated that he would tell the detectives "anything." When asked what his phone passcode was, the Defendant did not hesitate to provide it to the detectives and then again to Officer Kennedy. While the Defendant asked if he could call a lawyer, he did not affirmatively state that he wanted a lawyer or wanted to end the interview, and when given the opportunity to make a call he stated he wanted to call his mother. There is no indication, using the objective standard of a "reasonable person," that the Defendant felt that he was restrained from freedom of movement nor in custody. This is bolstered by the fact that after the interview he was able to leave on his own volition. Furthermore, the Defendant was never placed in handcuffs or otherwise coerced into speaking with the detectives. Although the Defendant was escorted to the bathroom and an officer remained in the bathroom while the Defendant was in a stall, this was likely due to the policy of the police department and not due to the Defendant being "in custody," nor is it a dispositive factor when considering the totality of the circumstances.
The Court therefore finds that the Defendant's statements to law enforcement on March 10, 2021, were voluntary and that the Defendant was not in custody during the duration of the interview and therefore the Defendant's statements were not in violation of Miranda.
2. Seizure of Defendant's cellphone by law enforcement, including Defendant's admission of his passcode for his cellphone
The Defendant next argues that seizure of his cellphone by law enforcement on March 10, 2021, was done without valid consent and without a warrant or probable cause and constituted an invalid search of the Defendant.
A defendant may consent to a warrantless search if such consent is "voluntary and valid." United States v. Weidul, 325 F.3d 50, 53 (1st Cir. 2003). The First Circuit in United States v. Berkowitz held:
"Where consent is given, courts must go beyond appearances and inquire whether the consent was a 'voluntary, intentional and understood waiver of a known right, or, on the contrary, was the product of deceit, duress and coercion, actual or implicit.' Each case must be viewed on its own facts and in its own context... [a]nd factual distinctions such as whether the defendant was under arrest, whether he
was physically restrained, and where the seizure occurred, are of great importance."429 F.2d 921, 925 (1st Cir.).
There are several factors that a court can utilize when determining voluntariness of consent, including the individual's age and intelligence, knowledge of the right to withhold consent or refuse consent, whether the individual was advised on their constitutional rights, and whether the individual is in custody. United States v. Reynolds, 646 F.3d 63, 72-73 (1st Cir. 2011); United States v. Twomey, 884 F.2d 46, 51 (1st Cir. 1989); State v. Bailey, 2010 ME 15, ¶ 23, 989 A.2d 716.
In addition, the Fourth Amendment requires that searches conducted are reasonable and based on probable cause. However, a search reasonably conducted under valid consent can legitimize what would otherwise be an illegal search when law enforcement does not have a warrant nor probable cause. State v. Thibodeau, 317 A.2d 172,179 (Me. 1974). When a defendant moves to suppress evidence obtained by consent rather than by a warrant, the State has the burden of proving by a preponderance of the evidence that "an objective manifestation of consent was given by word or gesture." State v. Bailey, 2012 ME 55, ¶ 16, 41 A.3d 535.
Here, the Defendant, as determined above, was not in custody at the time he consented to the seizure and gave Det. Hinkley his passcode to access his phone. At the time he consented and admitted to his passcode to Officer Kennedy, the Defendant was visibly upset but not incapable of understanding the "consent to seize and search" form that was provided to him. The form that the Defendant reviewed and signed clearly states just above the Defendant's signature, "I am providing this written consent to the Bedford Police Department freely and voluntarily, without any threats or promises have been made to me, and after have been informed that I have the right to refuse consent [sic]." State's Ex. 5. In reviewing the body camera video of Officer Kennedy, the Defendant takes his time to review the form provided, even asking questions of Officer Kennedy as he reviewed it, although he does not appear to read the quoted portion, supra, even though he was given the opportunity. Defendant's Ex. 1. Officer Kennedy verbally asked the Defendant if he consented to the search and seizure of his cellphone and the Defendant stated, "I consent." Id. Officer Kennedy also explained how a digital copy will be made of the contents of the cellphone and that the Defendant should be able to obtain the phone in a "couple of days." Although the Defendant was not advised of his Miranda rights prior to consenting, the totality of the circumstances support that his consent to search and seizure and admission of the passcode was voluntary and that he was aware of the right to refuse consent. At no time was the Defendant restrained, coerced, or otherwise pressured by law enforcement to consent. Although the seizure took place in the interview room at the Bedford Police Department, that fact alone cannot be the controlling factor in the Court's determination of voluntary consent. Furthermore, given the totality of the circumstances, the Defendant's admission of his passcode was the product of his "free choice and rational mind." See, State v. Mikuiewics, 462 A.2d 497, 501 (Me. 1984).
Even in the absence of any warnings or ensuring that that a person is aware of the right to refuse consent, a search will still be considered valid if the totality of the circumstances supports such a finding. State v. Fredette, 411 A.2d 65 (Me. 1979).
Given the Defendant's age, apparent understanding of the circumstances as well as his right to refuse, and the noncustodial nature of the interview, the Court finds that his consent to seize and search his cellphone and admission of his passcode was done with valid consent and voluntary, therefore the evidence is admissible.
3. Eyewitness identification of the Defendant by the victim
The Defendant asserts that the pretrial identification process used by Det. Hinkley does not comport with his right to due process, because eyewitness identification has become unreliable with the advancement of science and the identification does not comport with law enforcement and social science standards for out-of-court identifications and therefore must be suppressed.
The United States Supreme Court has held that the due process clause of the Fifth and Fourteenth Amendments prohibit pretrial identification procedures that are, based on the totality of the circumstances, (1) impermissibly suggestive and (2) conducive to irreparable mistaken identification. Stovall v. Denno, 338 U.S. 293, at 302 (1967). The first prong of the Stovall test requires a court to determine whether the identification procedure used by law enforcement was suggestive. State v. True, 464 A.2d 946,950 (Me. 1983). The defendant has the burden during this inquiry to show by a preponderance of the evidence that the identification procedure tended to "increase the likelihood of misidentification." Id. If the defendant cannot show that, the pretrial identification is admissible. If the defendant does prove that prong by a preponderance of the evidence, the burden shifts to the State to prove by clear and convincing evidence that, given the totality of the circumstances, the identification, although suggestive, is reliable. Id. A court considering the totality of the circumstances uses a five-factor approach:
(1) the opportunity of the witness to view the criminal at the time of the crime;
(2) the witness' degree of attention;
(3) the accuracy of his or her prior description of the criminal;
(4) the level of certainty demonstrated at the confrontation; and
(5) the time between the crime and the confrontation.See, Perry, Neil v. Biggers, 409 U.S. 188 (1972); Manson v. Brathwaite, 432 U.S. 98 (1977). The Law Court has previously held that even when an informant was shown only two photos, both of which depicted suspects who had purchased drugs from the informant two days earlier, the five-factor approach to assess the totality of the circumstances proved the identifications as reliable, even though the method used by officers was impermissibly suggestive. State v. Nigro, 2011 ME 81, ¶ 24, 24 A.3d 1283.
In the matter presently before the Court, the victim was presented with the DMV photos of the Defendant and his brother, Tyler Martin. Det. Hinkley testified that he folded the printed images to hide any identifying information. While the signatures of both were visible under the photos, they are not legible. Det. Hinkley testified that the purpose of showing the victim the photos was not necessarily to identify a suspect, but rather to exclude one or the other due to both men living at the same address associated with the Comcast IP address. Although the victim had previously stated to Det. Hinkley that she believed the Defendant's eyes to be blue, she immediately identified the Defendant as the alleged perpetrator and also excluded Tyler Martin. The victim identified the Defendant a little over a month after the incident occurred and was with the Defendant for approximately thirty minutes the day of the incident. The victim and the Defendant had also been communicating on two different apps which typically prioritize image-based communication, Yubo and Snapchat, bolstering the victim's ability to identify the Defendant.
The method of identification was overly suggestive, which the State concedes to. However, the State has proven the second prong by clear and convincing evidence - the method was not conducive to irreparable mistaken identification. Based on the victim's certainty, the relatively short duration of time between the incident and the identification, and her ability to view the Defendant on multiple occasions due to their image-based app communication, the Court finds the victim's identification of the Defendant to be reliable and therefore is admissible.
4. Law enforcement's search of Defendant's cellphone pursuant to a search warrant
The Defendant argues that the search warrant obtained by Det. Hinkley on March 17, 2021, to seize the Defendant's cellphone and search its contents for the time period of January 22, 2021 to January 31, 2021 was defective and based on insufficient probable cause. Specifically, the Defendant asserts that the search warrant was defective because there was no sufficient nexus between the place to be searched and the crime allegedly committed, that the Affidavit did not rise to the level of probable cause to justify the search, and that the Affidavit was built on hearsay and lacking in supporting facts to establish the reliability of the hearsay.
The Defendant asserted in their Motion to Suppress that the Affidavit was misleading due to omitted material. See, Franks v. Delaware, 438 U.S. 154 (1978). However, the Defendant chose not to proceed with that argument at the suppression hearing. The Court therefore does not analyze the Affidavit on that ground.
When reviewing whether a search warrant was based on adequate probable cause, "courts must give the affidavit a positive reading and review the affidavit with all reasonable inferences that may be drawn to support the magistrate's determination." State v. Rabon, 2007 ME 113, ¶ 22, 930 A.2d 268, quoting State v. Higgins, 2002 ME 77, ¶ 20, 796 A.2d 50. In determining probable cause, magistrates must apply a "totality of the circumstances approach." Illinois, 462 U.S. 213. Probable cause is established when, "given all the circumstances set forth in the affidavit before the [magistrate], including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Wright, 2006 ME 13, ¶ 8, 890 A.2d 703. The nexus between the item to be seized and the criminal behavior of a defendant, which the Defendant raises issue within the present case, requires the magistrate reviewing the warrant to have the ability to determine that the informant's information is either credible or reliable, and that the basis of the informant's knowledge was obtained in a reliable manner. See, Aguilar v. Texas, 378 U.S. 108 (1983); Spinelli v. United States, 393 U.S. 410 (1969).
Here, when giving a positive reading and review of the Affidavit of Det. Hinkley, there is a sufficient timeline of Det. Hinkley's investigation as well as sufficient information that he obtained when interviewing the minor. Furthermore, Det. Hinkley was able to review the minor's Snapchat communications between her and the Defendant based on the consent of the minor victim's mother. Det. Hinkley then described, with sufficient specificity, the steps he took to identify the Defendant by obtaining a subpoena for Snapchat to provide the subscriber information and IP address associated with the username, "nlormann." From this information and a subsequent DMV search, Det. Hinkley was able to identify the Defendant and his address and outlined the Defendant's admissions during the interview at the Bedford Police Department on March 10, 2021. Based on this information, the request for a search warrant was granted.
The Court finds that facts show a sufficient nexus between the Defendant's cellphone seized and the criminal behavior of the Defendant. Therefore, the Court finds that the evidence is admissible.
For the foregoing reasons, the Defendant's Motion to Suppress is DENIED.
The Clerk is directed to incorporate this order by reference on the docket for the case pursuant to M.R. Civ. P. 79(a).