Opinion
PISDC-CR-2020-06
01-08-2021
STATE OF MAINE v. SEAN MCKINLEY
SUPPRESSION ORDER
KEVIN L. STITHAM JUDGE.
A hearing was held on November 23, 2020 on the Defendant's 8/10/2020 motion to suppress. Present were ADA Almy, the Defendant, and Attorney Tzovarras (for the Defendant). The Court took the matter under advisement.
On the morning of 1 /4/2020 Piscataquis Deputy Sheriff Dow was called to Medford, after being alerted by dispatch that bystanders reported that the Defendant was passed out behind the wheel of a vehicle off the road in a snowbank in Medford, Prior to Officer Dow's arrival on scene, the Defendant had exited the vehicle. Piscataquis Chief Deputy Lyford, though off duty, had arrived on scene before Officer Dow. Lyford was functioning as a law enforcement officer, and he had performed some investigation at the scene, When Dow arrived at the scene, the Defendant was standing by the driver's side door with Lyford. Dow observed that the Defendant seemed to be under the influence, Dow arrested him for OUI and placed him in his cruiser. Officer Dow collected items of alleged drug or alcohol use that were in plain view in the vehicle. He then asked Chief Deputy Lyford if he had called a tow truck. Chief Deputy Lyford said he had.
The Defendant was not informed of any options he had as to releasing the vehicle. He was not informed that he could make arrangements for someone else to come pick up the car before the tow truck got there. Dow transported the Defendant to the Piscataquis County Jail; Lyford and the Milo Police Chief remained on the scene, awaiting the arrival of the tow truck.
Katie Ames, was the owner of the vehicle; she learned it was at the scene in Medford. She got a ride to scene with the intent to pick up her vehicle. She arrived at the scene before the tow truck did. She asked Lyford if she could take the car. Lyford knew she was the owner of the vehicle, but said no. Lyford told her, the vehicle was going to be towed to allow the deputy to check closer. At her request the office retrieved her wallet from the vehicle, and gave it to her. She left the scene.
Later that same morning after transporting the Defendant to the Piscataquis County Jail, Deputy Dow went to Evergreen Auto in Sebec (where the vehicle had been towed). Officer Dow conducted a warrantless inventory search of the vehicle. Officer Dow testified he conducted the search as a precaution to ensure Ms. Ames did not claim anything had been stolen from her vehicle.
Around 3:30-4:00 pm that same day, Larry Laney of Evergreen Auto in Sebec (where the vehicle had been towed), contacted Ames and said she could pick up her vehicle. She did so.
Section I of the Piscataquis County Sherriff's Office Vehicle Inventory Policy [State's #1] states that an inventory search:
will be completed by the law enforcement officer ordering the tow.... The purpose of the inventory is not to locate evidence of criminal activity, but to protect owners [sic] property, protect the agency from subsequent claims of loss [sic] or stolen property, and to protect law enforcement officers from dangerous instrumentality's, [sic].
Section III(B) 1. a. of the Policy requires the officer to:
adhere to the following procedures: Advise the owner or operator that they may release the vehicle to a licensed driver who is willing to assume full responsibility for the vehicle and all property contained therein. This person must be at the scene or be able to arrive prior to the law enforcement officer leaving. Section B.1.b. then provides, If the owner or operator chooses not to release the vehicle to a third party, the vehicle shall be removed by an agency-dispatched wrecker. [Emphasis added.]
"[A] standardized inventory of a lawfully impounded vehicle ... [is] constitutionally permissible if conducted for "community caretaking functions' and not as a "pretext concealing an investigatory police motive.'" State v. Bickford, 582 A.2d 250, 251 (Me. 1990). (Citations omitted.)
"The requirement of conformity to a standard practice, or policy, is essential, ..." State v. Hudson, 390 A.2d 509, 511 (Me. 1978). Police may exercise discretion, however, "so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity." State v. Fox, 2017 ME 52, IT 23, 157 A. 3d 778. (Emphasis added.) "[I]nventory procedures serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger." Colorado v. Bertine, 479 U.S. 367, 372 (1987). As the Supreme Court held in Florida v. Wells, 495 U.S. 1, 4 (1990), an inventory search must be conducted pursuant to "standardized criteria" or an "established routine." It "must not be a ruse for a general rummaging in order to discover incriminating evidence." Id.
The inventory policy of the Piscataquis County Sherriff's Office was not followed according to "standardized criteria" or "established routine" this case for two reasons:
1. Chief Deputy Lyford started the investigation that morning and ordered the tow of the vehicle, but he was not the officer who conducted the inventory search. Officer Dow conducted the inventory search.
2. Neither Lyford nor Dow followed the strictures of Section III(B) 1. of the Policy.
When these polices are not followed, the inventory search offends the Fourth Amendment. United States v. Hope, 102 F.3d 114 (5th Cir. 1996) (holding the inventory search invalid because the search was not conducted according to standard police procedure); United States v. Best, 135 F.3d 1223 (8th Cir. 1998) (finding search invalid because it was not done according to standard procedure and was outside the scope of a permissible inventory search); United States v. Lugo, 978 F.2d 631 (10th Cir. 1992) (holding that the search was not within the inventory exception because searching behind the door panel of the vehicle departed from standard police procedure); United States v. Maple, 348 I\3d 260 (D.C Cir. 2003} (holding the search of the closed console in the vehicle unlawful because it was not pursuant to standard police procedure).
Unlike in State v. Fox, 2017 ME 52, the policy here offers no discretion in not releasing the vehicle to a licensed driver who is willing to accept responsibility. The policy indicates the owner or operator must be advised of that option, which was not done here-neither to Defendant, nor Ms. Ames, the owner of the vehicle, even when she arrived on scene. Further, the policy requires that the officer who orders the tow be the person to conduct the inventory search.
It is telling that Deputy Dow explains his search of the vehicle at Evergreen Auto as simply for liability reasons and not for investigatory purposes. However Chief Deputy Lyford explains that same search was to allow Deputy Dow to check closer. As to this case the Court concludes it is far more logical to agree with Lyford that the purpose of the inventory conducted by Deputy Dow was to locate evidence of criminal activity, to check closer. Deputy Dow would have been better served if he had sought a warrant, Because the policies were not followed, the search under the inventory was indeed unconstitutional. The Court hereby ORDERS that all evidence obtained as a result of the inventory is suppressed.