Opinion
ANDCD-CR-18-1714
03-16-2020
STATE OF MAINE Plaintiff, v. STEVEN PRIMA VERA Defendant.
ORDER ON DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
MaryGay Kennedy, Justice.
Pending before the court is Defendant Steven Primavera's Motion to Suppress Evidence. A hearing on the motion to suppress was held on June 28 and July 1, 2019.
As a threshold matter, the State requested a stay of this court's decision on the motion to suppress in order to await the Law Court's decision in State v. Weddle, 2020 ME 12, ___ A. 3d ___. The court agreed that the Weddle decision might well affect its decision on Defendant's motion to suppress. Accordingly, the court granted the States motion to stay.
On January 28, 2020, the Law Court issued its decision in Weddle and determined that 29-A M.R.S. § 2522(1)-(3) is unconstitutional because it "does not require that law enforcement have consent or probable cause to believe that a driver is impaired before drawing a person's blood." Weddle, 2020 ME 12, ¶ 29, ___ A.3d ___.
Turning to Defendant's motion to suppress, Mr. Primavera has moved to suppress: (1) his blood test results; (2) his statements made in the course of an interview with Detective Terrence McCormick; (3) evidence procured by the seizure and search of his cell phone; and, (4) a Maine Prescription Monitoring Program report.
The court makes the following findings of fact and conclusions of law.
I. Findings of Fact
At approximately 5:52 p.m. on Friday, September 22, 2017, Steven Primavera was driving west on Court Street. Reginald and Kathryn Clement were on motor cycles riding east on Court Street. Mr. Primavera's vehicle crossed the center line. His vehicle struck Mr. Clement's motorcycle and a tree before coming to rest at the curb in the east bound lane. Mr. Clement sustained serious injuries and was taken by ambulance to CMMC. Tragically, Mr. Clement did not survive.
At 6:29 p.m., Detective Terrence McCormick of the Auburn Police Department (APD) received a call that there had been a fatal motor vehicle crash. (Tr. 22.) In response to the call, he drove up Court Street towards Minot Avenue. Detective McCormick observed "a white colored vehicle on the opposite side of the lane with some heavy damage to it up by the curb." He also saw two motorcycles "laid down" in the road. Detective McCormick arrived at 6:56 p.m. He was in an unmarked vehicle, wearing plain clothes. (Tr. 25.) He met with the shift commander, Lieutenant Scott Watkins, who advised the scene had been secured.
Lieutenant Watkins had asked Officer Tyler Ham to report to work early to assist at the scene. Officer Ham arrived at the scene in full uniform and was told to "monitor" Mr. Primavera. Officer Ham inferred that monitor "could mean, don't let him leave." Officer Ham testified, "I was told to keep an eye on him, I don't think [Mr. Primavera] was allowed to leave at that time." (Tr. 138, 147-48.) When asked "had [Mr. Primavera] tried to get in the car with his girlfriend you would have stopped him?" Officer Ham testified, "If needed, but... [Mr. Primavera] made no indication he was ready to leave or anything, he was willing to talk it sounds like." And when asked, "He wasn't free to leave at that point in time?" Officer Ham testified, "I don't believe so." (Tr. 148.)
From the time Officer Ham arrived until the scene was cleared, he spent almost two hours with Mr. Primavera. Officer Ham described Mr. Primavera as "decent, polite and courteous." Mr. Primavera did not have bloodshot eyes or soiled clothing. He did not sway or make any unusual actions. Officer Ham did not hear Mr. Primavera slur his speech, make any admissions or inconsistent responses. Officer Ham did not smell any alcohol, marijuana or cover-up odors. (Tr. 149.)
Officer Andrew Shute was also on duty that day and was dispatched to the accident scene to help with traffic control. (Tr. 191.) He arrived in his marked cruiser and was in full uniform. (Tr. 191.) He observed the motorcycles "laid down" on the road and the fire department loading a patient into an ambulance. He testified that he had contact with Mr. Primavera and asked him what had occurred. Mr. Primavera said he "was coming westbound and went off, hit the curb, came back into the other lane and that's when the accident occurred." Officer Shute asked him if he had anything to drink. Mr. Primavera said, "no." He said he just worked a sixteen-hour shift.
Lieutenant Watkins also advised Detective McCormick that Officer Bernice Westleigh had taken a blood draw from the operator of the white vehicle. Officer Westleigh is a registered law enforcement phlebotomy technician with APD. (Tr. 165.) She returned to work to do the blood draw. She was not in uniform when she arrived at the scene. She was not wearing a badge and did not have her firearm. She was directed to the back of an ambulance where she met Officer Shute and Mr. Primavera. She recalled seeing Mr. Primavera walking outside of the ambulance, smoking a cigarette.
Once inside the ambulance, Officer Westleigh opened the blood draw kit and filled out the enclosed paperwork. When asked to read the form into the record in the same way [she] read it to the Defendant that evening, Officer Westleigh testified as follows:
It says name of subject, Steven Primavera. On this date 9/22/2017, 18:33, eight p.m., let my signature state that I have given consent for these blood samples to be taken.(Tr. 174.) Officer Westleigh did not recall what, if anything, Mr. Primavera said after she read him the consent card. She testified that she asked him if he understood, he stated he did and she asked for his signature, which he provided. (Tr. 174.)
When asked about the other card, the Blood Collection Report, Officer Westleigh testified that she "might have incorrectly put the wrong date, or the wrong time." (Tr. 184.) There are blanks for "Time and date of arrest," which Officer Westleigh filled in with "17:52." She explained that "Time and date of arrest" means "time of the incident," which is the time she is "given from the officer." Officer Westleigh did not recall which officer gave her the time she wrote down. She was also unable to explain why she wrote "18:27 Court St." in the "Time and Site of Collection" line on the card. (Tr. 184.) She testified that she signed the card, that she "drew blood from the above named subject at said date," and that Officer Shute signed that he "witnessed the actual drawing of blood by above stated person from the above subject." (Tr. 186.) Despite the discrepancies in the times she wrote down and that were sworn to by Officer Shute, Officer Westleigh testified she was certain she drew blood from Mr. Primavera "on the date indicated at 18:33 hours."
Officer Westleigh had no concerns about Mr. Primavera's ability to consent to the blood draw. (Tr. 176.) She testified that at one point Mr. Primavera told her he was feeling a little light headed. As a result, she only did a "short draw." Once she removed the needle, Mr. Primavera indicated he was feeling better.
She did not draw a full second tube. (Tr. 176.)
Officer Westleigh described Mr. Prima vera as conscious, alert and appropriately responsive to her questions. The entire process took about 30 to 45 minutes. During that time, Officer Westleigh did not detect any signs of impairment in Mr. Primavera.
Officer Shute testified that the interaction between Officer Westleigh and Mr. Primavera prior to the blood draw, "seemed pretty casual." (Tr. 197.) He had no memory of Officer Westleigh providing Mr. Primavera with any explanation regarding his obligation to submit to a blood draw. (Tr. 197.) He did remember, however, hearing Mr. Primavera consent to the blood draw. When asked if Mr. Primavera had "problems with his balance or anything of that nature," Officer Shute testified, "Nothing that I observed." (Tr. 198.)
Lieutenant Watkins further advised Detective McCormick that the prosecutor's office and medical examiner's office had been contacted; efforts were underway to find an accident reconstructionist; the motorcycle victim had been taken by ambulance to CMMC and the other rider, the victim's wife, accompanied him in the ambulance; and, the driver of the white car, who was standing on the side of the road, had been identified. (Tr. 23-24.) Lieutenant Watkins told Detective McCormick that Mr. Primavera was cooperative.
Detective McCormick also found Mr. Primavera to be cooperative.
After speaking briefly with some of the other officers at the scene, Detective McCormick introduced himself to Mr. Primavera and asked if he would be willing to talk to him. (Tr. 26.) Mr. Primavera said he would. As they walked to the cruiser where the interview was to take place, Detective McCormick did not observe any indication that Mr. Primavera was under the influence of alcohol. His gait and balance were fine and there was no odor of alcohol coming from him.
When they got into the vehicle. Detective McCormick told Mr. Primavera that he was not under arrest and that he just wanted to talk to him. As they sat side by side in the front seat, Detective McCormick was able to see Mr. Primavera clearly. His face was not flushed. His eyes were not bloodshot or watery. His eyelids were not droopy and his pupils were not constricted. He was not combative. He appeared, in fact, very calm and relaxed. Detective McCormick did note, however, that he had some difficulty hearing Mr. Primavera. On occasion he asked him to repeat what he said or would repeat it himself. Detective McCormick testified that Mr. Primavera's speech was slow and deliberate and that his tone was very low, at times difficult to hear. (Tr. 70, 120.)
During the interview, Mr. Primavera said to Detective McCormick, "... My dad's right over there. Can I just tell him what's going on?" Detective McCormick said, "Yeah. Just tell him we're talking and we'll be done in a little bit." Mr. Primavera then called his Dad and said, "... I'm in the car with the detective. I'm just talking to him. I'll be done in a little bit, and then I '11 be able to leave, just don't - no, no, just wait. Yeah, I'm in the car talking to him and I'll be done in a minute. All right? All right. Love you." (St.'s Ex. 1, at 8.)
Mr. Primavera told Detective McCormick that he had clocked into work at 5:00 p.m. on Thursday, September 22 and clocked out at 2:00 a.m. on Friday, September 23, 2017. (St/s Ex. 1, at 3-4.) He went home and slept until about 9:00 a.m. He then drove his girlfriend to an appointment at DHHS in Lewis ton. Later that day, he drove to Portland for a 3:30 p.m. haircut appointment. He left Portland to return to Lewiston around 4:30 p.m. He stopped at Subway on his way and took the turnpike. (St/s Ex. 1, at 7.)
Detective McCormick wrote in his Affidavit and Request for Search Warrant, "Primavera 'admitted' he did not get sufficient sleep from the prior evening."(Emphasis supplied). In fact, when Detective McCormick asked, "So you didn't fall asleep?" Mr. Primavera answered, "No, no. I did sleep last night."
A significant portion of the interview was spent trying to determine how Mr. Primavera ended up on Court Street. Mr. Primavera was uncertain which turnpike exit he got off. Explaining that he was relatively new to the area, having moved to Lewiston about six months ago from New Gloucester, Mr. Primavera told Detective McCormick that he had taken a number of side streets and was lost. (Tr. 12, 16.) Detective McCormick suggested possible routes and landmarks, in an effort to understand how Mr. Primavera got to Court Street. Ultimately, they looked at Mr. Pr imavera's phone and, assuming it showed the route he took to Court Street and not the route he would take to get back to his home in Lewiston, confirmed that Mr. Primavera had taken a number of side streets. Mr. Primavera explained that he was looking around, trying to figure out where he was.
While the tone of the interview was cordial, Detective McCormick did not answer Mr. Primavera's question about Mr. Clement's condition; he was dogged in his view of the route Mr. Primavera had driven; he did not let him see one of the witness' statements; and, he would not let Mr. Primavera show him where he believed he had hit the curb. (St.'s Ex.1, at 20-23.)
At the conclusion of the interview, Detective McCormick determined, based on "a few things that caught [his] attention," that Mr. Primavera should undergo Standard Field Sobriety Tests (SFSTs). Lieutenant Watkins arranged for Officer Ham to administer the SFSTs.
Officer Ham did a quick overview of Mr. Primavera's medications and medical conditions. He learned, as had Detective McCormick during the interview, that Mr. Primavera is prescribed 50 milligrams of methadone and took his prescribed dose early that morning. (Tr. 140.) Mr, Primavera told Officer Ham that he had a prior injury that might affect the walk-and-turn and one-leg stand tests. Officer Ham also noted, though not as a "clue," that Mr. Primavera's pupils were "quite constricted."
Officer Ham administered the SFSTs in the driveway of 458 Court Street. The driveway was slightly uneven. (Tr. 142.) It was now evening, but there was plenty of light. Officer Ham did not observe any "clues" on the HGN or the one leg stand. On the walk-and-turn, Officer Ham noted that Mr. Primavera lost his balance during the instructional phase and at the end of the test he made an improper turn. At the conclusion of the SFSTs, Officer Ham expressed some concern about Mr. Primavera's performance on the walk-and-turn, but determined he did not have probable cause to arrest Mr. Primavera for operating under the influence. (Tr. 159-60.)
Indeed, no one at the scene, not Lieutenant Watkins, not Officer Shute, not Officer Edwards, not Officer Westleigh, and not even Detective McCormick, despite "a few things that caught [his] attention," thought Mr. Primavera was under the influence of alcohol or drugs. None of the law enforcement officers who came in contact with Mr. Primavera believed they had probable cause to arrest Mr. Primavera for operating under the influence of alcohol or drugs. Accordingly, Mr. Primavera was not arrested.
Before allowing Mr. Primavera to leave the scene, Detective McCormick advised him that he would be seizing his cell phone. (Tr. 31.) Mr. Primavera did not consent to the seizure and search of his cell phone. Detective McCormick, with the assistance of Assistant District Attorney Pat Madore, drafted an affidavit and search warrant that was presented to a reviewing Judge on October 5, 2017.
II. Conclusions of Law
1. Blood Test Results
The State's primary argument is that Mr. Primavera's consent is implied, and the results of the blood test are admissible pursuant to 29-A M.R.S. §2522(1)(3). Alternatively, the State argues that Mr. Primavera expressly consented to having his blood drawn and the results of the blood test are therefore admissible.
a. Implied Consent
The State relied on Maine's mandatory blood test statute, 29-A M.R.S. § 2522/ to argue that the results of the blood test are admissible. Section 2522 provides in relevant part:
1. Mandatory submission to test. If there is probable cause to believe that death has occurred or will occur as a result of an accident, an operator of a motor vehicle involved in the motor vehicle accident shall submit to a chemical test, as defined in section 2401, subsection 3, to determine an alcohol level or the presence of a drug or drug metabolite in the same manner as for OUI.
2. Administration of test. The investigating law enforcement officer shall cause a blood test to be administered to the operator of the motor vehicle as soon as practicable following the accident and may also cause a breath test or another chemical test to be administered if the officer determines appropriate. The operator shall submit to and complete all tests administered. Except as otherwise provided in this section, testing must be conducted in accordance with section 2521.
3. Admissibility of test results. The result of a test is admissible at trial if the court, after reviewing all the evidence, whether gathered prior to, during or after the test, is satisfied that probable cause exists, independent of the test result, to believe that the operator was under the influence of intoxicants at the time of the accident.
Under section 2522(1), Mr. Primavera's consent to a blood draw is implied, but the results of the blood test are only admissible upon a showing of probable cause, independent of the blood test results, to believe that he was under the influence of intoxicants at the time of the accident. Id. § 2522(3).
As previously noted, however, the Law Court has determined that 29-A M.R.S. § 2522(1)-(3) is unconstitutional because it "does not require that law enforcement have consent or probable cause to believe that a driver is impaired before drawing a person's blood." Weddle, 2020 ME 12, ¶ 29, ___ A.3d ___. In Weddle the officers took the defendant's blood without a warrant or an exception to the warrant requirement, without consent, and without probable cause to believe he was under the influence at the time of the accident. Id. ¶ 27. Thus, the defendant's Fourth Amendment rights were violated.
All of the evidence of Weddle's possible operation under the influence was gathered after the blood draw, and cannot be used to justify the search. Id. ¶ 15.
Generally, "[w]hen evidence is obtained in violation of the Fourth Amendment, the judicially developed exclusionary rule usually precludes its use in a criminal proceeding against the victim of the illegal search and seizure." Id. ¶ 31 (quoting Illinois v. Krull, 480 U.S. 340, 347 (1987)). However, the Law Court in Weddle found that suppression of the defendant's blood test results would not further the purpose of the exclusionary rule. Id. ¶ 36. Instead, the Law Court applied the good faith exception to the exclusionary rule because "the officer who ordered that draw reasonably did so in good faith reliance on section 2522 and our prior decisions." Id. ¶ 37 (recognizing that the good faith exception applies "when a law enforcement officer reasonably relies, in good faith, on a statute or common law rule that the officer has no reason to believe was unconstitutional and which has previously been declared constitutional by an appellate court with binding authority." Id. ¶ 35.
The exclusionary rule is a judicially developed rule which serves to deter unlawful police conduct and protect a person's Fourth Amendment rights against unreasonable searches and seizures. United States v. Calandra, 414 U.S. 338, 347 (1974). Suppression is not a guarantee, as the Supreme Court has stated "evidence should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment. Where the officer's conduct is objectively reasonable . . . excluding the evidence will not further the ends of the exclusionary rule in any appreciable way . . . ." Id. at 348.
In keeping with Weddle, the court could conclude that the facts in this case support a finding that the officer who ordered the blood draw did so in good faith in reasonable reliance on section 2522 and precedent. However, the court does not need to apply the good faith exception as the Law Court did in Weddle, because Mr. Primavera consented to the blood draw and therefore his Fourth Amendment rights were not violated.
b. Express Consent
There is no doubt that "withdrawal of a blood sample from the veins or arteries of a human being for blood-alcohol testing is a 'search' falling within the protection of the Fourth Amendment." State v. LeMeunier-Fitzgerald, 2018 ME 85, ¶ 11, 188 A.3d 183; see also State v. Palmer, 2018 ME 108, ¶ 9, 190 A.3d 1009. In order for blood test results to be admissible, officers must either obtain a warrant for the blood test or the search must fall within a recognized exception to the warrant requirement. Id. ¶ 12; see Missouri v. McNeely, 569 U.S. 141, 147 (2013). A search conducted pursuant to consent is "one of the well-settled and established exceptions to the requirements of both a warrant and probable cause." State v. Nadeau, 2010 ME 71, ¶ 17, 1 A.3d 445 (internal quotation marks and citation omitted). The State must prove by a preponderance of the evidence that the consent was given freely and voluntarily, which the court determines based on the totality of the circumstances. State v. Marquis, 2018 ME 39, ¶ 17, 181 A.3d 684. The State's burden cannot be discharged by showing nothing more "than a mere acquiescence to a claim of lawful authority and maybe found when a person actively assists and cooperates with an investigation." Id. (internal quotation marks and citation omitted).
As stated by the Supreme Court, "[s]uch an invasion of bodily integrity implicates an individual's most personal and deep-rooted expectations of privacy." Missouri v. McNeely, 569 U.S. 141, 147 (2013) (internal quotation marks and citation omitted).
Defendant cites the Superior Court (Washington County, Stokes, J.) to suggest that Defendant's consent was not voluntary. State v. Dennison, WASSC-CV-2015-25 (Me, Super. Ct., Was. Cty., Jan. 19, 2016). In Dennison, Maine wardens took a blood sample from the defendant following a fatal ATV accident. Id. at 3. Wardens informed the defendant that under Maine law, 29-A M.R.S. § 2522(1), he was required to provide a blood sample, although there was no probable cause to believe he was under the influence at the time of the accident. Id. Ultimately, the court found that defendant merely "agreed" with the wardens' statements that the law required him to provide a blood sample, rather than actually providing knowing, voluntary consent. Id. at 12. His blood alcohol test results were therefore not admissible on the basis of consent.
Similarly, in State v. Veilleux (French, J.) the court found that the defendant did not consent to a blood test when the officer "did not inform the Defendant of Maine's 'implied consent' law, did not inform Defendant he had the right to refuse a blood test, and never pointedly asked Defendant whether he consented to a blood test." No. CR-16-812, 2016 Me. Super. LEXIS 190, at *2 (Aug. 8, 2016). Lack of consent was found despite the fact that the defendant signed a consent form stating: "Let my signature state I have given consent for these blood samples to be taken." Id. at *3.
In this case, Officer Westleigh was called to the scene for the sole purpose of getting a blood sample from Mr. Primavera. Upon arrival, she was directed straight to Mr. Primavera, who was just outside the back of an ambulance with Officer Shute. In a compact ambulance with two investigating officers, Officer Westleigh read the consent card: "On this date 9/22/2017, 18:33 p.m., let my signature state that I have given consent for these blood samples to be taken." There was no evidence that Mr. Primavera was advised that he could refuse consent or that he was required to provide a blood sample. Officer Shute testified that the interaction between Officer Wesleigh and Mr. Primavera prior to the blood draw "seemed pretty casual." (Tr. 197.) Mr. Primavera was conscious and alert. (Tr. 179.) Officer Westleigh testified, "I asked him if he understood, he stated he did, and I asked for his signature on the card/' which he provided. (Tr. 175.)
Unlike the defendant in Dennison, there is no evidence he merely "agreed" to submit to a blood draw because he was told it was the law. (Tr. 180, 197.) There is no evidence that he was coerced. Mr. Primavera was read the consent card and was expressly asked if he understood what he was consenting to. Furthermore, the State does not have to establish Defendant's knowledge of a right to refuse as "there is no requirement that the person who gave consent must have been explicitly advised of the right to withhold it." United States v. Brake, 666 F.3d 800, 806 (1st Cir. 2011) (quotation marks and citations omitted); State v. Faulkner, 586 A, 2d 1246, 1248 n.2 (Me. 1991).
Although the blood draw statute characterizes submission to the blood draw as "mandatory," it also provides for license suspension for refusal to submit to testing as well as a procedure for removal of the suspension upon a showing that the person was not under the influence of intoxicants or did not negligently cause the accident. 29-A M.R.S. § 2522(1), (4)-(5). Mr. Primavera was not advised of any of these statutory provisions.
On these facts - Mr. Primavera was conscious and alert; he was read the consent card from the kit; he was asked if he understood; he said that he understood; and, he signed the consent form - the court concludes that the State has satisfied its burden in demonstrating that Mr. Primavera's consent was more likely than not freely and voluntarily made.
2. Statements to Detective McCormick
The law is clear that "[a] Miranda warning is necessary if a defendant is: (1) in custody; and (2) subject to interrogation. Statements made by a person subjected to custodial interrogation who is not first given Miranda warnings are inadmissible against that person at trial." Nadeau, 2010 ME 71, ¶ 53, 1 A.3d 445 (internal citations and punctuation omitted.) A person, who is not subject to formal arrest, may be in custody if a reasonable person standing in the shoes of the defendant would have felt that he was not at liberty to terminate the interrogation and leave or if there was a formal arrest or restraint on freedom of movement. Id. ¶ 54. The State must prove that police conduct was constitutionally valid by a preponderance of the evidence. State v. Kittredge, 2014 ME 90 ¶ 17, 97 A.3d 106.
Courts consider the totality of the circumstances, including the factors enumerated below, when assessing whether a person is in custody. Those factors include but are not necessarily limited to the following:
(1) the locale where the defendant made the statements;
(2) the party who initiated contact;
(3) the existence or non-existence of probable cause to arrest (to the extent communicated to the defendant);
(4) subjective views, beliefs, or intent that the police manifested to the defendant to the extent they would affect how reasonable person in the defendant's position would perceive his or her freedom to leave;
(5) subjective views or beliefs that the defendant manifested to the police, to the extent the officer's response would affect how a reasonable person in the defendant's position would perceive his or her freedom to leave;
(6) the focus of the investigation (as a reasonable person in the defendant's position would perceive it);
(7) whether the suspect was questioned in familiar surroundings;
(8) the number of law enforcement officers present;
(9) the degree of physical restraint placed upon the suspect; and,
(10) the duration and character of the interrogation.State v. Dion, 2007 ME 87, ¶ 23, 928 A.2d 746. The State agrees that Mr. Prima vera was not informed of his rights under Miranda. And, although the State characterizes Detective McCormick's interaction with Mr. Primavera as an "interview," the State does not argue Mr. Primavera was not subject to interrogation. (See Pl.'s Opp'n to Defs Mot. Suppress 10-13; State v. Bragg, 2012 ME 102, ¶ 15, 48 A.3d 769 (citations omitted)). Therefore, the question for the court's determination is whether the interrogation was custodial.
In consideration of the factors outlined above, the court finds as follows:
Mr. Primavera was interviewed at the scene of the accident. The accident occurred in a part of town that was unfamiliar to him; but, he had lived in the area for about six months. Although he was primarily interviewed by Detective McCormick, there were at least four other officers at the accident scene, most of whom had some interaction with Mr. Primavera. Each interaction was initiated by law enforcement. The officer who was "monitoring" Mr. Primavera believed he was not free to leave. There is no evidence, however, that the officer communicated his belief to Mr. Primavera in any manner. Despite being singled out for his part in the fatal crash, Mr. Primavera was never placed under arrest. He was free to move about the accident scene. Except for the blood draw, which he consented to, Mr. Primavera was not subject to other testing (Standard Field Sobriety Tests) until after the interview with Detective McCormick, None of the officers believed that they had probable cause to arrest Mr. Primavera at the accident scene, and he was never told there was probable cause to arrest him. In fact, Detective McCormick testified:
Mr. Primavera appears to argue that this fact weighs in favor of suppression. However, as explained in Dion, the fact that police officers did not communicate to the defendant that they had probable cause to arrest supported a finding that the defendant was not in custody when he made incriminating statements. Dion, 2007 ME 87, ¶ 25, 928 A.2d 746.
I advised Mr. Primavera that he wasn't under arrest, I just wanted to talk to him. I had the officers take all their gear out of the front seat of the cruiser so he could sit right next to me and sit down with me. I didn't want him to have any obstructions or anything in the way. I wanted him to be as comfortable as he could while we sat down and talked about what happened.(Tr. 27.)
Although the interview took place in a police cruiser, Detective McCormick testified, "[i]t was the most quiet place that we could have that we could sit down and I could record the interview." (Tr. 27, 67.) When Mr. Primavera received a phone call from his father, he said to Detective McCormick, "... My dad's right over there. Can I just tell him what's going on? Detective McCormick said, "Yeah. Just tell him we're talking and we'll be done in a little bit." Mr. Primavera called his father and said, "... I'm in the car with the detective. I'm just talking to him. I'll be done in a little bit, and then I'll be able to leave, just don't - no, no, just wait. Yeah I'm in the car talking to him and I'll be done in a minute. All Right? All right. Love you." (St.'s Ex. 1, at 8.) The interview lasted approximately thirty minutes. The tone of the interview was cordial and non-accusatory. At the end of the interview, Detective McCormick asked Mr. Primavera if he would hang around for a little bit longer, and he agreed. Detective McCormick testified "[Mr. Primavera] asked if he could step out and have a cigarette and I said, yes, sure, go ahead." (Tr. 30.) He asked "how long until you think we'll be done all this?" and Detective McCormick said, "If 11 be 30 minutes at the most, okay?" and Mr. Primavera said "All Right." (St.'s Ex. 1, at 33; Tr. 30.) The situation and statements made to Mr. Primavera gave him little or no reason to believe that he was not free to leave. Mr. Primavera was told he could stop the interview, but elected not to do so. He was not physically restrained at any point and he never asked to leave the police cruiser during the interview.
On balance, the totality of circumstances supports a finding that a reasonable person in Mr. Primavera's position would have felt at liberty to terminate the interrogation and leave. Accordingly, the court concludes on these facts that Mr. Primavera was not in custody at the time the statements were made, and therefore his statements to Detective McCormick will not be suppressed.
3. Seizure and Search of Cell Phone
The Fourth Amendment to the U.S. Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the person or things to be seized.U.S. Const., amend. IV.
The Maine Constitution similarly provides that:
The people shall be secure in their persons, houses, papers and possessions from all unreasonable searches and seizures ...."Me. Const, art. I, § 5.
The law has a decided preference that police searches and seizures be conducted pursuant to search warrants, The affidavit "must demonstrate probable cause to believe that (1) a crime has been committed ... and (2) enumerated evidence of the offense will be found at the place to be searched . . ." U.S. v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999). Where the government seeks to search an individual's cell phone, the affidavit must "set forth facts that allow the issuing judge to infer from the totality of the circumstances that [the defendant's] cell phone account data would provide evidence of [the stated crime]." State v. Warner, 2019 ME 140, ¶ 24, 216 A.3d 22. The court must determine whether there is a sufficient nexus between the cell phone and the suspected wrongdoing. Id. ¶ 24.
A search warrant must "describe the property with 'such particularly' that the executing officer can identify the item to be searched or seized 'with certainty' and is left with no discretion as to what is to be taken." State v. Roy, 2019 ME 16, ¶ 20, 201 A.3d 609. The search warrant must be tailored to the scope of probable cause established in the affidavit, and nothing may be left to the executing officer's discretion. Marron v. U.S., 275 U.S. 192, 196 (1927). Indeed, as the United States Supreme Court has explained, "a cell phone provides a wide-open window into a person's life." Riley v. California, 573 U.S. 373, 386, 395 (2014).
In his affidavit, Detective McCormick wrote, inter alia: "Based on my education, training and experience, and the facts set forth in this affidavit, there is probable cause to believe, and I do believe, the following:
1. Electronic records or data, including but not limited to records of electronic communications (such as records of incoming and outgoing private chat messages), IP addresses, photographs or video images and any other electronic records or data related to the above listed crimes, location data information, as well as any records or data that demonstrates the identity of the person(s) who owned or exercised dominion or control over the electronic records or data contained therein." (Emphasis supplied.)
Similarly, the Search Warrant provides, inter alia:
1. Electronic records or data, including but not limited to records of electronic communications (such as records of incoming and outgoing private chat messages), IP addresses, photographs or video images and any other electronic records or data relating to the above charges, location data information, as well as any records or data that demonstrates the identity of the person(s) who owned or exercised dominion or control over the electronic records or data contained therein." (Emphasis supplied.)
First, the State argues that at the suppression hearing, the court "inappropriately shifted the burden to the State to defend the warrant without a preliminary showing from the defense" of a defect in the warrant and therefore contends that the court should not have permitted inquiry into the warrant issue, (State's Closing Argument 1-2.) The case relied upon by the State, State v. White, requires a "substantial preliminary showing" by the defense in order to gain an evidentiary hearing when the defendant challenges the truthfulness of the affidavit. State v. White, 391 A.2d 291, 293 (Me. 1978). Here, Mr. Prim aver a is not challenging the truthfulness of any statement in Detective McCormick's affidavit. Rather, he argues that the warrant is deficient on its face because it is not sufficiently particular. The court finds the search warrant challenge in this case to be distinguishable from State v. White.
The State contends that the warrant was "as specific and limited as the circumstances would allow." State v. Roy, 2019 ME 16, ¶ 24, 201 A.3d 609. Roy involved a child pornography investigation in which the Law Court upheld a search warrant granting broad authorization to search the defendant's computers, portable electronic devices and digital storage media of any kind. Id. ¶¶ 5, 25. The Law Court's reasoning rested on the "increased sophistication and mobility of devices capable of downloading, storing, and transmitting child pornography ... ." Id. ¶ 24.
Roy is distinguishable from this case in that the Roy warrant authorized a search of all "computers, portable electronic devises and digital media of any kind" located on the defendant's property for "collections of photographs or magazines containing images of children and or adolescents." Roy, 2019 ME 16, ¶ 19, 201 A.3d 609. While the nature of the illegal activity under investigation and type of evidence to be seized justified broader authorization, Id. ¶ 24, there was, in fact, sufficient particularity in that the officer reviewing the various electronic devices knew he was searching for "collections of photographs or magazines containing images of children and or adolescents." There was nothing left to the reviewing officer's discretion.
In State v. Warner, the Law Court upheld a search warrant authorizing a search of the defendant's phone upon finding that the issuing judge could reasonably determine that the defendant's cell phone account data - text messages, voicemail, call history, and location information - would demonstrate his involvement in a burglary, the crime listed in the affidavit. State v. Warner, 2019 ME 140, ¶ 26, 216 A.3d 22. The Law Court emphasized that the warrant sought to search identified aspects of the cell phone records, and was limited to a defined period of time. Id. ¶ 27.
In this case, Mr. Primavera's cell phone was seized without a warrant. Neither Detective McCormick's affidavit nor the warrant itself identifies a specific crime or relates the evidence to be seized to a particular crime. At most, Detective McCormick's Affidavit states his belief that the phone would contain evidence of "distracted driving."
Detective McCormick's stated "crime" is likely in reference to the civil violation of "Failure to maintain control of a motor vehicle," 29-A MR.S. § 2118, which provides:
[A] person commits the traffic infraction of failure to maintain control of a motor vehicle if the person commits either a traffic infraction ... or commits the crime of driving to endanger . .. and, at the time the traffic infraction or crime occurred, the person was engaged in the operation of a motor vehicle while distracted; or [i]s determined to have been the operator of a motor vehicle that was involved in a reportable accident. .. that resulted in property damage and, at the time the reportable accident occurred, the person was engaged in the operation of a motor vehicle while distracted.29-A M.R.S. § 2118(2). "Operation of a motor vehicle while distracted" means engaging in an activity that is "(1) not necessary to the operation of the vehicle; and (2) that actually impairs, or would reasonably be expected to impair, the ability of the person to safely operation the vehicle." Id. § 2118(1). Again, this is a civil violation, and is not a criminal offense. See 17-A M.R.S. § 4-B(1).
What is most unsettling, however, is the fact that the evidence to be seized as described in the warrant is not limited in scope, in time, or in any other manner. Detective McCormick testified that his intent was to search Mr. Primavera's entire phone. He stated, "there are so many different - and I learned this from my children, there are so many different chat lines, communication lines of all different types and measures, and some I found out the hard way, that I want to make sure I find everything that could help in this case. I don't want to leave anything left out that I might miss, so yea, I want to know what is on the phone." (Tr. 110.)
Such an unbridled search of the entire phone would undoubtedly include information wholly unrelated to Mr. Primavera's activities while he was driving immediately before the accident. The search warrant authorized an unfettered search of Mr. Primavera's entire cell phone. Such general exploratory searches most certainly run afoul of the Fourth Amendment's particularity requirement.
Although Detective McCormick testified that the purpose of the seizure was to eventually get a warrant "to see if he was on the cell phone either texting or calling someone at the time of the accident/' the affidavit and search warrant was neither specific nor limited, leaving far too much to the discretion of the officer executing the warrant. (See Tr. 31.) The warrant, at minimum, should have been limited to the relatively brief window of time prior to the accident, as Detective McCormick's investigation should have been tailored to the cause of the accident and not a general freefall of information into Mr. Primavera's life.
The affidavit and warrant in this case plainly discount the Fourth Amendment's particularity requirement. Accordingly, Mr. Primavera's Fourth Amendment rights were violated by the seizure, and subsequent search of his cell phone.
As previously discussed, evidence obtained in violation of the Fourth Amendment's protections is suppressed in order to deter future violations. See Weddle, 2020 ME 12, ¶ 31, ___ A.3d. Also ___, as previously discussed, the Fourth Amendment "does not require suppression of evidence seized pursuant to a facially valid warrant if officers relied on the warrant based on an objectively reasonable belief in the existence of probable cause." State v. Johndro, 2013 ME 104, ¶ 17, 82 A.3d 820. Even a deficient warrant may be subject to a good faith exception. However, "depending on the circumstances of the particular case, a warrant maybe so facially deficient-i.e., in failing to particularize the place to be searched or the things to be seized-that the executing officers cannot reasonably presume it to be valid." U.S. v. Leon, 468 U.S. 897, 922-23 (1984). The warrant in this case, devoid of any particularity as to the scope of the search, is so facially deficient that it falls within the circumstances that the executing officers could not reasonably presume it to be valid.
On these facts, the Court concludes that any evidence obtained from the search of Mr. Primavera's cell phone will be suppressed and may not be used for any purpose.
4. Maine Prescription Monitoring Program Report
At the suppression hearing, Mr. Primavera learned that APD had obtained a Maine Prescription Monitoring Program (PMP) report. The State has not satisfactorily explained how this confidential document was obtained. The State, through counsel and through Detective McCormick, explained that it either received this confidential document via a grand jury subpoena; a phone call to the AG's office; or from a warrant obtained months after the report was generated. Detective McCormick, the lead detective in this case, testified that he has reviewed the entire case file but has never seen the confidential document he produced in the search warrant inventory.
PMP records are highly confidential. 22 M.R.S. § 7250 ("Except as provided in this section, prescription monitoring information submitted to the department is confidential and is not a public record as defined in Title 1, section 402, subsection 3.")- Any person "who intentionally or knowingly uses or discloses prescription monitoring information in violation" of the statute's confidentiality rules, "unless otherwise authorized by law, is guilty of a class C crime." 22 M.R.S. § 7251. The PMP statute does not include an exception for law enforcement. The statutory medical emergency exception even expressly prohibits dissemination for the purpose of "initiat[ing] or substantiat[ing] any criminal charges against a patient or [conducting] any criminal investigation." 22 M.R.S. §7250(7). Even by court order or warrant, the State must prove it satisfied all of the requirements of disclosure under 22 M.R.S. §§ 7245-7254, and 42 C.F.R. Subpart E. Moreover, federal law requires law enforcement to go through several tiers of procedure before receiving a copy of a citizen's PMP documents.
For example, 42 C.F.R. § 2.65, which the State has not demonstrated was followed in this case, requires:
(a) Application. An order authorizing the disclosure or use of patient records to investigate or prosecute a patient in connection with a criminal proceeding may be applied for by the person holding the records or by any law enforcement or prosecutorial officials who are responsible for conducting investigative or prosecutorial activities with respect to the enforcement of criminal laws. ... An application must use a fictitious name such as John Doe, to refer to any patient and may not contain or otherwise disclose patient identifying information unless the court has ordered the record of the proceeding sealed from public scrutiny.
(b) Notice and hearing. Unless an order under § 2.66 is sought in addition to an order under this section, the person holding the records must be provided;
(1) Adequate notice (in a manner which will not disclose patient identifying information to other persons) of an application by a law enforcement agency or official;
(2) An opportunity to appear and be heard for the limited purpose of providing evidence on the statutory and regulatory criteria for the issuance of the court order as described in § 2.65(d); and
(3) An opportunity to be represented by counsel independent of counsel for an applicant who is a law enforcement agency or official.
The State has not explained how it came into possession of this confidential information/ much less offered evidence that it has satisfied any of the State or Federal requirements of legal disclosure.
A citizen's substantive due process rights are violated when a governmental actor's conduct "shocks the conscious/' or if his "deliberate indifference" threatens a citizen's life, liberty or property. See Rosales-Mireles v. U.S., 138 S.Ct. 1897, 1906 (2018). Unauthorized dissemination of PMP documents is a felony. Claiming lack of knowledge as to how the State came into possession of a confidential PMP document shows, at minimum, deliberate indifference towards Mr. Primavera's due process rights. Absent evidence that the State has lawfully obtained this information, the PMP report will be suppressed.
III. Conclusion
As the U.S. Supreme Court has explained:
illegitimate and unconstitutional practices get their first footing ... by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed .... It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.Schneckloth v. Bustamonte, 412 U.S. 218, 228-29 (1973) (internal quotations omitted). The court does not seek to uphold a mere possibility that the investigating officers did not violate Mr. Primavera's constitutional rights. Rather, the court has sought, and has not found, assurance from, the State that Mr. Primavera's rights were acknowledged and respected throughout the investigation of this accident.
In conclusion, Defendant Steven Primavera's Motion to Suppress is GRANTED in part and DENIED in part. The court orders as follows:
1. Defendant's motion to suppress the results of the blood test is DENIED;
2. Defendant's motion to suppress the statements made by Mr. Frimavera to Detective McCormick is DENIED;
3. Defendant's motion to suppress evidence procured by the seizure and search of Mr, Primavera's ceil phone is GRANTED; and
4. Defendant's motion to suppress the Maine Prescription Monitoring Program report generated on September 25, 2017, is GRANTED.
The clerk is instructed to incorporate this Order by reference art the docket.