The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, ss CRIMINAL ACTION
DOCKET NO. CROP. 169
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The Defendant in this matter has been indicted for Unlawful Furnishing of Scheduled
Drugs (17-A M.R.S.A. § 1106, Class C);Operating After Suspension (29-A M.R.S.A. §
2412, Class E) and Failure to Give Correct Name (29-A M.R.S.A. § 105, Class E).
Pending before the court is the Defendant’s Motion to Suppress all evidence seized in
connection with his arrest on December 5, 2001. An evidentiary hearing was held on May
9,2002. The State’s legal memorandum was filed on May 28, 2002. Due to extenuating
__ circumstances, the Defendant’s memorandum was not filed until July 17, 2002. The
matter is now before the court for decision.
BACKGROUND
Evidence produced at the hearing indicates that Det. Fred Luce of the Brewer Police
Department received information from a confidential informant on December 4, 2001 to
the effect that the Defendant Joshua Smock was engaged in drug trafficking. The officer
had previously worked with the informant and he had provided the officer with reliable
information. The officer did not know the Defendant.
The informant told the officer that the Defendant was selling the drugs out of his vehicle
and that he kept the drugs in the vehicle and also on his person. The informant advised
the officer that the Defendant was living in a large white apartment house on Main St. in
Brewer and that he drove a unique, “weird colored” yellowish-tan GMC Jimmy vehicle
which stood out in contrast to most other vehicles. The informant advised that there
might also be a dark colored VW Jetta at the apartment house. The informant described
the Defendant as a male, about 6’ tall and as having unkempt, scraggly brown hair. The
officer undertook to corroborate this information and testified that he was able to confirm
the presence of the described vehicles at a large white apartment house on Main St. The
GMC Jimmy was present at this home at the time of the officer’s drive by check and the
officer was able to obtain a license plate registration number for this vehicle. He ran a
check on the registration number and determined that the GMC Jimmy was registered to
a person by the name of Sherry Harrington. He also did a license check on Joshua Smock
and learned that Mr. Smock’s operating privileges were under suspension. He then
checked some old police records and found that there was a “connection” between Sherry
Harrington and Joshua Smock.'
On December 5, 2002, the officer was in uniform and was parked in his police cruiser
watching traffic near the entrance to Indian Trail Park in Brewer. While he was parked he
noticed a GMC Jimmy drive by. The officer was not able to identify any of the
occupants in the vehicle, but he was able to observe the license plate and confirm that it
was the same vehicle that he had observed the day before.
' The officer did not elaborate upon the nature of this connection.
The officer decided to follow the vehicle. He followed the vehicle as it proceeded down
North Main St. until it pulled into the Texaco One Stop on North Main St. about 150 to
200 yards away. The vehicle pulled up to the gas pumps. The officer also pulled into the
service station parking lot and he came to a stop about 50’ away. The officer had not
activated his blue lights or signaled to the operator of the GMC Jimmy in any way. The
officer watched the vehicle and kept it continually in his field of vision. While the officer
was watching the vehicle, he observed the driver exit the vehicle. There was no one else
in the vehicle. At about the same time, the officer also exited his vehicle and began to
walk towards the individual and the GMC Jimmy. As he walked towards the individual,
the officer could tell that the individual standing beside the GMC Jimmy seemed to meet
the description which the informant had given him for Joshua Smock. This person was
also wearing a jacket with the name “Josh” on its front in plain sight. As the officer
approached, the person turned away from him and it looked to him as though the person
was putting something back in the vehicle. The officer could not see what it was.
The officer then came up to the individual and asked for his name and date of birth. The
man replied that he was “Michael Harrington” and that his date of birth was 12/11/78.
The officer asked the individual why the coat said “Josh” and the person replied that it
belonged to his brother-in-law, “Josh Harrington.” The officer then asked for some
identification. The individual responded that he didn’t have any. The officer then asked
for and received the last four digits of his social security number.
The officer called his dispatcher and asked for a physical description for Michael
Harrington. He also asked the dispatcher to check on the accuracy of the social security
numbers for Michael Harrington. The dispatcher advised by radio that Michael
Harrington was 5’7”” or 5’8” tall; had brown eyes and brown hair and wei ghed about
140 pounds. The officer could see that the person standing before him was about 5711”
and he estimated that he weighed 170 pounds. The dispatcher also advised the officer
that the four social security digits, which the individual had provided him, did not match
those for Michael Harrington.
The officer testified that at this point, he was quite certain that he was dealing with
Joshua Smock. The officer then took the individual’s wallet; searched it and discovered a
Maine State hunting license issued to Joshua Smock. The individual then admitted that,
indeed, he was Joshua Smock.
Det. Luce then arrested the Defendant for Operating After Suspension. He searched the
Defendant following the arrest and he took the vehicle into police custody. Officer
Munson assisted in an inventory search of the vehicle and during this search, found a —
dark green pill bottle on the floor of the passenger compartment of the vehicle along with
two marijuana pipes.
The officer then transported the Defendant to the police station. Det. Luce asked the
Defendant if he wanted to talk. The Defendant initially responded in the affirmative; then
changed his mind, expressing concerns for his personal safety. Then Defendant shortly
changed his mind again and volunteered to talk to the officer. Det. Luce asked the
Defendant if he was sure that he wanted to talk to him and the Defendant said yes. The
officer then took the Defendant into the training room at the police station; took the
handcuffs off him and read him the Miranda warnings. (See State’s Exh. #1). The officer
read each of the five listed rights to the Defendant who verbalized his understanding of
those rights. The Defendant signed the waiver form indicating that he knew and
understood all of his rights and that he had no questions. The Defendant was sober and
coherent throughout this process and the officer described a non-threatening
environment. The Defendant then made statements acknowledging his ownership of the
contraband drugs and he advised the officer of his source for those drugs.
The Defendant now argues that the stop of his vehicle, the subsequent questioning of him
by the officer and the search of the vehicle were all done in violation of his rights under
the Fourth Amendment to the United States Constitution and article I, section 5 of the
Maine Constitution and he seeks to suppress all evidence obtained subsequent to his
initial contact with the officer.
DISCUSSION
The court concludes that the officer did not stop the Defendant by simply pulling into the
same gasoline station as the Defendant. The officer did not activate his blue lights nor
did he signal to the Defendant in any way. The officer did not park his car so as to hinder
the movement of the Defendant’s vehicle. The officer simply got out of his cruiser and
approached the Defendant. No one is protected by the Constitution against the mere
approach of police officers in a public place. State of North Carolina v. Brooks, 337 N.C.
132, 446 S.E.2d 579. Police officers may approach individuals in public to ask them
questions and even request consent to search their belongings, so long as a reasonable
person would understand that he or she could refuse to cooperate. Jd p. 142, quoting
Florida v.Bostick, 501 U.S. 429, 431, 111 S.Ct. 2382, 2384, 115 L. Ed. 2d 389, 396
(1991). See also,State v. Moulton 1997 ME 228, J 8, 704 A.2d 361, 363.Thus, when the
officer approached the Defendant and simply asked him his name and for a follow up
explanation of why the name “Josh” on his jacket was different from the name “Michael
Harrington” given by the Defendant, the court concludes that, no investigatory stop had
occurred and certainly no seizure. The Defendant told the officer the jacket belonged to
his brother-in-law, “Joshua Harrington”. The suggestion that brothers in law would have
the same last name struck the officer as unusual and at this point, the officer believed that
he was dealing with Joshua Smock.
The officer then proceeded to ask the Defendant for his date of birth and for last four
digits of his social security number. He also requested that the Defendant produce some
identification. At this point, the court concludes that there had been a sufficient show of
authority to implicate constitutional protections against unreasonable searches and
seizures. In asking for the Defendant’s birth date, social security information and
identification, the officer was conducting an investigatory detention of the Defendant. In
order to justify an investigatory detention short of formal arrest, a law enforcement
officer must act on the basis of specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that intrusion. See Moulton 704
A.2d 361. The question becomes, whether the officer had a reasonable, articulable
suspicion of wrongdoing at the time he asked for this additional information.
“When determining whether a law enforcement official had articulable suspicion, the key
is what the officer observed, and whether it was reasonable in the totality of the
circumstances known to hirn to conclude that a stop was justified. Reasonable suspicion
is “considerably less than proof of wrongdoing by a preponderance of the evidence and is
obviously less demanding than that for probable cause. The suspicion does need to be
based on “more than speculation or an unsubstantiated hunch however. State v. Eklund
2000 ME 175, §6, 760 A.2d 622, 624 (internal citations omitted).
By the time of the “detention/stop” in this case, the officer had learned from a reliable
confidential informant that Joshua Smock drove a unique, weird colored, yellowish-tan
GMC Jimmy. He had learned that Joshua Smock’s right to operate a motor vehicle in
this state was under suspension. He had seen the person he was now questioning exit
from the driver’s side of the same weird, yellowish-tan vehicle the officer had observed
the previous day at the location provided by the informant. This person matched the
physical description which he had received earlier for Joshua Smock, and he was wearing
a jacket with the name “Josh” on the front of it. Although the person had identified
himself as “Michael Harrin ston” and told the officer that the jacket belonged to “Josh
Harrington”, his brother-in-law, the officer, understandably, thought it unusual for
brothers in law to have the same last name. The officer had also by this time had also
contacted the police dispatcher to ask for a physical description of “Michael Harrin gton”
and to determine if the last four social security digits provided by the Defendant matched
Michael Harrington’s social security number. The Dispatcher provided a description for
Michael Harrington as a person about 5’7” or 5’8” tall and weighing 140 pounds. The
person present with the officer was about 5’11” tall and weighed 170 pounds. The social
security number provided did not match Michael Harrington’s social security number.
Under the totality of all of these circumstances, the court determines that it would clearly
be objectively reasonable for the officer to suspect that the person standing before him
was not Michael Harrington as he professed, but rather was Joshua Smock who had just
committed the offense of driving after suspension. In the court’s view, not only had the
minimum “articulable suspicion” standard been satisfied but also circumstances had
ripened to a level of probable cause to arrest.
Police officers. may arrest a person whenever facts and circumstances within the
knowledge of the police and of which there was reasonably trustworthy information
would warrant a prudent and cautious person to believe that the arrestee had committed
the crime. State v. Candage 549 A.2d 355,360 (Me 1988). Probable cause is less than a
fair preponderance of the evidence._State vy. Brann 736 A.2d. 251, (Me 1999). The
quantum of proof necessary to establish probable cause is less than the level of a fair
preponderance of the evidence; it is a flexible, common-sense standard that does not
demand any showing that the officer’s belief be correct or more likely true than false.
State v. Cilley 1998 ME 34,9 11, 707 A.2d 79, 83 (internal citations omitted).
Although in the court’s opinion, the officer had probable cause to do so, the officer did
not immediately arrest the Defendant. Rather, he conducted a further inquiry regarding
whether the Defendant possessed a wallet. This led to the Defendant’s production of a
wallet, which the officer searched, discovering a hunting license issued to Joshua Smock.
The Defendant promptly admitted that he was Joshua Smock. The officer arrested the
Defendant for the offense of Driving After Suspension and took the Defendant and his
vehicle into custody. Both the Defendant and the vehicle were searched and the drugs
underlying the pending charges were discovered in the vehicle.
If officers have probable cause to arrest the occupant of a vehicle, they may search-
incident to that arrest-not only the Defendant but also the entire interior of the vehicle and
all containers found within the interior. New York v. Belton, 453 U.S. 454, 101 S.Ct.
2860, 69 L. Ed. 2d 768, reh’g denied, 453 U.S. 950, 102 S.Ct. 26, 69 L.Ed. 2d 1036
(1981). Further, a search may be made before an actual arrest, if the search and arrest are
roughly contemporaneous.
State v. Brooks 634 A.2d ,1267 (Me 1993). Thus, having probable cause to arrest the
Defendant before his wallet and identity confirming hunting license came into the
officer’s possession, it is irrelevant that the wallet was examined prior to formal arrest of
the Defendant.
10
Accordingly, the court finds that Det. Luce did not violate the Defendant’s Constitutional
rights and all physical evidence discovered during the officer’s search, shall not be
suppressed.”
The entry shall be: The Defendant’s Motion to Suppress is denied in all respects.
Date: Gee rae Ko
JUSTICE, SUPERIOR COURT
? In his motion, the Defendant also challenged use of his statements as evidence against him at trial. The
evidence produced at hearing led the court to conclude that the Defendant was fully advised of his Miranda
rights and made a knowing and voluntary waiver of those rights. The Defendant neither argued nor briefed
this issue and accordingly the court deems the issue to have been waived.
DEFENSE COUNSEL:
Laurie Miller, Esq.
28 Main St Suite l
Bangor, ME 04401
COUNSEL FOR THE STATE:
Gregory Campbell, Asst. D.A.
97 Hammond Street
Bangor ME 04401