State of Maine v. Alexandre

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STATE OF MAINE (__,; Clerk ~f Courts UNIFIED CRIMINAL COURT

CUMBERLAND, ss. PORTLAND

Docket No. CD-CR-16-1094

STATE OF MAINE )

)

V. )

) ORDER ON MOTION TO SUPPRESS

)

DAVID ALEXANDRE )

)

Defendant )

A hearing was held on Defendant's Motion to Suppress on September 20, 2016. Assistant

District Attorney Carlos Diaz appeared on behalf of the State. Attorney Eric Thistle appeared on

behalf of Defendant. The court heard testimony from Maine State Trooper Anthony Keim and

admitted several exhibits into evidence, including a video recording of the traffic stop leading to

Defendant's arrest.

Defendant's motion raises an issue of first impression: the effect of Maine's statutory

authorization of medical marijuana' on the law governing vehicle searches. Having considered

the evidence and counsel's oral argument, the court's findings and conclusions are as follows:

Trooper Keim testified that he was patrolling the highway in the Scarborough area when

he noticed an SUV rapidly approaching in the right lane. Without signaling, the SUV abruptly

crossed into the middle lane and then into the left lane, squeezing between two cars, and

crowding- the -car--in-front-so--that-them-was -less -than-a-car-length -between-them. Radar showed - - -·

the SUV to be traveling at 77-78 mph and accelerating up to 86 mph. Trooper Keim pulled the

SUV over and approached the passenger side to speak with the vehicle's only occupant, the

driver, identified as Defendant David Alexandre. Trooper Keim testified that he smelled the odor

of marijuana coming from the SUV's interior, and observed a jar on the passenger floor that

appeared to contain marijuana. Asked by Trooper Keim "when was the last time you smoked

marijuana?" Defendant answered, "earlier this afternoon." Noticing that Defendant's "facial

expressions looked droopy, tired," Trooper Keim remarked "It looks like you've been smoking

more~recently by looking at you." Defendant then showed the Trooper his medical marijuana

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The statutory scheme governing medical marijuana is set forth in the Maine Medical Use of

Marijuana Act, 22 M.R.S. § 2421 et. seq.

authorization card, a copy of which was admitted as State's Exhibit 2. Asked "do you have more

marijuana in the car?" Defendant answered "yes, a little bit, in jars."

Trooper Keim did a pat-down search of Defendant, during which Defendant told him that

,

he had smoked marijuana "earlier that morning." A search of the SUV's followed, during which

Trooper· Keim found marijuana in excess of the amount authorized by Defendant's medical

marijuana card.

Attorney Thistle argued on behalf of Defendant that Trooper Keim had no legitimate

basis for searching Defendant's vehicle once he was shown Defendant's medical marijuana card.

According to this line of argument, because Defendant was authorized to have up to 2.5 ounces

(approximately 70 grams) of prepared marijuana, 2 Trooper Keim, having observed only a meager

8.4 grams on the passenger side floor, had no basis for believing that Defendant had contraband

in his vehicle, such that the search violated Defendant's constitutional rights, requiring

suppression of the evidence seized.

The court's analysis starts with the automobile exception, which the Law Court, citing

U.S. Supreme Court decisions, has recognized as an exception to the warrant requirement.

Pursuant to the automobile exception, "the existence of probable cause justifies a warrantless

seizure and reasonable search of a motor vehicle irrespective of the existence of exigent

circumstances." See, e.g., State v. Ireland, 1998 ME 35, ~ 7, 706 A.2d 597 (citing, among others,

US. v. Infante- Ruiz, 13 F.3d 498, 502 (1 51 Cir. 1994) ("It is now established that if the police

have probable cause to believe that either a vehicle or a container within a vehicle contains

contraband, evi ence of crime, or other matter tliat may lawfully oe seized, no Fourth

Amendment violation occurs .... ")).

While acknowledging the automobile exception, Attorney Thistle argues that the search

of Defendant's vehicle does not fall within the exception because Defendant's possession of a

medical marijuana card negates any suggestion of probable cause.

The Maine Law Court has not addressed Defendant's argument. Because of the absence

of Maine precedent, ADA Diaz directed the court's attention to cases from California. In People

v. Strasburg, 56 Cal. Rptr. 3d 306, for example, the court reasoned:

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See 22 M.R.S. § 2423-A(l)(A) ("Except as provided in section 2426, a qualifying patient may

[p]ossess up to 2 1/2 ounces of prepared marijuana and an incidental amount of marijuana as

provided in subsection 5").

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Defendant contends that because he immediately produced a doctor's prescription

for marijuana, thus identifying himself as a qualified patient under the Act,

Deputy Mosely was made aware that defendant could possess up to eight ounces

of marijuana - and thus had no grounds to detain him, frisk him, or search his

car. ...

Under the facts and circumstances of this case, Deputy Mosely had probable

cause to search defendant's car for marijuana after he smelled the odor of

marijuana. Defendant admitted smoking marijuana, and the deputy sheriff saw

another bag of marijuana in the car after defendant handed him one. Armed with

the knowledge that there was marijuana in the car, "a person of ordinary caution

would conscientiously entertain a strong suspicion that even if defendant makes

only personal use of the marijuana found in the passenger area, he might stash

additional quantities for future use in other parts of the vehicle, including the

trunk."

The fact that defendant had a medical marijuana prescription, and could lawfully

possess an amount of marijuana greater than Deputy Mosely initially found, does

not detract from the officer's probable cause. [T]he Act provides a limited

immunity - not a shield from reasonable investigation.

Id. at 310-11 (internal citations omitted). See also People v. Waxler, 168 Cal. Rptr. 3d

822:

That California has decriminalized medicinal marijuana in some situations and

has reduced the punishment associated with possession of up to an ounce of

marijuana does not bar a law enforcement officer form conducting a search

pursuant to the automobile exception. Here, Deputy Griffin was entitled to

investigate to determine whether appellant possessed marijuana for personal

medical needs and to determine whether he adhered to the CUA's limits on

possession. "Otherwise, every qualified patient would be free to violate the intent

of the medical marijuana program ... and deal marijuana from his car with

--Wmpleie freedom from any reasonable search. Ueputy- Griffin tesiified at the

preliminary hearing that people often possess more marijuana than allowed under

the CUA and "hide" additional quantities of marijuana in their vehicles. It is well

·settled that even if a defendant makes only personal use of marijuana found in the·

passenger compartment of a car, a police officer may reasonably suspect

additional quantities of marijuana might be found in the car.

We hold a law enforcement officer may search a vehicle pursuant to the

automobile exception to the warrant requirement where the officer smells burnt

marijuana and sees burnt marijuana in the defendant's car. The automobile

exception is not limited to situations where the officer smells or sees more than

28.5 grams of marijuana in the vehicle; the observation of any amount of

marijuana - which is currently illegal to possess except as authorized by the CUA

-- establishes probable cause to search pursuant to the automobile exception ....

[W]e also conclude the possession of a 215 card does not preclude a warrantless

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automobile search where there is probable cause to believe the vehicle contains

contraband or evidence of a crime.

Id. at 830-32 (internal citations omitted).

The court understands that Massachusetts courts have held that since the legislative

change making possession of one ounce or less of marijuana a civil, rather than a criminal,

infraction, "the smell of burnt marijuana alone does not provide probable cause to believe that

there is evidence of a specific crime or a criminal amount of contraband - ie., more than one

ounce of marijuana- in a vehicle." Commonwealth v. Daniel, 985 N.E.2d 843, 848 (Mass. 2014)

(citing Commonwealth v. Cruz, 945 N.E.2d 899, 913 (Mass. 2011).

The Massachusetts cases are distinguishable, 3 however, as in this matter the Trooper's

assessment of probable cause was not predicated on the smell of marijuana alone. On the

contrary, Trooper Keim observed Defendant speeding and making dangerous and unsignaled

lane changes. After stopping Defendant's vehicle, he saw a jar with marijuana in plain view on

the passenger side floor. Defendant gave inconsistent answers when asked for the time he had

last smoked marijuana, and admitted that he had more marijuana in the vehicle. While in Daniel

the Massachusetts court noted that "[a]t no time did the prosecutor suggest that the search was

justified because [defendant] was driving while under the influence of marijuana .... Nor did the

prosecutor elicit testimony at the hearing which would have supported such a claim," id. at 846,

there is ample evidence in this matter to support a finding of probable cause to believe that

Defendant was committing the offense of OUI.

The court fin s, in sum, tl1at Defendant'if stafus as amea.icaT iriarjjuana cardholaer does

not immunize him from a vehicle stop supported by reasonable articulable suspicion of impaired

driving and a vehicle search supported by probable cause. The Medical Use of Marijuana Act

itself expressly provides that it "does not permit any person to [o]perate, navigate or be in actual

physical control of any motor vehicle ... while under the influence of marijuana .... " 22 M.R.S.

§ 2426(1)(D). Were the law otherwise, "every qualified patient would be free to violate the intent

3

The Massachusetts cases are further distinguishable by the fact that the Maine Law Court's

formulation of the automobile exception does not require a showing of probable cause to believe

that Defendant p~ssesses a criminal amount of contraband. See, e.g., State v. Ireland, 1998 ME

35, ~ 7, 706 A.2d 597 (automobile exception applies where police have probable cause to believe

that vehicle contains "contraband, evidence of crime, or other matter that may lawfully be

seized") (citations omitted).

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of the medical marijuana program ... with complete freedom from any reasonable search."

People v. Strasburg, supra, 56 Cal. Rptr. 306, 311.

Having considered Defendant's argument, the court finds that in the circumstances of this

case the search of Defendant's vehicle was justified by probable cause notwithstanding his

possession of a medical marijuana card.

It is accordingly hereby ORDERED that Defendant's Motion to Suppress is DENIED.

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DATED: - - -4\-----'t..-l-\....___

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