State of Maine v. Landrum

STATE OF MAINE UNIFIED CRIMINAL DOCKET

CUMBERLAND, ss. DOCKET NO. CR 20-0181

STATE OF MAINE

v.

MATTHEW LANDRUM

Before the court is Defendant's Motion to Suppress. The court finds that the law

enforcement agents' request for identification was not a seizure and that the bag allegedly

belonging to Defendant had been abandoned permitting a warrantless search. Therefore, the

Defendant's Motion is denied.

FACTS

The basic facts are not in dispute. Two Special Border Patrol Agents, Crosby and

Gal.kowski, were on duty at the two bus stations in Portland. The Agents were part of a larger

"transportation check" that the Border Patrol conducts at bus terminals.

Defendant was a passenger on a Concord bus that stopped at the Concord station. During

this stop, the Defendant got off the bus to smoke and stretch his legs. As the passengers returned

to the bus, Agents Crosby and Galikowski stood to the side of the bus. The agents were not

blocking the returning passengers but were in a position to observe them and ask questions.

Consistent with their policies, the agents engaged in casual conversation with the passengers as

they returned to the bus.

When Defendant approached the bus, Agent Crosby called out to ask if he knew the

Defendant from somewhere. The two engaged in a brief conversation and Defendant was friendly .

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The agents then asked Defendant for identification. The agents did not block the Defendant from

entering the bus, nor did they stand in his way. Both agents testified that the Defendant voluntarily

provided his identification and his tone was cordial. The agents testified the Defendant was free

to refuse and go on his way and that people often refuse requests for identification without

consequence. Neither agent informed the Defendant that he was free to get on' the bus without

providing his identification.

When the agents ran the Defendant's ID, they found he had an active arrest warrant for a

failure to appear on a driving offense. At that point, the officers were not going to let the Defendant

get on the bus. There is no dispute that the officers had no grounds for a seizure prior to their

discovery of the warrant. There is also no dispute that, upon discovery of the warrant, there was

probable cause to arrest the Defendant.

After the arrest, Defendant was asked if he owned anything on the bus so that it could be

retrieved before the bus left. Defendant indicated that he didn't have anything on the bus.

However, Agent Crosby boarded the bus to inquire as to whether the Defendant did in fact have

possessions left on the bus. A witness indicated that Defendant had brought a bag onto the bus.

Another witness indicated where Defendant had been sitting. Agent Crosby found a bag at that

seat and held it up, asking if it belonged to anyone. No one claimed ownership.

When the agent brought the bag off the bus and showed it to Defendant, Defendant denied

ownership. However, the Defendant did make a statement of displeasure on seeing the bag. After

asking Defendant couple of times whether the property belonged to him, Agent Crosby considered

the bag to be abandoned property, searched it, and found cocaine base. Defendant was indicted

on trafficking and possession charges.

2

DISCUSSION

Defendant's motion presents two issues.

1. Did the State seize Defendant in the form of a Terry stop without reasonable

articulable suspicion when the agents asked him to provide identification.

2. Was the bag "abandoned" meaning the State could search the bag without a warrant.

1. Terry Stop

The issue here is whether a law enforcement officer's request for identification, without

more, constitutes a seizure that requires that the officers have a reasonable articulable suspicion

of criminal conduct. The parties agree that at the time of the request for identification, there was

no reasonable articulable suspicion to seize the Defendant. Therefore, the sole issue here is

whether the request for identification was a seizure for the purposes of the Fourth Amendment.

Both federal and state case law establish the following standard for what constitutes a

seizure:

"The Fourth Amendment to the United States Constitution, applied to the

states through the Fourteenth Amendment, protects "against unreasonable

searches and seizures." U.S. Const. amend. IV. 'An encounter between a

police officer and a citizen implicates the Fourth Amendment only if the

officer seizes the citizen.' State v. Moulton, 1997 :ME 228, ,r 7, 704 A.2d

361. '[N]ot all personal intercourse between policemen and citizens

involves seizures of persons.' Terry [v. State ofOhio,] 392 U.S. 1, 19 n.16

(1968). The Fourth Amendment is not implicated where an officer merely

approaches a person on the street or in another public place to ask

questions or engage in consensual conversation. State v. Gulick, 2000 :ME

170, ,r,r 11, 1Tn.7, 759 A.2d 1085; [State v.] Moulton, 1997 :ME 228, ,r 8,

704 A.2d 361. It is '[o]nly when the officer, by means of physical force or

show of authority, has in some way restrained the liberty of a citizen [that

a court may] conclude that a seizure has occurred.' Terry, 392 U.S. at 19

n.16; see also United States v. Mendenhall, 446 U.S. 544, 553, 100 S. Ct.

1870, 64 L. Ed. 2d 497 (1980). The inquiry is objective: a court must look

to 'all of the circumstances surrounding the incident' to determine whether

'a reasonable person would have believed that he was not free to leave'

the encounter with the police officer. Mendenhall, 446 U.S. at 554."

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State v. Ciomei, 2015 ME 147, ,r 8, 127 A.3d 548, 551-552.

The court, then, must determine whether the request for identification was a casual contact

to a "show of authority." The State cites federal decisions which hold that requesting a

Defendant's identification, by itself, is not a seizure. In INS v. Delgado for example, INS agents

worked their way through a factory asking workers questions. 466 U.S. 210, 212-13 (1984). The

agents asked at least one of the respondents for papers who supplied them. Id Citing

Florida v. Royer, 460 U.S. 491, 502 (1983), the Supreme Court held "that interrogation relating to

one's identity or a request for identification by the police does not, by itself, constitute a Fourth

Amendment seizure." Id at 216; see also, United States v. Encarnacion-Galvez, 964 F.2d 402,

410 (5th Cir. 1992). It is also not necessary that the officers communicate to the Defendant that he

is free to decline the request. United States v. Mendenhall, 446 U.S. 544, 555-56 (1980). The key

issue is whether the officers made any additional show of authority preventing the Defendant from

leaving.

The Defendant cited a line of cases from the Law Court that also require review. In State

v. Garland, the officer's request "for identification, by reason of his authority as an officer of the

law, effectively restrained the defendant's resumption of his journey and his driving away; this

police action brought into play the protections of the Fourth Amendment against unreasonable

seizures as applied to the states by the United States Constitution, Amendment XIV." 482 A.2d

139, 142 (Me. 1984). When the Law Court determined that the officer did not have a reasonable

articulable suspicion for the investigatory stop, the Court overturned the conviction based on

evidence gained as a result.

The Defendant argues that the holding in Garland means that state law is more restrictive

when considering whether a request for identification and points to the case law citing Garland

4

for support. In State v. Doucette, a request for the identification did not impede the Defendant

from continuing on his way because the defendant's van had run out of gas. 507 A.2d 590, 591

(Me. 1986). Therefore, the request for defendant's identification did not constitute a "seizure."

Then, in State v. Moulton, the Court determined that a seizure could not have occurred until the

officer requested that the defendant produce her license and registration. 1997 NIE 228, ,r 9, 704

A.2d 361. In State v. Brewer, the decision did not bear on a request for identification. Citing

Moulton and Garland, however, the Court identified that an officer's request to "an individual for

identification, including a license and registration" is an "example" of an action "that lead[s] a

reasonable person to believe that he is not free to leave." 1999 NIE 58, ,r12, 727 A.2d 352.

Finally, in State v. Ciomei, the Court addressed a case where a game warden approached a

Defendant and asked him "what was going on." 2015 NIE 147, ,r 9, 127 A.3d 548,552. The Court

found no seizure because there was no evidence that the warden "made any request of, or issued

any order to," the defendant. The Court distinguished Garland, "because, in that case, the officer

effected a seizure by asking the driver for his identification, whereas in the present case, the warden

merely announced his presence to" the defendant. Ciomei, 2015 l\lIB 147, ,r 9, n. 7., 127 A.3d 548.

Garland and some of the post Garland cases use language that suggests a request for

identification is a seizure. On the other hand, Law Court decisions also support an argument that

the court should follow the federal precedent and consider all of the factors rather than stop the

analysis at whether the officer requested written identification. The Law Court has specifically

cited United States v. Encarnacion-Galvez for the proposition that there is no seizure when agents

asked for identification. Brewer, 1999 NIE 58, ,r 11, 727 A.2d 352. The Law Court has also

considered an officer's tone ofvoice when distinguishing between "a polite request or a command"

when determining whether an officer's communication is an order and a seizure. State v.

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Patterson, 2005 ME 26, ,r 13, 868 A.2d 188. (addressing whether requesting someone to roll their

window down is a seizure). The Law Court also has also cited United States v. Mendenhall with

approval for the proposition that the court must consider whether a request for identification

constituted a demand or a request. State v. Collier, 2013 ME 44, ifll, 66 A.3d 563; citing

Mendenhall, 446 U.S. at 554-55. The Court has also listed several factors that a court should

consider when determining whether a seizure has occurred. Ciomei, 2015 ME 147, ,r 8, n.5, 127

A.3d 548.

Regardless of the sometimes-mandatory language in Garland and the cases citing it, the

court believes that the Law Court expects the court to apply all of the factors outlined by Ciomei

when determining a seizure has occurred. Based on the testimony, the court is convinced that the

agents' request was a polite request and not an order. The officers testified that the conversation

was friendly and their tone was not consistent with a demand. The court has no evidence to

suggest that had the Defendant declined to produce his identification, he would not have been

permitted to proceed on the bus. The agents testified that refusals happen all the time. The agents

did not block the route to the bus but stood to the side. The agents were not required to tell the

Defendant that he is free to go at the time they asked for identification. The only factor that

suggests the Defendant would not feel to go was that the officers were uniformed and armed. That

alone is not enough to turn a request for identification into a seizure.

Given these facts, the court cannot find that the agents made a mere request for the

identification. A mere request does not constitute an order. With a mere request, Defendant was

free to go. Therefore, the court is persuaded the state has met its burden to show that the agent's

request for identification was not a seizure. If there was evidence that the request for an ID was

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expressed as an order, the result would be different. However, because the request for the license

was not a seizure, the Motion to Suppress based on the stop is denied. 1

2. Search of the Bag.

This issue is easier to resolve. An exception to the requirement that the State obtain a

warrant to search a bag is found when the search is incident to an arrest. The Defendant argues

that the search of the bag was outside the scope of a search incident to an arrest. The court agrees

that the bag was not within the Defendant's reach and it bore no relation to the warrant on which

Defendant was retained. The exception to the requirement for a warrant for search incident to

arrest does not apply here. State v. Pagnani, 2018 l\ffi 129, ,r,r 20-22, 193 A.3d 823.

The State, however, does not rely on the search incident to arrest exception for their

warrantless search of the bag. Instead, the State takes the position that a warrant was not required

because Defendant had abandoned the property. "Abandonment is primarily a question of intent,

and intent may be inferred from words spoken, acts done, and other objective facts." State v.

Philbrick, 436 A.2d 844, 854 (Me. 1981). The typical abandonment case is one where the

defendant purposefully discards weapons or contraband in order to discard or disassociate himself

from it while the police are approaching. Id at 855.

This case is a clear case of abandonment. The states' witnesses testified unequivocally that

Defendant repeated on several occasions that he did not own the property. The case is

distinguishable from State v. May, 608 A.2d 772, 775-76 (Me. 1992) in which the defendant had

merely shrugged when asked about why his wallet was missing. Compare, id. at 776; citing United

1

The court notes that the State could have argued that "the discovery of a valid arrest warrant was a sufficient

intervening event to break the causal chain between the unlawful stop and the discovery of drug-related

evidence." Utah v.. Strieff, 136 S. Ct. 2056, 2061 (20 l 6)(holding that discovery of the warrant attenuated the illegal

stop). Because the court concludes the stop was legal, the court does not reach this issue.

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States v. Lee, 916 F.2d 814 (2nd Cir. 1990) (defendant's repeated denials when asked whether he

owned checked suitcase amounted to abandonment); with United States v. Lewis, 287 App. D.C.

306, 921 F.2d 1294 (D.C. Cir. 1990)(bus passenger's voluntary denial of ownership of bag in

overhead rack constituted abandonment); United States v. Lucci, 758 F.2d 153 (6th Cir. 1985). As

such, the court finds the state met its burden to show that Defendant had disassociated himself

from the bag and had disclaimed ownership of the bag. Therefore, the property was abandoned.

The Defendant's Motion to Suppress is DENIED.

DATE: /'t.,b "12t)L/

'

Thomas R. McKean

Justice, Maine Superior Court

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ST ATE OF MAINE CRIMINAL DOCKET

VS CUMBERLAND, ss.

MATTHEW LANDRUM Docket No CUMCD-CR-2020-00181

25 CLARK STREET

GREENE ME 04236 A True Coov DOCKET RECORD

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Attorney: VERNE PARADIE State's A ttorney : JONATHAN SAHRBECK

PARADIE & RABASCO PA ~ierk of Courts

217 MAIN ST SUITE 400

LEWISTON ME 04240

APPOINTED 11/09/2020

Filing Document: CRIMINAL COMPLAINT Major Case Type: FELONY (CLASS A,B,C)

Filing Date: 01/10/2020

Charge(s)

1 AGGRAVATED TRAFFICKING OF SCHEDULED DRUGS 01/09/2020 PORTLAND

Seq 11550 17-A 1105-A(l)(B)(l) Class A

2 UNLAWFUL TRAFFICKING IN SCHEDULED DRUGS 01/09/2020 PORTLAND

Seq 8541 17-A 1103(1-A)(A) Class B Charged with INDICTMENT on Supplemental Filing.

3 UNLAWFUL POSSESSION OF SCHEDULED DRUG 01/09/2020 PORTLAND

Seql3149 17-A 1107-A(l)(A)(2) ClassB Charged with INDICTMENT on Supplemental Filing .

4 UNLAWFUL POSSESSION OF COCAINE BASE 01/09/2020 PORTLAND

Seq 13376 17-A 1107-A(l)(B)(3) Class C Charged with INDICTMENT on Supplemental Filing.

Docket Events:

01/10/2020 FILING DOCUMENT- CRIMINAL COMPLAINT FILED ON 01/10/2020

01/10/2020 Charge(s): 1

HEARING - INITIAL APPEARANCE SCHEDULE OTHER COURT ON 01/10/2020 at 01 :00 p.m. in Room No. 1

PORSC

01/10/2020 Charge(s): 1

HEARING - INITIAL APPEARANCE HELD ON O1/10/2020

THOMAS E DELAHANTY II, JUSTICE

DA: CARLOS DIAZ

Defendant Present in Court

FTRl

01/10/2020 Charge(s): 1

PLEA - NO ANSWER ENTERED BY DEFENDANT ON 01/10/2020

01/10/2020 BAIL BOND- $1,000.00 CASH BAIL BOND SET BY COURT ON 01/10/2020

THOMAS E DELAHANTY II, JUSTICE

OR 2500.00SS OR PR AND MPTSC AND PR

01/10/2020 MOTION - MOTION FOR APPOINTMENT OF CNSL MADE ORALLY BY DEF ON 01/10/2020

01/10/2020 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 01/10/2020

THOMAS E DELAHANTY II, JUSTICE

COPY TO PARTIES/COUNSEL

01/10/2020 Party(s): MATTHEW LANDRUM

ATTORNEY - APPOINTED ORDERED ON 01/10/2020

Attorney: NICOLE GRAY

01/10/2020 HEARING - DISPOSITIONAL CONFERENCE SCHEDULED FOR 04/22/2020 in Room No. 7

CR-200 Page 1 of 4 Printed on: 02/05/202