State of Maine v. Lovejoy

STATE OF MAINE UNIFIED CRIMNAL COURT

KENNEBEC, SS. AUGUSTA

DOCKET NO-CR-19-2350

STATE OF MAINE

DECISION AND ORDER ON MOTION

TO SUPPRESS

V.

NICHOLAS LOVEJOY

Defendant

INTRODUCTION

The Defendant, Nicholas Lovejoy (Lovejoy), stands indicted for

intentional or knowing murder in connection with the death of Melissa Sousa,

alleged to have occurred in Waterville on October 22, 2019. Jury selection is

scheduled for May 5-6, 2021, with the trial to commence on May 9, 2022, and

continuing until completed. Lovejoy has filed a motion to suppress seeking

to exclude the following evidence at the trial:

(1) All observations and/or evidence resulting from the initial detention

(i.e., motor vehicle stop) of Defendant occurring on or about

October 23, 2019 at 00:40 [12:40 p.m.] by Waterville Police

Officers;

(2)All observations and/or evidence (including so-called "fruit of the

poisonous tree" evidence derivatively obtained) resulting from the

warrantless entry into, and subsequent search of, 32 Gold Street,

Waterville, Maine on or about October 23, 2019, which search

occurred shortly after Defendant was taken into custody following

the above-described motor vehicle stop, and;

(3) Any statements made by Defendant while in custody at the

Kennebec County Jail on October 23, 2019 (the "KSO Interview")

which were either not voluntary and/or in violation of his Miranda

rights.

A testimonial hearing on the motion to suppress was held on January

21, 2022, at which time the court received the testimony of the following

witnesses: Officer Codey Fabian and Sgt. Jason Longley, of the Waterville

Police Department, and Detective Joshua Birmingham of the Maine State

Police. State's Exhibits I, 2 and 3, being respectively, (1) a diagram of the

first floor of the residence at 32 Gold Street, (2) a DVD containing a portion

of the interview with Lovejoy by Detectives Birmingham and Brockway at

the Kennebec County Jail at approximately 4:40 p.m. on October 23, 2019,

and (3) a transcript of that portion ofthe interview contained in State's Exhibit

2. The court has subsequently received, by agreement, State's Exhibits 2A

and 3A, being a DVD and transcript, respectively, of the entire interview with

Mr. Lovejoy at the jail.

Defense Exhibits lA, lB, IC, 2, 5 and 6 were admitted into evidence.

Defense Exhibits IA, lB, IC and 6 are contained on a flash drive and are

videos of, (IA) Mr. Lovejoy walking his dog around the property at

approximately 11:37 p.m. on October 22, 2019, (lB) Lovejoy's motor vehicle

being stopped by police at the intersection of Summer and Gold Streets at

approximately 12:40 a.m. on October 23, 2019, and (IC and 6) law

enforcement officers entering Lovejoy's apartment at 32 Gold Street at

approximately 1:00 p.m. on October 23, 2019. Defense Exhibit 2 is a copy of

the Maine Motor Vehicle Inspection Manual (Revised 08-29-13 ). Defense

Exhibit 5 is a screen shot from one of the videos. Defense Exhibits 3 and 4

are narrative reports prepared by Officer Fabian that were referred to and used

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at the hearing, but not admitted into evidence. The parties have submitted

thorough memoranda in support of their respective positions. Oral argument

was held on April 1, 2022.

Based upon the evidence presented at the hearing, the court makes the

following findings of fact.

FACTS

Nicholas Lovejoy and Melissa Sousa had a long-term relationship. 1

They were the parents of twin daughters, who were 8 years of age on October

22-23, 2019. Lovejoy, Sousa and the two children lived in an apartment at 32

Gold Street in Waterville.

Sometime around 6:45 p.m. on October 22, 2019, Megan Legasse, a

friend of Melissa's, reported to the Waterville Police Department that she had

not heard from Melissa all day, which was unusual for her. She also

commented that Melissa's boyfriend had been abusive in the past. As a result

of this information, Officers Codey Fabian and Nate Bernier were dispatched

to 32 Gold Street to conduct a welfare check for Melissa. Prior to heading to

32 Gold Street, Officer Fabian received information from his fellow officer

(Officer Allen) that Lovejoy had a history of possessing firearms.

Officers Fabian and Bernier arrived at 32 Gold Street at about 7: 13 p.m.

The officers knocked on the door, but it appeared that no one was home.

Officer Fabian tried calling Mr. Lovejoy, Ms. Sousa and Ms. Legasse, all

without success. The officers left and returned to the police station.

At approximately 8:00 p.m., two women, Terry Cushman and Shannon

Lewis, came to the Waterville Police Department and spoke to Officer Fabian

about Melissa Sousa, and the concerns they had for her safety. With that

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It is the court's understanding that Mr. Lovejoy and Ms. Sousa were not married, but

Lovejoy would refer to Melissa as his wife.

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additional information, Fabian, along with Sgt. Jason Longley, returned to 32

Gold Street at 10:30 p.m. in an effort to contact or locate Lovejoy and/or

Sousa. The officers saw that lights were on inside the apartment and a Jeep

Compass was now parked in the driveway. The vehicle was registered to

Melissa Sousa.

Lovejoy opened the door in response to the officer's knock. After

telling him that they were there to check on Melissa "because some folks had

expressed concern for her safety," Lovejoy told them that Melissa

... had left around 7:30 that morning to bring the children to the

school bus stop, came back to the residence, then left the

residence again to get them both a coffee at the store, and then

immediately jumped to, she left the residence on foot at nine

a.m., and he did not know where she had gone and she had not

returned. (Hearing Transcript at 125)

The conversation with Mr. Lovejoy lasted about 45 minutes, with the

officers ending it at 11: 12 a.m. The officers asked Lovejoy if they could step

inside the apartment to talk, but he declined as "he didn't want us going inside

the residence because his two eight-year-old daughters were asleep inside."

(H.T. at 126). As the conversation between the officers and Lovejoy was

concluding, "he asked if it was okay if he left his two eight-year-old daughters

asleep in the residence while he went back out looking for Melissa. We

informed him that that's not okay, that they are definitely not old enough to

leave alone in the residence." Id.

After the officers left 32 Gold Street, Sgt. Longley instructed Officer

Fabian to place the residence and Lovejoy under surveillance. Fabian

positioned his police cruiser 100-150 yards up Summer Street, where he had

a view of the side of 32 Gold Street, where the Jeep was parked. He was

equipped with a pair of binoculars. From this vantage point, he was able to

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see Lovejoy inside what appeared to be the kitchen area ofthe apartment using

a cleaning mop. At about 11 :37 p.m., Officer Fabian watched Lovejoy outside

walking his dog around the property for about 12 minutes.

At about 12:30 a.m. on October 23, 2019, Fabian saw Lovejoy come

out of the apartment, get into the Jeep and pull out onto Summer Street, taking

a left turn towards the intersection of Gold Street. Officer Fabian saw that the

left plate light on the Jeep was out. The right plate light was functioning

properly. Fabian was directed to stop the Jeep, and he did so immediately at

12:31 a.m. 2 , effectuating the stop 10-20 yards from Lovejoy's apartment.

Other police officers with cruisers mTived quickly thereafter, including Sgt.

Longley.

Lovejoy was the sole occupant of the vehicle. While Officer Fabian

spoke to Lovejoy at the driver's side window, Sgt. Longley saw a shotgun

with a magazine inserted in the front passenger seat. Lovejoy confirmed that

the gun was loaded. Lovejoy told the police that he was on his way to the

store and had the gun for self-defense. Longley instructed Fabian to arrest

Lovejoy for having a loaded firearm while in a vehicle (12 M.R.S. § 11212(2))

and endangering the welfare of a child (17-A M.R.S. § 554(1)(C)).

While Lovejoy was being taken into custody, he was informed that the

police would be entering his apartment to check on the safety of the children.

Lovejoy did not give, nor was he asked for, consent for the police to enter his

residence. Nevertheless, there must have been some conversation in which

Lovejoy told the police about the whereabouts of a spare key under a rock,

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Officer Fabian testified that the stop was made at about 12:40 a.m. on October 23, 2019.

The times referred to in the text are taken from the cruiser video of the stop, which is

what the court will use for purposes of this Decision and Order.

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because the police used that key to open the door to the apartment at 12:59

a.m. on October 23, 2019.

Officer Fabian entered the residence along with Officer Dinsmore and

Sgt. Longley. Fabian looked in the kitchen area and an enclosed porch but

did not locate the children. He did see a piece of cardboard in the porch area

that had red/brown stains on it, which appeared to Officer Fabian to be blood.

In looking down the hallway on the first floor, Fabian could see a bottle of

ammonia on the toilet, and he smelled the odor of cleaning solution. (H.T. at

24-25). Fabian left the apartment within a couple of minutes to transport

Lovejoy to the police department.

Sgt. Longley also saw the red/brown stains on the cardboard in the

porch and observed a red/brown stain on the toe of a boot, and on a roll of

duct tape. A mop was in the kitchen sink, there was the smell of ammonia

and the floors appeared to have been recently mopped. The officers were on

the first floor for about 2 minutes without locating the children.

As the officers approached the stairway to the second floor, they

encountered a dog, which was tethered and aggressively barking at them. A

short time later, Sgt. Tremblay with the Maine State Police arrived and

suggested calling out to the children, which was done with no response. In

the meantime, Sgt. Longley directed Officer Rolfe to bring a "catch-pole" to

secure the dog. Rolf arrived with the device 10-15 minutes later. Once the

dog was dealt with, Tremblay and Longley walked to the second floor and

found the two girls sleeping in their bedroom. The search for the girls,

including the wait for Officer Rolfe to bring the "catch-pole," took about 30

minutes or less. During this period, the Department of Health and Human

Services was notified of the situation and, at some point, took responsibility

for the children.

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Early in the morning of October 23, 2019 (about 6:00 a.m.) Sgt. Joshua

Birmingham and Detective Ryan Brockway spoke to Mr. Lovejoy at the

Waterville Police Department. That interview is not being challenged in this

proceeding. Later that day (about 4:40 p.m.), however, Birmingham and

Brockway sought to interview Lovejoy again, this time at the Kennebec

County Jail. The interview room was equipped with an operating video

camera.

Shortly after the detectives entered the interview room, Det. Brockway

said: "I'm just going to start a recording device here." (State's Exhibit 3 at

2). As the detectives were preparing to read the Miranda rights to him,

Lovejoy said: "So what do you guys want?" Birmingham reminded Lovejoy

that they had spoken earlier and that the detectives would probably come back

to speak with him again. Lovejoy replied: "Yeah, that's fine."

Det. Birmingham then read each Miranda warning from a card. When

asked if he understood each right, Lovejoy said: "yes." When asked if he

wanted to answer questions "at this time," Lovejoy said; "Not on camera."

(State's Exhibit 3 at 3). Birmingham made it clear that the interview had to

be audio-recorded, but there was no mention of the fact that a video camera

was recording the interview and continued to do so. During the brief

discussion of the camera issue, Lovejoy asked: "What are you guys lookin'

for a deal?" When asked what he meant by that, Lovejoy wanted to know

what the officers "needed." Birmingham explained that he wanted to talk "a

little bit more about what we talked about this morning."

Lovejoy said that he did not remember the morning, but later said he

remembered talking to the detectives at the police station. When Lovejoy

complained that he could not get any answers to his questions about where his

kids and "wife" were, Birmingham interjected: "well, we found your wife,

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Nick." Lovejoy asked: "Where?" Birmingham countered with: "Where do

you think?", to which Lovejoy responded: "No idea." (State's Exhibit 3 at 5).

Det. Brockway then got back to the point of whether Lovejoy was

"okay with chatting with us so that we can share this stuff with you, okay?"

The following colloquy then took place:

LOVEJOY: Well what do you want?

BROCKWAY: It's a back and forth.

LOVEJOY: It is, but I'm still in cuffs. What are you looking for?

BROCKWAY: So-

LOVEJOY: So, you found what? The body?

BROCKWAY: Are you okay - we got to take one step at a time.

LOVEJOY: No, I'm not okay.

BROCKWAY: Okay, well.

LOVEJOY: I'm losing my kids, I'm losing my wife. I'm losing

everything I fuckin' built.

BROCKWAY: Nick, we can't skip steps. So, the first thing­

LOVEJOY: I'm not tryin' to skip steps.

BROCKWAY: ... the first thing that we have in front of us is the

Miranda Warning.

LOVEJOY: Yeah.

BROCKWAY: Okay.

LOVEJOY: Okay, it's done.

BROCKWAY: So he read it.

LOVEJOY: Yeah.

BROCKWAY: Are you waiving those rights?

LOVEJOY: Waiving those rights?

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BROCKWAY: Yes. Are you saying that you're good with the rights,

you're waiving the rights so that we can talk with you and ask you questions

and share information with you?

LOVEJOY: Well, what are you trying to ask me? Ask me what you're

trying to ask.

BROCKWAY: We can't do that until you tell us that you're waiving

your rights.

LOVEJOY: I don't waive anything.

BROCKWAY: It's just, it's just what I just read to you - now having

all the rights in mind ­

LOVEJOY: I know what it is.

BROCKWAY: ... I explained to you.

LOVEJOY: I know what it is.

BROCKWAY: Okay.

BIRMINGHAM: Right. Do you wish to answer questions at this time?

LOVEJOY: Ahh, I guess I {inaudible] depending on what questions

you have.

BROCKWAY: Right.

LOVEJOY: Otherwise, I will ask for my lawyer.

BROCKWAY: Okay, so you're okay with talking with us but you're

going to choose on what you answer and what you don't answer am I

understanding that correctly?

LOVEJOY: Think my lawyer could answer that better. I don't know

what you're lookin' for.

BROCKWAY: Exactly what that says.

BIRMINGHAM: Right.

LOVEJOY: I'm not waiving my rights.

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BIRMINGHAM: No, so, so ­

LOVEJOY: I have all the right.

BIRMINGHAM: Right. So Nick, I think this is a matter of semantics

at this point. So, this is called a waiver, this is -when I say, which I've already

asked you and you agreed to. Now having all the rights in mind which I just

explained to you do you wish to answer questions at this time?

LOVEJOY: And I said depending on what questions you have.

BIRMINGHAM: Right. So ­

LOVEJOY: What questions do you have?

BIRMINGHAM: So now that you, you know, we've kind of touched

on the lawyer thing are we good to ask you questions at this point and if you

don't like them you're ­

LOVEJOY: If it's about Melissa I want my lawyer here.

BIRMINGHAM: If it was about Melissa?

LOVEJOY: If it was about Melissa I want my lawyer here.

BIRMINGHAM: Okay. So, you think it's fair for us to continue with

this and if we ask you a question that you don't want to answer you can tell

us because I don't want to touch on something that you don't want to answer.

Does that make sense?

LOVEJOY: Okay.

LOVEJOY: Is she alive?

BIRMINGHAM: [No verbal response heard]

LOVEJOY: Okay [exhales] what are you asking?

BIRMINGHAM: Well I think first and foremost we'd like to have your

side of the story.

LOVEJOY: I've given you the story. The story from what I've told

you has not changed.

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State's Exhibit 3 at 5-8.

The conversation continued about what had happened to Melissa and

what role Lovejoy played in her death, with Lovejoy making numerous

inculpatory statements to the detectives.

DISCUSSION

I. The Stop on Summer Street

Lovejoy contends that the stop of his motor vehicle at approximately

12:31 a.m. on October 23, 2019 was not justified by reasonable, articulable

suspicion. Lovejoy disputes that the inoperable plate light on the vehicle

provided a legitimate basis for the stop. Title 29-A M.R.S. § 1909 provides:

A vehicle must have a white light capable of illuminating

the rear registration plate so that the characters on the plate are

visible for a distance of at least 50 feet.

The Maine Motor Vehicle Inspection Manual, § 170(9)(A)( 1) states

that a vehicle must be rejected for inspection "if any bulb in any lamp required

by law or regulation fails to function." (Defense Exhibit 2). Further, the

Manual requires rejection of a vehicle for inspection if the "rear plate lights

do not operate properly in all switch positions." § 170(9)(D)(9).

Lovejoy argues that because the right rear plate light was functioning,

Officer Fabian failed to articulate that the characters on the plate were not

visible for 50 feet and, therefore, his suspicion that a violation of the law had

occurred was unreasonable. The court disagrees.

The Law Court has held that "[a] stop is justified when an officer's

assessment of the existence of specific and articulable facts indicating a

possible violation of law or a public safety risk is objectively reasonable

considering the totality of the circumstances." State v. Simmons, 2016 ME

ME 91, ,-r 9 (quoting State v. Connor, 2009 ME 91, ,-i 10, 977 A.2d 1003).

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"[T]he threshold for demonstrating an objectively reasonable susp1c1on

necessary to justify a vehicle stop is low . . . . The suspicion need only be

more than a speculation or an unsubstantiated hunch." State v. LaForge, 2012

ME 65, 1 10, 43 A.3d 961. "Safety reasons alone can be sufficient if they are

based upon 'specific and articulable facts."' State v. Pinkham, 565 A.2d 318,

319 (Me. 1989). See State v. Fuller, 556 A.2d 224 (Me. 1989) (blinking

headlights which officer believed were possibly defective justified stop).

The standard is reasonable, articulable suspicion, not actual proof that

one bulb fails to illuminate the entire license plate and the characters thereon.

When Officer Fabian saw that one of the two lights on the Jeep was

inoperable, he had a reasonable, articulable suspicion that a violation of 29-A

M.R.S. § 1909 and the safety inspection standards was occurring.

Moreover, the court finds that Officer Fabian had reasonable articulable

suspicion that Lovejoy was possibly endangering the welfare of his 8-year­

old children, by leaving them alone in the apartment late at night, under

circumstances that raised legitimate concerns about their wellbeing. The

totality of the circumstances here presented law enforcement with numerous

red flags about the safety of the children. The mother of the children was

missing and several of her friends were so concerned about her safety that

they contacted the police to raise the alarm, including providing information

that Melissa was in an abusive relationship with Lovejoy. The story told by

Lovejoy about the last time he had seen Melissa was highly suspicious and

troubling, suggesting that Melissa had voluntarily walked away from her

home and children, for no apparent reason, and never returned. Lovejoy was

seen mopping the apartment late at night, a suspicious activity in the total

context of the case, and he had been cautioned by the police just an hour and

a half earlier not to leave the children alone in the apartment. Nevertheless,

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Lovejoy was stopped as he pulled out of the driveway, leaving the children

inside.

Under the totality ofthe circumstances, the court concludes that the stop

of Lovejoy at 12:31 a.m. on October 23, 2019, was valid and lawful.

II. The Warrantless Entry into the Apartment

Lovejoy maintains that the warrantless entry into his apartment at 12:59

a.m. on October 23, 2019, violated his Fourth Amendment rights.

Searches and seizures inside a home are "presumptively unreasonable."

Brigham City v. Stuart, 547 U.S. 398,403 (2006). "Nevertheless, because the

ultimate touchstone ofthe Fourth Amendment is 'reasonableness,' the warrant

requirement is subject to certain exceptions." Id. One such exception is where

"the exigencies of the situation make the needs of law enforcement so

compelling that the warrantless search is objectively reasonable under the

circumstances." Mincey v. Arizona, 437 U.S. 385, 393-94 (1978). "An action

is 'reasonable' under the Fourth Amendment, regardless of the individual

officer's state of mind, 'as long as the circumstances, viewed objectively,

justify the action."' Brigham City, 547 U.S. at 404. Accord Michigan v.

Fisher, 558 U.S. 45 (2009).

Under the "exigent circumstances" doctrine,

. . . the police, in an emergency situation, may enter a

residence without a warrant if they reasonably believe that swift

action is required to safeguard life or prevent serious harm. To

rely upon the doctrine, the government must show a reasonable

basis, approximating probable cause, both for the officers' belief

that an emergency exists and for linking the perceived

emergency with the area or place into which they propose to

intrude. The requisite inquiry must be unde1iaken in light of the

totality of the circumstances confronting the officers, including

in many cases, a need for an on-the-spot judgment based on

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incomplete information and sometimes ambiguous facts bearing

upon the potential for serious consequences.

United States v. Martins, 413 F. 3d 139, 147 (1st Cir. 2005).

The court is aware of and has reviewed the Supreme Court's recent

decisions in Caniglia v. Strom, 141 S. Ct. 1596 (2021) and Sanders v. United

States, 141 S. Ct. 1646 (2021 ), and understands those cases to stand for the

proposition that the so-called "community caretaking" function of law

enforcement does not "create[] a standalone doctrine that justifies warrantless

searches and seizures in the home." 141 S. Ct. at 1598. Moreover, as the

concurrences make clear, nothing in Caniglia or Sanders has undermined the

continuing validity of the "exigent circumstances" exception to the warrant

requirement. As observed by the comi in United States v. Bradley, 321 F.3d

1212, 1214-15 (9th Cir. 2003), "[t]he appropriateness of the emergency

doctrine is best understood in light of the particular facts of a case in which it

is invoked."

In view of the totality of the circumstances in this case, the court

concludes that it was objectively reasonable for the police to make a

warrantless entry into Mr. Lovejoy's apartment at 12:59 a.m. to ensure that

the two 8-year-old children of Lovejoy and Sousa were safe and unharmed.

In the court's view, the highly disturbing circumstances surrounding the

disappearance of Melissa Sousa, the mother of the children, and the

information that she was involved in an abusive relationship with Lovejoy,

created an objectively reasonable belief on the part of law enforcement that

clearly justified their concern for the welfare of the children on the night of

their mother's disappearance. Lovejoy's explanation to the police that

Melissa walked away on foot and never returned or made any contact with

Lovejoy or the children, justifiably caused the police to be on high alert not

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only for Melissa's safety, but for that of the children as well. The sight of

Lovejoy mopping at midnight only generated more cause for concern. When

Lovejoy left the apartment and drove off in the Jeep, leaving the children alone

in the residence, the police immediately stopped him, as they had advised him

earlier not to leave the children unattended. Upon finding a loaded shotgun

in the front passenger seat of the vehicle, and making the decision to place

Lovejoy under arrest, it was objectively reasonable for the police to take

prompt action to locate the children, ensure that they were well, and arrange

for their safekeeping.

In a case involving a comparable, but not identical factual situation, the

court in Bradley stated:

The possibility of a nine-year-old child in a house in the middle

of the night without supervision of any responsible adult is a

situation requiring immediate police assistance.

United States v. Bradley, 321 F.3d at 1215 (citing cases).

Other courts have reached the same conclusion. See, e.g., United States

v. Martins, 413 F.3d at 148 (citing and relying on Bradley); Commonwealth

v. Hale, 2009 Mass. App. Unpub. LEXIS 1308 *4 (citing and relying on

Bradley and 3 LaFave, Search & Seizure § 6.6(a) for the proposition that an

entry is reasonable to assist small children). See also Caniglia v. Strom, 141

S. Ct. at 1605 (Kavanaugh, J., concurring) ("cases involving unattended

young children inside a home, illustrate the kinds of warrantless entries that

are perfectly constitutional under the exigent circumstances doctrine").

As stated by the court in Jones v. State, 54 N.E.3d 1033, 1038 (Ind.

App. 2016):

We cannot find many situations more urgent than three children

left alone in their home in the middle of the night without any

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certainty as to when a responsible adult might next enter the

home.

The court rejects the argument that the police waited too long before

making the warrantless entry into 32 Gold Street. The Jeep was stopped at

about 12:31 a.m. The police used the spare key to enter the apartment at about

12:59 a.m. The court does not find that the less than 30 minutes it took the

police to deal with Lovejoy and his arrest, and to organize and confer about

what to do next, undercuts the objectively reasonable belief that exigent

circumstances existed that necessitated a warrantless entry to look for the

children.

Similarly, the court does not find persuasive the argument that the

police could have secured the residence with the children inside and applied

for a search warrant to enter and look for them. The emergency was the fact

that the two young children were alone in a house in the middle of the night

under circumstances where one parent had been taken into custody and the

other had gone missing and was unaccounted for, and where the police had

information from close associates of Melissa that the household had

experienced some form of domestic violence. It was objectively reasonable

for the police to act promptly to determine that the children were safe, without

potentially waiting for hours for a warrant to be obtained. This was not a

search for evidence - it was a search for the children.

Finally, the scope of the "protective sweep" by the police once they

made the warrantless entry was limited, reasonable and focused on looking

for the children. The police did not go down to the basement or open drawers

and cabinets. Rather, they made a quick sweep of the first-floor area and went

upstairs to locate the children, once the barking dog was secured and

neutralized.

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The court concludes that the warrantless entry into the apartment at 32

Gold Street at 12:59 a.m. on October 23, 2019, was objectively reasonable

under the "exigent circumstances" exception to the warrant requirement.

III. The Interview at the Kennebec County Jail

Lovejoy seeks to exclude from evidence at trial any statements he made

to Sgt. Birmingham and Det. Brockway during their interview of him at the

Kennebec County Jail on October 23, 2019. Lovejoy argues that the detective

obtained statements from him in violation of Miranda v. Arizona, 384 U.S.

43 6 (1966) and that his statements should also be suppressed as involuntary.

For the reasons discussed below, the court concludes that Lovejoy made

an unambiguous request for a lawyer and having done so, questioning of him

by the detectives should have immediately ceased until a lawyer was present.

The court further finds beyond a reasonable doubt, however, that Lovejoy's

statements were voluntary.

"No ... person shall be compelled in any criminal case to be a witness

against himself." U.S. Const. amend. V. The Supreme Court has held that

"to safeguard the privilege against self-incrimination, the Due Process Clause

requires that incriminating statements obtained during a custodial

interrogation be inadmissible as evidence against a defendant unless the

defendant was provided a full and effective warning of his rights." United

States v. Cheng, 2022 U.S. Dist. LEXIS 6437 *6 (S.D. Texas). Included in

those rights is the right to counsel.

"Invocation of the Miranda right to counsel 'requires, at a minimum,

some statement that can reasonably be construed to be an expression of a

desire for the assistance of an attorney."' Davis v. United States, 512 U.S.

452,459 (1994) (quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)). A

person may waive his or her Miranda rights "provided the waiver is made

17

voluntarily, knowingly and intelligently." Miranda, 384 U.S. at 444. "[I]f a

suspect requests counsel at any time during the interview, he is not subject to

further questioning until a lawyer has been made available or the suspect

himself reinitiates conversation." Davis, 512 U.S. at 458. See also Edwards

v. Arizona, 451 U.S. 4 77, 485 (1981) ( once suspect has invoked his right to

counsel, "the interrogation must cease until a lawyer is present").

It can happen, of course, that a suspect may make an ambiguous or

equivocal statement about counsel. In that event, "officers may seek to ask

clarifying questions to ensure that the suspect has actually invoked his or her

right to an attorney." Davis, 512 U.S. at 461. Clarifying questions, however,

may not be used "as a guise for convincing a suspect to waive his or her

rights." Cheng, 2022 U.S. Dist. LEXIS 6437 *7. See Edwards, 451 U.S. at

485.

In reviewing the colloquy between the detectives and Lovejoy at the

jail, the court can appreciate the efforts of the officers to focus on the issue of

whether Lovejoy was "waiving" his Miranda rights and agreeing to answer

questions without a lawyer being present. At various points, Lovejoy seemed

to invite the officers to ask him questions, but at other times he expressly told

the detectives that he was not "waiving anything." When asked directly

whether he wished to answer questions "at this time," he initially replied,

"depending on what questions you have," clearly implying at least that he was

willing to answer some questions. He immediately followed that up, however,

by stating: "Otherwise, I will ask for my lawyer." This was repeated more

than once, with the detectives trying to get clarification from Lovejoy

regarding what he wanted to do.

Finally, Lovejoy asked: "What questions do you have?" Birmingham

quite properly sought to clarify what Lovejoy meant:" ... are we good to ask

18

you questions at this point and if you don't like them -" Here, Lovejoy

interjected:

LOVEJOY: If it's about Melissa I want my lawyer here.

BIRMINGHAM: If it was about Melissa?

LOVEJOY: If it was about Melissa I want my lawyer here.

BIRMINGHAM: Okay. So, you think it's fair for us to continue with

this and if we ask you a question that you don't want to answer you can tell

us because I don't want to touch on something that you don't want to answer.

Does that make sense?

LOVEJOY: Okay.

LOVEJOY: Is she alive?

BIRMINGHAM: [No verbal response heard]

LOVEJOY: Okay [exhales] what are you asking?

BIRMINGHAM: [No verbal response heard]

LOVEJOY: Okay [exhales] what are you asking?

BIRMINGHAM: Well I think first and foremost we'd like to have your

side of the story.

LOVEJOY: I've given you the story. The story from what I've told

you has not changed.

(State's Exhibit 3 at 7-8)

When Lovejoy said he wanted his lawyer present if the questioning

concerned Melissa, the court finds that he made a clear, unambiguous and

unequivocal invocation of his right to counsel. Sgt. Birmingham confirmed

with Lovejoy that he wanted a lawyer if Melissa was discussed, and Lovejoy

repeated what he had just said. There was no need to clarify what Lovejoy

was saying - while he might answer questions depending on what they were,

he wanted a lawyer with him if the subject of the conversation was Melissa.

19

Under these specific set of circumstances, the court concludes that Lovejoy

invoked his right to counsel and no questioning, interrogation or conversation

about Melissa with the two detectives could occur until a lawyer was present.

The court acknowledges that Lovejoy asked the question "Is she alive?"

without being asked a question by the police. Moreover, when the detectives

did not verbally respond, it was Lovejoy who said "Okay, what are you

asking?" From that point on, of course, the subject of the conversation was

entirely about Melissa.

It can be argued that Lovejoy, having twice said he wanted a lawyer

with him if the questions were about Melissa, quickly changed his mind and

essentially waived his right to counsel when he asked if Melissa was alive and

what the police were asking, and then proceeded to answer questions about

Melissa. The danger with that argument, as the court sees it, is that Lovejoy

made two emphatic invocations of his right to counsel if Melissa was going

to be discussed. Everyone in that interview room knew, without doubt, that

the only reason the detectives were there was to talk about Melissa with

Lovejoy. There was no other reason for them to be there talking to Lovejoy.

When Lovejoy invoked the right to counsel, clearly and unambiguously, the

conversation should have ended. The detective, however, kept the

conversation going, with the result that Lovejoy started talking about Melissa.

To find that this was not a Miranda violation of the right to counsel would run

the risk of encouraging law enforcement not to scrupulously honor the right

to counsel when invoked, but to keep talking, in the form of clarifying

questions, with the hope that the suspect will speak without a lawyer being

present. Michigan v. Mosely, 423 U.S. 96, 103 (1975). As the Court said in

Edwards, follow-up clarifying questions may not be used as a device to

persuade a suspect to waive his rights. 451 U.S. at 485.

20

Although the court finds that Lovejoy's invocation of his right to

counsel was not scrupulously honored and, therefore, the State has failed to

show by a preponderance of the evidence that his statements were obtained in

compliance with Miranda v. Arizona, the court also finds, beyond a

reasonable doubt, that the statements were voluntary.

In State v. Hunt, 2016 ME 172,119, 151 A.3d 911, the Law Court

clarified the "distinction between those statements that must be excluded

pursuant to the Fifth Amendment because they are the product of compulsion,

and those statements that must be excluded because their admission would

otherwise create an injustice." The latter situation employs a due process

analysis and seeks to address the question of whether a defendant's

"statements were free and voluntary or whether, considering the totality ofthe

circumstances under which the statements were made, their admission would

be fundamentally unfair." Id. The Court reaffirmed its holding in State v.

Mikulewicz, 462 A.2d 497, 500-01 (Me. 1983) that "[a] confession is

voluntary if it results from the free choice of a rational mind, if it not a product

of coercive police conduct, and if under all of the circumstances its admission

would be fundamentally fair." Some of the relevant factors that may be

considered by the court in making the voluntariness assessment, include:

the details of the interrogation; duration of the interrogation;

location of the interrogation; whether the interrogation was

custodial; the recitation of Miranda warnings; the number of

officers involved; the persistence of the officers; police

trickery; threats, promises or inducements made to the

defendant; and the defendant's age, physical and mental health,

emotional stability, and conduct.

State v. George, 2012 ME 64,121, 52 A.3d 903.

21

It is the State's burden to demonstrate that a statement is voluntary

beyond a reasonable doubt. State v. Annis, 2018 ME 15, ~ 13, 178 A.3d 467.

State v. Collins, 297 A.2d 620, 626-27 (Me. 1972).

Considering all the circumstances of the interview and applying the

factors noted above, the court is satisfied beyond a reasonable doubt that the

statements made to Sgt. Birmingham and Det. Brockway at the jail were

voluntary on the part of Mr. Lovejoy. The tone of the conversation was

professional and non-confrontational. The overall duration of the interview

was short, but the court is aware that Lovejoy had been awake for a long time

prior to the interview. The interview took place at the jail and was obviously

custodial in nature. The police gave clear Miranda warnings and Lovejoy

understood them. There were only 2 officers. The detectives were not

demanding or aggressive. On the contrary, they were patient with Lovejoy

and made the effort to understand his responses. There was no police trickery

or any promises or threats of any kind. On the video, Lovejoy appeared alert

in appearance and clear in his manner of speaking. He knew his rights. There

is no evidence whatsoever of any coercion.

The court concludes that Lovejoy's statements were given freely and

voluntarily, and their use at trial for a limited purpose would not be

fundamentally unfair.

CONCLUSION

The entry is:

Defendant's Motion to Suppress is GRANTED IN PART and DENIED

IN PART.

The Motion to Suppress based on the stop of the Jeep is DENIED.

The Motion to Suppress based on the warrantless entry into the

residence is DENIED.

22

The Motion to Suppress the interview of the Defendant at the Kennebec

County Jail on October 23, 2019 is GRANTED, and the State will not be

allowed to use that interview as evidence at trial in its case-in-chief. Any use,

by the State, ofthe statements in that interview for impeachment purposes will

be decided at the time of trial. ~

Dated: April 7, 2022

Justice, Superior Court

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Entered on the docket I

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