State of Maine v. Richard K. Ntim Jr.

failed to Deutsche Bank Because 22] [¶ at trial to evidence competent

introduce mortgage, the trial that it owns prove the Bank concluding erred in court of foreclosure. judgment ato was entitled 6821; Sargent, See M.R.S. 528. A.2d entry is: Remanded to the vacated. Judgment judgment entry of a District Court foreclosure. denying ME 80 of Maine

STATE K. NTIM Jr. Richard No. Cum-12-289. Docket Judicial Court of Maine. Supreme 15, 2013. Argued: Jan. Sept. Decided: SAUFLEY, C.J.,

Majority: and ALEXANDER, LEVY, MEAD, and GORMAN, JJ. SILVER,

Concurrence: J. JABAR, Dissent: J. GORMAN, J.

[¶ Richard K. Ntim Jr. appeals 1] from judgment a conviction entered J.) {Lawrence,, trial court upon his condi- tional guilty plea to one count of unlawful (Class in trafficking B), a scheduled 1103(1-A)(A)(2012). 17-A M.R.S. Ntim J.) (Cole, contends that the court erred denying his motion suppress evidence obtained from a search of person his warrantless administrative inspection of a bus on which he was a passenger. We judgment. affirm the

I. BACKGROUND [¶ 2] “We view the record a light most support favorable to the court’s order on the suppress, motion to and find supports record the following ¶55, facts.” Bailey, State v. A.3d 535. On September State Police Commercial Motor Vehicle (Commercial Unit), Unit under the supervision of now-Lieutenant Shawn Cur rie, planned conducted a commercial vehi inspection bus, cle Greyhound of a en route from New York to Bangor, at the Sineni, III, Anthony J. Esq., Caleb J. Greyhound station on St. John Street Gannon, Esq. (orally), Law Offices of An- Portland. The inspection place took dur Sineni, III, LLC, Portland, thony J. on the scheduled, ing regularly fifteen- to twen briefs, for appellant Richard Ntim. ty-minute stop. Lieutenant ap Currie proached the bus driver and advised him Schneider, General, William J. Attorney that the State Police inspecting would be Savage (orally), William R. Atty. Asst. the interior and exterior of the bus. Be Gen., General, Attorney Office of Augusta, cause the checking included briefs, appellee on the State of Maine. restrooms, onboard Lieutenant Currie SAUFLEY, C.J., Panel: asked the driver to request pas that the ALEXANDER, LEVY, SILVER, MEAD, sengers get off the bus. The GORMAN, JABAR, JJ. complied. Ntim to requested permission Wolfe from of the bus interior Ntim that a State and advised sweep by Angel, search his

also included Sergeant a search the control cause existed to obtain probable under Police Vehicle agreed of the Commercial Ntim and Bergquist Eric warrant if he declined. on Ntim’s Angel “hit” twice After at the terminal Unit. went into the restroom Currie searched Lieutenant luggage, unspecified Agent Brown and another with green only some bag and, but found Ntim’s Ntim with his agent who searched residue. plant material assistance, three ounces of found about cocaine in his underwear. troopers from the addition to In [¶4] Unit, agents from Vehicle Commercial Ntim with one charged The State [¶ 6] Federal Agency, Drug Maine Enforcement trafficking in a scheduled count of unlawful and Im- Agency, Drug Enforcement 1103(1- (Class B), § 17-A M.R.S. drug Enforcement were migration and Customs A)(A), posses- unlawful and one count of station that Greyhound present at (Class B), drug 17-A sion of a scheduled Enforcement Drug morning. Federal 1107-A(1)(A)(1) (2012). After a § M.R.S. Brown consti- Joey and Agents Paul Wolfe motion to hearing, the court denied Ntim’s collectively teams that tuted one of several any obtained from the suppress evidence roughly with all of the speak planned finding that person search of his after during the twenty-five bus legitimate having there was a reason pas- find out where each stop to scheduled during the in- passengers get off the bus going to and coming from senger has the absolute spection, law enforcement activity was occur- any whether unlawful safety is main- right public to ensure that observed Wolfe and Brown ring. Agents in terminal and had public tained bus very nervous when appeared that Ntim wrong, and Ntim consented nothing done speaking the bus. After first getting off coming proximity in to his Angel close Texas, Agents couple from Wolfe with a drugs check for and to the person to Ntim, approached identified and Brown in person of his the rest- agents’ search themselves,1 informa- obtained some basic court, Angel’s The satisfied with room. Ntim, relayed it to an officer tion from reliability of the second training and the checking a database con- responsible for Ntim, Angel’s indication on also found activity. information about criminal taining suspicion indication created an articulable revealed that Ntim The database check gave agents probable cause to drug investiga- in active was mentioned file a mo- further. Ntim did not proceed that the name was a Bangor, tion in findings pursuant tion for further possible alias. 41A(d). County U.C.D.R.P.—Cumberland completing after Sometime [¶ 5] conditionally pleaded guilty Ntim Bergquist ap- inspection, Sergeant in trafficking to one count of unlawful Angel. response In proached Ntim with drug and the State dismissed scheduled Bergquist’s request, Ntim Sergeant unlawful of a possession the count of agreed by Angel. Angel to be sniffed drug. scheduled The court sentenced Ntim; Sergeant twice on indicated years prison with all but Ntim to four validity Bergquist questioned $1,000 and a eighteen suspended months first indication but was confident as to the timely appeals the court’s deni- indication, fine. Ntim up second which was close to pursuant to 15 sniff, suppression al of his motion dog Agent Ntim’s crotch. After the guns were not visible. plain clothes and their were dressed (2012), M.R.S. Despite argument U.C.D.R.P.—Cum- 11(a)(2), County P. M.R.App. berland asking that it link the troopers’ use of a 2(b). part as of their inspec administrative tion of the bus with enforcement

II. DISCUSSION terminal, agents’ activities the trial court did not find that there was a link argues Ntim that the Commercial between specif of the bus tainted these activities. The court Unit’s his consent to the sniff and search of ically having found that the passengers get his because it exceeded the Fourth appropriate, off the bus was given type Amendment’s limits on warrantless admin- inspection of the troopers would be con State, inspections. istrative on the ducting. The court accurately also con (1) hand, other contends that law enforce- cluded that drug enforcement agents’ dog ment conducted both the and sniff in actions attempting to terminal — person pursuant search of Ntim’s to his speak with each of the passengers who had consent rather than as an extension of the lawful, exited the bus—were and that it (2) inspection, bus Ntim’s consent to each was the actions that place took inside the (3) sniff voluntary, dog gener- and terminal that led discovery to the of co probable proceed ated cause to with the caine on Ntim. Because the court did not search of Ntim. find that what happened inside the bus happened was connected to what in the suppression We review the terminal, the analyze court did not court’s factual “to findings determine inspection to determine whether it fell whether findings supported by those are within the Fourth Amendments exception record, and will only set aside those to the warrant requirement for administra if findings clearly erroneous.” tive inspections pervasively regulated 55, ¶ 12, Bailey, 2012 ME 41 A.3d 535 industries, or using whether omitted). (quotation marks We review de sweep bus interior rendered the novo “a challenge application to the inspection unlawful.2 See New York v. those facts to protections.” constitutional 691, 702-03, omitted). Burger, 482 U.S. (quotation Id. marks “If the rul (1987); 96 L.Ed.2d 601 ing suppress on the motion to State v. is based Johnson, facts, primarily on 2009 ME undisputed it is viewed 962 A.2d 973. above, legal as a As conclusion that is reviewed de noted Ntim did not ask the omitted). (quotation novo.” Id. marks suppression court to make additional find- omitted). pursuant 2. To be (quotation considered reasonable to the marks We have ana Amendment, constitutional, Burger lyzed Fourth New York v. re- and found in the context quires that a trucking, statutory warrantless administrative in- of commercial reg spection pervasively regulated industry ulatory of a pursuant designated scheme to which (1) following meet the criteria: "there must conduct warrantless administrative in government spections be substantial interest that in- of commercial motor vehicles. See Melvin, 10-12, ¶¶ regulatory pursuant forms the scheme State v. made”; (2) inspection which the Designated agents it "must A.2d 245. also derive their necessary regulatory authority be scheme”; to further inspect [the] buses from the same Fed Safety "the Regulations statute’s eral Motor Carrier evalu program, certainty regu- regulations terms of the ap ated in Melvin but additional larity (2012); application, provid[e] of its ply. § 29-A M.R.S. [must] 49 C.F.R. III, see, constitutionally adequate e.g., substitute for a war- B Ch. Subch. 49 C.F.R 691, 702-03, 374.313(b) (2012) rant.” 482 U.S. (requiring buses to have (1987) (alterations clean, board). original) 96 L.Ed.2d 601 functional restrooms on 2254, 45 L.Ed.2d 416 further its determination explain ings (1975) (citations omitted); Bailey, 2012 on the bus was not see the use of ¶55, 15, subsequent (observing dog sniff ME 41 A.3d 535 to the connected Because the rec- physical factors to apply in the terminal. we the Brown search regard, we do in that developed not ord is evidence as well as statements made fol arrest). here. the bus analyze not These factors lowing an Rather, assumption on the proceed will whether, we a means to determine “serve as inspection violated the administrative police illegality, the initial light the Fourth Amendment.3 by evidence was obtained ex subsequent illegality of that or instead ploitation assumption, we Given that sufficiently distinguishable means to be the evidence at whether must determine Bailey, purged primary taint.” as fruit of the be excluded issue should ¶55, 16, (quotation ME 41 A.3d 535 or whether it need police illegality prior omitted). past application marks Our sufficiently it is excluded because not be the weight the Brown factors reveals that State v. inspection. from the attenuated assigned to each factor varies with each ¶ 20, Trusiani, 107, 854 A.2d 860. 2004 ME Trusiani, 107, 2004 ME Compare case. the taint of may purge a consent Although ¶¶ 23-29, (focusing 860 on the 854 A.2d only it is not the police illegality, a prior flagrant police absence of misconduct ¶¶ 55,ME 15- Bailey, 2012 consideration. holding dissipated that the taint was de 16, assess the volun 41 A.3d 535. We also temporal proximity the and the ab spite consent, temporal the “the tariness of circumstances), intervening with sence police illegality and proximity” prior (Me. 366, LeGassey, State v. 456 A.2d 368 consent,4 intervening presence the “the 1983) (highlighting temporal proximity the circumstances, and, pur particularly, intervening and lack of circumstances in of the official miscond pose flagrancy Illinois, 590, holding 422 the taint was not dissipated). Brown v. uct.”5 already-stated assump to our 4. Given that Brown v. Illinois dealt with an 3.In addition confession, inspection the entire bus violated the illegal resulting tion that arrest and the it Amendment, City Indianapolis v. Fourth see actually temporal describes the factor as Edmond, 32, 37, 447, 121 531 U.S. S.Ct. 148 measuring lapsed the time between "the ar- (2000) (stating that an adminis L.Ed.2d 333 590, 603, rest and the 422 U.S. confession.” particularized suspi trative search without 2254, Here, (1975). 95 S.Ct. 45 L.Ed.2d 416 may permitted, conduct be cion of criminal evaluating we are effect that appropriately provided that the search is lim admissibility physical has on the purpose), it ited to its administrative does subsequently pas- evidence recovered from a appear that Lieutenant Currie’s search of senger lapsed and therefore consider the time bag on the bus was also not Constitu Ntim’s illegal inspection between the and the defen- Although dog’s tionally permissible. alert Boyington, v. dant’s consent. See State 1998 generated probable seat cause ¶ 163, 12, ME 141. A.2d seat, bag necessary to seize the on the permit does not law en Fourth Amendment police compliance 5. Brown also identifies bag search the without a war forcement to Arizona, 436, with Miranda v. 384 U.S. Harris,- U.S. -, v. rant. See Florida 1602, (1966), 16 L.Ed.2d 694 as an 1057, 1050, 185 L.Ed.2d 61 Brown, 603, Place, additional factor. U.S. at v. United States Here, S.Ct. 2254. there is no Miranda issue (noting 77 L.Ed.2d dog prior as Ntim to the sniff probable has consented his that if law enforcement cause to See, Trusiani, personal e.g., effect located in a ME believe that a arrest. State contraband, 107, 22, 860; ¶ public place contains the officers Boyington, 854 A.2d 1998 ME "pending ¶ property seize the issuance of a 11 & 141. n. contents”). warrant examine its Because the voluntariness recovering marijuana plants from the factor, 163, ¶2, of the consent is a threshold see trunk. 1998 ME 714 A.2d 141. ¶55, 15, later, Bailey, 2012 ME A.3d we About two hours depart- sheriffs ment, that Ntim begin noting there has not which had advised local police of the any objections finding raised to the court’s arrest, informed local that Boying- that his consent to the sniff was volun ton jail. was about to call home from Id. such, tary. given As that all of the information, 3. Based on that an officer findings regard sup court’s drove to the area Boying- and observed evidence, ported by competent record ton’s wife throw suspected what he to be finding court did not err in that Ntim marijuana plants into a pond adja- from an voluntarily consented to a sniff. See ¶¶ 3, public cent road. Id. 13. The officer ¶ State v. Bailey, 989 A.2d visually confirmed that plants were marijuana, proceeded Boyington’s house, Boyington’s and asked wife for con- next temporal We turn to the sent to search premises, which she proximity between the bus ¶¶ granted. Id. 3-4. In finding that the found, Ntim’s consent. As the court officer’s actions constituted intervening shows, hap as the record those events circumstances, we reasoned that although pened during twenty the fifteen to minutes the officer went to the road “only after stop bus was scheduled to receiving generated information” by pri- temporal Portland. Such close proximity police illegality, or “the officer was posi- suppressing cuts in favor of the evidence. ¶¶ tioned legally on that Trusiani, 107, 4,23, road when he ob- See 2 - Boyington] served Nevertheless, throwing plants [Mrs. temporal A.2d 860. proxim pond” into the and he waited until ity after regarded helpful is often as the least of visually confirming the plants nature of the the Brown outweighed factors and be ¶ to ask for her 23; consent to search. by Id. 13. the others. Id. see LeGassey, also 456 A.2d at 368. Here, the law [¶ 16] enforcement offi- At the heart of this case is the cers in the gained terminal access to Ntim presence intervening of circumstances. because he entered the bus terminal while We have found that intervening circum putatively the unlawful bus oc- stances existed when the additional lawful notwithstanding, curred. That the court by activities undertaken an officer pro and, found to contrary the dissent’s discus- duced further prompted information that sion, Ntim challenge, did not that the rea- the request officer’s for consent. See asking son for the passengers, get off ¶¶ Boyington, State v. ME 12- perform the bus—to 2” inspection, “level If, however, 714 A.2d 141. despite an which includes inspection of the onboard activities, officer’s additional the informa restrooms —was legitimate. See 49 C.F.R. prompting request tion for consent is 374.313(b) (2012) (“Each § bus seating solely prior attributable to the illegality, (not 14 passengers more than including the help those activities will not dissipate the driver) clean, regularly shall have a main- taint of that illegality. See State v. restroom.”). words, tained In other Ntim McKenzie, (Me. 1076-77 terminal, would have inup ended ex- 1982). enforcement, posed regardless to law of In Boyington, an officer from whether or Angel brought not was in to department the sheriffs Boying- sweep arrested the bus part as of the interior in- illegally ton after his vehicle stopping spection. Additionally, law enforcement part previously were on bus open Angel in a bus terminal may wait officers contrary to the dissent’s inspection, of the purpose approaching for the public assertions, in the rec- there is no evidence identify requesting public, members Bergquist approached Ntim be- ord that information, consent-based seeking ing - Angel’s during indication bus cause of Kentucky King, v. encounters. See of Lieutenant sweep, or because Currie’s -, in Ntim’s discovery marijuana residue (2011); States v. United L.Ed.2d 865 Rather, in- supports the the record bag. 194, 200-01, 122 S.Ct. Drayton, 536 U.S. did not Sergeant Bergquist ference Florida L.Ed.2d Angel alert- bag who owned the know Bostick, 501 U.S. Currie, Ser- It was Lieutenant not ed on. (1991); Wayne R. 2382, 115 L.Ed.2d 389 bag, geant Bergquist, who searched 2.4(b) LaFave, Seizure Search testified it was Lieutenant Currie who 2012). (5th Similarly, presence ed. identify driver to that he asked not, more, does without a narcotics seat, presum- in that sitting who had been Amendment. See Illi- Fourth violate the any not contain ably bag because the did Caballes, 405, 409, 125 nois v. Sergeant identifying information. (2005). Thus, 834, 160 L.Ed.2d 842 that, contrast, testified once Bergquist, of the offi- legitimate presence neither bus, sweep with the interior finished terminal, of the narcotics in the nor cers around the terminal. he intended walk like inspection; on the bus dog, depended however, he plan, He altered his because road in waiting public on the the officer agent whose identi- approached the law enforcement officers Boyington, agent recall. ty he could not That asked Grey- in the lawfully present here were Angel if he would take Sergeant Bergquist hound terminal. Ntim, already in a engaged who was Ntim transpired got after What Wolfe, because Agent conversation with to remain in the off the bus and decided his name in one of our indexes.” “we have a function of the law enforce- terminal was Therefore, testimony the handler from in the right present ment to be officers’ only an inference dog support of the will terminal, drug-sniffing dog, en- handle a dog to Ntim request that the to take the conver- passengers consensual gage bus dog and ask him to consent to a sniff was sation, seek consent-based encounters. by Agents prompted the information Wolfe bus, got off the plain- As the obtained See State and Brown from Ntim. agents observed that Ntim clothed ¶ Connor, 91, 9, 2009 ME 977 A.2d 1003 and, consistent with very was nervous that, fur- (observing absent a motion for speak passen- their to with all of the plans findings suppression hearing, ther after a him in conver- gers, engaged a consensual all the “we will infer that the court found speak have declined to sation. Ntim could if necessary support judgment its facts Instead, he did not. agents, with the but findings supported by are” those inferred travelling to Orono to he told them he was record). lawful separate Because see a name he could not cousin whose last Brown Agents activities of Wolfe and recall, identifying with provided them that result- yielded additional information prior exposure that revealed information Sergeant Bergquist requesting ed drugs potential and a alias. sniff, dog to a those activi- Ntim’s consent approached by intervening factor. See Ntim was next ties constitute 163, 13, ME Sergeant Bergquist, Angel Boyington, who had on Although Sergeant Bergquist leash. Finally, we purpose voluntary assess the Ntim’s consent to the sniff flagrancy of the misconduct. sufficiently attenuated from the bus

Although the assumed of the bus purpose inspection due to the intervening activities drugs, was to find evidence of of the law personnel enforcement present we cannot that law conclude enforcement’s in the Additionally, terminal. as the court bringing misconduct in on to the found, Angel’s second alert on Ntim consti- bus was “a flagrant disregard of the con probable tuted sufficient cause for the Trusiani, 107, ¶ 26, stitution.” proceed with the search of 854 A.2d 860. There suggestion is no in the restroom. See Flori- — the record that the Commercial Vehicle Harris, -, da v. U.S. actually

Unit did not conduct an 1056 n. 185 L.Ed.2d 61 bus, just that it have gone too (2013). Thus, even if the police ran afoul far, and the Fourth Amendment does not of the Fourth Amendment while conduct- prohibit having law enforcement from ing the warrantless administrative inspec- drug dog present for the inspection or bus, tion of the the court did not err in Further, otherwise at the terminal. denying Ntim’s motion to suppress. activities of the law enforcement officers The entry is: terminal, engaging inside the in consensual Judgment affirmed. encounters, were lawful. As for search bag by of Ntim’s Lieutenant Cur- SILVER, J., concurring.

rie, although it constitutionally was not I concur in the opinion, Court’s permitted, it is unclear from the record but write separately to emphasize the dan- whether it flagrant rises to the level of gers of multi-agency search and interdic- misconduct.6 That pur the officer’s sole Here, tion projects like this one. the facts pose in searching bag ostensibly towas as found support motion court deni- up follow on the dog’s indication that the al of Ntim’s motion to suppress. Never- bag drugs weighs contained in favor of theless, of drug-sniffing dogs use characterizing flagrant. the misconduct as ostensibly conduct routine Brown, administrative See S.Ct. 2254. safety inspections of passenger commercial Because there is no evidence in the record practice buses is a seriously should be exploited Lieutenant Currie viola questioned. however, any way, tion in the violation n does not attenuating undermine the effect [¶ 22] record reveals circumstances,

of the intervening even if State Police Commercial Vehicle Unit we assume that the misconduct was fla routinely uses a drug-sniffing dog part as grant. safety of its inspections. propriety The of Although the bus practice questionable and this is at best. Al- Ntim’s consent dog to the sniff were in though dog sniffs are not per searches se,7 temporal proximity, close we conclude that the element of deception inherent in 6. Lieutenant purposes Currie’s violation could result in a search for of the Fourth Amend Place, suppression 696, a bag, of contents Ntim’s ment. United States v. 462 U.S. charges 707, 2637, brought against (1983). but no were Ntim 77 L.Ed.2d 110 However, based on the information obtained from the police bring dog when officers bag. home, porch physical onto the front of a constitutionally protected intrusion into the Exposing luggage public place curtilage enough found in a is to establish that a search Jardines, - U.S. -, drug-sniffing dog a trained does not constitute v. occurred. Florida

378 acknowledges in As As the Court cause for concern. practice this Lieutenant testified, opinion, footnote 3 of its Currie passengers Lieutenant Currie Amendment violation committed a Fourth luggage their be to leave are instructed bag. dog’s The when he searched safety the bus for the they exit hind when probable have cause may generated alert very likely illegal This is inspection. contained contra- bag to believe that This is property. passengers’ of seizure band, justified not in imme- but Currie was free passengers are situation where not a hinted in its diately opening it. State per their subject consent to withhold exigent circumstances have brief with law to an encounter property sonal warrantless search of permitted Currie’s essentially Passengers are enforcement.8 bag, fully develop but did not this They be leaving the bus. tricked into to see what exi- argument. It is difficult safety a routine leaving lieve prevented have gent circumstances would expec likely without inspection, most temporarily detaining bag from Currie un given will be police tation that a in order to seek either consent or a search effects. personal to their limited access Place, 702, 462 103 warrant. See U.S. priva expectation is no Although there 2637; Jacobsen, S.Ct. States v. 466 United drugs emanating in cy the odor 109, 121-122, 1652, 80 U.S. S.Ct. Illi belongings, or see from one’s (1984). L.Ed.2d 85 The State did not ar- Caballes, 543 U.S. nois v. gue exception” that the “automobile to the 834, L.Ed.2d 842 United S.Ct. general Fourth Amendment’s warrant re- 707, Place, v. 462 U.S. States See, quirement applies e.g., in this case. (1983), the ina 77 L.Ed.2d S.Ct. Acevedo, 565, 111 v. 500 U.S. California partici to control or bility passengers (1991). 1982, 114 That S.Ct. L.Ed.2d 619 to even police encounter —or pate argument likely would have been unsuc- taking place it is trouble know that —is present cessful as well. Automobiles result, not some. As a this scenario does unique situation because of their inherent existing comfortably within Fourth fit Here, mobility. there is no indication that jurisprudence relating to bus Amendment Ntim, passenger, easily as a could have generally See Florida Bos searches. potential made off with the bus tick, contained, especially light evidence it (1991) (holding prac that the L.Ed.2d 389 the fact that he was inside the terminal seeking passengers’ tice of bus consent when the alerted and took con- coercive); inherently search is not United trol of the bag. 194, 122 Drayton, States v. only (holding prevails The State this 153 L.Ed.2d because, on the lower court’s require does not case based Fourth Amendment link passengers’ findings, con we cannot infer a causal be- request officers who violation and Ntim’s right sent to of their tween this serious inform consent). person, consent to the search of his which to withhold 1409, meaning to the level of a seizure within the 133 S.Ct. 185 L.Ed.2d (2013). Amendment, proper inquiry the Fourth is "whether a reasonable would feel free drag efforts In the context of interdiction requests to decline or otherwise the officers’ buses, Supreme conducted the U.S. Court on Bostick, Florida v. terminate the encounter.” that, explained determining whether has 429, 436, 2382, 501 U.S. S.Ct. police sufficiently conduct is coercive that (1991). L.Ed.2d 389 attempt to seek a consensual encounter rises ultimately drugs revealed the he later threatening without passengers’ Fourth sought suppress. Agent Wolfe testified rights Amendment counsels in favor of a that he confronted Ntim and “outlined reassessment efficacy of the and utility of of the evidence that indicated that some practice. this there was a likelihood that he be might However [¶ 26] inadvisable this tactic carrying illegal drugs.” Presumably, this be, here the motion court did not find

would include the fact that had a connection illegal between the search luggage, they alerted on his and that had place took on the bus and Ntim’s already leafy green found traces of a sub- voluntary consent to a search in the termi- presumably marijuana his stance — —inside alone, nal restroom. For that reason I case, If bag. this were indeed the Ntim’s agree that the court did not err in denying consent to the search certainly is almost suppress. motion to by exploitation tainted this However, search. our review must be lim- JAJBAR,J., dissenting. by

ited to the facts as found the motion court. The factual basis to draw such a I respectfully dissent because is simply lacking conclusion from the mo- joint operation of the Commercial Mo- findings. tion court’s tor Vehicle Unit of the Maine State Police Ironically, the various law en- (Commercial Unit) Drug and the agencies forcement involved this case (DEA) Enforcement Agency pri- had the routine, skipped safety could have mary purpose of interdicting drugs. This appears which to have been nothing more joint operation exploited the Commercial pretext than a for conducting drug inter- Vehicle authority Unit’s safety to conduct diction, given presence of both state inspections pretext as a ordinary detect drug and federal enforcement agents. If criminal activity. simply had brought drug-sniffing The suspicionless sweep of buses terminal, dog into the this would not even in interstate travel police a common See, Caballes, be a close case. e.g., tactic in the “war drugs” on as known 409, U.S. at 125 S.Ct. 834 (concluding that “working the buses.”9 Generally, the tac the use of a trained drug-sniffing dog does tic involves law officers enforcement implicate interests); not legitimate privacy boarding interstate buses at stopovers, Place, 462 U.S. at 103 S.Ct. 2637 themselves, identifying announcing their (holding that luggage sniff of left purpose traffickers, locate and re a public place is not a search within the questing consent to search passengers’ be Amendment). meaning of the Fourth Law longings any prior without suspicion of enforcement officers are free to approach criminal wrongdoing. See Florida v. Bos citizens to seek consensual interactions. tick, 429, 440-42, Florida Royer, (1983). (Marshall, J., L.Ed.2d 389 75 L.Ed.2d 229 dis None senting). of the actions law The Bostick enforcement took inside Court held that the terminal amounted to permitted constitutional vi- to conduct these olations. The fact that law enforcement searches without a pursuant warrant agents could have consent, achieved the same passengers’ result if the “officers do "working 9. The term the buses” was used 115 L.Ed.2d 389 State, Supreme 1153, by (Fla Florida Court and later Bostick v. 554 So.2d 1156 .1989) Bostick, Supreme 440, United States Court in Florida v. overruled 501 U.S. at Bostick, 429, 2382, Bostick. See Florida v. 501 U.S. 111 S.Ct. 115 L.Ed.2d 389. 380 by the Bostick with crosses the line drawn compliance that message a convey

not 437, 437, at 111 S.Ct. Id. See 501 U.S. required.” at Court. is requests their Following (majority opinion). 2382. S.Ct. 2382 decision, has been sub there

the Bostick Safety Inspection of this law en A. criticism academic stantial See, e.g., Tracey technique. forcement assumes Although Court 30] [¶ Tak Maclin, Thurgood Marshall: Justice unlawful, be- the bus Seriously, 77 Fourth Amendment ing the undeveloped in lieving that the record was (1992); 723, 800-01 Chris L.Rev. Cornell ¶ 10, I pro- regard, Opinion Court’s Florida v. Bostick: Rowley, tian J. analysis of the bus vide a full Casualty Fourth Amendment - Another necessary it for a clear under- because 601, 1992 Utah L.Rev. Drugs, on the War between the standing of the connection Lewis, Amend 626-45; Fourth Shawn V. agents of the DEA and officers of actions Against Unreasonable ment - Protection Vehicle Unit. Commercial the Intrusiveness the Person: Seizures of Sweeps, 82 Styled Drug J.Crim. Dragnet Requirement Needs Special (1992). 797, 797-98, Criminology L. & suspicionless In order to conduct 31] [¶ controversy Notwithstanding the 29] [¶ inspections, the Fourth and warrantless tactic at surrounding the law enforcement clearly requires police Amendment case, in Bos this unlike the facts issue in they special a law demonstrate that have tick, the added role of a here we have need, “gener- enforcement distinct from Bostick, safety inspection. pretextual Cf. City in crime control.” See al interest 431-32, 111 2382. If the at U.S. Edmond, 32, 40- Indianapolis v. U.S. working independently agents DEA were 41, 447, L.Ed.2d Vehicle Unit and had of the Commercial marks (emphasis quotation added con merely engaged Ntim “consensual Johnson, 6, omitted); State terminal, in the see Court’s versation[s]” ¶¶ 14-16, special 962 A.2d 973. This law ¶ 17, then Florida v. Bostick Opinion police enforcement need ensures case, agree and I would would control this the Fourth simply circumventing not to affirm. See with the Court’s decision ordinary requirements Amendment ¶¶ However, 18, 20. we Opinion Court’s ar- investigations “preventfs] criminal cooperation and coordi ignore cannot by en- bitrary oppressive interference Vehicle nation between the Commercial privacy with the forcement officials joint opera DEA in this Unit and security of individuals.” See personal it when Agent DEA Wolf said best tion. Martinez-Fuerte, States v. United planned opera he testified that “[it was] 96 S.Ct. 49 L.Ed.2d the Maine State Police tion to work with Edmond, see also 531 U.S. They were Unit]. [Commercial 447; Treasury Emps. 121 S.Ct. Nat’l buses, on conducting safety inspections Raab, v. Von Union relationship with existing and we had an (1989). 1384, 103 L.Ed.2d 685 safety inspec them those through which has held example, Supreme For Court us to work opportunity tions offered added.) special conduct needs that the Be (Emphasis on interdiction.” investigations public where the interest sought investigating cause the officers of intrusion on the outweighs degree only Ntim’s consent for a search after interest— Fourth Amendment gathered him in individual’s confronted with evidence of drunk driv- specifically case for the detection luggage, an unlawful search of his this

381 Sitz, 594, ers, 6, 2534, Dep’t Mich. State Police v. 496 452 598 n. 101 U.S. S.Ct. 69 of 444, 455, 2481, (1981); 110 110 U.S. S.Ct. L.Ed.2d L.Ed.2d 262 Camara v. Mun. Ct. (1990), aliens, Francisco, 412 523, 539, Martinez- San 387 U.S. 87 of Fuerte, 566, 1727, 428 at (1967)); U.S. 96 S.Ct. 3074. S.Ct. 18 L.Ed.2d 930 see States, 217, also Abel v. United 362 U.S. In City Indianapolis v. Ed- [¶ 82] of 226, 683, 4 80 S.Ct. L.Ed.2d 668 mond, Supreme the U.S. Court addressed (“The deliberate by use the Government of a inspection using drug-sniffing similar a an administrative warrant for purpose purpose conducted for the sole of de- gathering of evidence in a criminal case 35, tecting illegal narcotics. 531 at U.S. must meet stern resistance 40-41, 121 447. The Government courts.”). To determine whether the safe- argued drug dog that the use of the awas ty inspection was conducted to detect ordi- limited intrusion on the individual’s Fourth nary activity, criminal we examine the in- privacy weighed Amendment interests as investigating tent of the officers. against public’s substantial interest in 42-43, curbing narcotics trafficking. Id. at Intent of the Investigating Officers reject- 121 S.Ct. 447. The Edmond Court Generally, argument safety inspections ed this and held that the check- commercial motor point solely was unconstitutional based on vehicles in interstate program’s travel are primary purpose detecting permitted without a warrant or — ordinary activity. prior suspicion. Melvin, criminal Id. at See State v. ¶ (“We 118, 7, ME However, 121 S.Ct. 447 decline to suspend the A.2d 245. requirement usual determine whether the suspi- primary purpose of individualized purported employ safety cion where the seek administrative inspec- actually general tion is for checkpoint primarily ordinary en- criminal investi- for crimes.”, gation, we terprise investigating (empha- subjective examine the intent of added)). Edmond, In the investigating sis the Court did officers. See v. Ashcroft — al-Kidd, -, 2074, not focus on the limited intrusion of the U.S. 131 S.Ct. (2011). 2080-81, 179 drug dog, but viewed the use of a L.Ed.2d 1149 Al- though we primary as evidence of the have observed in purpose some Fourth Amendment cases that the inspection detecting illegal subjective narcotics. Id. in- — tentions of individual officers are irrele- Similarly, an administrative safe- vant, Cilley, 34, 7, see State v. ty inspection may pri- not be conducted 79, searches conducted for admin- marily detecting ordinary criminal ac- purposes istrative or pursuant special to a tivity. “In the law of administrative law enforcement need are longstanding ex- searches, one principle emerges with un- ceptions al-Kidd, to that rule. See clarity usual acceptance: unanimous (“Fourth Amendment reason- the government may not use an adminis- predominately ableness is objective in- trative inspection scheme to search for .... Two limited quiry exceptions to this criminal Burger, violations.” New York v. rule special-needs are our and administra- 691, 724, 482 U.S. 107 S.Ct. cases, tive-search where actual motivations (1987) (Brennan, J., L.Ed.2d 601 dissent- matter.” (quotation do marks and altera- alia, ing) (citing, inter Michigan v. Clif- omitted)). tions ford, 104 S.Ct. (1984); Michigan Tyler, L.Ed.2d An is pretextual when investigating legal officers use their au- L.Ed.2d 486 Dewey, thority Donovan v. to conduct inspec- administrative under the dis- being transported or cotics gain persons access to tions in order guise of commercial commerce. prior suspicion or a warrant places absent ordinary law enforce doing any were you in order to conduct Prosecution: So if check, you v. See Whren United commercial motor vehicle investigations. ment States, your dog? use would (quoting Burger, 135 L.Ed.2d Sergeant Bergquist: Correct. 2636); 27, 107 n. & U.S. at 716-17 cf. Although regulations prohib the [¶ 37] ¶¶ 14-16,

Johnson, 6,ME 962 A.2d possessing from narcotics or oth it drivers pretex- conduct a the officers 973. When the er substances “which driver renderf] inspection, their actions administrative tual safely operating of a motor vehi incapable analysis ... initio and our “invalid ab 392.4(a) (2012), cle,” § they con C.F.R. Johnson, there.” See end[s] provision authorizing inspection tain no the ¶¶ 14-16, 973. personal belongings or their of drugs. generally for See 29-A M.R.S. Here, is obvious— pretext the 555(2) (2012) (permitting adoption of of both the Commercial Vehi- the officers Safety Regulations); the Federal Motor Carrier actually the DEA intended to cle Unit Means, 94 F.3d 1 Oil Co. joint investigation to detect conduct V- (10th Cir.1996) (“The carrier [motor trafficking of narcotics. Com- safety] regulations make it clear the in safety conducted the mercial Unit spections scope safety are limited investigator the lead of that inspection and They general concerns. do not authorize a operation at the intent of the unit clarified by any law enforcement officer.” search hearing: suppression (citation omitted)). Okay. just You indicated that Defense: around, an exterior walk look- there was When the officers of the Com- And ing lights (indiscernible). at the stepped mercial Vehicle Unit foot on the — what—what—what is the guise safety inspection [canine] under the of a bus intended to detect on [canine] with the clear intention to look for drugs, you’re doing inspection? when they violated the Fourth Amendment. See, al-Kidd, 2080-81; e.g., 131 S.Ct. at Drugs. Lieutenant Currie: Whren, safety inspection? For a Defense: The Commercial Vehicle Unit’s use of a Lieutenant Yes. Currie: drug dog is evidence of their intent not to Okay. part So that is Defense: safety inspection, conduct a but to interdict primary objective then? Further, clearly drugs. the officers testi- Well, it’s an addi- Lieutenant Currie: fied that conducted the for job it. our portion part tional of It’s of passengers’ purpose inspecting lug- commercial vehicles and to inspect gage drugs, compels for which me to con- interdict crime. primary purpose gen- clude that added.) Further, drug dog (Emphasis control, eral in crime interest and thus the handler the Commercial Vehicle Unit inspection violates the Fourth Amend- testified: ment. part any There’s

Sergeant Bergquist: DEA B. Actions commercial under the federal Further, regulations is to check the evidence the rec- [sic] drugs compels or alcohol. There’s ord me to conclude that presence violation was not sim- history large also a amounts of nar- Fourth Amendment ply inspection confined to the bus but also reason to engage in an analysis attenuation agents pursuant extends to the actions of the DEA to Boyington, State v. 1998 ME ¶ 163, 9, for three reasons. any A.2d inference that the trial court might have considered First, based on Ntim’s failure to whether Ntim’s consent was a result of the move the suppression court for additional separate or of investigative law, findings of fact or conclusions of the activities DEA agents wholly invent- Court infers that the trial court found that appeal. ed on sepa Ntim’s consent was the result of a rate investigation Second, lawful and was thus at the evidence in the rec- illegal tenuated from the bus inspection. ord does not support the Court’s inference ¶¶ n.3, Opinion See Court’s 10 & 18. that the drug dog approached handler will infer “[W]e that the court found all the Ntim due to the separate, lawful investiga- necessary facts if support judgment its tive activities of the agents. DEA See ¶ findings Connor, those inferred supportable by are 2009 ME 977 A.2d 1003 Connor, evidence in the record.” State v. (stating that we will infer that the trial ¶ 9, 1003; 2009 ME gener see court findings made if findings those ally County “supportable by record”). U.C.D.R.P.-Cumberland evidence in the 41A(d). 41A(d); However, M.R.Crim. P. Agents DEA Wolfe and Brown both testi- noted, as the Court the trial court never fied they that did not request the drug dog addressed the issue of whether the bus handler to approach Ntim with the drug ¶ lawful, Opinion dog. Agent testified, Court’s not, Wolfe “I did n.3,& and thus it had no reason to deter specifically, say ‘I’m interviewing per- this mine now[, whether Ntim’s consent was attenu them,’ son c]ome examine no. It ated illegality. from that See Boy happened (Em- State v. my without prompting.” 163, ¶ 9, ington, added.) 714 A.2d 141. phasis Similarly, Agent Brown ¶ But Opinion see Court’s & (noting n.3 stated that he did not know if someone that court accurately requested “[t]he [trial] also con Sergeant Bergquist bring cluded that the drug agents’ enforcement dog to Ntim and that he “did not hear actions the terminal ... led to the dis anybody specifically [request it].” Ntim”). covery Thus, of cocaine on Sergeant Bergquist, [¶43] the Com- Court in this finding sup case infers a handler, mercial drug dog Vehicle Unit’s port a conclusion that the trial court never testified that it was “not a part normal made —that Ntim’s consent was attenuated an inspection of a bus” to lead the from the fruits an bus inspection. terminal, through the but that he led the Rather, during suppression [¶41] dog into the terminal in this case as “a hearing, the trial court stated that follow toup [drug dog’s] indication [on police checking to make luggage] However, “[we]re sure as to inside the bus.” before state, coming who’s into they have begin he could follow-up inspection his right terminal, absolute to do that under these Bergquist testified that one added.) (Emphasis circumstances.” agents Be- of the DEA requested him to lead cause the trial court would have had no the dog to Ntim.10The trial court did not Although drug dog handler did not Ntim’s arrest —and that the officer had found agent indicate he request- knew the who Ntim’s name "in one [their] indexes.” The DEA, ed a sniff of Ntim was from the he agents they DEA testified that had in fact plain stated that the officer was in clothes— located Ntim’s name as a of interest in agents which DEA morning wore on the I everything that go free to based on agent’s DEA re- that the find

specifically the result of an inde- was unrelated to knew.” This is not of Ntim for a sniff quest Instead, DEA con- investigation by the trial court pendent inspection. the bus dog comes off But state conversation.” ducting a “consensual “[t]he found bus, regard hit twice having 17. The notion Opinion after see Court’s luggage, joint [where] Defendant’s coordinating operation DEA agents residue. plant material green some found maintaining constant communication and if it inquired and he ... out he comes And with the Commercial Vehicle Unit—who ahead and go he could [alright] if was only had mo- inspected the bus and had Ntim].” sniff bring [to incriminating evidence ments before found approached bag belonging in a to whether the Com- Regardless Ntim — wholly separate, simulta- Ntim due to drug-dog handler mercial Vehicle Unit’s investigation simply supported is not neous inspection to the bus Ntim due approached in this record. by the evidence investigation, it is agents’ the DEA or agents DEA confront- that the undisputed Third, that the Court determines 45] [¶ produced by the with the evidence ed Ntim sepa- of the DEA were the actions con- they requested his drug dog before Vehicle Unit rate from Commercial DEA person. of his to a search sent it that Ntim would have because concludes Ntim, “Look, stated Agent Wolfe here’s terminal, exposed to law up “ended in the things all the that have. Here’s what we enforcement, not regardless of whether or indicating making suspicious.” and me sweep in to the bus.” Angel brought added.) Wolfe, Agent who “re- (Emphasis Opinion 16. The Court defers to Court’s consent, testified that he quested” that finding the trial court’s informed Ntim legitimate was a the onboard restrooms happen for the going Here’s what’s to exit the bus. passengers reason to ask you. that next while. I’m concerned However, finding the trial court’s factual is now. And in order to drugs right have by any competent evidence supported not out of my job trying keep drugs do record, clearly in it is therefore may next community, happen what Bartlett, erroneous. See State you. may is we move forward and detain (Me.1995). 1107,1108 warrant. We can We can seek search in- regulation governing might and it mean things, do a lot of spection of onboard restrooms reads: go [you have to later on. Or if you’d that service) in commuter anything, you (except tell “Each bus carrying not are] (not you’re carrying anything, not in- seating passengers me more than driver) very quickly, clean, this if we can be done with cluding reg- shall have a you make you’ll just restroom, let us sure free of offen- ularly maintained you. anything have on don’t operated sive odor. A bus be without makes reasonable rest a restroom if it testimony, this Agent Brown corroborated 374.813(b) (2012). stops.” 49 C.F.R. “Special Agent present- Wolfe had stating, dictates that it is unneces- [, Common sense ed what had arisen thus far with the sary twenty-five passengers to have the he had asked him if he would t]hen the bus vacate the bus order for Al- aboard person.” consent to a search of his the restroom an officer to ensure that Ntim’s con- though Agent requested Wolfe search, noted, free. See id. There is no wasn’t clean and odor sent for a he “[Ntim] System. Dangerous Drugs mation their Infor- Narcotics question in the record that remov- allowed to passengers further evidence the ter- just from the bus was neces- minal ing passengers as would be on the bus. sary carry out this kind of of See 501 U.S. at 111 S.Ct. 2382. the restroom. dramatically But the facts are different this case because the actions of DEA Rather, Sergeant Bergquist, the agents and the Commercial Vehicle Unit in handler, drug dog testified that joint operation planned this were and coor- to exit the bus that he could were asked so Agent dinated. Wolfe testified that Angel off of her lead and let her “[take] safety inspections generally “offered [the reign have free of the bus.” Most [sic] agents] opportunity DEA ... to work however, compelling, testimony is the interdiction,” on and that the “initial plan Wolfe, Agent DEA Paul who testified morning in the ... bags.” was to examine and the DEA Commercial Unit Agent Wolfe elaborated that the DEA agents target “a planned specific bus” agents and the Commercial Vehicle Unit traveling City from New York to Portland “in regularly, worked concert” had DEA safety inspection for a and that Portland, “done ... this several times [in] agents approach passengers would the who Lewiston, Augusta, variety places.” Agent exited that bus. DEA fur- Wolfe that ther testified both Commercial Both the Commercial Vehicle jointly and the DEA formed Unit the DEA planned Unit and to have all of ... plan morning an “initial to ex- Ntim, passengers, including removed only amine bags” plan could be bus, from the leaving their luggage on- —a bus, passengers carried out if exited the board, so that the Commercial Vehicle board, luggage gave left their on drug dog Unit’s could examine their lug- free to the bags. access Fur- gage agents and the DEA question could ther, Lieutenant Currie testified that be- them in agents the terminal. DEA re- safety fore he inspection, conducted the he quested only Ntim’s consent after passengers told the driver to instruct the Commercial Vehicle brought Unit their to leave their bags onboard and exit the drug dog to sniff his —which Therefore, bus. finding trial court’s only moments after the Commercial Vehi- inspection of the restrooms was a cle drugs Unit located trace evidence of “legitimate passengers reason” to ask bag. They confronted Ntim with clearly exit the bus is erroneous. See this evidence before “requesting” his con- ¶55, 12, State v. ME Bailey, 2012 41 A.3d sent.

535; Bartlett, (setting 661 A.2d at 1108 out review). clearly erroneous C. Conclusion standard of sum, In although

[¶ the trial court Given overwhelming 48] this evi- relationship failed to consider the between dence on the level of communication and the actions of the Commercial Vehicle coordination agencies, Unit between these two agents any and the actions of the DEA in the implicit finding that the encounter in terminal, the evidence in the record com- the terminal was to the unrelated bus in- pels both a finding spection clearly and a conclusion that erroneous. uncon- their actions were I agree connected. with troverted evidence in this case compels the Court’s assertion that if the DEA conclusion that the officers of the Com- agents were working independently of the mercial Vehicle and the DEA agents Unit Unit, jointly planned Commercial Vehicle then Florida v. the encounter and coordi- applies Bostick and the DEA their DEA Agents nated actions allow inspect- whom the question bus, and from the removed

ing officers Ntim with agents confronted the DEA I inspection. the unlawful the fruits of denying Ntim’s judgment vacate the would gathered suppress evidence motion to person. search of his 2013 ME 82 OF Kenneth GUARDIANSHIP LABREE. V. Docket No. Ken-12-588. of Maine. Supreme Judicial Court 26, 2013. Submitted on Briefs: June Sept. Decided: IV, Hoyt Esq.,

Edward R. and Ronald Bourget, Esq., W. Law Offices of Ronald Bourget, Augusta, appellant for moth- W. er.

Tammy Ham-Thompson, Esq., Farris Law, P.A., Gardiner, appellees paternal aunt and cousin. SAUFLEY, C.J.,

Panel:

ALEXANDER, SILVER, MEAD,

GORMAN, JABAR, JJ. MEAD, J. The mother of Kenneth LaBree judgment from a of the Kennebec

appeals J.) (Mitchell, County ap- Probate Court paternal aunt pointing her and Kenneth’s Kenneth, coguardians subject as limited compliance with to the mother’s certain provided conditions. The court’s order

Case Details

Case Name: State of Maine v. Richard K. Ntim Jr.

Court Name: Supreme Judicial Court of Maine

Date Published: Sep 17, 2013

Citation: 76 A.3d 370

Docket Number: Docket Cum-12-289

Court Abbreviation: Me.