State v. Kremen

964 ... remark was “inadver challenge,

dеfendant’s motion for a declaration eliminates bar not there is mistrial constitutional tent and intentional.” rier, jeopardy question inappropriate created the double clause com no of either the United States or Maine Con inadvertently ment was made and did not Beaudoin, stitutions, to retrial.” State v. prosecutorial constitute intentional miscon (Me.1991) 1097, (emphasis 600 A.2d duct was intended to force mistrial Tribou, added); see also prevent impending acquittal. (citing Oregon Kennedy, 315; also, U.S. Gary, e.g., Chap 74 F.3d at (retrial 72 L.Ed.2d 416 man, A.2d at 300 not barred (1982)). Moreover, prosecutorial mis prosecutor inquired where of medical ex conduct “must rise to an level egregious pert as to cause of victim’s death where jeopardy for double to bar a retrial. A objections two defense had been sustained defendant cannot be where retried foundation); ground improper on the prosecutor conduct is undertak (Me. Tibbetts, ... prevent acquittal en that [the 1973) (retrial prosecutor ordered where prosecutor] likely believed at the time was impermissibly commented clos to occur in the absence his misconduct.” ing argument on failure to tes defendant’s Gary, United States F.3d 315 tify). (1st Cir.1996) (internal omitted) quotations entry is: Wallach, (citing United States v. 979 F.2d Judgment affirmed. (2nd Cir.1992), denied, cert. U.S. S.Ct. L.Ed.2d 637

(1993)) added); (emphasis Kennedy, 456 2083; United States

v. Cartagena-Carrasquillo, 70 F.3d (1st Cir.1996). upset not

[¶ 7] We will a trial 2000 ME 117 court’s factual determination that there no prosecutorial intentional miscon of Maine STATE finding clearly duct unless the errone Chapman, ous. State v. case, KREMEN. M. present In the the trial Barbara court, position which was the best in which trial

view the course counsel, Supreme Judicial of Maine. moving and the conduct of stated prosecutor that it understood what the 25, 2000. Submitted on Briefs Feb. im attempting do when he made the 21, 2000. Decided June proper The court felt statement. compelled to state more than once be its improper

lief statement was made

inadvertently way and was in no an at

tempt purposely interfere with Chase’s

right to have her case tried before that

tribunal. Later, at hearing dismiss, parties

Chase’s motion to both

recognized the statement! as a “rookie” Moreover, in the court’s order

error. finding,

cludes a factual which Chase expressly

her brief states she does

County, speeding Newport by Officer Peter Bouch- Town of er. Boucher issued citation ‍‌​​‌‌​​​​‌‌​‌‌‌‌‌​‌‌‌​‌‌‌‌‌​​​‌​‌‌‌​​‌‌​‌‌‌‌‌‌‌‌‍anything and asked Kremen if there was illegal in the vehicle. The officer also if the car. asked she minded he searched give Kremen that shе did not such testified officer, permission, according but to the to his readily agreed request Kremen car. The officer discovered a search her marijuana glove of com- bag small partment pipe containing marijuana and a in center console. He then the vehicle’s Christopher Almy, Attorney, R. District cited Kremen for of a useable Wood, Atty., Gregory Daniel Dist. C. Asst. marijuana. amount of Portland, Campbell, Atty., Asst. Dist. for State. suppress Kremen’s motion to Schwartz, Stephen J. Schwartz & marijuana following a was denied evidence Schwartz, P.A., Portland, for defendant. J.) hearing.3 (Hjelm, The court found that the initial of Kremen’s vehicle was WATHEN, C.J., Panel: proper voluntarily and that Kremen had CLIFFORD, RUDMAN, DANA, search of the subsequent consented to the SAUFLEY, ALEXANDER, and vehiclе. court concluded CALKINS, JJ. scope of Kremen’s consent allowed Bouch- CLIFFORD, J. glove compartment er to search the console, marijuana and that the that was appeals Barbara Kremen from a provided probable cause search (Penob- judgment Superior of the rest of the vehicle. J.) Mardew, County, affirming judg- scot a (New- ment in entered the District Court 'By the time Kremen’s bench J.) MacMichael, port, following finding a July marijuana and the trial provisions she violated the pipe could not be found. Boucher testified (1992)1 by possessing § M.R.S.A. marijuana that he seized marijuana.2 useable amount of Kremen tested, had not he had been trained been denying contends the court erred evidence, suppress marijuana, her motion to and chal- and that the identification lenges sufficiency of the evidence glove he had from the the substance taken trial. We find no error and affirm the compartment appeared to be and smelled judgment. marijuana. like Kremen was found amount of mari- possessed have a useable 15, 1997, Kremen, while August

[¶ 2] On J.). (MacMichael, juana appeal This fol- en route to Phish concert Aroostook § $229.00. provides, 1.22 in relevant 2. Kremen was assessed fine of M.R.S.A. part: § 2383. Possession initially for failure to 3. defaulted Kremen Marijuana. of a usable Possession default was appear in the District Court. The marijuana for amount of is a civil violation following relief Kremen’s motion for set aside $200 which a of not less than nor forfeiture pursuant Civ. P. judgment filed to M.R. from 60(b). adjudged $400 more than first offense. A forfeiture of shall for sup- filed a motion to Kremen then $400 shall be press. adjudged subsequent of- for the 2nd and period. 6-year fenses within under Fourth and It is well appeal to the settled lowed Kremen’s unsuccessful Superior search Court. Amendments that a Fourteenth without warrant issued conducted

I. per is unreason- upon probable cause se Kremen first contends subject only specifical- ... few able its discretion abused excep- ly and well-delineated established testify it allowed Officer Boucher when one equally well settled that tions. It is speeding that he specifically exceptions established his of his radar based on observation a warrant requirements both equipment. contends that he was not She is a probable cause radar, making operate certified to pursuant conducted consent. unjusti car stop of Kremen’s Bustamonte, 218, 412 U.S. Schneckloth v. object Kremen did not to Boucher’s fied. (1973) 219, 2041, 93 36 L.Ed.2d 854 testimony at the on suppression hearing omitted) (empha (quotations and citations operate that his certification to ground added). during Any sis consent obtained expired. argued to radar had Rather she seizure, however, an invalid ineffective. testimony that should be court York, 200, New 442 Dunaway See v. U.S. given weight. the issue of the little Thus 2248, 217-18, 60 L.Ed.2d 824 99 S.Ct. admissibility testimony of that has not the extent the Fourth (discussing Moreover, preserved. been because the rule). exclusionary Amendment’s court to find the officer has that suspicion an articulable that criminal con the court [¶ The evidence before occurred, duct or a civil violation has that suppress shows on motion ¶ Brown, 5, 90, 1997 State v. ME 694 A.2d ve Boucher’s to search Kremen’s request 453, 455, expiration of the officer’s for hicle while she occurred previously likely valid certification would violation. speeding Consent obtained impact little determina have the court’s stop is not unlawful under this tion of whether that standard had been Dunaway articulable unless there no met. suspicion for Kremen Kremen also contends that [¶ 6] Here, there was articulable sus violation. court erred in its that she had finding speeding. that picion Kremen First, to the argues consented search. she v. Relying that Boucher could for her on United Statеs not ask 873, to search the vehicle unless he had an 422 Brignoni-Ponce, U.S. 95 S.Ct. suspicion (1975), articulable that it contained con- 2574, also 45 607 Kremen L.Ed.2d Second, that traband. she contends request argues permis that Boucher’s for “ it court erred when found she had given ‘rea the vehicle was not sion “knowledgeable consent.” The State con- sonably scope justification related ” request that Boucher’s to search the tends 881, Id. for initiation.’ at 95 S.Ct. [its] proper it came during vehicle was because Ohio, (quoting Terry v. speeding. the lawful (1968)). 20 L.Ed.2d however, in Brignoni-Ponce, Court stated finding We review a that [¶7] may question the driver “[t]he officer for clear er voluntary given potential [regarding the passengers Club, v. 1997 ME ror. Seamen’s See them to may and he ask illegal аctivity],5 ¶ 70, 7, (citing A.2d circumstances, explain but suspicious Marden, (Me.1996); 673 A.2d (Me. be based Cress, or search must detention A.2d further Brignoni- 1990)). probable cause.” on consent Brignoni-Ponce sus- argues, the State con- 5. The defendants cedes, illegal pected being aliens. See id. proper only if the search was 95 S.Ct. 2574. Kremen consented to it. Ponce, 881-82, ‍‌​​‌‌​​​​‌‌​‌‌‌‌‌​‌‌‌​‌‌‌‌‌​​​‌​‌‌‌​​‌‌​‌‌‌‌‌‌‌‌‍ports finding, by preponderance 95 S.Ct. 2574 added). Thus, (emphasis evidence, Brigno- the State has established investigatory ques- ni-Ponce holds every element of the violation. M.R. See 80H(h). justification tions must be limited to the Civ. P. Superior “When the Court stop, for the does follow that court, acts appellate intermediate we simple request permission to search a review the of the trial di decision vehicle, more, without is a Fourth Amend- Emerson, rectly.” (citing 675 A.2d at 979 Moreover, violation. Supreme ment (Me Noyes Noyes, . explicitly noted consent allows .1992)) investigation beyond jus- further initial

tification. id. at See 95 S.Ct. 2574. It may Possession be ei follows, then, that officer is allowed to Here, ther actual or constructive. for that ask consent. State concedes that not in Kremen was possession marijuana. actual We that, We have held have discussed required prove what is valid, voluntary consent must be possession. constructive State Ket “by appropriate one ‘with an relationship ” ¶ chum, 93, 13, 1997 ME property searched.’ State v. Sher 918-19. “Constructive means (Me.1990) burne, that one does not have actual McLain, (quoting State v. 367 A.2d physical control of the he goods, hаs do (Me.1976)). addition, 217 a search minion, them,” authority or control over pursuant made to consent is limited to the (State DePhilippo, v. 628 A.2d 1060 Sherburne, bounds of that consent. See (Me.1993)) (quoting Durgan, State v. Koucoules, 571 A.2d at (citing State v. (Me.1983)). upheld A.2d We have (Me.1974)). 343 A.2d finding possession a of constructive when testimony at [¶ 11] Boucher’s in goods stolen were found a vehicle that suppression hearing support is sufficient to occupied,” defendant “both owned and see findings that for request permission his DePhilippo, 628 A.2d when stolen was made a speeding, valid for goods were found in a vehicle the defen and that voluntarily consented to dant used as his home and was driving the search of her vehicle. The District Mower, stop, time of the v. State Court, suppress, on thе motion to found (Me.1979), 407 A.2d and when each of Accordingly, these elements. goods premises found stolen on court did not err when it denied Kremen’s resided, where the defendant see State v. to suppress. motion Robinson, II. As to the destruction of mari- juana, consequences have described the we 12] Kremen contends that there [¶ was preserve of a to failure evidence follows: support finding insufficient evidence to a that she in alleged preserve The State’s failure to evidence marijuana taken from her vehicle. She does not violate a criminal defendant’s argues destroyed that the substance (1) a fair right to trial unless the evi- evidence, potentially exculpatory possesses exculpatory denсe value sup- that the evidence was insufficient to apparent that was before the evidence port finding a that taken substance (2) destroyed, the defendant would fact, was, marijuana in compara- be to obtain unable evidence reasonably ble value other available adjudi In a review of an (3) means, violation, acted in cation of a civil view the State bad we preserve potentially in faith in light failing evidence most favorable to the to State, sup- to determine whether evidence useful evidence. sup- denial necessary grant Cyr, n.

State a re- pression motion in the absence of Lewis, (citing State Izzo, quest findings. (Me.1990)). All three elements must be (Me.1993) (upholding A.2d right Kremen’s present order for stating motion suрpression denial fair trial to be found to have been violated. request burden to appellant- that has the expand findings; in the ab- Here, that court testimony sup we request, of such assume sence finding driving that Kremen ports necessary all facts suppression court found marijuana vehicle which was found both Powell, support ruling); its glove and in cen compartment (Me.1991) (upholding 1308 n. 4 A.2d ter console. That Kremen was in con noting order and that because suppression possession marijuana may be structive findings, failed to assume request we Also, prior inferred under our holdings. necessary found all contentions, contrary to Kremen’s it was motion). support grant Given facts “apparent de before evidence was request Kremen did not аdditional stroyed” alleged marijuana pos 41A(d), pursuant M.R.Crim. P. findings, value, exculpatory ap nor sessed does we assume the court the histori- pear destroyed that the evidence was its necessary cal facts denial of Accordingly, right bad faith. her to a fair motion. Finally,

trial was not violated. Boucher agree I with dissent testified that he had been identi trained to unlawfully detained at the Kremen was marijuana, fy and that he identified permission to time she was asked for marijuana. search, the substance as The court I her consent would invalid. the facts cannot conclude from contained rely testimony was entitled on this findings that Kre- in the court’s written marijuana. find that it was in fact illegal detention that time men’s. the court did not err when it determined Rizzo, a of law.6 matter See State the elements of the violation had been ¶ (stat ME proven by preponderance the evi independently legal that we review dence. facts based on the historical conclusions court). Likewise, if the by the trial found entry The is: indicating had found facts that Kre- court Judgment affirmed. degree in custody men was to associated arrest, if her would invalid with consent be warnings not been Miranda she had CALKINS, J., SAUFLEY, whom with if the rights, the and waived Miranda J., joins, concurring. volun court had found her consent separately tarily given, I write to the results would have [¶ 17] indicate search suppressed. in portion I concur the decision concerning the consent search because court ex- The did not prior our decisions hold we аssume concerning legal- make plicitly findings, tiek- suppression judge ity found all facts of the detention once County. they in the only findings regarding de- While were 6. The court’s Aroostook cruiser, are as her tention follows: asked if there [the officer] “anything illegál” The De- vehicle. [the After some initial conversation between responded negative. [The fendant Defendant, the and the officer asked officer] cruiser, he then the Defendant officer] asked police accompany her to him compartment area” could search the "front During ensuing and she did conver- so. sation, consented of the vehicle. The Defendant officer] advised [the Defendant driving concert this. that she rock given; findings profiles persons et was it did nоt make who fit individuals concerning custody; might possess drugs, whom believe nor did it find that (cid:127) engage but who in no conduct to voluntary.7 give Kremen’s consent was Be- legal basis to search the individual or the findings cause no further requested were practice subject vehicle. This has been Kremen, and because we have re- widespread scholarly comment and criti- peatedly held that we assume that Davis, Race, Angela Cops, cism. See J. all necessary facts to its deci- Stops, 51 U. Miami L. Rev. when request findings, sion there is no Traffic (1997); Visser, K. A Chris Without War- I concur that the trial court did not err in rant, Probable Cause or Reasonable Sus- denying suppress. the motion to picion: Any Meaning Is There Fourth Driving Amendment While ALEXANDER, J., dissenting. Car?, (1999); 35 Hous. L. Rev. Com- I respectfully dissent. This casе ment, Stops: Protecting Pretextual Traffic presents pattern a fact suggests Our Streets or Police Racist Tactics? involuntary, compelled “consent” Dayton (1998); L. Rev. David Ru- U. an individual who had been seized for dovsky, Impact Drugs The the War on traffic and from whom a verbal con- on Procedural Fairness and Racial may sent to search have been extracted as Legal Equality, U. Chi. F. 237. price of her freedom to leave. As principal States United Su such, the circumstances surrounding preme addressing Court case individual’s seizure and subsequent verbal stop, extracted after a traffic the searching subject must to careful Fourth officer had requested consent to search and Fifth analysis Amendment and concur- stops just year 786 traffic analysis rent under Article sections 58 Robinette, defendant’s arrest. See Ohio v. and 69 of the Maine Constitution. The 33, 40, 417, 136 L.Ed.2d trial court did not make factual findings J., (Ginsburg, concurring). proper analysis critical to of the issues opinion concurring noted that Ohio courts application incident of each of these stops “observed that traffic in the State important constitutional rights. regularly giving way to contraband This case involves no casual road- searches, consensual, characterized as side encounter over a minor even when officers had no reason to sus followed by a relaxed consent to search pect illegal Id. of activity.” Similarly, one unanticipated with the of discovery mari- primary the nation’s authoritiеs on search Instead, juana secreted in the vehicle. and seizure has observed that “[i]n record what has suggests come to be rec- cases, incredible number drug of the en ognized widespread practice using as a counter with the commenced with a apparently legitimate stops seemingly traffic to ex- traffic innocuous violation.” See LaFave, Wayne tract “consent” to vehicle from R. searches The Present and Fit- Although special designation 7. court did not find issue without a of the searched, explicitly, place voluntariness it discussed vol- person to and the be or seized, untariness issue in a footnote in its written thing probable nor without decision. it would be difficult to con- supported by oath or affirmation. сause— implicitly Const, clude the court did not find 1, § Me. art. 5. voluntariness. states, pertinent part: 9.Article section 6 8. Article 5 states: section compelled be fur- "The accused shall not to prohibited 5. Unreasonable searches give against nish or himself or her- .evidence people Section shall 5. The be secure self, life, deprived liberty, property nor be houses, persons, papers posses- their and privileges, by judgment person's or but of that all sions from unreasonable searches and peers or the law of the land." seizures; any and no warrant to search Const, 1, § place, any person thing, Me. art. 6. or seize or shall Instead, to Amendment, questioning her as began III. L. he 1995 U. ture Fourth Ill, illegal in might anything whether there Rev. testimony pоint, At this her vehicle. prac- this law enforcement 28] While Kremen and the officer presented by Ms. analyzed in frequently tice been most has Kremen testified that the offi- diverge. Ms. racially with motivated traffic connection jail not to her if she did cer threatened search,10 stops compelled and consents to testi- give to search. The officer principles here legal apply equally Kremen’s consent to search that Ms. fied way to ‍‌​​‌‌​​​​‌‌​‌‌‌‌‌​‌‌‌​‌‌‌‌‌​​​‌​‌‌‌​​‌‌​‌‌‌‌‌‌‌‌‍a young woman her where was on voluntary. Kremen also entirely was widespread drug use was concert where specifically objected testified that she anticipated. The facts case and of this front of her approach compartment for search of the рroper the Court review- suppress vehicle, to ana- motion must be the officer testified that perspective, this lyzed from as reflective compartment of the front the search justify tactic to a common force and then challenge to. To the officer’s consented without sus- reasonable articulable presented credibility, the defense evidence circumstances, safety or picion, exigent plead had four guilty that the officer to that are the for a concerns usual bases involving dishonesty counts of crimes —ille- and warrantless seizure search. gally tagging deer—in 1992. The search compartment front of the vehicle of the THE I. FACTS OF THE STOP yielded, marijuana marijuana pipe Barbara Kremen was marijuаna which led shortly August after noon on charge. speeding. 1997. The denying In its order the motion operation The officer saw no erratic suppress, to the District indicated suspicious activity in The other the vehicle. testimony it believed officer’s record indicates no that would have issue testimony ques- on the over Ms. Kremen’s require the officer reason the officer threatened tion of whether oceupants vehicle’s leave the vehicle due her jail Ms. Kremen order to extract regarding safety to concerns the officer’s pro- not consent to search. court did However, occupants’ safety. or the to examine the other circumstances ceed engage prac- officer did not in the common and detention of Ms. Kremen leaving tice of driver in the vehicle if, in cir- of those totality determine while he returned his vehicle to check cumstances, her continued detention Instead, license status write a ticket. justified and her to search he ordered Ms. to exit her vehicle Likewise, voluntary. appear does him accompany back to the front seat analyzed trial court whether the vehicle. The all of his officer then finished authorizing statement the search paperwork incident to the subject have been to Mi- vehicle should to Ms. stop and issued ticket findings The warnings. court’s randa11 regarding Kremen. The transaction (1) a However, issue of: completed. on the consent consisted stop traffic if he could finding from that the officer asked officer did not release Ms. Kremen (2) area”; compartment go. the “front his vehicle and tell her she was free analysis Kremen's consent- to the cited articles to Ms. statement 10. In addition law review notes, Wardlow, Illinois and The raised the to the search. defense 673, -, S.Ct. 145 L.Ed.2d 682 n. Ms. statement Kremen’s voluntariness J., (2000) (Stevens, dissenting). urged apparently and had an issue Amendment, a beyond apply the Fifth Arizona, Miranda v. 384 U.S. 11. See voluntariness doubt standard for reasonable (1966). a In 16 L.Ed.2d 694 S.Ct. determinations. footnote, apply the the trial court declined to and section Fifth Amendment Article a conclusion that individual free to “the Defendant consent- as the is told she is leave. (3) this”; Supreme ed to a As the United States Court has rejecting footnote Ms. noted, “certainly few motorists would feel Kremen’s contention her consent was disobey pull a voluntary free to directive to over or not because she was threatened consent; to leave the scene of a traffic jail stop without with she did not being they might told do so.” Berkemer v. appropriate scope discussion of the 420, 436, 104 McCarty, 468 U.S. S.Ct. search. (1984). Although L.Ed.2d 317 the Unit ed Supreme States Court has held that an II. DISCUSSION officer attempting to extract a consent to important [¶ 26] Three issues to deter- stop search after a traffic need not affir validity mination of the of the search of matively they advise an individual that are require Kremen’s vehicle that her con- free to leave and to a need viсtion be and that vacated the evidence be search, Robinette, see Ohio v. 519 U.S. at suppressed, or the matter be remanded for 39-40, 417,12 opinion its did not factfinding. further Those are: issues analyze continuing the affects of a seizure subject 1. Whether Ms. Kremen was of the individual on other constitutional illegal seizure at the time of her limitations on seizures and statements consent; made in the of a course seizure.13 2. Whether Ms. Kremen’s statement Key facts Robinette are close to subject should have been to Mi- both, the facts here. the effort to ob warnings; randa tain consent for a vehicle search began 3. Whether Ms. Kremen’s consent was after the entire transaction relevant to the voluntary. completed. had been The Ohio Supreme Court had ruled that continued A. Seizure detention, original pur unrelated car, stops pose stop, separate [¶ 27] When officer and without purposes a seizure occurs for suspicion, Fourth reasonable articulable constitut analysis. illegal Fourteenth Amendment ed an seizure. See State v. Robi Prouse, 648, 653, nette, Delaware 440 U.S. 73 Ohio St.3d 653 N.E.2d (1979). (1995). S.Ct. 59 L.Ed.2d 660 Once The United States Su accomplished, preme the traffic the seizure directly Court did not address this Instead, analysis of the individual continues until such time issue. shifted the Visser, Warrant, similarly subject 12. We have ruled that a need zure.” Without a 35 Hous. L. (or aware) right not be advised of their (citing plurality opinion Rev. at 1719 object to a 491, 507-08, consent search in order for the Royer, Florida v. Fredette, vоluntary. consent to be See State (1983) holding 75 L.Ed.2d 229 (Me.1979); State v. Fitzher luggage by per that a "consent” to search bert, de illegally detained son was "tainted fendants in these cases were not viewed as illegality justify and was ineffective to being subject interrogation to a custodial search”). In its most recent Fourth Amend given. when their consents to search were consent, ment case where the facts indicated independent duty no to advise them of physical the Court held that an officer’s ma rights interroga their arose from a custodial nipulation passenger's carry-on lug of a bus tion. gage pro violated the Fourth Amendment's scription against unreasonable searches. See Analyzing opinion, the Robinette one law States, - U.S. -, -, v. Unitеd 1462, 1465, Bond commented, "Oddly, review article the Court (2000). 146 L.Ed.2d In S.Ct. question did not address whether Mr. the suspect’s Bond the obtained the con officer deputy Robinette was 'seized' when the asked it, manipulating open luggage sent to after for consent to search. If the Court had ruled that, government not consent as but the did assert point, appears early on this based on decisions, admitting a basis for the evidence. See id. Court the consent should have been product illegal 120 S.Ct. at 1463 n. ruled invalid as a of an sei- 1. course of the traffic subjec- during the generated of the irrelevance of discussion stop transaction. v. intent of the officer. See Ohio tive Robinette, 88, at 117 S.Ct. 519 U.S. dur If to search is the Ohio may have occurred because This an an unlawful seizurе of ing the course of “the motivation behind ruling addressed individual, the search must the results of detention.” State police officer’s continued fruit.” See as “tainted suppressed Robinette, is 658 N.E.2d at 697.14 There v. York, 200, 218- New Dunaway v. important distinction in Robinette also an (1979); 19, 2248, 60 L.Ed.2d 824 99 S.Ct. vehi- was outside of the that the defendant 429, Bostick, v. 501 U.S. see also Florida questions when the consent cles 2382, 433-34, L.Ed.2d 389 S.Ct. subject asked, Kremen was while here Ms. 491, (1991); Royer, 460 U.S. Florida car police to continued detention 1319, 501, 507-08, 103 S.Ct. L.Ed.2d questions were asked when the consent determining opinion). (plurality her. occurred, “the crucial test a seizure has whether, taking into account ‍‌​​‌‌​​​​‌‌​‌‌‌‌‌​‌‌‌​‌‌‌‌‌​​​‌​‌‌‌​​‌‌​‌‌‌‌‌‌‌‌‍all of the is for the Robinette does not-stand encounter, surrounding circumstances proposition stop that a valid traffic serves police conduct have communicat would ques- warrant general as a to detain person [she] ed to reasonable stop after tion on issues unrelated to liberty ignore police presence not at stop based on has been the transaction Florida v. go about business.” [her] completed. and 6 of Article sections 5 Bostick, at 111 S.Ct. 2382 501 U.S. permit do not the Maine Constitution Chesternut, Michigan v. 486 U.S. (quoting stop authority valid traffic to become 100 L.Ed.2d on questioning continued detention and (1988)). issues, on other once the transaction based made no find- stop The District Court completed.15 has been Under the subject pur- ing to whether Ms. Kremen Maine Constitution a lawful detention time of her illegal when to an detention suant ends However, the facts surround- transaction based on the traffic is “consent.” continued detention do completed, relating unless further issues Ms. Kremen’s in the record. appear disputed personal safety or reasonable articula- not from her vehicle suspicion activity are had been removed illegal ble of other She at 236. Supreme opinion 103 S.Ct. at 75 L.Ed.2d 14. The Ohio stated: of whether the in consideration factors used police When the motivation behind a offi- sufficiently removed from person cer’s continued detention of a length illegal include the taint of the seizure a traffic is not related violation illegal between the seizure and of time purpose original, constitutional search, presence of inter- subsequеnt stop, and when that continued detention is circumstances, purpose and vening and the giving based on articulable facts United flagrancy of the circumstances. suspicion separate illegal rise to a of some 1991), (C.A.6, 949 F.2d v. Richardson States activity justifying an extension of the deten- 851, 858. tion, the continued detention constitutes an Robinette, 653 N.E.2d at 697-98. illegal seizure. 772, 774 e.g., May, 608 A.2d 15. See was ob- Because Robinette’s consent 1992) (Me. (holding police had no author- detention, (cid:127) illegal his con- wallet, tained ity a defendant’s to search proves invalid the State cruiser, sent is unless had been after the defendant product released, not the the consent was validly such arrested illegal ended); of an inde- detention but the result see also transаction arrest (in Royer (Me.1984) Garland, pendent of free will. Florida v. act 491, 501, (1983), continue to dicating an officer cannot per investigation and of a press 238. The burden is detention 75 L.Ed.2d investigation and prove that the consent to when the reason for the state to son evaporated). has voluntarily given. detention Id. search was zona, 1602; police in at and ordered to sit cruiser. 384 U.S. State (Me.1980). Preston, had not been told she free to She was at the time “consent” was ex- leave here. It No such cautions tracted from her. a matter of as undisputed basis law, continued,16 her seizure or detention of the vehicle was whatever statement Ms. any justification for her seizure giving Kremen made of consent. regarding Accordingly, had ended. at the time her that statement there no rea- Absent was extracted, “consent” suspicion, safety sonable articulable con- seizure, subject requiring to an unlawful cern, view, in anything plain observation of the results of sup- the search be any other for a basis warrantless pressed. If search. the search was the result of an uncautioned statement while Ms. Kremen B. Miranda custody interrogation, under case, suggest this facts sup- results of the search must be Miranda, when Ms. pressed. Kremen made whatever state- at 1602; Preston, indicating ment she made that the officer S.Ct. A.2d at 405.18 vehicle, could search her she was still C. Voluntariness

custody because a person reasonable her situation would not she believe that Separately, Martin, was frеe to leave. See sufficiently analyze did not of the issue (Me.1990).17 Let us voluntariness of Ms. Kremen’s statement ,the remember, Ms. Kremen was in front of consent. The court stated that it did police seat of the car where she had been not believe Ms. Kremen’s statement Also, by told to sit the officer. she if jail the officer had threatened to her she “A interrogation. under custodial interro- did not consent to the search. But with gation occurs whenever a defendant has made, that finding go the court did not been custody taken into or otherwise de- analyze, totality to further based on the prived freedom the authorities [her] circumstances, the issue of whether in any significant way subject and is to her statements to the officer were volun- McLain, quеstioning.” State v. 367 A.2d tary. Voluntariness of a “consent” to (Me.1976). 213, 220 analyzed search must be under the Fourth are, point, we at “by [¶ 33] Unless this to Amendment and Article section develop exception” an “automobile circum- examining totality tradi- Robinette, requirements, tional Miranda at Ms. Kre- stances.” Ohio v. men, 417; Sherburne, being custody both and under interrogation, right, would have had the A.2d Relevant but dispositive' determining under the Fifth Amendment of the United factors in voluntary States Constitution and Article section 6 consent to a search is include Constitution, “[kjnowledge right of the Maine to be advised to refuse con- sent; silent, presence that she had the to remain right surroundings, of coercive any might including request; statement she make could the location of the ” her, against рresent be used and that had a. .... she number officers Visser, Warrant, prior Hous. right to consult with counsel to mak- L. Without Rev. statements. See Miranda v. Ari- ¶ 16. See the exceeds the bounds of a valid discussion this dissent. search which consent "becomes an invidious invasion of McCarty, 17. See also Berkemer v. 468 U.S. at rendering privacy the search unreasonable S.Ct. 3138. meaning within the ment, of the Fourth Amend- sup- and the fruits thereof must Koucoules, 18. See also State v. pressed”). dictum, (Me.1974) (indicating,

975 consent, basis for legal 35] While is not exam- no other the search [¶ voluntariness Amendment, beyond the Fifth practice compulsion ined with relies on exists. This proof, doubt of reasonable burden see compromise resulting of freedom and Koucoules, 872-76, v. State 343 A.2d stop and impliсit, from the traffic prove must State voluntariness of a con- explicit, threat of further im sometimes by preponderance of the sent evidence. obtain pediment delay or to a consent to 866, 872-73; See id. at also see State The circumstances here also in search.19 (Me.1979). Fredette, 411 A.2d Ac- in the interrogation arguably clude coer cordingly, when voluntariness of a consent police surroundings cive of car challenged, of the circum- totality Ms. had been ordered to which stances must be examined. The State (observ Preston, 411 A.2d at 405 sit. prove must and the court must find that police that “increased coercive na voluntary consent “free and by of interrogation conducting ture coercion, product not thе of whether ex- car”); in the Thibo Fredette, or press implied.” 411 A.2d at deau, (Me.1985). 496 A.2d 639-40 Bustamonte, (citing Schneckloth v. 218, 248-49, 36 L.Ed.2d person A voluntarily pro- acts to (1973)). vide testimonial self-condemnation of a or, here, search, crime a consent to if Here, rejected once [¶ the court person “freely credibility knowingly, of Ms. chooses statement Kremen’s provide she was threatened by with arrest she did to criminal self-condemnation consent, it appears to have lips.” assumed utterances from own State v. [her] pro- Collins, voluntariness of the consent and A.2d No- scope ceeded issue of the of the Koucoules, tably, refusing apply while consent, against which it also resolved beyond a Collins’s reasonable doubt bur- Kremen. рroof den to the voluntariness of con- analysis, accept appear sent did a simi- totality 37] The and the circumstances voluntariness, analysis lar definitional in this case—for search and seizure and using requiring terms consent self-incrimination analysis —includes “knowledgeable” “intelligent” and not reality there is a common and wide- product “coercion,” or spread law of “duress” “ex- practice enforcement of using Koucoules, stops attempt press implied.” extract 343 A.2d at where, searches vehicles but for the 872-76.20 Bostick, 437-38, Finding voluntary "consent” to search Florida v. U.S. at drug requires interesting seizure cases (stating cir S.Ct. 2382 reasonableness or cuity reasoning. person To convict rationality analysis "presupposes аn innocent found, possession drugs the court must person”). find, doubt, beyond a reasonable that she knew or was aware of her appear permit 20. Koucoules would not 103-B(3) drugs. (Supp. § See 17-A M.R.S.A. by condition not caused influence from the Friel, 1999); see also State v. compromise authorities to voluntariness of a (Me.1986), denied, rt. ce consent for Fourth Amendment and Article 96; Deering, L.Ed.2d Rees, analysis. Compare section 5 State v. ¶23, 12, 582, 585; 1998 ME Alexan Caouette, 976; 2000 ME der, Manual, Jury § Maine Instruction (Me.1982) (holding 446 A.2d 1120 that inde- (Supp.2000). voluntary, To find pendently arising may impair conditions vol- defendant, court must find that the aware of analysis). untariness under section 6 Article vehicle, drugs in her consented to have it proof voluntary her free Issues of the burden of searched exеrcise of will and rational intellect. consent must consent and whether voluntariness of ‍‌​​‌‌​​​​‌‌​‌‌‌‌‌​‌‌‌​‌‌‌‌‌​​​‌​‌‌‌​​‌‌​‌‌‌‌‌‌‌‌‍a con- be despite may impaired by independent arguably sent con- evidence of an coer indicating thoroughly by cive environment and a dition have not been examined result may us since Those issues the choice to allow the search have been State v. Koucoules. free need not be here. less than or less than rational. But see addressed was- The consent here obtained holding

using the common tactic utilize

individual after

pressures resulting from that continued

holding compromise an individual’s free free

dom their will in order to obtain a findings on

consent. trial court Without point, it is difficult to-conclude consent, totality

Kremen’s circumstances, was, by preponder

those evidence, made

ance a statement result of the of her own exercise free product of or coer

will and not the duress

cion, express implied.

III. CONCLUSION I would vacate the conviction and resulting

order the evidence from the suppressed because “consent” improper

extracted detention Alternatively, I would va-

Ms. Kremen.

cate -for fact- the conviction and remand

finding on the voluntariness issue.

2000 ME 115 Maine

STATE of

Daniel III. WEBSTER

Supreme Judicial Court of Maine. May on Briefs 2000.

Submitted

Decided June

Case Details

Case Name: State v. Kremen

Court Name: Supreme Judicial Court of Maine

Date Published: Jun 21, 2000

Citation: 754 A.2d 964

Court Abbreviation: Me.