State v. Kremen

• Citation: 2000 ME 117,754 A.2d 964
• Court: Supreme Judicial Court of Maine (US)
• Decision Date: 21 June 2000
• Parties: STATE of Maine v. Barbara M. KREMEN.

754 A.2d 964

2000 ME 117

STATE of Maine v. Barbara M. KREMEN.

Supreme Judicial Court of Maine.

Submitted on Briefs February 25, 2000.

Decided June 21, 2000.

R. Christopher Almy, District Attorney, C. Daniel Wood, Asst. Dist. Atty., Gregory Campbell, Asst. Dist. Atty., Portland, for State.

Stephen J. Schwartz, Schwartz & Schwartz, P.A., Portland, for defendant.

Panel: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

CLIFFORD, J.

[¶ 1] Barbara Kremen appeals from a judgment of the Superior Court (Penobscot County, Marden, J.) affirming a judgment entered in the District Court (Newport, MacMichael, J.) following a finding that she violated the provisions of 22 M.R.S.A. § 2383 (1992)¹ by possessing a useable amount of marijuana.² Kremen contends that the court erred in denying her motion to suppress evidence, and challenges the sufficiency of the evidence at trial. We find no error and affirm the judgment.

[¶ 2] On August 15, 1997, Kremen, while en route to a Phish concert in Aroostook County, was stopped for speeding in the Town of Newport by Officer Peter Boucher. Boucher issued a citation for speeding and asked Kremen if there was anything illegal in the vehicle. The officer also asked if she minded if he searched the car. Kremen testified that she did not give such permission, but according to the officer, Kremen readily agreed to his request to search her car. The officer discovered a small bag of marijuana in the glove compartment and a pipe containing marijuana in the vehicle's center console. He then cited Kremen for possession of a useable amount of marijuana.

[¶ 3] Kremen's motion to suppress the marijuana evidence was denied following a hearing.³ The court (Hjelm, J.) found that the initial stop of Kremen's vehicle was proper and that Kremen had voluntarily consented to the subsequent search of the vehicle. The court also concluded that the scope of Kremen's consent allowed Boucher to search the glove compartment and console, and that the marijuana that was found provided probable cause to search the rest of the vehicle.

[¶ 4] By the time of Kremen's bench trial in July of 1998, the marijuana and the pipe could not be found. Boucher testified that although the marijuana that he seized had not been tested, he had been trained in the identification of marijuana, and that the substance he had taken from the glove compartment appeared to be and smelled like marijuana. Kremen was found to have possessed a useable amount of marijuana (MacMichael, J.). This appeal followed Kremen's unsuccessful appeal to the Superior Court.

I.

[¶ 5] Kremen first contends that the suppression court abused its discretion when it allowed Officer Boucher to testify that he stopped Kremen for speeding based on his observation of his radar equipment. She contends that he was not certified to operate the radar, making the stop of Kremen's car for speeding unjustified. Kremen did not object to Boucher's testimony at the suppression hearing on the ground that his certification to operate radar had expired. Rather she argued to the court that the testimony should be given little weight. Thus the issue of the admissibility of that testimony has not been preserved. Moreover, because the court has to find only that the officer had an articulable suspicion that criminal conduct or a civil violation has occurred, see State v. Brown, 1997 ME 90, ¶ 5, 694 A.2d 453, 455, the expiration of the officer's previously, valid certification would likely have little impact on the court's determination of whether that standard had been met.

[¶ 6] Kremen also contends that the court erred in its finding that she had consented to the search. First, she argues that Boucher could not ask for her consent to search the vehicle unless he had an articulable suspicion that it contained contraband. Second, she contends that the court erred when it found she had given "knowledgeable consent."⁴ The State contends that Boucher's request to search the vehicle was proper because it came during the lawful stop for speeding.

[¶ 7] We review a finding that voluntary consent was given for clear error. See State v. Seamen's Club, 1997 ME 70, ¶ 7, 691 A.2d 1248, 1251 (citing State v. Marden, 673 A.2d 1304, 1310 (Me.1996); State v. Cress, 576 A.2d 1366, 1367 (Me. 1990)).

It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is per se unreasonable. . . subject only to a few specifically established and well-delineated exceptions. It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.

Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (quotations and citations omitted) (emphasis added). Any consent obtained during an invalid seizure, however, is ineffective. See Dunaway v. New York, 442 U.S. 200, 217-18, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (discussing the extent of the Fourth Amendment's exclusionary rule).

[¶ 8] The evidence before the court on the motion to suppress shows that Boucher's request to search Kremen's vehicle occurred while she was stopped for the speeding violation. Consent obtained during this stop is not unlawful under Dunaway unless there was no articulable suspicion to stop Kremen for the speeding violation. Here, there was articulable suspicion that Kremen was speeding.

[¶ 9] Relying on United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), Kremen also argues that Boucher's request for permission to search the vehicle was not "`reasonably related in scope to the justification for [its] initiation.'" Id. at 881, 95 S.Ct. 2574 (quoting Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The Court in Brignoni-Ponce, however, stated that "[t]he officer may question the driver and passengers [regarding the potential illegal activity],⁵ and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause." Brignoni-Ponce, 422 U.S. at 881-82, 95 S.Ct. 2574 (emphasis added). Thus, although Brignoni-Ponce holds that investigatory questions must be limited to the justification for the stop, it does not follow that a simple request for permission to search a vehicle, without more, is a Fourth Amendment violation. Moreover, the Supreme Court explicitly noted that consent allows further investigation beyond the initial justification. See id. at 882, 95 S.Ct. 2574. It follows, then, that an officer is allowed to ask for that consent.

[¶ 10] We have held that, to be valid, consent must be voluntary and given "by one `with an appropriate relationship to the property searched.'" State v. Sherburne, 571 A.2d 1181, 1185 (Me.1990) (quoting State v. McLain, 367 A.2d 213, 217 (Me.1976)). In addition, a search made pursuant to consent is limited to the bounds of that consent. See Sherburne, 571 A.2d at 1185 (citing State v. Koucoules, 343 A.2d 860, 867 (Me.1974)).

[¶ 11] Boucher's testimony at the suppression hearing is sufficient to support findings that his request for permission was made during a valid stop for speeding, and that Kremen voluntarily consented to the search of her vehicle. The District Court, on the motion to suppress, found each of these elements. Accordingly, the court did not err when it denied Kremen's motion to suppress.

II.

[¶ 12] Kremen contends that there was insufficient evidence to support a finding that she was in possession of the alleged marijuana taken from her vehicle. She also argues that the substance destroyed was potentially exculpatory evidence, and that the evidence was insufficient to support a finding that the substance taken was, in fact, marijuana

[¶ 13] In a review of an adjudication of a civil violation, we view the evidence in a light most favorable to the State, to determine whether evidence supports a finding, by a preponderance of the evidence, that the State has established every element of the violation. See M.R. Civ. P. 80H(h). "When the Superior Court acts as an intermediate appellate court, we review the decision of the trial court directly." Emerson, 675 A.2d at 979 (citing Noyes v. Noyes, 617 A.2d 1036, 1037 (Me. 1992)).

[¶ 14] Possession may be either actual or constructive. Here, the State concedes that Kremen was not in actual possession of the marijuana. We have discussed what is required to prove constructive possession. See State v. Ketchum, 1997 ME 93, ¶ 13, 694 A.2d 916, 918-19. "Constructive possession means that although one does not have actual physical control of the goods, he has dominion, authority or control over them," (State v. DePhilippo, 628 A.2d 1057, 1060 (Me.1993)) (quoting State v. Durgan, 467 A.2d 165, 167 (Me.1983)). We have upheld a finding of constructive possession when stolen goods were found in a vehicle that defendant "both owned and occupied," see DePhilippo, 628 A.2d at 1060, when stolen goods were found in a vehicle the defendant used as his home and was driving at the time of the stop, see State v. Mower, 407 A.2d 729, 733 (Me.1979), and when stolen goods were found on premises where the defendant resided, see State v. Robinson, 561 A.2d 492, 495 (Me.1989).

[¶ 15] As to the destruction of the marijuana, we have described the consequences of a failure to preserve evidence as follows:

The State's failure to preserve evidence does not violate a criminal defendant's right to a fair trial unless (1) the evidence possesses an exculpatory value that was apparent before the evidence was destroyed, (2) the defendant would be unable to obtain evidence of comparable value by other reasonably available means, and (3) the State acted in bad faith in failing to preserve potentially useful evidence.

State v. Cyr, 588 A.2d 753, 755 n. 4 (1991) (citing State v. Lewis, 584 A.2d 622, 625 (Me.1990)).

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