State v. Ntim

• Decision Date: 17 September 2013
• Docket Number: Docket No. Cum–12–289.
• Citation: 76 A.3d 370,2013 ME 80
• Parties: STATE of Maine v. Richard K. NTIM Jr.
• Court: Maine Supreme Court

76 A.3d 370

2013 ME 80

STATE of Maine

v.Richard K. NTIM Jr.

Docket No. Cum–12–289.

Supreme Judicial Court of Maine.

Argued: Jan. 15, 2013.

Decided: Sept. 17, 2013.

Anthony J. Sineni, III, Esq., Caleb J. Gannon, Esq. (orally), Law Offices of Anthony J. Sineni, III, LLC, Portland, on the briefs, for appellant Richard Ntim.

William J. Schneider, Attorney General, and William R. Savage (orally), Asst. Atty. Gen., Office of Attorney General, Augusta, on the briefs, for appellee State of Maine.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

Majority: SAUFLEY, C.J., and ALEXANDER, LEVY, MEAD, and GORMAN, JJ.

Concurrence: SILVER, J.

Dissent: JABAR, J.

GORMAN, J.

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

I. BACKGROUND

[¶ 2] “We view the record in a light most favorable to support the court's order on the motion to suppress, and find that the record supports the following facts.” State v. Bailey, 2012 ME 55, ¶ 3, 41 A.3d 535. On September 30, 2011, the State Police Commercial Motor Vehicle Unit (Commercial Vehicle Unit), under the supervision of now-Lieutenant Shawn Currie, conducted a planned commercial vehicle inspection of a Greyhound bus, en route from New York to Bangor, at the Greyhound station on St. John Street in Portland. The inspection took place during a regularly scheduled, fifteen- to twenty-minute stop. Lieutenant Currie approached the bus driver and advised him that the State Police would be inspecting the interior and exterior of the bus. Because the inspection included checking the onboard restrooms, Lieutenant Currie asked the driver to request that the passengers get off the bus. The passengers complied.

[¶ 3] The interior inspection of the bus also included a sweep by Angel, a State Police dog under the control of Sergeant Eric Bergquist of the Commercial Vehicle Unit. After Angel “hit” twice on Ntim's luggage, Lieutenant Currie searched Ntim's bag but found only some green plant material residue.

[¶ 4] In addition to troopers from the Commercial Vehicle Unit, agents from the Maine Drug Enforcement Agency, Federal Drug Enforcement Agency, and U.S. Immigration and Customs Enforcement were present at the Greyhound station that morning. Federal Drug Enforcement Agents Paul Wolfe and Joey Brown constituted one of several teams that collectively planned to speak with all of the roughly twenty-five bus passengers during the scheduled stop to find out where each passenger was coming from and going to and whether any unlawful activity was occurring. Agents Wolfe and Brown observed that Ntim appeared very nervous when getting off the bus. After first speaking with a couple from Texas, Agents Wolfe and Brown approached Ntim, identified themselves,¹ obtained some basic information from Ntim, and relayed it to an officer responsible for checking a database containing information about criminal activity. The database check revealed that Ntim was mentioned in an active drug investigation in Bangor, and that the name was a possible alias.

[¶ 5] Sometime after completing the bus inspection, Sergeant Bergquist approached Ntim with Angel. In response to Sergeant Bergquist's request, Ntim agreed to be sniffed by Angel. Angel indicated twice on Ntim; Sergeant Bergquist questioned the validity of the first indication but was confident as to the second indication, which was up close to Ntim's crotch. After the dog sniff, Agent Wolfe requested permission from Ntim to search his person and advised Ntim that probable cause existed to obtain a search warrant if he declined. Ntim agreed and went into the restroom at the terminal with Agent Brown and another unspecified agent who searched Ntim and, with his assistance, found about three ounces of cocaine in his underwear.

[¶ 6] The State charged Ntim with one count of unlawful trafficking in a scheduled drug (Class B), 17–A M.R.S. § 1103(1–A)(A), and one count of unlawful possession of a scheduled drug (Class B), 17–A M.R.S. § 1107–A(1)(A)(1) (2012). After a hearing, the court denied Ntim's motion to suppress any evidence obtained from the search of his person after finding that there was a legitimate reason for having passengers get off the bus during the inspection, law enforcement has the absolute right to ensure that public safety is maintained in a public bus terminal and had done nothing wrong, and Ntim consented to Angel coming in close proximity to his person to check for drugs and to the agents' search of his person in the restroom. The court, satisfied with Angel's training and the reliability of the second indication on Ntim, also found that Angel's indication created an articulable suspicion that gave the agents probable cause to proceed further. Ntim did not file a motion for further findings pursuant to U.C.D.R.P.—Cumberland County 41A(d).

[¶ 7] Ntim conditionally pleaded guilty to one count of unlawful trafficking in a scheduled drug and the State dismissed the count of unlawful possession of a scheduled drug. The court sentenced Ntim to four years in prison with all but eighteen months suspended and a $1,000 fine. Ntim timely appeals the court's denial of his suppression motion pursuant to 15 M.R.S. § 2115 (2012), U.C.D.R.P.—Cumberland County 11(a)(2), and M.R.App. P. 2(b).

II. DISCUSSION

[¶ 8] Ntim argues that the Commercial Vehicle Unit's inspection of the bus tainted his consent to the dog sniff and search of his person because it exceeded the Fourth Amendment's limits on warrantless administrative inspections. The State, on the other hand, contends that (1) law enforcement conducted both the dog sniff and search of Ntim's person pursuant to his consent rather than as an extension of the bus inspection, (2) Ntim's consent to each was voluntary, and (3) the dog sniff generated probable cause to proceed with the search of Ntim.

[¶ 9] We review the suppression court's factual findings “to determine whether those findings are supported by the record, and will only set aside those findings if they are clearly erroneous.” Bailey, 2012 ME 55, ¶ 12, 41 A.3d 535 (quotation marks omitted). We review de novo “a challenge to the application of those facts to constitutional protections.” Id. (quotation marks omitted). “If the ruling on the motion to suppress is based primarily on undisputed facts, it is viewed as a legal conclusion that is reviewed de novo.” Id. (quotation marks omitted).

[¶ 10] Despite Ntim's argument asking that it link the troopers' use of a dog as part of their administrative inspection of the bus with the drug enforcement agents' activities in the terminal, the trial court did not find that there was a link between these activities. The court specifically found that having the passengers get off the bus was appropriate, given the type of inspection the troopers would be conducting. The court also accurately concluded that the drug enforcement agents' actions in the terminal—attempting to speak with each of the passengers who had exited the bus—were lawful, and that it was the actions that took place inside the terminal that led to the discovery of cocaine on Ntim. Because the court did not find that what happened inside the bus was connected to what happened in the terminal, the court did not analyze the bus inspection to determine whether it fell within the Fourth Amendment's exception to the warrant requirement for administrative inspections of pervasively regulated industries, or whether using the drug dog to sweep the bus interior rendered the inspection unlawful.²See New York v. Burger, 482 U.S. 691, 702–03, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987); State v. Johnson, 2009 ME 6, ¶ 19, 962 A.2d 973. As noted above, Ntim did not ask the suppression court to make additional findingsto explain further its determination that the use of the dog on the bus was not connected to the dog sniff and subsequent search in the terminal. Because the record is not developed in that regard, we do not analyze the bus inspection here. Rather, we will proceed on the assumption that the administrative inspection violated the Fourth Amendment.³

[¶ 11] Given that assumption, we must determine whether the evidence at issue should be excluded as fruit of the prior police illegality or whether it need not be excluded because it is sufficiently attenuated from the inspection. State v. Trusiani, 2004 ME 107, ¶ 20, 854 A.2d 860. Although a consent may purge the taint of a prior police illegality, it is not the only consideration. Bailey, 2012 ME 55, ¶¶ 15–16, 41 A.3d 535. We also assess the voluntariness of the consent, “the temporal proximity” of the prior police illegality and the consent,⁴ “the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct.” ⁵Brown v. Illinois, 422 U.S. 590, 603–04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (citations omitted); see Bailey, 2012 ME 55, ¶ 15, 41 A.3d 535 (observing that we apply the Brown factors to physical evidence as well as statements made following an illegal arrest). These factors “serve as a means to determine whether, in light of the initial police illegality, the subsequent evidence was obtained by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Bailey, 2012 ME 55, ¶ 16, 41 A.3d 535 (quotation marks omitted). Our past application of the Brown factors reveals that the weight assigned to each factor varies with each case. Compare Trusiani, 2004 ME 107, ¶¶ 23–29, 854 A.2d 860 (focusing on the absence of flagrant police misconduct in...