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State v. Kremen, attorneys and footnotes

Attorneys for State:

R. Christopher Almy, District Attorney
C. Daniel Wood, Asst. Dist. Atty.
Gregory Campbell, Asst. Dist. Atty.
97 Hammond Street
Portland, ME 04101

Attorney for defendant:

Stephen J. Schwartz, Esq.
Schwartz & Schwartz, P.A.
P O Box 15337
Portland, ME 04112-5337
FOOTNOTES******************************** {1} . 22 M.R.S.A. § 2383 provides, in relevant part: § 2383. Possession 1. Marijuana. Possession of a usable amount of marijuana is a civil violation for which a forfeiture of not less than $200 nor more than $400 shall be adjudged for the first offense. A forfeiture of $400 shall be adjudged for the 2nd and subsequent offenses within a 6-year period. {2} . Kremen was assessed a fine of $229.00. {3} . Kremen was initially defaulted for failure to appear in the District Court. The default was set aside following Kremen's motion for relief from judgment filed pursuant to M.R. Civ. P. 60(b). Kremen then filed a motion to suppress. {4} . Kremen also argues, and the State concedes, that the search was proper only if Kremen consented to it. {5} . The defendants in Brignoni-Ponce were suspected of being illegal aliens. See id. at 881. {6} . The court's only findings regarding the detention are as follows: After some initial conversation between [the officer] and the Defendant, the officer asked her to accompany him to the police cruiser, and she did so. During the ensuing conversation, the Defendant advised [the officer] that she was driving to a rock concert in Aroostook County. While they were in the cruiser, [the officer] asked her if there was "anything illegal" in the vehicle. The Defendant responded in the negative. [The officer] then asked the Defendant if he could search the "front compartment area" of the vehicle. The Defendant consented to this. {7} . Although the suppression court did not find voluntariness explicitly, it discussed the voluntariness issue in a footnote in its written decision. Thus, it would be difficult to conclude that the court did not implicitly find voluntariness. {8} . Article 1, section 5 states: 5. Unreasonable searches prohibited Section 5. The people shall be secure in their persons, houses, papers and possessions from all unreasonable searches and seizures; and no warrant to search any place, or seize any person or thing, shall issue without a special designation of the place to be searched, and the person or thing to be seized, nor without probable cause-supported by oath or affirmation. Me. Const. art. 1, § 5. {9} . Article 1, section 6 states, in pertinent part: "The accused shall not be compelled to furnish or give evidence against himself or herself, nor be deprived of life, liberty, property or privileges, but by judgment of that person's peers or the law of the land." Me. Const. art. 1, § 6. {10} . In addition to the cited law review articles and notes, see Illinois v. Wardlow, 528 U.S. ---, 120 S. Ct. 673, 682 n.10 (2000) (Stevens, J., dissenting). {11} . See Miranda v. Arizona, 384 U.S. 436 (1966). In a footnote, the trial court declined to apply the Fifth Amendment and Article 1, section 6 analysis to Ms. Kremen's statement consenting to the search. The defense raised the voluntariness of Ms. Kremen's statement as an issue and had apparently urged that the court apply the Fifth Amendment, beyond a reasonable doubt standard for voluntariness determinations. {12} . We have ruled similarly that a subject need not be advised (or aware) of their right to object to a consent search in order for the consent to be voluntary. See State v. Fredette, 411 A.2d 65, 69 (Me. 1979); State v. Fitzherbert, 361 A.2d 916, 920 (Me. 1976). The defendants in these cases were not viewed as being subject to a custodial interrogation when their consents to search were given. Thus, no independent duty to advise them of their rights arose from a custodial interrogation. {13} . Analyzing the Robinette opinion, one law review article commented, "Oddly, the Court did not address the question of whether Mr. Robinette was 'seized' when the deputy asked for consent to search. If the Court had ruled on this point, it appears that, based on early Court decisions, the consent should have been ruled invalid as a product of an illegal seizure." Visser, Without a Warrant, 35 Hous. L. Rev. at 1719 (citing a plurality opinion in Florida v. Royer, 460 U.S. 491, 507-08 (1983) holding that a "consent" to search luggage by a person illegally detained was "tainted by the illegality and was ineffective to justify the search"). In its most recent Fourth Amendment case where the facts indicated consent, the Court held that an officer's physical manipulation of a bus passenger's carry-on luggage violated the Fourth Amendment's proscription against unreasonable searches. See Bond v. United States, 120 S. Ct. 1462, 1465 (2000). In Bond the officer obtained the suspect's consent to open the luggage after manipulating it, but the government did not assert consent as a basis for admitting the evidence. See id. at 1463 n.1. {14} . The Ohio Supreme Court opinion stated: When the motivation behind a police officer's continued detention of a person stopped for a traffic violation is not related to the purpose of the original, constitutional stop, and when that continued detention is not based on any articulable facts giving rise to a suspicion of some separate illegal activity justifying an extension of the detention, the continued detention constitutes an illegal seizure. . . . . Because Robinette's consent was obtained during an illegal detention, his consent is invalid unless the State proves that the consent was not the product of the illegal detention but the result of an independent act of free will. Florida v. Royer (1983), 460 U.S. 491, 501, 103 S. Ct. 1319, 1326, 75 L.E.2d 229, 238. The burden is on the state to prove that the consent to search was voluntarily given. Id. at 497, 103 S. Ct. at 1324, 75 L.Ed.2d at 236. The factors used in consideration of whether the consent is sufficiently removed from the taint of the illegal seizure include the length of time between the illegal seizure and the subsequent search, the presence of intervening circumstances, and the purpose and flagrancy of the circumstances. United States v. Richardson (C.A. 6, 1991), 949 F.2d 851, 858. State v. Robinette, 653 N.E.2d at 697-98. {15} . See e.g., State v. May, 608 A.2d 772, 774 (Me. 1992) (holding that police had no authority to search a defendant's wallet, found in a police cruiser, after the defendant had been validly arrested and released, such that the arrest transaction had ended); see also State v. Garland, 482 A.2d 139, 144 (Me. 1984) (indicating that an officer cannot continue to press an investigation and detention of a person when the reason for the investigation and detention has evaporated). {16} . See the discussion at ¶ 27 of this dissent. {17} . See also Berkemer v. McCarty, 468 U.S. at 436. {18} . See also State v. Koucoules, 343 A.2d 860, 868 (Me. 1974) (indicating, as dictum, that a search which exceeds the bounds of a valid consent "becomes an invidious invasion of privacy rendering the search unreasonable within the meaning of the Fourth Amendment, and the fruits thereof must be suppressed"). {19} . Finding "consent" to search voluntary in drug seizure cases requires an interesting circuity of reasoning. To convict a person of possession of the drugs found, the court must find, beyond a reasonable doubt, that she knew or was aware of her possession of the drugs. See 17-A M.R.S.A. § 103-B(3) (Supp. 1999); see also State v. Friel, 508 A.2d 123, 128 (Me. 1986), cert. denied. 459 U.S. 1102; State v. Deering, 1998 ME 23, ¶ 12, 706 A.2d 582, 585; Alexander, Maine Jury Instruction Manual, § 6-43 (Supp. 2000). To find consent voluntary, the court must find that the defendant, aware of the drugs in her vehicle, consented to have it searched in the exercise of her free will and rational intellect. Thus, consent must be found despite evidence of an arguably coercive environment and a result indicating that the choice to allow the search may have been less than free or less than rational. But see Florida v. Bostick, 501 U.S. at 437- 38 (stating that the reasonableness or rationality analysis "presupposes an innocent person"). {20} . Koucoules would not appear to permit a condition not caused by influence from the authorities to compromise voluntariness of a consent for Fourth Amendment and Article 1, section 5 analysis. Compare State v. Rees, 2000 ME 55, 748 A.2d 976; State v. Caouette, 446 A.2d 1120 (Me. 1982) (holding that independently arising conditions may impair voluntariness under Article 1, section 6 analysis). Issues of the burden of proof for voluntary consent and whether voluntariness of a consent may be impaired by an independent condition have not been thoroughly examined by us since State v. Koucoules. Those issues need not be addressed here.

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