State v. Barclift

282 A.3d 607

2022 ME 50

STATE of Maine

v.Timothy BARCLIFT

Docket: Ken-21-232

Supreme Judicial Court of Maine.

Argued: March 8, 2022

Decided: September 27, 2022

Rory A. McNamara, Esq. (orally), Drake Law LLC, York, for appellant Timothy Barclift

Aaron M. Frey, Attorney General, and Katie Sibley, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine

Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, and CONNORS, JJ., and HUMPHREY, A.R.J.¹

Majority: STANFILL, C.J., and MEAD, HORTON, and CONNORS, JJ., and HUMPHREY, A.R.J.

Dissent: JABAR, J.

HORTON, J.

[¶1] Timothy Barclift appeals from a judgment of conviction based on two merged counts of aggravated furnishing of cocaine (Class B), 17-A M.R.S. § 1105-C(1)(B)(1), (D) (2018),² entered by the trial court (Kennebec County, Stokes, J. ) after a trial. Barclift argues that the court erred when it denied his motion to suppress evidence obtained when police officers stopped him after receiving an anonymous tip and searched his belongings outside a bus station in Augusta. Because the record evidence regarding the anonymous tip and the subsequent efforts by police to confirm its reliability fails to establish an objectively reasonable, articulable suspicion sufficient to justify the stop, we vacate the judgment and remand for further proceedings.

I. BACKGROUND

[¶2] In July 2020, a grand jury indicted Barclift on two counts of aggravated trafficking in cocaine (Class A), 17-A M.R.S. § 1105-A(1)(B)(1), (D) (2018).³ Barclift filed a motion to suppress evidence, on which the court held an evidentiary hearing. In an order denying the motion, the court found the following facts, which, except as noted, are supported by competent evidence in the suppression record. See State v. Chan , 2020 ME 91, ¶ 13, 236 A.3d 471.

[¶3] On January 9 and 10, 2020, the Augusta Police Department and the Maine Drug Enforcement Agency each received, through an online reporting system similar to email, a written anonymous communication containing a tip concerning Barclift.⁴

The two tips were nearly identical in content, suggesting that they were provided by the same person. The tipster wrote that Barclift was a rap artist known as DownLeezy and that he traveled regularly from New York to Maine by Concord Trailways bus carrying large quantities of cocaine or heroin in a bag or a backpack,⁵ and that he had been doing so for years. The tipster also gave a date of birth for Barclift and indicated that he typically carried a firearm.

[¶4] Through internet searches, police confirmed that Barclift was a rap artist known as DownLeezy. From law enforcement authorities in New York, they obtained a photograph of Barclift and an indication that he had a criminal history of indeterminate vintage.⁶ They also contacted an employee of Concord Trailways in Boston, who said that Barclift had purchased ten bus tickets to Maine in the month of January 2020, made four trips to Maine within the first nine days of January 2020, and purchased bus tickets for travel to Maine since 2014.⁷ The employee also told police that Barclift used cash to pay for his bus tickets.⁸

[¶5] On January 22, 2020, the Concord Trailways employee reported that Barclift had purchased a bus ticket for travel to Augusta that afternoon and described the clothing that Barclift was wearing. A team of police officers set up surveillance at the Concord Trailways bus terminal in Augusta. The bus arrived and passengers, including Barclift, got off. Barclift was wearing a backpack and carrying a black plastic bag. He exited the terminal building, approached a waiting SUV, put his backpack and bag in the back seat area, and started getting into the front passenger seat. Multiple police officers and vehicles converged on the SUV, Barclift got out with his hands raised in the air, and an officer immediately placed him in handcuffs. Eventually, officers searched Barclift's backpack, found a plastic bag containing approximately 300 grams of cocaine, and placed him under arrest.

[¶6] After the suppression hearing, the court concluded that the police officers had an objectively reasonable, articulable suspicion that Barclift had been engaged in criminal activity when they stopped him on the afternoon of January 22, 2020, and issued a written order denying the motion to suppress the physical evidence seized as a result of the stop.⁹

[¶7] During a two-day trial, the court instructed the jury to consider aggravated furnishing of cocaine, see 17-A M.R.S. § 1105-C(1)(B)(1), (D), as a lesser-included offense if it found Barclift not guilty of aggravated trafficking. The jury found Barclift not guilty of aggravated trafficking but guilty of aggravated furnishing because of the quantity of drugs furnished, and the court found him guilty of aggravated furnishing because of a prior conviction.¹⁰ The court merged the two charges for sentencing, see State v. Armstrong , 2020 ME 97, ¶ 11, 237 A.3d 185, imposed a sentence, and entered a judgment on the verdicts. Barclift timely appeals from the judgment. See 15 M.R.S. § 2115 (2022) ; M.R. App. P. 2B(b)(1).

II. DISCUSSION

[¶8] Barclift's central argument is that the court erred when it denied his motion to suppress because the police lacked a sufficient basis for the stop under the Fourth Amendment to the United States Constitution.¹¹ See U.S. Const. amend. IV. The Fourth Amendment's protection against "unreasonable" searches and seizures by the government, id. , "extend[s] to brief investigatory stops of persons or vehicles that fall short of traditional arrest," United States v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Here, the stop essentially began as a temporary seizure of Barclift's person because the police blocked in the vehicle that he was entering and approached him from multiple directions with guns drawn. To satisfy the requirement that such a stop not be unreasonable, an officer must, at the time of the stop, have "an articulable suspicion that criminal conduct has taken place, is occurring, or imminently will occur." State v. Lafond , 2002 ME 124, ¶ 6, 802 A.2d 425 (quotation marks omitted). Moreover, "the officer's assessment of the existence of specific and articulable facts sufficient to warrant the stop [must be] objectively reasonable in the totality of the circumstances." Id. (quotation marks omitted). "Reasonable articulable suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence, but the suspicion needs to be based on more than speculation or an unsubstantiated hunch."

State v. McDonald , 2010 ME 102, ¶ 6, 6 A.3d 283 (alteration and quotation marks omitted); see Arvizu , 534 U.S. at 274, 122 S.Ct. 744 ("[A]n officer's reliance on a mere ‘hunch’ is insufficient to justify a stop ...." (quoting Terry v. Ohio , 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) )).

[¶9] Our review of the denial of a motion to suppress is limited to the record on which the court made its ruling. State v. Tribou , 488 A.2d 472, 475 (Me. 1985) ("Only evidence presented to the motion Justice is considered in deciding whether the record supports the motion Justice's determination."). We evaluate the court's factual findings for clear error and its legal conclusions de novo. State v. Fleming , 2020 ME 120, ¶ 25, 239 A.3d 648. Where, as here, the historical facts are undisputed, we "assess the officer's suspicion de novo," Lafond , 2002 ME 124, ¶ 6, 802 A.2d 425, because "[w]hether an officer's suspicion is objectively reasonable is a pure question of law," State v. Sylvain , 2003 ME 5, ¶ 11, 814 A.2d 984 ; see Ornelas v. United States , 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ("[D]eterminations of reasonable suspicion and probable cause should be reviewed de novo on appeal.").

A. Reasonable Articulable Suspicion and Anonymous Tips

[¶10] When an investigatory stop is based on information from an informant, "the central issue ... is whether the informant's information is so reliable and complete that it makes past, present or pending criminal conduct sufficiently likely to justify a stopping of the designated person for investigation." 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 9.5(i) (6th ed. 2020). In a line of fact-dependent benchmark cases, the United States Supreme Court has also developed the analysis for the constitutionality of investigatory stops that are based on information provided by an anonymous informer.

[¶11] First, in Adams v. Williams , the Supreme Court made clear that reasonable suspicion for a stop can arise from information other than a police officer's personal observations where the information has sufficient "indicia of reliability." 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). There, a police officer stopped a person based on a contemporaneous but unverified tip given in person by a known informant at 2:15 a.m. in a "high-crime area." Id. at 144-45, 92 S.Ct. 1921. Concluding that the resulting stop was not an unreasonable seizure under the Fourth Amendment, the Court focused on the facts that the informant "was known to [the officer] personally and had provided him with information in the past" and that the informant would have been subject to arrest and prosecution for falsely reporting a crime. Id. at 146-47, 92 S.Ct. 1921. The Court noted that the case before it was, for those reasons, stronger than one involving an anonymous tip. Id.

[¶12] In Illinois v. Gates , a case involving an anonymous tip in the probable cause context, the Court adopted a totality-of-the-circumstances test for probable cause but made clear that the factors central to its previous test—the tipster's "veracity," "reliability," and "basis of knowledge"—remained "highly relevant." 462 U.S. 213, 225, 230-32, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (quotation marks omitted). The Court stressed that the totality-of-the-circumstances test "permits a balanced assessment of the...