State v. Cunneen, Docket: And-18-275

205 A.3d 885

STATE of Maine

v.Michael G. CUNNEEN

Docket: And-18-275

Supreme Judicial Court of Maine.

Argued: March 5, 2019

Decided: March 26, 2019

Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant Michael G. Cunneen

Andrew S. Robinson, District Attorney, Nathan Walsh, Asst. Dist. Atty. (orally), and Michael B. Dumas, Asst. Dist. Atty., Prosecutorial District III, Lewiston, for appellee State of Maine

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

HJELM, J.

[¶1] Michael G. Cunneen appeals from a judgment convicting him of unlawful possession of scheduled drugs (hydrocodone) (Class C), 17-A M.R.S. § 1107-A(1)(B-1)(5) (2018) ;¹ unlawful possession of scheduled drugs (diazepam) (Class E), 17-A M.R.S. § 1107-A(1)(E) (2018) ; and refusing to submit to arrest or detention (Class E), 17-A M.R.S. § 751-B(1)(A) (2018), entered in the Unified Criminal Docket (Androscoggin County, Kennedy, J. ) after a jury trial. Cunneen argues that the court (Clifford, A.R.J. ) erred by denying his motion to suppress evidence obtained as the result of a roadside encounter with a police officer. He also asserts that the court (Kennedy, J. ) erred by engaging in a sentencing analysis that did not comply with the framework prescribed in 17-A M.R.S. § 1252-C (2018).² We affirm the judgment.

I. BACKGROUND

[¶2] Given the issues presented on this appeal, the following description of the record largely focuses on the evidence presented at the hearing on Cunneen's suppression motion—which we view in the light most favorable to the court's order, see State v. Collier , 2013 ME 44, ¶ 2, 66 A.3d 563 —and the sentencing hearing.

[¶3] On the night of March 28, 2017, a Mechanic Falls police officer noticed a van leaving a parking lot near an area that previously had generated complaints of drug activity. The vehicle was traveling in the opposite direction of the police cruiser, so the officer turned his cruiser around and began following the van, which eventually turned onto a "dark" and "not heavily traveled" street in a residential neighborhood.

[¶4] Without being signaled in any way to stop, the van pulled to the side of the road at a spot where there were no nearby houses or driveways. The officer pulled behind the van and activated his rear emergency light "so that ... [he] could be ... located if anything was to happen." The ensuing encounter between Cunneen and the officer was recorded on the cruiser's windshield camera. The driver of the van—Cunneen—extended his left arm and head from the driver's side window. Cunneen initiated verbal contact with the officer by asking what was going on, and the officer responded, "I'm finding out why you're pulling over." Cunneen replied that he "pulled over because [he] saw [the officer] turn around."

[¶5] When the officer, using a flashlight, approached the driver's side of the van, he noticed "a large chunk of what appeared to be white powdery residue in [Cunneen's] nostril." The officer suspected that the white residue was drugs, and he also noted an odor of alcohol emanating from the vehicle. The officer asked Cunneen to step out of the vehicle and place his hands on the rear of the van.

[¶6] Cunneen was less than fully compliant, and the officer instructed Cunneen "numerous times to put his hands behind his back, stop resisting and pulling away." Several times, Cunneen walked away from the officer and, at one point, can be seen on the recording throwing an object into a snowbank on the side of the road.³ Despite the officer's orders, Cunneen "continued to scream and holler" and "was pulling away from [the officer], turning his body, [and] not being compliant to commands." Cunneen continued to refuse to submit to the officer, remained argumentative, and eventually was placed under arrest.

[¶7] After being charged initially by criminal complaint, in July of 2017 Cunneen was indicted for the three charges for which he now stands convicted—unlawful possession of scheduled drugs (hydrocodone) (Class C); unlawful possession of scheduled drugs (diazepam) (Class E); and refusing to submit to arrest or detention (Class E)—and a fourth charge, unlawful possession of scheduled drugs (hydrocodone) (Class D), 17-A M.R.S. § 1107-A(1)(C) (2018), which the State dismissed prior to trial.

[¶8] Contending that his roadside interaction with the officer rose to the level of a detention and was not supported by reasonable articulable suspicion, Cunneen moved to suppress all evidence obtained as a result of that encounter. After holding a hearing in January of 2018, the court (Clifford, A.R.J. ) denied Cunneen's motion, concluding that the officer did not detain Cunneen until the officer observed the white powder in Cunneen's nose. The court determined that the officer's observation constituted reasonable articulable suspicion of criminal conduct, which then allowed the officer to detain Cunneen.

[¶9] Cunneen moved for further findings of fact and conclusions of law, which consisted of a series of interrogatories to the court on several factual aspects of the suppression issue. In response, the court issued an order containing additional findings, all of which are supported by the record. See State v. Seamon , 2017 ME 123, ¶ 2, 165 A.3d 342. Among the findings were that, while the officer followed the van operated by Cunneen, neither the cruiser's blue lights nor the siren was activated; Cunneen stopped the van of his own volition; and until the officer was close enough to Cunneen to observe the powdery substance in Cunneen's nostril, there was no detention or stop for constitutional purposes.

[¶10] In May of 2018, the court (Kennedy, J. ) held a one-day jury trial, which resulted in guilty verdicts on all three charges. After holding a sentencing hearing the following month, the court sentenced Cunneen on the Class C charge of unlawful possession of scheduled drugs to one year of incarceration with all but seven days suspended, one year of probation, the minimum mandatory fine of $ 400, and restitution for the cost of the drug analysis. The court imposed a concurrent seven-day jail term on the charge of refusing to submit to arrest or detention and another minimum mandatory $ 400 fine on the Class E charge of unlawful possession of scheduled drugs.

[¶11] Cunneen filed a timely direct appeal, see 15 M.R.S. § 2115 (2018) ; M.R. App. P. 2B(b)(1), but did not apply for sentence review, see 15 M.R.S. §§ 2151 - 2157 (2018) ; M.R. App. P. 20.

II. DISCUSSION

[¶12] Cunneen argues on appeal that the court erred by denying his motion to suppress the evidence obtained as a result of the roadside encounter with the officer, including the pill bottle and its contents, and by considering Cunneen's behavior while resisting arrest as an aggravating factor on all counts, after the court had already considered that same factor in setting a basic sentence for the charge of resisting arrest.

A. Motion to Suppress

[¶13] The dispositive question raised in Cunneen's suppression motion is when, during his roadside encounter with the officer, he became subject to detention. Cunneen contends that the officer's actions—which included turning the cruiser around after observing Cunneen leave the parking area, following Cunneen's van, activating the cruiser's rear light bar after both vehicles had come to a stop, and approaching Cunneen's van with a flashlight—resulted in a Fourth Amendment detention because those actions constituted a show of authority sufficient to lead a reasonable person to conclude that he was not free to leave. The State, on the other hand, asserts—and the court concluded—that there was no detention until the officer observed the white powder in Cunneen's nose. "When reviewing a ruling on a motion to suppress, we review the court's factual findings for clear error and its legal conclusions de novo" and "will uphold the court's denial of a motion to suppress if any reasonable view of the evidence supports the court's decision." State v. Marquis , 2018 ME 39, ¶ 15, 181 A.3d 684.

[¶14] The inquiry as to whether a seizure has occurred is an objective one. State v. Ciomei , 2015 ME 147, ¶ 8, 127 A.3d 548. A seizure implicating the Fourth Amendment occurs when, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Collier , 2013 ME 44, ¶ 7, 66 A.3d 563 (quotation marks omitted).

[¶15] As we have held, not "every contact between police and a citizen implicates the Fourth Amendment right to be free from unreasonable searches and seizures; an officer may approach a citizen and engage in a consensual conversation without effecting a detention for purposes of the Fourth Amendment, and thus need not have an articulable suspicion before engaging in that conversation." Id. (alteration and quotation marks omitted); see also State v. Gulick , 2000 ME 170, ¶ 17 n.7, 759 A.2d 1085. The question of whether an officer has detained someone—or is merely engaged in an encounter that falls short of having constitutional significance—involves a consideration of an officer's use of physical force or show of authority. Collier , 2013 ME 44, ¶ 8, 66 A.3d 563. Relevant factors include, for example, "the threatening presence of several officers; the display or use of a weapon; the use of physical touching or force; the language or tone of voice indicating that compliance with the officer's request might be compelled; whether the officer was blocking the defendant's path to leave; the use of sirens, lights, or a loudspeaker; the display of a badge or wearing of a uniform; the location of the encounter; whether there was a chase; and whether the officer approaches on foot or in a vehicle." Id. (quotation marks omitted).

[¶16] Here, Cunneen's choice to stop his vehicle did not implicate the Fourth Amendment. Cunneen pulled to the side of the road and stopped his van when the officer merely followed him without having activated the cruiser's...