State v. Pagnani

193 A.3d 823

STATE of Maine

v.Donna PAGNANI

Docket: And-17-534

Supreme Judicial Court of Maine.

Argued: July 19, 2018

Decided: August 30, 2018

Janet T. Mills, Attorney General, and Johanna L. Gauvreau, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellant State of Maine

Jason R. Ranger, Esq. (orally), Lewiston, for appellee Donna Pagnani

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

Majority: SAUFLEY, C.J., and ALEXANDER, GORMAN, HUMPHREY, JJ.

Concurrence/ Dissent: HJELM, MEAD, and JABAR, JJ.

ALEXANDER, J.

[¶ 1] The State appeals from an order of the trial court (Androscoggin County, MG Kennedy, J. ) suppressing evidence seized pursuant to a warrantless search of Donna Pagnani's jacket and vehicle after finding that the searches of those items and the seizure of the evidence was not supported by probable cause and was in violation of Pagnani's Fourth Amendment rights.¹ The State contends that the search of Pagnani's jacket was a lawful search incident to her arrest and that the drug evidence discovered in the jacket supported the subsequent search for the illegal drugs that were discovered in Pagnani's vehicle. We vacate the suppression order as to the evidence found in Pagnani's jacket.² We affirm the suppression order as to the evidence found in Pagnani's vehicle.

I. PROCEDURAL HISTORY AND FACTS

[¶ 2] In March 2017, Donna Pagnani was indicted by the Androscoggin County grand jury and charged with unlawful furnishing of scheduled drugs, Class C, 17-A M.R.S. § 1106(1-A)(A) (2017), unlawful possession of scheduled drugs, Class C, 17-A M.R.S. § 1107-A(1)(B)(1) (2017), unlawful possession of scheduled drugs, Class D, 17-A M.R.S. § 1107-A(1)(C) (2017), operating after suspension, Class E, 29-A M.R.S. § 2412-A(1-A)(D) (2017), and one count of criminal forfeiture, 15 M.R.S. § 5826 (2017).

[¶ 3] Pagnani moved to suppress the evidence found during a search of her jacket and her vehicle, arguing that both searches were illegal and that all evidence discovered during those searches should be suppressed.

[¶ 4] A suppression hearing was held on November 7, 2017. The State presented the testimony of one witness: the arresting officer. Additionally, the State entered into evidence the video captured by the camera mounted in the officer's cruiser. On November 17, 2017, the court issued an order containing the following findings, all of which are supported by the record except where specifically noted.

[¶ 5] Around noon on January 17, 2017, an Auburn police officer observed Donna Pagnani driving her vehicle away from the Androscoggin County Courthouse. The officer was familiar with Pagnani's "extensive" criminal history and believed that her driver's license had recently been suspended. The officer ran a license check on Pagnani but, by the time he received the results of that check—which revealed that Pagnani's driver's license was under suspension and that she had a prior conviction for operating after suspension (OAS)—Pagnani had driven away.

[¶ 6] The officer decided to wait for Pagnani near the residence where he believed she lived. After waiting for about two hours in his unmarked police car, the officer observed Pagnani driving toward her home. He activated his blue lights and initiated a traffic stop by following Pagnani's vehicle into the driveway of her residence. As Pagnani got out of her vehicle, the officer approached her and informed her that her license was suspended for failing to pay a fine, to which she replied that it was not. Pagnani provided the officer with her license, registration and insurance documents while trying to contact the Violations Bureau to verify that she had paid the fine.

[¶ 7] The officer then ran another license check and confirmed that Pagnani's license was currently suspended. While the officer and Pagnani were standing in her driveway next to her vehicle, the officer, who knew that Pagnani had a pending drug trafficking case in New Hampshire, asked her about the status of that case. Pagnani told him that the case had been dropped. The officer asked Pagnani if she had any drugs or weapons on her, to which she responded that she did not. The officer then asked Pagnani if she would consent to a search of her vehicle, and she said no. The officer then told Pagnani that she was under arrest for operating after suspension.

[¶ 8] Pagnani did not willingly submit to arrest. She continued to tell the officer that she had "done nothing wrong" and continued to ask for time to speak with someone at the Violations Bureau. Several times the officer told Pagnani to put the phone down, but she continued to speak with someone on her phone and started to walk away from her vehicle. The officer advised Pagnani not to move away from him, but she walked away from the officer and toward the porch of her home. Once on the porch, Pagnani removed her jacket, placed it on the seat of a chair on the porch, and sat in the chair. Pagnani was wearing a sleeveless top. The temperature was 34 degrees.

[¶ 9] The officer called for backup. When the responding officers arrived, they helped place Pagnani in handcuffs and put her into the back of the arresting officer's vehicle. Pagnani asked what she was being arrested for and was told that she was being arrested for OAS.

[¶ 10] After Pagnani was placed in handcuffs by the responding officers, the arresting officer picked up Pagnani's jacket from the chair and searched it. Specifically, the officer testified that, as another officer "was walking Ms. Pagnani to my vehicle, I then searched the jacket that she had taken off ...." The video of the incident shows the officer searching Pagnani's jacket almost immediately after she was handcuffed and removed from the porch.³ In the jacket the officer found a small loose rock, which, based on his experience, training, and education, he believed was cocaine base.

[¶ 11] The officer then attempted to open Pagnani's car, but it was locked. The officer asked one of the responding officers if Pagnani had the keys to her car in her hand, which she did. He advised the responding officers that he had found cocaine base in her jacket and was going to "toss the car." The responding officers physically removed the keys from Pagnani's hands.

[¶ 12] The officer then searched the vehicle and found a sandwich bag containing five smaller bags of a brown powder. The officer believed that the substance in the bags was heroin.

[¶ 13] Based on these findings, the court granted Pagnani's motion to suppress the evidence found during the search of her jacket and vehicle. The State, with the approval of the Attorney General, filed a timely notice of appeal. See 15 M.R.S. § 2115-A(1), (5) (2017) ; M.R. App. P. 21(b).

II. LEGAL ANALYSIS

A. Search of the Jacket Incident to Arrest

[¶ 14] The State argues that, contrary to the court's determination, the officer's search of Pagnani's jacket was a lawful search incident to arrest because she was wearing the jacket at the time she was placed under arrest. When reviewing a ruling on a motion to suppress, we review the factual findings made by the court for clear error and we review issues of law and the court's ultimate determination of whether the evidence should be suppressed de novo. State v. Prinkleton , 2018 ME 16, ¶ 17, 178 A.3d 474 ; State v. Lockhart , 2003 ME 108, ¶ 15, 830 A.2d 433.

[¶ 15] The Fourth Amendment requires that all searches be reasonable. U.S. Const. amend. IV. "Reasonableness is measured in objective terms by examining the totality of the circumstances." State v. Sargent , 2009 ME 125, ¶ 10, 984 A.2d 831. Reasonableness generally requires a warrant and probable cause, but there are exceptions to that requirement, including when a search is conducted incident to a lawful arrest. Riley v. California , ––– U.S. ––––, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014) ; see also United States v. Robinson , 414 U. S. 218, 235-36, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) ; State v. Foy , 662 A.2d 238, 241 (Me. 1995). The first question we must address, therefore, is whether the search of Pagnani's jacket was proper as a search "incident" to her arrest. As the Supreme Court stated in Riley , "the extent to which officers may search property found on or near the arrestee" has been debated for nearly as long as the exception has been recognized. Riley , 134 S.Ct. at 2482-83.

[¶ 16] The facts in this case are particularly analogous to those in Robinson . There, an officer on patrol spotted an individual, Robinson, driving a vehicle; the officer had reason to believe that Robinson's license to drive was suspended and confirmed that his license to drive was suspended; the officer conducted a traffic stop and arrested Robinson for driving while suspended; a post-arrest search of Robinson's coat led to discovery of a package containing illegal drugs. 414 U.S. at 220-23, 94 S.Ct. 467. The Supreme Court approved the search and seizure of the illegal drugs as a proper search and seizure incident to an arrest. Id. at 235-36, 94 S.Ct. 467.

[¶ 17] In Robinson , the Court held that "[i]t is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment." Id. at 235, 94 S.Ct. 467. The Court further observed that "[h]aving in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as fruits, instrumentalities, or contraband probative of criminal conduct." Id. at 236, 94 S.Ct. 467.

[¶ 18] If Pagnani had been wearing her jacket at the moment she was handcuffed, there would be no question that the search of her jacket would have been proper as a search incident to arrest for which no warrant is required. Here,...