State of Maine v. Lore

STATE OF MAINE UNIFIED CRIMINAL COURT
CUMBERLAND, ss. PORTLAND
Docket No. CR-19-5037

STATE OF MAINE

V. ORDER ON MOTION TO SUPPRESS

BRITTANY LORE

Defendant

Defendant's Motion to Suppress came before the court for hearing on February 25, 2020.

Defendant, Brittany Lore, was present with her lawyer, Attorney Craig Francis. Assistant District

Attorney Jonathan Liberman appeared on behalf of the State. The court heard testimony from

Detective Benjamin Burns of the Cumberland Police Department as well as from Ms. Lore, and

listened to an audio recording of Detective Burns's interview of Ms. Lore while she was at the

Scarborough Police Station seeking to participate in the Operation Hope drug recovery program.

Ms. Lore seeks suppression of confessions she made during the interview on the ground

that she was subjected to custodial interrogation without having been provided the requisite

Miranda warnings and on the ground that her statements were not voluntarily made. In addition,

Ms. Lore seeks the suppression of evidence seized from her cell phone after the interview

concluded but before Detective Burns had sought or obtained a warrant.

Based on Detective Burns's testimony, Ms. Lore's testimony, and the evidence captured

on the audio recording, the court finds as follows:

Ms. Lore went to the Scarborough Police Department seeking to participate in the

Operation Hope drug recovery program. Detective Burns learned that she was at the

Scarborough station and informed the Operation Hope Director that he wished to interview Ms.

Lore. He asked that she not inform Ms. Lore that he would be coming. When he arrived at the

Scarborough station, Ms. Lore was sitting in the lobby. He asked whether she was willing to talk

with him, she agreed, and they went into the Operation Hope room. Detective Burns stated at

the onset: "You are not under arrest. You are obviously here under your own free will." During
her testimony, Ms. Lore acknowledged that she was at the station of her own free will. Although
she testified that she did "not particularly" feel free to leave, she explained: "When you're ready
to move ahead and seek treatment, you just want a fresh start, you want to let go of the lies and

stop hiding things." During the interview, the door to the room was closed but not blocked or
locked. After approximately 25 minutes, Detective Burns left the room after getting Ms. Lore
paper and a pen so that she could "write a note" to the family whose items she had admitted to
taking and pawning. When Detective Burns returned to the room 10 minutes later, he informed
Ms. Lore that she was under arrest. Pursuant to a search incident to arrest, Detective Burns seized
her cell phone. Ms. Lore provided him with the passcode which Detective Burns used to put the
phone in airplane mode. Ms. Lore testified that Detective Burns was scrolling through her phone
while she was having a cigarette prior to being transported in his cruiser. Detective Burns denied
scrolling through the phone, and testified that he did not gather any evidence from the phone
that day. Detective Burns subsequently obtained a search warrant authorizing the extraction of

information from Ms. Lore's cell phone.
"In order for the statements made prior to a Miranda warning to be admissible, the State
must prove, by a preponderance of the evidence, that the statements were made while the
person was not in custody, or was not subject to interrogation." State v Bridges, 2003, ME 103,
829 A.2d 247, 254. The appropriate analysis for this determination is set forth in State v. Dion,

2007 ME 87, ,i 23,928 A.2d 746, in which the Law Court explained:
A person not subject to formal arrest may be "in custody" if a reasonable person
standing in the shoes of the defendant would have felt he or she was not at liberty
to terminate the interrogation and leave or if there was a restraint on freedom of
movement of the degree associated with a formal arrest. This test is an objective one,
and we have stated in analyzing whether a defendant is in custody, a court may
consider the following factors:

1) the locale where the defendant made the statements;
2) the party who initiated the contact;
3) the existence or non-existence of probable cause to arrest (to the extent
communicated to the defendant);

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4) subjective views, beliefs, or intent that the police manifested to the defendant to
the extent they would affect how a reasonable person in the defendant's position
would perceive his or her freedom to leave;

5) subjective views or beliefs that the defendant manifested to the police, to the
extent the officer's response would affect how a reasonable person in the
defendant's position would perceive his or her freedom to leave;

6) the focus of the investigation (as a reasonable person in the defendant's position
would perceive it);

7) whether the suspect was questioned in familiar surroundings;
8) the number of law enforcement officers present;
9} the degree of physical restraint placed upon the suspect; and
10) the duration and character of the interrogation.
State v. Dion, 2007 ME 87, ,i 23,928 A.2d 746, 750-51 (citing State v Michaud, 1998 Me 251 ,i 4,
724 A.2d 1222, 1226.) See also State v. Williams, 2011 ME 36, 15 A.3d 753 (applying above-listed
factors in totality in determining that defendant was not in custody at time of police

interrogation).
Applying the facts adduced at hearing to the above-listed factors, the court finds that
during the interview Ms. Lore was not in custody and accordingly that Miranda warnings were
not required. A "reasonable person" in Ms. Lore's situation would have felt that she was "at
liberty to terminate the interrogation and leave" and there was no "restraint on freedom of
movement." See, e.g., State v. Dion, 2007 Me 87, ,i 23. While the test is an objective one, Ms.
Lore's testimony establishes that she spoke because she wanted to "move forward in a healthy
direction" and "just wanted to be done with things", indicating that subjectively she did not feel

compelled to participate in the interview.
A statement is voluntary when "it is the result of defendant's exercise of his own free will
and rational intellect." State v. Sawyer, 2001 ME 88, 772 A.2d 1173, 1176. See also State v. Dodge,
2011 ME 47, ,i 12, 17 A.3d 128, 132 ("If a criminal defendant challenges the voluntariness of a
confession, a court must determine ifthe confession resulted from the 'free exercise of a rational
mind,' was 'not the product of coercive police conduct' and 'if under all the circumstances its

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admission would be fundamentally fair"') (citations omitted). The court is to apply a totality of

circumstances analysis to determine voluntariness, based on consideration of factors such as: 1)

the details of the interrogation; 2) the duration of the interrogation; 3) the location of the

interrogation; 4) whether the interrogation was custodial; 5) the recitation of Miranda warnings;

6) the number of officers involved; 7) the persistence of the officers; 8) police trickery; 9) threats,

promises or inducements made to the defendant; and 10) the defendant's age, physical and

mental health, emotional stability, and conduct. Sawyer, 2001 ME 88, ,i 9, 722 A.2d at 1176. See

a/sa State v. Lackhart, 2003 ME 108, ,i 30, 830 A.2d 433, 444 (setting forth and applying Sawyer
factors).

Applying these factors to the facts adduced at hearing, the court finds that Ms. Lore's

statements were voluntarily made. Ms. Lore testified that she was not under the influence of

drugs during the interview, and was not experiencing any physical withdrawal symptoms. The

depression and "psychological issues" she testified about did not render her incapable of rational

thought and Detective Burns did not engage in trickery or coercive tactics.

Ms. Lore's initiative in seeking help is commendable. The law, however, does not provide

a basis for suppressing the evidence obtained during Ms. Lore's interview with Detective Burns

because at the time of the interview Ms. Lore was not "in custody" and because her statements

were not "involuntary." The court finds, further, no basis for suppression related to the cell phone.

It is accordingly hereby ORDERED that Defendant's Motion to Suppress is DENIED in its

entirety.

DATED:

Judge, 7 nified Criminal Court

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