State of Maine v. Lawz R. Lepenn

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2023 ME 22
Docket: Cum-22-177
Argued: January 12, 2023
Decided: March 30, 2023

Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, and LAWRENCE, JJ.

STATE OF MAINE

v.

LAWZ R. LEPENN

JABAR, J.

[¶1] Lawz R. Lepenn appeals from a judgment of conviction entered by

the trial court (Cumberland County, MG Kennedy, J.) convicting him, after a

conditional guilty plea, of one count of aggravated trafficking in scheduled

drugs (Class A), 17-A M.R.S. § 1105-A(1)(D) (2018),1 and two counts of criminal

forfeiture, 15 M.R.S. § 5826 (2018).2 Lepenn contends that the court erred

when it denied (1) his motion to suppress and (2) his request for additional

discovery relating to the State’s cooperating defendant. We affirm the trial

1 This paragraph was amended after the commission of the crime. See P.L. 2021, ch. 396, § 4
(effective Oct. 18, 2021) (codified at 17-A M.R.S. § 1105-A(1)(D) (2022)).
2 This statute has been amended twice since the date of the crime. See P.L. 2019, ch. 97, §§ 4-6
(effective Sept. 19, 2019) (codified at 15 M.R.S. § 5826(1), (2), (6) (2022)); P.L. 2021, ch. 454, § 13
(effective Oct. 18, 2021) (codified at 15 M.R.S. § 5826(9)).
2

court’s judgment because we hold that (1) law enforcement agents had

probable cause to support their stop of Lepenn, and (2) the court did not abuse

its discretion in denying Lepenn’s discovery motion.3

I. BACKGROUND

[¶2] The following facts are taken from the trial court’s findings of fact

after the suppression hearing, all of which are supported by competent

evidence in the record, which evidence we view in the light most favorable to

the court’s order. See State v. Cunneen, 2019 ME 44, ¶ 2, 205 A.3d 885. Around

April 24, 2019, an agent (the lead agent) of the Maine Drug Enforcement Agency

(MDEA) received information from an MDEA task force agent that a

cooperating defendant had information about a drug dealer in South Portland.

Although the lead agent had not worked with this cooperating defendant before

this case, another MDEA agent told him that the cooperating defendant had

given officers reliable information in the past.4

3 We do not consider the issue of whether the lead agent’s testimony about receiving a text
message from the cooperating defendant was proper because this issue was raised only in a cursory
manner in two footnotes, and we deem it waived. See Cooper v. Parsky, 140 F.3d 433, 441-42 (2d Cir.
1998) (noting that “a contention is not sufficiently presented for appeal if it is conclusorily asserted
only in a footnote”); Adler v. Duval Cnty. Sch. Bd., 112 F.3d 1475, 1480 (11th Cir. 1997) (holding that
a damages claim was unpreserved when it was mentioned only in two cursory statements—one in
the initial brief and one at oral argument); see also Alexander, Maine Appellate Practice § 404 at 242
(6th ed. 2022) (“[A]n issue addressed only in a footnote in a brief may be deemed to be waived.”)
4The cooperating defendant has been referred to as a “confidential informant” or “source of
information” by the parties at various times. The trial court, however, found that MDEA did not keep
a confidential-informant file on her and that at the time of motion to suppress, she did not have an
3

[¶3] The cooperating defendant told law enforcement that a suspected

drug dealer lived in South Portland and went by the name “V.” The cooperating

defendant also provided information about firearms kept by V, stated that

V planned to make a trip to Boston to purchase drugs, provided a cellphone

number for V, and said that V drove a vehicle with the license plate number

“9765TE.” When the lead agent searched for the license plate number, he found

that it was registered to Janal Lepenn, the wife of Lawz Lepenn, at

63 Washington Avenue, Saco. The other agent had previously told the lead

agent that he thought that V might be Lawz Lepenn.

[¶4] The lead agent learned that Lawz Lepenn had previously lived in

Haverhill, Massachusetts, and he contacted the Haverhill Police Department. A

detective in Haverhill informed the lead agent that Lepenn was on probation

for attempted murder with a firearm and that the address associated with his

probation had been changed to 63 Washington Avenue, Saco, Maine. The lead

agent observed that Lepenn’s driver’s license and the State of Maine

Department of Corrections’ website listed Lepenn’s address as 113 MacArthur

Circle East, South Portland, Maine. Lepenn’s conditions of probation included

agreement with law enforcement for her cooperation. Therefore, this opinion, like the order on the
motion to suppress, will refer to her as the “cooperating defendant.”
4

a random-search condition that had been added when Lepenn’s probation was

transferred to Maine, and Lepenn had signed an order dated October 31, 2018,

acknowledging the condition. The lead agent contacted Lepenn’s assigned

probation officer, who told the lead agent that the lead agent could search

Lepenn at any time pursuant to Lepenn’s probation conditions.

[¶5] The lead agent spoke with the cooperating defendant multiple times

on April 29 and April 30. The cooperating defendant told the lead agent that

she had purchased cocaine and cocaine base from V in the past; that V had

invited her to go out of state to pick up drugs; that V sold drugs out of another

individual’s apartment at 10 Lombard Street, South Portland, Maine; and that

she had seen V in a black SUV driven by a woman. The lead agent showed the

cooperating defendant a photo of Lepenn and asked if she knew who the person

in the photo was. The cooperating defendant responded, “Yes, that’s V.” The

cooperating defendant told the lead agent that V had recently asked her to call

him “Chris” and changed his phone number. The cooperating defendant then

agreed to purchase drugs from Chris/V on behalf of MDEA.

[¶6] On May 2, 2019, the lead agent conducted surveillance outside

113 MacArthur Circle East. In the morning, he saw the vehicle with the license

plate “9765TE” in the driveway, and when he returned in the afternoon, he saw
5

a black Jeep SUV in the driveway. The lead agent ran the plates on the black

Jeep SUV and discovered that it was registered to a family member of an

individual whom the lead agent knew was involved in drug trafficking. That

afternoon, the lead agent saw an individual fitting Lepenn’s description exit 113

MacArthur Circle East and get into the black Jeep SUV. At around 4:00 p.m.,

with the lead agent present, the cooperating defendant contacted the individual

who lived at 10 Lombard Street about purchasing drugs from Chris. She told

the lead agent that she had been told that Chris was “all set,” which the lead

agent understood, based on his training and experience, meant that Lepenn

would sell drugs to the cooperating defendant. The cooperating defendant

went to 10 Lombard Street, wearing a wire, and told the individual who lived

at the apartment that she would get the money to purchase the drugs. The

cooperating defendant then met with the lead agent and said that she could

purchase seven grams of cocaine for $400.

[¶7] At around 7:30 p.m., the cooperating defendant received a message

that Chris would soon be at the apartment. Agents searched the cooperating

defendant, fitted her with a wire, and gave her pre-recorded “buy money”

before returning to 10 Lombard Street. At the same time, an MDEA special

agent surveilled 113 MacArthur Circle East. At around 8:00 p.m., the agent saw
6

a man matching Lepenn’s description leave 113 MacArthur Circle East in a

Toyota Camry. The agent followed the Camry to Lombard Street and saw the

man exit the vehicle and enter the apartment building at 10 Lombard Street.

The cooperating defendant was at the same building. A short while later, the

lead agent saw the Camry drive away from the apartment building at

10 Lombard Street, and he followed the car. The lead agent called the Southern

Maine Regional SWAT team to initiate a traffic stop of the Camry, then went to

meet with the cooperating defendant.

[¶8] The SWAT team stopped the Camry, driven by Lepenn, and then

searched it. During the search, officers found three cellphones, a digital scale,

and money, including the $400 of pre-recorded MDEA money.5

[¶9] While the search of the vehicle was being conducted by the SWAT

team, the lead agent met with the cooperating defendant and used a TruNarc

analyzer to test the suspected drugs that she had purchased. The TruNarc

analyzer rendered a presumptive positive result. The cooperating defendant

5Lepenn contends that this stop resulted in his de facto arrest because, as the record reflects, the
SWAT officers had their guns drawn; the lead SWAT officer had his handgun pointed at Lepenn when
he initiated the stop, though he then holstered his weapon; and Lepenn was detained in handcuffs
and put in the back of a police car when law enforcement agents transported him to the the South
Portland Police Department. As we discuss in our analysis, because we conclude there was probable
cause to support the stop, we do not consider the issue of whether a de facto arrest occurred.
See State v. Flint, 2011 ME 20, ¶ 9, 12 A.3d 54.
7

described the transaction to the lead agent. She explained that she gave the

money to the individual who lived at 10 Lombard Street, who gave it to Lepenn,

and then Lepenn gave the drugs to the individual who lived at 10 Lombard

Street, who then gave the drugs to the cooperating defendant. The lead agent

then drafted a request for a search warrant for 113 MacArthur Circle East and

10 Lombard Street. The search warrant was issued, and law enforcement

agents executed the warrant on the same day. Officers found $14,020 in cash,

526 grams of cocaine separated into 18 bags, an additional 25 grams of cocaine,

approximately 100 rounds of .45 caliber ammunition, and a disassembled

.25 caliber Titan handgun at 113 MacArthur Circle East.

[¶10] On August 9, 2019, the grand jury returned a six-count indictment.

Lepenn was arraigned on the indictment and entered pleas of not guilty.

Lepenn moved for discovery sanctions and to suppress the evidence found

during the warrantless stop of his vehicle and the search of 113 MacArthur

Circle East. On May 21, 2021, the trial court held a hearing on Lepenn’s

discovery motion for “specific information that [the cooperating defendant]

provided to [MDEA agents] and all police reports related to arrests made

pursuant [to that] information.” Lepenn argued that this information related to

the cooperating defendant’s credibility. Lepenn further argued that he was
8

entitled to to discover all materials relevant to the cooperating defendant’s

credibility because the State needed to establish reasonable articulable

suspicion to stop Lepenn and probable cause to arrest him, and therefore the

credibility of the cooperating defendant was relevant. The trial court denied

the discovery motion.

[¶11] On June 22, 2021, the trial court held a hearing on Lepenn’s motion

to suppress. Lepenn challenged, inter alia, the law enforcement agents’

reasonable articulable suspicion to stop his vehicle and probable cause for the

search warrant. The court heard testimony from the lead agent, Lepenn’s

probation officer, and the officer from the Southern Maine Regional SWAT

team. In a written decision following the hearing, the court denied Lepenn’s

motion to suppress.

[¶12] Lepenn moved for further findings of fact regarding whether the

stop of Lepenn was an arrest without probable cause, and the court denied his

motion. On January 11, 2022, Lepenn entered a conditional guilty plea to one

count of aggravated trafficking in scheduled drugs and conditionally admitted

to two counts of criminal forfeiture. See M.R.U. Crim. P. 11(a)(2). In May 2022,

the court (O’Neil, J.) held a sentencing hearing and sentenced Lepenn to
9

twenty-two years’ incarceration with all but eight years suspended and four

years of probation. Lepenn timely appealed. M.R. App. P. 2B(b).

II. DISCUSSION

[¶13] Lepenn raises two issues. He contends that the trial court erred

when it denied (1) his motion to suppress and (2) his request for additional

discovery relating to the State’s cooperating defendant.

A. Motion to Suppress

[¶14] On appeal, Lepenn asserts that the trial court erred when it denied

his motion to suppress.6 More specifically, Lepenn argues that the conduct of

the police at the time of the stop amounted to a de facto arrest without probable

cause. The trial court found that the stop was justified because the search of

Lepenn’s vehicle was supported by reasonable articulable suspicion and that

the search was reasonable under the totality of the circumstances because

Lepenn was on probation.7 We conclude that it is not necessary to determine

Because Lepenn’s brief asserts and develops his probable-cause claim based on the Constitution
6

of the United States, not the Maine Constitution, we review his claim by applying federal law and
principles. See State v. Thomas, 2022 ME 27, ¶ 13 n.3, 274 A.3d 356.
7We have held that regardless of whether a search is probationary or investigatory, law
enforcement agents need only reasonable articulable suspicion when conducting a nonrandom
search of a probationer, like Lepenn, who has a condition of probation allowing searches. See State
v. Diana, 2014 ME 45, ¶¶ 17-20, 89 A.3d 132. However, neither we nor the United States Supreme
Court has decided whether a completely suspicionless search of a probationer would be
constitutional, although the U.S. Supreme Court has held that a suspicionless search of a parolee does
10

whether the officers exceeded the boundaries of a permissible Terry

investigatory stop or whether Lepenn waived any objection to the search due

to his probationary status because we hold that probable cause existed for the

stop. See State v. Flint, 2011 ME 20, ¶ 9, 12 A.3d 54.

1. Standard of Review and the Fourth Amendment

[¶15] “The denial of a motion to suppress is reviewed for clear error as

to factual issues and de novo as to issues of law.” State v. Fleming, 2020 ME 120,

¶ 25, 239 A.3d 648. “We review a motion court’s application of the law to

undisputed facts de novo.” Flint, 2011 ME 20, ¶ 10, 12 A.3d 54. “If the court’s

ruling is proper under the law, it may be affirmed, even if for a reason different

than that given by the motion court.” Id. (alterations and quotation marks

omitted).

[¶16] The Fourth Amendment to the United States Constitution forbids

unreasonable searches and seizures. U.S. Const. amend. IV; Terry v. Ohio, 392

U.S. 1, 8-9 (1968). “A seizure is reasonable if made pursuant to an investigative

detention based on reasonable suspicion of criminal activity, or if made

pursuant to an arrest based on the higher standard of probable cause that a

not violate the Fourth Amendment. See id. ¶ 17 n.2; see also United States v. Knights, 534 U.S. 112,
116-20 & n.6 (2001); Samson v. California, 547 U.S. 843, 850-857 (2006).
11

crime has been committed.” State v. White, 2013 ME 66, ¶ 12, 70 A.3d 1226.

The inquiry into whether a de facto arrest occurred is unnecessary if the stop

was supported by probable cause. See Flint, 2011 ME 20, ¶ 9, 12 A.3d 54 (“In

this case, we conclude that it is unnecessary to evaluate whether the officers’

actions exceeded the bounds of a permissible investigatory stop because there

was probable cause to arrest [the defendant].”).

[¶17] “Probable cause exists where facts and circumstances within the

knowledge of the officers and of which they have reasonably trustworthy

information would warrant a prudent and cautious person to believe that the

arrestee did commit or is committing the felonious offense.” State v. Lagasse,

2016 ME 158, ¶ 13, 149 A.3d 1153 (quotations marks omitted). “The probable

cause standard is flexible and based on common sense.” Flint, 2011 ME 20,

¶ 12, 12 A.3d 54. “Although requiring more than mere suspicion, probable

cause can be satisfied on less than the quantum of proof necessary to establish

a fact by a fair preponderance of the evidence.” Id. Probable cause has a very

low threshold and uses an objective standard. Lagasse, 2016 ME 158, ¶ 14, 149

A.3d 1153. The determination of whether an officer has probable cause is not

based on whether the particular officer believed that she had probable cause.

State v. Forsyth, 2002 ME 75, ¶ 10, 795 A.2d 66.
12

2. Analysis

[¶18] Corroboration plays a significant role in determining whether,

given the totality of the circumstances, there is probable cause, and we have

held that information from known or named informants is more likely to be

credible than information from an anonymous tip. In State v. Hasenbank, we

said that “[i]nformation from a known or named informant may provide readier

justification for a stop-and-frisk than where the informant is anonymous.”

425 A.2d 1330, 1333 (Me. 1981); see United States v. Lopez-Gonzalez, 916 F.2d

1011, 1014 (5th Cir. 1990) (“[T]ips from known informants are more likely to

be credible and are thus entitled to greater weight in the Terry stop reasonable

suspicion analysis.”); Florida v. J.L., 529 U.S. 266, 270 (2000) (stating that the

reputation of a known informant can be assessed and the informant “can be

held responsible if her allegations turn out to be fabricated”). In the present

matter, significantly, the police received information from a known cooperating

defendant, rather than from an informant providing an anonymous tip. Cf.

Illinois v. Gates, 462 U.S. 213, 227 (1983) (concluding that an anonymous letter,

standing alone, would not provide an adequate basis for probable cause
13

because it did not show that the author was honest or that the information in

the letter was reliable).

[¶19] Here, the lead agent had probable cause to stop Lepenn because

he received information from a cooperating defendant whose identity was

known to law enforcement; the cooperating defendant agreed to set up, and

participated in, a controlled buy with Lepenn; and law enforcement agents

observed Lepenn travel from his residence to the location of the controlled buy.

Additionally, the information that the cooperating defendant supplied to law

enforcement suggested that she had knowledge of Lepenn’s activities. On the

day of the stop, law enforcement (1) corroborated the cooperating defendant’s

identification of the vehicle being used by Lepenn by determining that the

vehicle was registered to Lepenn’s wife and was at Lepenn’s residence; (2) saw,

at Lepenn’s residence, a man fitting Lepenn’s description and a black SUV

registered to a family member of a known drug-dealer, corroborating the

cooperating defendant’s information that she had seen V in a black SUV; (3) had

the cooperating defendant set up a controlled buy at 10 Lombard Street,

corroborating the information that she supplied to law enforcement that V sold

drugs at that address; (4) took the cooperating defendant to 10 Lombard Street

and searched her before she entered the building; (5) followed Lepenn from his
14

residence to 10 Lombard Street, where the controlled buy was occurring;

(6) saw Lepenn go into 10 Lombard Street; and (7) saw Lepenn leave

10 Lombard Street shortly after arriving, consistent with the lead agent’s

knowledge of how drug deals occur. This is sufficient information to support a

prudent and cautious person’s belief that Lepenn had committed or was

presently committing a crime, satisfying the low threshold for probable cause.

In sum, even if a de facto arrest occurred, as Lepenn argues on appeal, the stop

and seizure were legal because they were supported by probable cause. See

State v. Rosario, 2022 ME 46, ¶¶ 20-22, 280 A.3d 199.

[¶20] Because we hold that the findings of fact made by the trial court

support the conclusion that probable cause existed at the time of the stop, we

do not need to determine whether there was a de facto arrest as opposed to a

Terry stop. See Flint, 2011 ME 20, ¶ 9, 12 A.3d 54.

B. Discovery Violation

[¶21] Lepenn contends on appeal that the trial court erred when it

denied his motion for discovery seeking all material related to the cooperating

defendant’s previous dealings with law enforcement that reflects on her

credibility.
15

[¶22] Maine Rule of Criminal Procedure 16(c)(1) provides that a

defendant may make a written request for the State to provide books, papers,

documents, electronically stored information, photographs, tangible objects, or

access to buildings and places that are “material and relevant to the preparation

of the defense.” The rule applies to information relevant to proceedings other

than the scope of trial, such as proceedings on motions to suppress. See State

v. Simmons, 435 A.2d 1090, 1093-94 (Me. 1981). The rule is liberally

interpreted and applied, but that does not mean that every specific discovery

request made by the defendant must or should be granted. State v. Cloutier, 302

A.2d 84, 87 (Me. 1973). The rule imposes an initial duty on the defendant to

“show that the items sought may be material to the preparation of his defense

and that the request is reasonable.” Id. (quotation marks omitted). “This

requirement precludes a fishing expedition by the defense into the prosecution

file, and requires the defendant to show necessity for the inspection. Something

more than a bare allegation by the defendant or his counsel that the items are

material and the request is reasonable will be required.” Id. (quotation marks

omitted). Once the necessity is shown, “if the request is reasonable, the court

must order the prosecuting attorney to permit the inspection.” Id. (quotation

marks omitted).
16

[¶23] The trial court properly denied Lepenn’s motion for two reasons:

(1) the information sought was not relevant and (2) Lepenn had other means

to obtain the information. First, Lepenn moved for the State to provide

information relating to the cooperating defendant’s history of cooperating with

law enforcement and resulting arrests from that cooperation, which is relevant

only to whether it was reasonable for law enforcement to rely on the

information supplied by that informant in developing a reasonable, articulable

suspicion or probable cause. Here, Lepenn knew the identity of the cooperating

defendant; law enforcement independently corroborated her information; and

the officers gathered additional evidence, including a controlled buy, before

making the stop. Accordingly, her reliability as an informant was no longer an

issue, and information about her past cooperation was not relevant. See State

v. Crowley, 1998 ME 187, ¶ 6, 714 A.2d 834 (noting that “an informant’s

reliability is not to be considered an element separate and apart from the

general inquiry” and that “corroboration enhances the credibility of

information from informants that is presented in a search warrant”)

(alterations and quotation marks omitted); see generally Adams v. Williams,

407 U.S. 143, 146-49 (1972). Second, Lepenn could have subpoenaed either the

other MDEA agent or the cooperating defendant as witnesses at the hearing on
17

the motion to suppress and explored the reliability of this information.

Cf. Gates, 462 U.S. at 227, 243-46. In light of the foregoing, Lepenn cannot show

that the discovery request made to the State was reasonable. Therefore, we

conclude that Lepenn’s claim of a discovery violation is not persuasive, and the

trial court did not abuse its discretion when it denied his discovery motion.

III. CONCLUSION

[¶24] We conclude that the court did not err in denying Lepenn’s motion

to suppress the evidence obtained at the time of the stop of Lepenn’s vehicle

and the evidence obtained as a result of the execution of the search warrant.

Additionally, the trial court did not abuse its discretion in denying Lepenn’s

motion for discovery.

The entry is:

Judgment affirmed.

Daniel A. Wentworth, Esq. (orally), and Dylan R. Boyd, Esq., Law Offices of Dylan
Boyd, Portland, for appellant Lawz R. Lepenn

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

Cumberland County Unified Criminal Docket docket number CR-2019-2309
FOR CLERK REFERENCE ONLY