State of Maine v. Quimby

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. UNIFIED CRIMINAL DOCKET
DOCKET NO: CR-19-2141

STATE OF MAINE,

v.

EMILLE QUIMBY

Before the Court is Defendant's Motion to Suppress. The Defendant asserts he was

subjected to an invalid pretextual stop and argues that evidence seized pursuant to that stop should

be suppressed. For the forgoing reasons, Defendant's Motion is denied.

I. Facts

The following facts were presented at hearing before the Court on January 26, 2021.

Officer Ernest Macvane is a patrol officer for the town of Windham. Officer Macvane was on

duty on April 22, 2019. At approximately 7:00 p.m., he observed a pickup truck operate over the

center lane. Officer Macvane initiated a traffic stop of the vehicle and identified the Defendant

without incident. The Defendant testified that Officer MacVane informed him that the driver's side

break light was inoperable. The Defendant testified that he showed him the brake light package

and promised to fix it as soon as it stopped raining. Officer Macvane cleared the traffic stop and

resumed his patrol.

Later that evening, at approximately 8:25 p.m., Officer MacVane drove past 613 Roosevelt

Trail in Windham. Officer Macvane testified that he had previously been called to this area in

response to drug activity, including overdoses, and suspected the residence at 613 Roosevelt Trail

to be "a drug house." Officer MacVane testified that he observed a vehicle situated in the driveway

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with the door open and the engine running. He suspected that the vehicle was at the residence to

conduct illicit drug activity and chose to pull across the street in order to survey the situation.

Officer MacVane testified that there were no lights on at the residence; he did not recall if there

were other vehicles in the drive way; he did not know how long the car had been at the residence;

and, at that time, he did not realize that this was the same vehicle and occupants that he had stopped

earlier that evening.

After observing the vehicle for only a few minutes, Officer Macvane arranged to perform

a "pretextual stop" of the vehicle and its occupants. His plan was to find a legitimate purpose to

detain the Defendant; and, then use that legitimate purpose as a pretext to conduct an unrelated

drug investigation. Officer MacVane testified that his pretextual plan involved dispatching a K-9

unit to the scene so that when Officer Macvane obtained a legitimate pretext to stop the vehicle,

the K-9 could be deployed immediately to search for narcotics, while he performed the tasks

associated with the unrelated pretext. Officer MacVane's testimony was clear: "I had everything

in motion when I was in the driveway .... I had units moving to get in position before that car

even left."

Officer Macvane followed the vehicle as it left 613 Roosevelt Trail. He observed the

vehicle was drifting over the line; and, that the vehicle had an inoperable tail light. Officer

MacVane testified: "I was going to use the traffic violation and the defect on the vehicle for the

reason to stop the vehicle to further investigate drug involvement." Before he could initiate the

traffic stop, however, the Defendant pulled into a gas station. Officer Macvane determined to

further survey the vehicle and its occupants but his efforts were to no avail. He therefore initiated

the traffic stop on the Defendant's vehicle before it left the gas station and the K-9 unit was

deployed immediately.

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Upon approaching the vehicle, Officer Macvane realized that it was the same vehicle and

occupants he had stopped earlier that evening for minor traffic violations. While he engaged the

driver and passenger, he was informed within minutes that the K-9 had alerted to the presence of

narcotics in the vehicle. Indeed, narcotics were recovered and the Defendant was charged as a

result.

The Defendant also testified at the Motion hearing. He stated that he had been hired to

perform renovations to the residence at 613 Roosevelt Trail. He testified that but for the trip to the

gas station which resulted in the first traffic stop by Officer Macvane, he had generally been at

the residence since 7:00 a.m. that morning. A Google Maps image of the residence was submitted

into evidence by the Defendant. The image, taken in June of 2019, shows a residence in need of

repair, a tarp on the outside of the home, and a pile of scrap lumber in the yard.

II. Discussion

This case encompasses recent Law Court decisions regarding Maine's approach to

pretextual stops under Article I, Section 5 of the Maine Constitution and the Fourth Amendment

to the United States Constitution. See generally State v. Sasso, 2016 ME 95, 143 A.3d 124. In

keeping with Maine's primacy approach when addressing issues of constitutional law, the court

will first address whether Officer MacVane performed a valid pretextual stop under the Maine

Constitution. See State v. Rowe, 480 A.2d 778, 781 (Me. 1984).

1. Pretextual Stops - Maine Constitution

Article I, Section 5 of the Maine Constitution protects motorists from being unreasonably

detained by police. See State v. LaForge, 2012 ME 65, ! 8, 43 A.3d 961. In order for a detention

to be constitutional, "a police officer must have an objectively reasonable, articulable suspicion

that either criminal conduct, a civil violation, or a threat to public safety has occurred, is occurring,

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or is about to occur." State v . Sylvain, 2003 ME 5,, 11, 814 A.2d 984 (footnote omitted). "[A]n

illegal pretextual stop is one that occurs when an officer asserts an allegedly legitimate reason to

stop a vehicle in order to obtain evidence of an unrelated crime when the officer did not actually

have an objectively reasonable, articulable suspicion necessary to support a stop." State v. Sasso,

2016 ME 95, 143 A.3d 124.

Officer Mac Vane was unambiguous that his second seizure of the Defendant was

pretextual and motivated solely by his desire to conduct a drug investigation. His decision to seize

the Defendant was based on his observation that Defendant's vehicle was stopped in the driveway

of 613 Roosevelt trail, an area known for illicit drugs, with the engine running and the car door

open. Officer MacVane did not know how long the Defendant's vehicle had been there nor did he

know how long the Defendant had been inside the residence. He assumed that the Defendant had

been there only briefly because he suspected illicit drug activity. Based on these facts alone, at the

time Officer Macvane determined to stop Defendant's vehicle, he was acting on nothing more

than mere speculation or an unsubstantiated hunch that the Defendant was involved in illicit drug

activity. To justify his pretextual seizure of the Defendant, Officer MacVane needed an objectively

reasonable suspicion of some criminal act, civil violation, or threat to public safety, other than

illicit drug activity.

While following the Defendant's vehicle, Officer Macvane observed: (1) the vehicle

swerved into the center lane; and, (2) the vehicle had an inoperable tail light. With regard to the

observation that the Defendant's vehicle swerved into the center lane, without more, even the most

restrictive reading of State v . Caron, 534 A.2d 978 (Me. 1989) (finding an officer's suspicion after

observing only one straddle of the center line to be a mere hunch or speculation, and not objectively

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reasonable), does not justify an intrusive stop by a police officer. That leaves only the inoperable

tail light to objectively justify Officer MacVane's pretextual seizure of the Defendant.

The Law Court has ruled unambiguously that an officer's subjective motivation to stop a

vehicle is not relevant to determine whether an officer's stop of that vehicle was objectively

reasonable. See State v. Sasso, 2016 ME 95, ! 14, 143 A.3d 124. Officer Macvane testified that

he did not realize he had previously pulled over the Defendant that evening until after he had

initiated the second traffic stop. Indeed, it would likely have been objectively unreasonable for

Officer MacVane to stop the Defendant if he had. Although the Law Court has clarified that an

officer's subjective intent is still admissible for the purpose of attacking credibility, there is nothing

here to suggest that Officer MacVane's use of a pretextual stop implicates his credibility, no matter

how distasteful the practice. See Sasso, 2016 ME 95, ! 16, 143 A.3d 124. Without more, the court

cannot say that Officer MacVane's stop of the Defendant was objectively unreasonable because

there was uncontroverted evidence that the Defendant's vehicle had an inoperable tail light.

Moreover, the K-9 unit was deployed immediately after the stop was initiated and does not appear

to have prolonged the traffic investigation. Accordingly, Officer MacVane appears to have

performed a valid pretextual stop under the Maine Constitution, based upon the Law Court's

opinion in Sasso.

The Defendant's attempt to distinguish Sasso, as well as the federal counterpart, Whren v.

United States, is unavailing. 517 U.S. 806 (1996). The Defendant is correct that there-is credible

evidence showing that no illicit drug activity was afoot when Officer Macvane observed the

Defendant's running vehicle. However, the lack of evidence supporting a pretextual suspicion is

indeed the very motivation for an officer's use of this investigative technique. No matter how

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attenuated or improper an officer's subjective motivation or suspicion may be, the Law Court has

held that the officer's subjective motivation is irrelevant.

Additionally, the fact that alleged contraband was not in plain view is not a pre-requisite

to the legality of a pretextual stop. Plain view is but one avenue for an officer to succeed in

obtaining evidence of a suspected crime based on pretext, and it would appear that the K-9 alert

here provided such success. Although the Law Court has not articulated specific standards in

which a drug-dog search is permissible under Maine law, the Court has nonetheless held that dog­

sniff searches place a minimal burden on privacy interests. See State v. Phaneuf, 597 A.2d 55, 57

(Me. 1991). Although there is some question as to how the use of a drug-sniffing dog might alter

the analysis in a pretextual situation, the court is again without any indication that the Maine

Constitution imposes any heightened restriction on the use of dog-sniff searches. See generally

State v. Ntim, 2013 :ME 80, 76 A.3d 370 (Silver, J., concurring, and Jabar, J., dissenting).

Accordingly, the court cannot conclude that the pretextual stop was invalidated simply because

the alleged contraband was not found in plain view.

2. Pretextual Stops - United States Constitution

The United States Constitution provides the minimum constitutional protections that must

be observed. See State v. Hawkins, 261 A.2d 255,257 (Me.1970). Accordingly, because the Law

Court has not differentiated between the United States and Maine Constitutions regarding

pretextual stops, there is no authority under the Fourth Amendment to the United States

Constitution to invalidate Officer MacVane's pretextual stop.

III. Conclusion

Officer MacVane unabashedly, purposefully and methodically used a pretextual stop in

order to detain the Defendant and investigate criminal activity for which he lacked reasonable

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articulable suspicion. Before making the stop, however, Officer Macvane was able to observe

that the Defendant's vehicle had an inoperable tail light. Accordingly, this court is constrained to

find that Officer Macvane performed a lawful pretextual stop of the Defendant's vehicle under

the circumstances and case law presented.

Defendant's Motion to Suppress is DENIED.

The Clerk is directed to incorporate this Order into the docket by reference pursuant to

Maine Rule of Civil Procedure 79(a) .

Dated: April 22, 2021
ay Kennedy, Justice
e Superior Court

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