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State v. Fox

Supreme Court of Maine

March 16, 2017

STATE OF MAINE
v.
DANIEL A. FOX

          Argued: February 7, 2017

          James M. Mason, Esq. (orally), Brunswick, for appellant Daniel A. Fox

          R. Christopher Almy, District Attorney, Susan J. Pope, Asst. Dist. Atty., and Tracy Collins, Asst. Dist. Atty. (orally), Prosecutorial District V, Bangor, for appellee State of Maine

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

          ALEXANDER, J.

         [¶1] Daniel A. Fox appeals from a judgment of conviction entered by the trial court (Penobscot County, A. Murray, /.) after a jury found him guilty of unlawful trafficking of scheduled drugs (Class B), 17-A M.R.S. § 1103(1-A)(A) (2014), and unlawful possession of scheduled drugs (Class C), 17-A M.R.S. § 1107-A(1)(B)(1) (2014).[1] He also appeals a criminal forfeiture in the amount of $543. See 15 M.R.S. § 5826 (2014).

         [¶2] Fox contends that the motion court [Lucy, J.) erred in denying his motion to suppress evidence seized during a vehicle inventory search. He further contends that the trial court erred when it excluded testimony based on hearsay, denied his motion to reopen evidence, concluded that the evidence was sufficient to support forfeiture, and made no express findings on forfeiture. We affirm the judgments.

         I. CASE HISTORY

         [¶3] This case arose out of events in Bangor on February 11, 2015, when Fox was observed to be the sole occupant of a vehicle that was found to contain a large quantity of cash and ninety-nine packets of heroin. Viewed in the light most favorable to the State, the jury could rationally have found the following facts beyond a reasonable doubt. See State v. Morrison, 2016 ME 47, ¶2, 135A.3d343.

         [¶4] On February 11, 2015, at approximately 4:00 p.m., a Bangor police officer was dispatched to conduct a welfare check on the single occupant of a vehicle parked at a convenience store. Upon arrival, the officer found Fox, apparently unconscious, in the driver's seat of the vehicle. The vehicle was running, and the driver's window was partially open. Fox was wearing a baseball cap.

         [¶5] The officer unsuccessfully tried to wake Fox by speaking to him, knocking on the window, and poking him with his baton through the open window. The officer then unlocked the door, opened it, and gave Fox four to five good shakes. At that time, the officer observed money on Fox's lap and in the center console, and a pharmacy bag on the front passenger seat.

         [¶6] After being awakened, Fox appeared dazed and was generally evasive in response to the officer's initial questions. He removed his baseball cap and placed it over something on the front passenger seat. Fox initially refused to identify himself and then provided his brother's name as his own. After the officer confronted Fox with photographs of both Fox and his brother, Fox correctly identified himself. The officer then determined that Fox's vehicle operating privileges were suspended. The vehicle in which Fox was found was a rental car, rented by another person who Fox refused to identify. The officer arrested Fox for operating after suspension and providing a false name.

         [¶7] After arranging to have the vehicle towed from the store's parking lot, the officer conducted an inventory search of the vehicle. The officer testified that he always conducts an inventory search for valuables before having a vehicle towed, and that he usually waits until after the search to call for the tow.

         [¶8] During the inventory search, the officer collected $543 that had been on the defendant's lap and in the console, drug paraphernalia that was in the pharmacy bag, and ninety-nine packets of heroin in a cigarette pack on the passenger seat under Fox's cap.

         [¶9] Fox was charged by complaint with unlawful trafficking of scheduled drugs (heroin) (Class B), 17-A M.R.S. § 1103(1-A)(A), unlawful possession of scheduled drugs (heroin) (Class C), 17-A M.R.S. § 1107-A(1)(B)(1), unlawful possession of scheduled drugs (clonazepam) (Class E), 17-AM.R.S. § 1107-A(1)(F) (2014), and operating while license suspended (Class E), 29-A M.R.S. § 2412-A(1-A)(A) (2014). The State also filed a count for criminal forfeiture, 15 M.R.S. § 5826. He was indicted on the same charges in May 2015.[2] Fox pleaded not guilty.

         [¶10] Fox moved to suppress the evidence obtained during the inventory search of the vehicle, arguing that there was no lawful basis for the search because the officer had failed to follow the Bangor Police Department's vehicle inventory search policy.[3] On January 15, 2016, the motion court [Lucy, J.) held a testimonial hearing on Fox's motion. The evidence consisted of testimony from the Bangor officer, an excerpt of a video from the officer's cruiser camera, and a copy of the Bangor Police Department's vehicle inventory search policy.

         [¶11] The motion court denied Fox's motion to suppress, concluding that the impoundment and inventory search of the vehicle were reasonable and justified in the exercise of legitimate community caretaking functions, and that Maine law authorizes impoundment under such circumstances. See 29-A M.R.S. § 105(3) (2014); 29-A M.R.S. § 2069(3) (2014). To support its conclusion, the court identified specific facts including that Fox did not own or rent the ...


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