Argued: February 7, 2017
M. Mason, Esq. (orally), Brunswick, for appellant Daniel A.
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
SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and
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). He also appeals a
criminal forfeiture in the amount of $543. See 15
M.R.S. § 5826 (2014).
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.
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.
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.
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
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.
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.
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.
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. Fox pleaded not guilty.
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. 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.
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