ORDER ON MOTION TO SUPPRESS
the Court is a Motion to Suppress results of a lab analysis
of urine taken from the Defendant without a warrant on
October 16, 2016 by Drug Recognition Technician (DRT) Anthony
Drouin. The State in this matter is represented by Assistant
District Attorney Tyler LeClair and the Defendant is
represented by Attorney Elizabeth Gray.
pertinent facts are not in dispute. The Defendant was
arrested by Officer Brett Lowell of the Augusta Police
Department (APD) and brought to the APD for further testing
after having been pulled over and subjected to field sobriety
tests. He agreed to take a breath test which detected no
alcohol. There is no direct evidence on the record
that either officer took the Defendant through the Implied
Consent process before administering the Intoxylyzer test,
and no Implied Consent Form was admitted in evidence.
However, neither party has raised this issue in their
briefing. The parties seem to agree that the issue before the
Court is whether a warrant was required before the APD could
lawfully seize the Defendant's urine and/or whether the
Defendant consented to the seizure.
hearing, the Court reviewed the parties' written
arguments, as well as State's Exh. 1 which is a disc that
shows the tests administered at the APD on October 15, 2016.
Those tests included breath testing by Officer Lowell and the
DRE evaluation conducted by Officer Drouin. For the reasons
stated, the Motion to Suppress is denied.
Defendant's primary argument is that this Court should
find as a matter of law that a warrant must be obtained
before law enforcement is constitutionally permitted to seize
urine from a person. The Defendant relies upon
Birchfieldv. North Dakota, 136 S.Ct. 2160, 2184
(2016) which held that a warrantless blood test may not be
administered as a search incident to arrest of a suspected
drunk driver. The Court in Birchfield did not,
however, address whether warrantless urine tests were
constitutional under this same exception to the warrant
requirement. Birchfield, 136 S.Ct. at 2168, n. 1.
State argues that this Court should find that urine tests are
more akin to breath tests than they are to blood tests under
the analysis established in Birchfield. The
Defendant points to two cases decided after
Birchfield, the first being State v.
Thompson, 886 N.W.2d 224 (Minn. 2016), in which the
Minnesota Supreme Court applied that analysis and concluded
that a urine test is more akin to breath tests in terms of
the physical intrusion involved and because urination is an
inevitable and natural process. Id. at 230. However,
the Minnesota Court also found that because urine samples are
left in the possession of State authorities, there remains
the potential for the detection of private health information
beyond alcohol and drug concentrations. It also found that
because taking urine from a person involves the person having
to perform a private bodily function in the presence of law
enforcement, "weighty" privacy interests are
implicated in the testing. The Court held that a warrantless
urine test did not qualify as a search incident to a valid
arrest of a suspected drunk driver. Id. at 233.
Therefore, either a warrant was required or another exception
to the warrant requirement must be established.
second case relied upon by the Defense is the decision in
State v Wilson, No. CR-16-638, 2017 Me. Super. LEXIS
107 (May 17, 2017). In that case the Superior Court relied
upon Thompson to conclude that the warrantless
taking of a urine sample would not be permitted under the
4th Amendment, absent exigent circumstances or
Court does not, however, have to reach its own conclusion as
to whether Birchfield and/or Thompson
compel the conclusion in Wilson, as the Court
concludes in this case that the State has proven by a
preponderance of evidence that the Defendant consented to the
taking of his urine by Officer Drouin.
State noted in footnote 1 of its brief, the Defendant readily
cooperates with Officer's Drouin's request for a
urine test. He says "sounds good" and "Yeah
that's fine" when asked about drinking water so he
could produce urine for testing. Later in the interview he
thanks the officer for the multiple cups of water he brings
him, and on his own asks how much urine the officer needed to
produce a valid result. He asks the officer if "you want
me to go piss" to which the officer says
"yes." The Defendant then says "ok" and
as the State noted, "quickly sprung up from his chair
and walked to the bathroom." (State's brief, pg. 4).
The Court agrees that the evidence establishes by a
preponderance of evidence that the Defendant's by his
words and conduct knowingly and voluntarily consented to
provision of his urine without a warrant. State v.
Boyd, 2017 ME 36, ¶ 10, 156 A.3d 748, (quoting
Stale v. Bailey, 2012 ME 55, ¶ 16, 41 A.3d 535).
entry is: Defendant's Motion to
Suppress seizure of his urine by Officer Drouin of the
Augusta Police Department is DENIED.
 The motion challenged statements made
by the Defendant as well as the urinalysis. The Court on July
20, 2017 ruled on the admissibility of statements from the
bench and ordered briefing on the issue of the seizure of the
urine. The State filed its memo on August 11, 2017 and the
Defense filed its brief on September 1, 2017. The State had
until September 8, 2017 to file a rebuttal but did
The Court rejects Defendant's
position that at most he "acquiesced" to the
request. State v. Cress,
576 A.2d 1366 (Me. 1990).
Throughout the interview the Defendant is friendly,
cooperative, and frequently initiates and engages in small
talk with the officers. His language and body language are
evidence of much more than acquiescence. He comes across ...