Argued: July 19, 2018
T. Mills, Attorney General, and Johanna L. Gauvreau, Asst.
Atty. Gen. (orally), Office of the Attorney General, Augusta,
for appellant State of Maine
R. Ranger, Esq. (orally), Lewiston, for appellee Donna
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
Majority: SAUFLEY, C.J., and ALEXANDER, GORMAN, HUMPHREY, JJ.
1] The State appeals from an order of the trial court
(Androscoggin County, MG Kennedy, J.) suppressing
evidence seized pursuant to a warrantless search of Donna
Pagnani's jacket and vehicle after finding that the
searches of those items and the seizure of the evidence was
not supported by probable cause and was in violation of
Pagnani's Fourth Amendment rights. The State
contends that the search of Pagnani's jacket was a lawful
search incident to her arrest and that the drug evidence
discovered in the jacket supported the subsequent search for
the illegal drugs that were discovered in Pagnani's
vehicle. We vacate the suppression order as to the evidence
found in Pagnani's jacket. We affirm the suppression order
as to the evidence found in Pagnani's vehicle.
PROCEDURAL HISTORY AND FACTS
In March 2017, Donna Pagnani was indicted by the Androscoggin
County grand jury and charged with unlawful furnishing of
scheduled drugs, Class C, 17-A M.R.S. § llO6(l-A)(A)
(2017), unlawful possession of scheduled drugs, Class C, 17-A
M.R.S. § 1107-A(1)(B)(1) (2017), unlawful possession of
scheduled drugs, Class D, 17-A M.R.S. § 1107-A(1)(C)
(2017), operating after suspension, Class E, 29-A M.R.S.
§ 2412-A(l-A)(D) (2017), and one count of criminal
forfeiture, 15 M.R.S. § 5826 (2017).
Pagnani moved to suppress the evidence found during a search
of her jacket and her vehicle, arguing that both searches
were illegal and that all evidence discovered during those
searches should be suppressed.
A suppression hearing was held on November 7, 2017. The State
presented the testimony of one witness: the arresting
officer. Additionally, the State entered into evidence the
video captured by the camera mounted in the officer's
cruiser. On November 17, 2017, the court issued an order
containing the following findings, all of which are supported
by the record except where specifically noted.
Around noon on January 17, 2017, an Auburn police officer
observed Donna Pagnani driving her vehicle away from the
Androscoggin County Courthouse. The officer was familiar with
Pagnani's "extensive" criminal history and
believed that her driver's license had recently been
suspended. The officer ran a license check on Pagnani but, by
the time he received the results of that check-which revealed
that Pagnani's driver's license was under suspension
and that she had a prior conviction for operating after
suspension (OAS)-Pagnani had driven away.
The officer decided to wait for Pagnani near the residence
where he believed she lived. After waiting for about two
hours in his unmarked police car, the officer observed
Pagnani driving toward her home. He activated his blue lights
and initiated a traffic stop by following Pagnani's
vehicle into the driveway of her residence. As Pagnani got
out of her vehicle, the officer approached her and informed
her that her license was suspended for failing to pay a fine,
to which she replied that it was not. Pagnani provided the
officer with her license, registration and insurance
documents while trying to contact the Violations Bureau to
verify that she had paid the fine.
The officer then ran another license check and confirmed that
Pagnani's license was currently suspended. While the
officer and Pagnani were standing in her driveway next to her
vehicle, the officer, who knew that Pagnani had a pending
drug trafficking case in New Hampshire, asked her about the
status of that case. Pagnani told him that the case had been
dropped. The officer asked Pagnani if she had any drugs or
weapons on her, to which she responded that she did not. The
officer then asked Pagnani if she would consent to a search
of her vehicle, and she said no. The officer then told
Pagnani that she was under arrest for operating after
Pagnani did not willingly submit to arrest. She continued to
tell the officer that she had "done nothing wrong"
and continued to ask for time to speak with someone at the
Violations Bureau. Several times the officer told Pagnani to
put the phone down, but she continued to speak with someone
on her phone and started to walk away from her vehicle. The
officer advised Pagnani not to move away from him, but she
walked away from the officer and toward the porch of her
home. Once on the porch, Pagnani removed her jacket, placed
it on the seat of a chair on the porch, and sat in the chair.
Pagnani was wearing a sleeveless top. The temperature was 34
The officer called for backup. When the responding officers
arrived, they helped place Pagnani in handcuffs and put her
into the back of the arresting officer's vehicle. Pagnani
asked what she was being arrested for and was told that she
was being arrested for OAS.
After Pagnani was placed in handcuffs by the responding
officers, the arresting officer picked up Pagnani's
jacket from the chair and searched it. Specifically, the
officer testified that, as another officer "was walking
Ms. Pagnani to my vehicle, I then searched the jacket that
she had taken off. . . ." The video of the incident
shows the officer searching Pagnani's jacket almost
immediately after she was handcuffed and removed from the
porch. In the jacket the officer found a small
loose rock, which, based on his experience, training, and
education, he believed was cocaine base.
[¶11] The officer then attempted to open Pagnani's
car, but it was locked. The officer asked one of the
responding officers if Pagnani had the keys to her car in her
hand, which she did. He advised the responding officers that
he had found cocaine base in her jacket and was going to
"toss the car." The responding officers physically
removed the keys from Pagnani's hands.
The officer then searched the vehicle and found a sandwich
bag containing five smaller bags of a brown powder. The