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State v. Cunneen

Supreme Court of Maine

March 26, 2019


          Argued: March 5, 2019

          Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant Michael G. Cunneen

          Andrew S. Robinson, District Attorney, Nathan Walsh, Asst. Dist. Atty. (orally), and Michael B. Dumas, Asst. Dist. Atty., Prosecutorial District III, Lewiston, for appellee State of Maine


          HJELM, J.

         [¶1] Michael G. Cunneen appeals from a judgment convicting him of unlawful possession of scheduled drugs (hydrocodone) (Class C), 17-A M.R.S. § 1107-A(1)(B-l)(5) (2018);[1] unlawful possession of scheduled drugs (diazepam) (Class E), 17-A M.R.S. § 1107-A(1)(E) (2018); and refusing to submit to arrest or detention (Class E), 17-A M.R.S. § 751-B(1)(A) (2018), entered in the Unified Criminal Docket (Androscoggin County, Kennedy, J.) after a jury trial. Cunneen argues that the court [Clifford, A.R.J.) erred by denying his motion to suppress evidence obtained as the result of a roadside encounter with a police officer. He also asserts that the court [Kennedy, /.) erred by engaging in a sentencing analysis that did not comply with the framework prescribed in 17-A M.R.S. § 1252-C (2018).[2] We affirm the judgment.

         I. BACKGROUND

         [¶2] Given the issues presented on this appeal, the following description of the record largely focuses on the evidence presented at the hearing on Cunneen's suppression motion-which we view in the light most favorable to the court's order, see State v. Collier, 2013 ME 44, ¶ 2, 66 A.3d 563-a');">66 A.3d 563-and the sentencing hearing.

         [¶3] On the night of March 28, 2017, a Mechanic Falls police officer noticed a van leaving a parking lot near an area that previously had generated complaints of drug activity. The vehicle was traveling in the opposite direction of the police cruiser, so the officer turned his cruiser around and began following the van, which eventually turned onto a "dark" and "not heavily traveled" street in a residential neighborhood.

         [¶4] Without being signaled in any way to stop, the van pulled to the side of the road at a spot where there were no nearby houses or driveways. The officer pulled behind the van and activated his rear emergency light "so that ... [he] could be ... located if anything was to happen." The ensuing encounter between Cunneen and the officer was recorded on the cruiser's windshield camera. The driver of the van-Cunneen-extended his left arm and head from the driver's side window. Cunneen initiated verbal contact with the officer by asking what was going on, and the officer responded, "I'm finding out why you're pulling over." Cunneen replied that he "pulled over because [he] saw [the officer] turn around."

         [¶5] When the officer, using a flashlight, approached the driver's side of the van, he noticed "a large chunk of what appeared to be white powdery residue in [Cunneen's] nostril." The officer suspected that the white residue was drugs, and he also noted an odor of alcohol emanating from the vehicle. The officer asked Cunneen to step out of the vehicle and place his hands on the rear of the van.

         [¶6] Cunneen was less than fully compliant, and the officer instructed Cunneen "numerous times to put his hands behind his back, stop resisting and pulling away." Several times, Cunneen walked away from the officer and, at one point, can be seen on the recording throwing an object into a snowbank on the side of the road.[3] Despite the officer's orders, Cunneen "continued to scream and holler" and "was pulling away from [the officer], turning his body, [and] not being compliant to commands." Cunneen continued to refuse to submit to the officer, remained argumentative, and eventually was placed under arrest.

         [¶7] After being charged initially by criminal complaint, in July of 2017 Cunneen was indicted for the three charges for which he now stands convicted-unlawful possession of scheduled drugs (hydrocodone) (Class C); unlawful possession of scheduled drugs (diazepam) (Class E); and refusing to submit to arrest or detention (Class E)-and a fourth charge, unlawful possession of scheduled drugs (hydrocodone) (Class D), 17-A M.R.S. § 1107-A(1)(C) (2018), which the State dismissed prior to trial.

         [¶8] Contending that his roadside interaction with the officer rose to the level of a detention and was not supported by reasonable articulable suspicion, Cunneen moved to suppress all evidence obtained as a result of that encounter. After holding a hearing in January of 2018, the court [Clifford, A.R.J.) denied Cunneen's motion, concluding that the officer did not detain Cunneen until the officer observed the white powder in Cunneen's nose. The court determined that the ...

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