ORDER ON DEFENDANT'S MOTION TO SUPPRESS
A. WOODMAN JUDGE
hearing was held on Defendant's Motion to Suppress on
March 14, 2019. Assistant Attorney General Johanna Gauvreau
appeared on behalf of the State. Defendant appeared,
represented by Attorney Kristine Hanly.
seeks to suppress all of the evidence resulting from his
detention and arrest. He alleges that he was illegally
detained and that the police did not have probable cause to
arrest him and that the evidence seized related to the search
of his vehicle and evidence seized as a result of a search of
his person at the jail were obtained in violation of his
Fourth Amendment rights and should be suppressed.
court heard testimony from Sergeant Michael Loranger of the
Westbrook Police Department. Sgt. Loranger testified that he
was dispatched to the Dunkin' Donuts parking lot in the
Kohl's plaza in Westbrook for the report of an
unresponsive male in his vehicle. When Sgt. Loranger, along
with Officers Smith and McCarthy arrived at the scene, he
observed a BMW parked unevenly taking up two parking spaces a
few feet away from the curb. When he approached the vehicle,
he observed that the driver's side vehicle window was
down and the male driver was unconscious. Sgt. Loranger
recognized the driver to be Brent Gross from prior police
contacts. He knew him to be a user of illicit drugs. Sgt.
Loranger attempted to wake up the defendant and was
eventually successful in doing so. Mr. Gross had a brown
substance coming out of his nose. When he finally awoke his
voice was raspy and his pupils were constricted. Sgt.
Loranger recognized these as signs of impairment due to drug
use based on his training and experience. Mr. Gross explained
to Sgt. Loranger that he thought he had only been asleep for
approximately twenty minutes. Employees at Dunkin' Donuts
told the officers that they had observed Gross parked and in
his vehicle for approximately two hours.
officers asked Mr. Gross to exit the vehicle as he had
exhibited signs of impairment, as described above. When he
did he walked to the front of his vehicle and had a
conversation with Officer Jeremy Smith. Officer Smith
testified that he was a canine handler with the Westbrook
Police Department but had prior experience working for the
Maine Drug Enforcement Agency. He also has experience as a
Drug Recognition Expert. Officer Smith also noted that Mr.
Gross' speech was slow and voice was raspy. While Officer
Smith was speaking to Mr. Gross, Sgt. Loranger and Officer
McCarthy were near the front driver's side door that
remained open when Mr. Gross exited the vehicle. Sgt.
Loranger then observed an orange pill on the driver's
side seat. Based on the officers' training and experience
seeing a single pill loose and outside of a prescription
bottle is indicative of illegal drug use. Based on how they
found Mr. Gross, that he was asleep in his car for an
extended period of time, that he parked his car crooked
taking up two spaces, the brown substance around his nose,
his slow speech and raspy voice, his constricted pupils, and
the single pill found on the driver's side seat, the
officers believed that Mr. Gross was engaged in criminal
activity. The officers seized the pill and called dispatch,
gave them the description of the pill and were able to
ascertain that the pill was a generic brand of Flexeril,
Cyclobenzaprine, a scheduled drug that requires a
prescription. The officers asked Mr. Gross if he had a
prescription which he denied. The officers then placed Mr.
Gross under arrest for Unlawful Possession of a Scheduled
Drug. The officers then searched his vehicle and found a
hypodermic needle and a small glass bottle containing
testosterone. The Defendant was transported to the Cumberland
County Jail where a search of his person revealed that he was
in possession of 72 grams of Fentanyl.
Fourth Amendment of the United States Constitution protects
individuals from unreasonable searches and seizures by the
government. Warrantless searches are per se
unreasonable subject to a few exceptions, one of them being
the "plain view doctrine". Katz v. United
States, 389 U.S. 347. This doctrine permits a
warrantless seizure of incriminating evidence if three
conditions are met:
1) The Officer must not have violated the Fourth Amendment in
arriving at the place in which the evidence is in plain view;
2) The incriminating character of the items to be seized must
be immediately apparent and;
3) The officer must have a lawful right of access to them.
Court finds that the State met the three conditions required
under the "plain view doctrine". The Court further
finds that the Officers did not violate the Defendant's
Fourth Amendment rights. The officers had a lawful right to
be in the area based on the facts that were presented above.
The pill that was recovered was in plain sight after the
Defendant got out of the car, left his door open with the
window down on a clear sunny day. Based on the officers'
collective training and experience as drug recognition
experts and working for the Maine Drug Enforcement Agency,
the pill seized was evidence of illegal activity. The
confirmation that the pill was a scheduled drug ...