MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 52 Docket: Pen-16-214 Argued: February 7, 2017 Decided: March 16, 2017 Corrected: July 27, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
DANIEL A. FOX
ALEXANDER, J.
[¶1] Daniel A. Fox appeals from a judgment of conviction entered by the
trial court (Penobscot County, A. Murray, J.) 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).1 He also appeals a criminal forfeiture in the
amount of $543. See 15 M.R.S. § 5826 (2014).
1 Several statutes cited in this opinion have been amended, or repealed and replaced, since February 11, 2015, the date of the events involved in this appeal. For purposes of this opinion, the amendments and replacements do not affect our analysis, and all statutory citations herein are to the versions that were current on the date that the crimes occurred. For example, title 17-A M.R.S. § 1107-A(1)(B)(1) (2014) was amended (effective Oct. 15, 2015), then repealed and replaced by P.L. 2015, ch. 308, § 2 and ch. 496, § 6 (effective July 29, 2016) (codified at 17-A M.R.S. § 1107-A(1)(B)(1) (2016)). 2
[¶2] 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.
I. CASE HISTORY
[¶3] 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, 135 A.3d 343.
[¶4] 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. 3
[¶5] 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 seat.
[¶6] 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.
[¶7] 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 4
having a vehicle towed, and that he usually waits until after the search to call
for the tow.
[¶8] 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.
[¶9] 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-A M.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 2015.2 Fox pleaded not guilty.
[¶10] 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
2 The indictment was supplemented with a sixth charge alleging unlawful possession of a scheduled drug (Class C), 17-A M.R.S § 1107-A(1)(B)(1), but the State dismissed that charge prior to trial. 5
vehicle inventory search policy.3 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.
[¶11] 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 vehicle, could not lawfully operate it, and presented the officer at the
scene with no evidence of any authority to control or operate it.
[¶12] The court further found that the inventory search was initiated
according to standard protocol and was not a pretext for concealing an
investigatory motive. Specifically, the court found that the officer followed the
vehicle inventory policy because, first, it would have been unreasonable under
the circumstances for the officer to grant Fox the authority to release the
3The State argued that the search was a valid inventory search and conceded that there was no other lawful basis for it. 6
vehicle to a licensed driver pursuant to subparagraph (a) of the Bangor Police
Department’s vehicle inventory search policy when Fox had no apparent or
demonstrated capacity or authority to release the vehicle, and, second, there
was no basis for the officer to advise Fox that he could secure the vehicle and
allow it to remain at the scene pursuant to subparagraph (b) of the policy
when Fox had not demonstrated authority to be in possession of the vehicle in
the first place and the vehicle was not located “in an unrestricted parking
area.” Fox did not file a motion for findings of fact and conclusions of law.
See M.R.U. Crim. P. 23(c); State v. Dodd, 503 A.2d 1302, 1307 (Me. 1986)
(holding that when there is no request for findings and findings are not
required by law, we will infer that the trial court found all the facts necessary
to support its judgment, if those inferred findings are supportable by the
evidence in the record).
[¶13] The court (Anderson, J.) held a one-day jury trial on March 18,
2016. The jury found Fox guilty of operating after suspension and not guilty
of unlawful possession of a scheduled drug (clonazepam), but deadlocked on
the remaining charges. The court declared a mistrial as to the remaining
charges. 7
[¶14] The court (A. Murray, J.) held a two-day jury trial on April 14-15,
2016, on the charges of unlawful trafficking in scheduled drugs (heroin),
unlawful possession of scheduled drugs (heroin), and criminal forfeiture.4
During Fox’s opening statement, the State requested two sidebars. During the
first sidebar, the State raised a hearsay objection to Fox referring to an
unidentified customer who allegedly told the convenience store employee,
who later informed the Bangor officer, that a person had exited the vehicle
driven by Fox at some point prior to the employee checking on Fox. The court
ordered that Fox not refer to the unidentified customer’s statement during his
opening statement and deferred ruling on the admissibility of the evidence.
[¶15] One of the State’s potential witnesses, identified in jury selection,
was Benjamin Lam. The police investigation had identified Lam as the
individual who had rented the car. In an interview with an investigator, Lam
had stated that he was not with Fox on the day that Fox was arrested. During
the second sidebar, after Fox had mentioned anticipated testimony of Lam to
the jury numerous times, the State warned that it might not call Lam as a
witness and that “it’s fairly dangerous territory that [Fox] talk about
someone’s testimony if they haven’t testified yet, nor if they know they are
4 Prior to both trials, Fox requested that the judge decide the criminal forfeiture charge. See 15 M.R.S. § 5826(4)(B). 8
going to be coming in.” The court warned Fox that “if [he made] claims that
end[ed] up not being true, [he’d be at his] own peril.” When the court
inquired if Fox was planning to call Lam, Fox replied, “I won’t—I probably
wouldn’t call him.”
[¶16] The State’s evidence consisted of testimony from the arresting
officer, another Bangor officer, and the convenience store employee who had
observed Fox in the car; photographs of the evidence seized during the
inventory search; and a portion of the cruiser video. The arresting officer
testified that, during the inventory search, he collected $543 that had been on
the defendant’s lap and in the console and that he found drug paraphernalia in
the pharmacy bag and ninety-nine packets of heroin in the cigarette pack on
the passenger seat under Fox’s cap.
[¶17] Prior to the arresting officer’s testimony, the parties argued
about the admissibility, through the officer, of the statement of the
convenience store employee about observation of and a statement by the
unidentified customer.5 The court concluded that the officer’s testimony
would be hearsay, and, even if it was not hearsay, the danger of confusion of
5 Fox noted that the information came in during the first trial with a limiting instruction. The court stated that it was not bound by decisions made during the first trial and that judges exercise discretion differently. 9
the issues and unfair prejudice outweighed its probative value, see M.R. Evid.
403.6
[¶18] Fox was the only witness for the defense. He testified to the
following: at the time of his arrest, he was employed and made approximately
$600 to $700 per pay period; he cashed his paycheck the day before his arrest;
he has taken prescription medication for a year and a half—including on the
day of his arrest—that causes him to feel sedated; he and Lam went to the
convenience store to get food; the car was rented to Lam, but Fox drove it to
the store; he gave Lam money for food and fell asleep while counting his
money; he lied to the officer about his identity because he knew that he had a
suspended driver’s license; and he did not know that there were drugs in the
car, and the drugs did not belong to him.
[¶19] After Fox rested and the State presented its rebuttal case, the
State informed the court that it would finally rest upon the return of the jury
after a recess. Fox then sought leave to reopen the evidence to call Lam as a
witness because the State did not call him. See M.R.U. Crim. P. 26(c). The State
objected. The court inquired about the purpose of calling Lam and his
6After the court’s ruling, Fox added that he thought that the statement would be admissible under the rule of completeness. The court denied Fox’s motion for the same reasons and further found that there was no completeness issue resulting from the officer’s testimony. 10
expected testimony. Fox provided an offer of proof indicating that Lam might
make statements implicating himself in the drug crimes, admit he may have
lied to an investigator when he stated he was not present with Fox on
February 11, “and I would like to kind of explore what he was doing then on
February 11th if he says he wasn’t with Mr. Fox.” The court denied Fox’s
motion to reopen the evidence citing the delay in seeking to call the witness
until after the evidence was closed and the professed uncertainty as to what
Lam might actually say.
[¶20] The jury found Fox guilty of both criminal charges. The court
entered a judgment on the verdict and ordered the criminal forfeiture of the
$543 found in Fox’s possession at the time of his arrest. The court did not
make any findings on the criminal forfeiture charge, and Fox did not move for
findings of fact and conclusions of law. Fox was sentenced to four and a half
years in prison with all but two and a half years suspended, two years’
probation, and fines totaling $800. Fox timely appealed pursuant to 15 M.R.S.
§ 2115 (2014) and M.R. App. P. 2. 11
II. LEGAL ANALYSIS
A. The Inventory Search
[¶21] Because Fox was unable to continue operating the vehicle and
had no apparent authority to control the vehicle, the Bangor Police
Department’s vehicle inventory policy was triggered. The policy states that
when the owner/operator of a vehicle is arrested or is physically unable to
continue to operate the vehicle, the “investigating officer will adhere to the
following procedure,” with the “following procedure” consisting of three
alternative courses of action. The first two alternative courses of action do
not result in a vehicle search and require the officer to advise the operator of
the option to either (a) release the vehicle to a licensed driver who will
assume full responsibility for the vehicle, or (b) secure the vehicle and allow it
to remain at the scene on the conditions that it will be parked in an
unrestricted parking area and that the operator agrees to assume full
responsibility for the vehicle. The third course of action, option (c), applies
when the operator is unwilling or unable to choose option (a) or (b), is not
competent, or is otherwise unable to make a disposition of the vehicle, and
results in a vehicle search and towing. Under those circumstances, “the 12
vehicle shall be removed by a department contracted tow vehicle.” Prior to
towing the vehicle, an inventory search of the vehicle is “standard protocol.”
[¶22] Fox contends that the inventory search was invalid because the
Bangor officer failed to follow the Department’s inventory search and towing
policy by deciding to search and tow the vehicle “without having first
attempted the less invasive measures required by the policy.”
[¶23] “[A] standardized inventory of a lawfully impounded vehicle . . .
[is] constitutionally permissible if conducted for ‘community caretaking
functions’ and not as a ‘pretext concealing an investigatory police motive.’”
State v. Bickford, 582 A.2d 250, 251 (Me. 1990) (quoting South Dakota v.
Opperman, 428 U.S. 364, 368-376 (1975)). “The requirement of conformity
to a standard practice, or policy, is essential . . . .” State v. Hudson, 390 A.2d
509, 511 (Me. 1978). Police may exercise discretion, however, “so long as
that discretion is exercised according to standard criteria and on the basis of
something other than suspicion of evidence of criminal activity.” Colorado v.
Bertine, 479 U.S. 367, 375-76 & n.7 (1987) (finding no Fourth Amendment
violation when police exercised discretion based on standardized criteria
related to the feasibility and appropriateness of parking and locking a vehicle
rather than impounding it). 13
[¶24] The officer’s testimony indicates that his practice of always
inventorying and towing vehicles of persons who are arrested does not follow
Department policy requiring consideration of alternatives (a) or (b) before
deciding to inventory and tow the vehicle. However, because neither of the
first two alternatives (a) or (b) applied to the circumstances at hand, the
officer’s failure to comply with his department’s protocol does not require a
suppression of evidence.
[¶25] The motion court found that there was no reasonable basis for
the officer to pursue options (a) or (b) when Fox had no apparent or
demonstrated capacity to operate the vehicle, release the vehicle, or assume
full responsibility for the vehicle, which was located on the private property of
another. Because Fox was “not competent” and was “otherwise unable to
make disposition of [the] vehicle,” and, by statute, 29-A M.R.S. § 105(3);7
29-A M.R.S. § 2069(3),8 the vehicle required removal to a suitable parking
Title 29-A M.R.S. § 105(3) (2014) provided, “When a motor vehicle is operated by a person not 7
able to produce a certificate of registration, or by a person other than the person in whose name the vehicle is registered and the operator is unable to present reasonable evidence of authority to operate that vehicle, an officer may impound and hold that vehicle until that vehicle is claimed by the registered owner or until the registered owner verifies the authority of the operator.” 8Title 29-A M.R.S. § 2069(3) (2014) provided, “A law enforcement officer may cause the removal to a suitable parking place of a vehicle connected with the arrest of the operator or owner of a vehicle or with the issuance of a summons for a traffic infraction as described in section 2412-A, subsection 8 or used in connection with the commission of a crime.” 14
place, Fox was not prejudiced by the officer’s failure to consider alternatives
(a) and (b) of the inventory and towing policy.
[¶26] Under the circumstances, the officer was required to apply
alternative (c) in the Bangor Police Department policy and inventory and tow
the vehicle. See Bickford, 582 A.2d at 251 (holding that an officer was not
required to give a defendant the opportunity to make alternative
arrangements for his vehicle when the defendant was arrested for driving
with a suspended license and he was alone at the time of his arrest); State v.
White, 387 A.2d 230, 232-33 (Me. 1978) (concluding that it was reasonable
for an officer to deny the defendant an opportunity to make alternative
arrangements for the custody of his car when the officer had statutory
authority to remove the car from the roadway and the officer and defendant
had engaged in a physical “scuffle”).
[¶27] Despite the officer’s failure to consciously apply the inventory
and towing policy, the court properly denied the motion to suppress.
B. Double Hearsay
[¶28] Fox contends that the trial court abused its discretion when it
excluded—on the basis that it was hearsay—testimony by the arresting
officer regarding what the convenience store employee had told the officer 15
about a statement made to the employee by an unidentified customer about
an unknown person who had exited the vehicle driven by Fox. Fox argues that
the testimony was not hearsay because it was not offered for the truth of the
matter asserted, but rather was offered to demonstrate that the investigation
was inadequate because the officer did not follow up on the statement.
[¶29] “We review a trial court’s decision to admit or exclude alleged
hearsay evidence for an abuse of discretion.” State v. Vaughan, 2009 ME 63,
¶ 5, 974 A.2d 930. “The trial court has broad discretion in determining the
admissibility of evidence; however, we will find an abuse of discretion if a
party can demonstrate that the trial court exceeded the bounds of the
reasonable choices available to it.” Id. (citations omitted).
[¶30] Here, the court provided two independent reasons for excluding
the evidence. First, the court concluded—despite Fox’s “creative argument”
that the statement was offered to probe the thoroughness of the officer’s
investigation—that the statement was hearsay. Fox’s offer of proof had
indicated a statement by the unidentified person to the convenience store
employee, which, relayed through the officer, if offered for its truth, would
have been double hearsay. 16
[¶31] The court also concluded that, even if the statement was not
hearsay, the evidence should be excluded pursuant to Rule 403. The court
reasoned that, even with a limiting instruction, the dangers listed in Rule 403
substantially outweighed the low probative value of the statement. The court
clarified that it was not limiting Fox from questioning the officer about his
investigation, but was only prohibiting Fox from asking about the alleged
statement by the unidentified customer. In the circumstances, the court did
not abuse its discretion in excluding the statement either as hearsay or
pursuant to Rule 403.
C. Reopening the Evidence
[¶32] Fox argues that the trial court abused its discretion when it
denied his motion to reopen evidence to call Lam as a witness. “A party who
has rested a case cannot thereafter produce further evidence except in
rebuttal unless by leave of court.” M.R.U. Crim. P. 26(c). We “review rulings
on motions to reopen evidence for an abuse of discretion.” State v. Chasse,
2000 ME 90, ¶ 10, 750 A.2d 586. Here, in light of the uncertainty as to what
Lam might actually have testified to, the potential that the court might have
had to allow Lam to consult with counsel before offering testimony that might
implicate him in several crimes, and the delay that the request to reopen the 17
evidence would have entailed, the trial court did not abuse its discretion when
it denied Fox’s motion to reopen the evidence.
D. Evidence Supporting Forfeiture
[¶33] Fox contends that the trial court erred in ordering the forfeiture
of $543 found in Fox’s possession at the time of his arrest because the court
did not make any findings, the State offered insufficient evidence that Fox
engaged in or intended to engage in a drug transaction, and there was no
evidence that the money was related to a drug transaction.
[¶34] When a defendant does not request findings of fact on an issue
decided by the trial court, we will infer that the trial court found all facts
necessary to support its conclusion, if support for those inferred findings can
be identified in the record. State v. Connor, 2009 ME 91, ¶ 9, 977 A.2d 1003;
Dodd, 503 A.2d at 1307; see M.R.U. Crim. P. 23(c).
[¶35] The criminal forfeiture statute states that “a person convicted of a
violation of Title 17-A, chapter 45 [addressing drug crimes] forfeits to the
State all rights . . . to property that is subject to forfeiture pursuant to section
5821.” 15 M.R.S. § 5826(1). Section 5821 provides that “all money . . .
furnished or intended to be furnished by any person in exchange for a
scheduled drug in violation of Title 17-A, chapter 45; all proceeds traceable to 18
such an exchange; and all money . . . used or intended to be used to facilitate
any violation of Title 17-A, chapter 45,” are subject to forfeiture. 15 M.R.S.
§ 5821(6) (2014).
[¶36] Contrary to Fox’s contentions, the court was not required to
“make findings as to which of the[] three independent theories [under the
statute] it found to be persuasive.” See M.R.U. Crim. P. 23(c); State v. Gatcomb,
389 A.2d 22, 24 (Me. 1978). The court made a general finding supporting
forfeiture of the recovered cash pursuant to Rule 23(c); Fox did not request
findings of fact. Thus, the court did not err when it did not make further
factual findings.
[¶37] There is competent evidence in the record to support a finding,
by a preponderance of the evidence, that the cash was subject to forfeiture.
See 15 M.R.S. § 5826(4)(A). The court could have found that the cash was the
result of illegal activity based on evidence, including the officer’s initial
observation of Fox’s apparently drug-induced unconsciousness; Fox’s removal
of his baseball cap to conceal the drugs and drug paraphernalia; Fox’s refusal
to identify himself or the renter of the vehicle; the amount of heroin; the
amount of cash; Fox’s reaction to the officer’s search of the vehicle; and the
proximity of the heroin and the cash to Fox. The officer’s testimony that he 19
did not observe Fox selling any drugs did not require the court to deny the
State’s request for forfeiture. Cf. State v. Pierce, 2006 ME 75, ¶ 23, 899 A.2d
801 (finding that the plain language of the statute does not limit forfeiture to
money that is traceable to the particular drug transaction or the possession
that led to the conviction). The trial court did not err when it ordered the
forfeiture of Fox’s money.
The entry is:
Judgments affirmed.
James M. Mason, Esq. (orally), Brunswick, for appellant Daniel A. Fox
R. 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
Penobscot County Unified Criminal Docket docket number CR-2015-557 FOR CLERK REFERENCE ONLY