MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2019 ME 44 Docket: And-18-275 Argued: March 5, 2019 Decided: March 26, 2019
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
MICHAEL G. CUNNEEN
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-1)(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, J.) erred by
1 This charge is a Class C offense because it contains an allegation that Cunneen previously had
been convicted of one of several types of drug-related crimes. 2
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—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.
2 Cunneen also argues that during the trial the court (Kennedy, J.) abused its discretion by denying
his two motions for a mistrial that were based on a statement made by the investigating officer during the officer’s testimony and the publication of a very brief portion of the recording of the roadside investigation containing a statement that the parties had agreed would not be presented to the jury. Cunneen’s challenges to the court’s denial of his motions for a mistrial are unpersuasive, and we do not address them further. See State v. Bridges, 2004 ME 102, ¶ 11, 854 A.2d 855 (stating that “[a] motion for a mistrial should be denied except in the rare circumstance that the trial is unable to continue with a fair result and only a new trial will satisfy the interests of justice”); see also State v. Tarbox, 2017 ME 71, ¶ 18, 158 A.3d 957. 3
[¶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 4
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,
3 After reviewing the video later in the evening and seeing the images of Cunneen throwing the
object into the snow bank, the officer returned to the scene and recovered a pill bottle that contained twenty hydrocodone pills and more than sixty diazepam pills. This evidence formed the basis for the drug charges in this case.
The recording also shows that, after Cunneen exited the van at the officer’s direction, a passenger in the van moved into the driver’s seat and, at Cunneen’s instruction but in defiance of the officer’s order, sped away from the scene, but before doing so drove very close to the officer and calmly said, “You can shoot me right now, sir, or you can let us go.” 5
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 officer’s observation constituted reasonable articulable suspicion of
criminal conduct, which then allowed the officer to detain Cunneen.
[¶9] Cunneen moved for further findings of fact and conclusions of law,
which consisted of a series of interrogatories to the court on several factual
aspects of the suppression issue. In response, the court issued an order
containing additional findings, all of which are supported by the record. See
State v. Seamon, 2017 ME 123, ¶ 2, 165 A.3d 342. Among the findings were that,
while the officer followed the van operated by Cunneen, neither the cruiser’s
blue lights nor the siren was activated; Cunneen stopped the van of his own
volition; and until the officer was close enough to Cunneen to observe the
powdery substance in Cunneen’s nostril, there was no detention or stop for
constitutional purposes.
[¶10] In May of 2018, the court (Kennedy, J.) held a one-day jury trial,
which resulted in guilty verdicts on all three charges. After holding a
sentencing hearing the following month, the court sentenced Cunneen on the 6
Class C charge of unlawful possession of scheduled drugs to one year of
incarceration with all but seven days suspended, one year of probation, the
minimum mandatory fine of $400, and restitution for the cost of the drug
analysis. The court imposed a concurrent seven-day jail term on the charge of
refusing to submit to arrest or detention and another minimum mandatory
$400 fine on the Class E charge of unlawful possession of scheduled drugs.
[¶11] Cunneen filed a timely direct appeal, see 15 M.R.S. § 2115 (2018);
M.R. App. P. 2B(b)(1), but did not apply for sentence review, see 15 M.R.S.
§§ 2151-2157 (2018); M.R. App. P. 20.
II. DISCUSSION
[¶12] Cunneen argues on appeal that the court erred by denying his
motion to suppress the evidence obtained as a result of the roadside encounter
with the officer, including the pill bottle and its contents, and by considering
Cunneen’s behavior while resisting arrest as an aggravating factor on all counts,
after the court had already considered that same factor in setting a basic
sentence for the charge of resisting arrest.
A. Motion to Suppress
[¶13] The dispositive question raised in Cunneen’s suppression motion
is when, during his roadside encounter with the officer, he became subject to 7
detention. Cunneen contends that the officer’s actions—which included
turning the cruiser around after observing Cunneen leave the parking area,
following Cunneen’s van, activating the cruiser’s rear light bar after both
vehicles had come to a stop, and approaching Cunneen’s van with a flashlight—
resulted in a Fourth Amendment detention because those actions constituted a
show of authority sufficient to lead a reasonable person to conclude that he was
not free to leave. The State, on the other hand, asserts—and the court
concluded—that there was no detention until the officer observed the white
powder in Cunneen’s nose. “When reviewing a ruling on a motion to suppress,
we review the court’s factual findings for clear error and its legal conclusions
de novo” and “will uphold the court’s denial of a motion to suppress if any
reasonable view of the evidence supports the court’s decision.” State v.
Marquis, 2018 ME 39, ¶ 15, 181 A.3d 684.
[¶14] The inquiry as to whether a seizure has occurred is an objective
one. State v. Ciomei, 2015 ME 147, ¶ 8, 127 A.3d 548. A seizure implicating the
Fourth Amendment occurs when, “in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was
not free to leave.” Collier, 2013 ME 44, ¶ 7, 66 A.3d 563 (quotation marks
omitted). 8
[¶15] As we have held, not “every contact between police and a citizen
implicates the Fourth Amendment right to be free from unreasonable searches
and seizures; an officer may approach a citizen and engage in a consensual
conversation without effecting a detention for purposes of the Fourth
Amendment, and thus need not have an articulable suspicion before engaging
in that conversation.” Id. (alteration and quotation marks omitted); see also
State v. Gulick, 2000 ME 170, ¶ 17 n.7, 759 A.2d 1085. The question of whether
an officer has detained someone—or is merely engaged in an encounter that
falls short of having constitutional significance—involves a consideration of an
officer’s use of physical force or show of authority. Collier, 2013 ME 44, ¶ 8,
66 A.3d 563. Relevant factors include, for example, “the threatening presence
of several officers; the display or use of a weapon; the use of physical touching
or force; the language or tone of voice indicating that compliance with the
officer’s request might be compelled; whether the officer was blocking the
defendant’s path to leave; the use of sirens, lights, or a loudspeaker; the display
of a badge or wearing of a uniform; the location of the encounter; whether there
was a chase; and whether the officer approaches on foot or in a vehicle.” Id.
(quotation marks omitted). 9
[¶16] Here, Cunneen’s choice to stop his vehicle did not implicate the
Fourth Amendment. Cunneen pulled to the side of the road and stopped his van
when the officer merely followed him without having activated the cruiser’s
emergency lights or siren and without having signaled Cunneen in some other
way to stop. See id. ¶ 9 (“As a matter of law, the mere fact that a trooper was
driving behind [the appellant], even as [the appellant] turned into an empty
parking lot, cannot support the finding of a seizure.”); see also Gulick, 2000 ME
170, ¶¶ 3, 11, 759 A.2d 1085; State v. Brewer, 1999 ME 58, ¶ 12, 727 A.2d 352.
Indeed, the motion court did not find—and the evidence presented at the
suppression hearing did not require the court to find4—that when Cunneen
4 Maine Rule of Unified Criminal Procedure 41A(d) requires a court to make findings of fact and
conclusions of law in support of an order adjudicating a suppression motion. If the court fails to do so, the rule then allows a party to request that the court issue findings and conclusions. M.R.U. Crim. P. 41A(d). Here, although the court issued an initial set of findings and conclusions, Cunneen requested additional findings and conclusions but did so in a motion that presented the court with a series of questions. That format would be fatally defective pursuant to the analogue of the rule that applies in civil proceedings because in civil cases a motion for further findings and conclusions must present the proposed affirmative findings and conclusions that the movant seeks the court to issue. See M.R. Civ. P. 52(b); Eremita v. Marchiori, 2016 ME 160, ¶ 3, 150 A.3d 336. Neither criminal rule 41A(d) nor our case law extends that requirement to motions for findings and conclusions filed in criminal cases. Nonetheless, to effectively focus the court on the evidence and issues that the movant wishes the court to address, a prudent party in a criminal case who files a motion pursuant to Rule 41A(d) will adhere to the requirements associated with the civil rules.
Even if Cunneen’s motion for findings and conclusions can be seen as adequate pursuant to Rule 41A(d), he did not request that the court address the factual question of whether he had been aware that he was being followed by a police officer rather than someone not in law enforcement. Because of the lack of any request for the court to address that issue, we would be free to attribute to the court an implicit finding, which is supported by the evidence, that, when Cunneen stopped his vehicle by the side of the road, he did not know that it was a police officer who had been following him. See 10
stopped he even knew that he was being followed by a police officer. The court
correctly found that Cunneen was not seized for Fourth Amendment purposes
when he pulled to the side of the road.
[¶17] Cunneen further contends that his interaction with the officer rose
to the level of a Fourth Amendment seizure when the officer emerged from the
cruiser and informed Cunneen that he was there to “find[] out” what Cunneen
was doing. An examination of the factors germane to the detention analysis
does not make the contrary conclusion erroneous. Although the officer was in
uniform and was driving a marked police cruiser, he was alone. He did not
display a weapon or badge, activate his siren or flashing blue lights facing
Cunneen, or block Cunneen from leaving. Cunneen initiated verbal contact with
the officer by asking him what was going on. When the officer responded by
saying that he was trying to find out why Cunneen had pulled over, the officer
did not touch Cunneen, issue any command, or respond in a tone of voice that
indicated compliance was required or that exerted authority. See Collier, 2013
ME 44, ¶ 8, 66 A.3d 563; cf. State v. Patterson, 2005 ME 26, ¶¶ 6, 14, 868 A.2d
188 (affirming a suppression order because the trial court reasonably could
Sullivan v. Tardiff, 2015 ME 121, ¶ 15, 124 A.3d 652. This would further weaken any claim by Cunneen that his constitutional rights were violated when he stopped by the side of the road. 11
have found that the officer’s request to “‘please roll down the window’”
constituted an order). Further, given the time of night and the absence of any
ambient lighting, the officer’s use of a flashlight did not convert the situation
into a detention.
[¶18] Almost immediately after the officer was in Cunneen’s immediate
presence, the officer noticed a white powdery substance in Cunneen’s nostril.
Particularly when combined with the odor of alcohol the officer detected as
coming from the van, this justified an investigatory detention of Cunneen—a
conclusion that Cunneen does not challenge. See State v. Moulton, 1997 ME 228,
¶ 10, 704 A.2d 361. Up to that point, however, the officer’s conduct and
interaction with Cunneen did not rise to the level of a Fourth Amendment
seizure, and the court did not err by denying Cunneen’s motion to suppress.
B. Sentencing
[¶19] Cunneen argues that the court erred by considering his behavior
when he resisted arrest as an aggravating factor to determine the maximum
period of incarceration in the second of the three-step sentencing framework,
when the court had already considered that evidence in determining the basic
sentence, which is the first step of the process. In effect, Cunneen contends that 12
the court double-counted a factor in its sentencing analysis. The claim of error
is not borne out by the record.
[¶20] We first note that the sentences involving incarceration, which had
the overall effect of one year with all but seven days suspended, were exactly
what Cunneen urged the court to impose.5 Although here he seeks to challenge
the sentences, the court’s adoption of his sentence recommendations makes it
difficult for him to persuasively assert error.
[¶21] Regardless of whether Cunneen would be able to clear this hurdle
on the merits, his challenge is not cognizable on this direct appeal. After the
jury returned guilty verdicts, the court became responsible for imposing
sentences on three charges—one Class C crime and two Class E crimes. The
three-step process that is the predicate of Cunneen’s challenge to the sentences
does not apply to Class D or E crimes and therefore applies here only to the
Class C drug possession charge. See 17-A M.R.S. § 1252-C. Pursuant to that
statute, in the first step of the sentencing analysis, the court was required to
impose the basic sentence based on “the particular nature and seriousness of
5 Cunneen requested that the court impose on count 1 a sentence of one year with all but 7 days
suspended, and a seven-day concurrent sentence on the count that Cunneen identified as count 3, but which, due to the pretrial dismissal of the original count 2, in reality appears to be count 4. These are the sentences the court imposed. The court’s only departure from Cunneen’s sentence recommendations was to impose the minimum mandatory fines on the drug charges rather than to waive the fines as Cunneen had requested. 13
the offense as committed by the offender.” 17-A M.R.S. § 1252-C(1); see
Seamon, 2017 ME 123, ¶ 12 n.2, 165 A.3d 342. Here, the court set the basic
sentence at the “low end” of the range of a lawful sentence and, in doing so, did
not state that it was considering Cunneen’s resistive behavior during the traffic
stop.
[¶22] The court next turned to the second step of the sentencing process
to determine the maximum period of incarceration in order to individualize the
ultimate sentence through a consideration of “all other relevant sentencing
factors, both aggravating and mitigating, appropriate to that case.” 17-A M.R.S.
§ 1252-C(2); see Seamon, 2017 ME 123, ¶ 12, n.2, 165 A.3d 342; State v. Cook,
2011 ME 94, ¶ 12, 26 A.3d 834. This is when the court referred to Cunneen’s
challenging and uncooperative behavior during his interaction with the
officer—some of the same conduct that gave rise to the charge of refusing to
submit to arrest or detention. Based on this, as well as mitigating factors that
it articulated, the court set the maximum sentence at one year.
[¶23] In setting that maximum sentence, the court did not state or
otherwise suggest that it was applying that part of the analysis to the charge of
refusing to submit to arrest—in fact, the court had already articulated the
sentence to be imposed on that charge. Therefore, contrary to Cunneen’s 14
contention, the court did not engage in double-counting any factor against
Cunneen. As Cunneen’s behavior during his roadside encounter with the officer
bears on the Class C crime, the court considered it only once—during the
second step of the sentencing process. And as that factor related to the resisting
charge itself, the court also considered it only once—when it set the sentence.
[¶24] Because the court evaluated the evidence only once in sentencing
Cunneen on the Class C charge, the only possible error committed by the court
would be when, in the three-step process, it took that evidence into account.
For example, a court might err by characterizing certain evidence as an
aggravating factor in the second step of the sentencing process if that evidence
should have been taken into consideration in the first step, when the court
assesses the way the crime itself was committed.6
[¶25] On a direct appeal of a sentence, which is the process that Cunneen
has invoked here, the justiciable questions are limited to claims that a sentence
is illegal, was imposed in an illegal manner, or is beyond the court’s jurisdiction.
State v. Bennett, 2015 ME 46, ¶ 11, 114 A.3d 994; see also State v. Cunningham,
6 In fact, in his sentencing memorandum presented to the trial court, Cunneen stated that his own
behavior toward the officer was an aggravating factor, which would therefore be considered during the second step of the sentencing process—an approach that Cunneen may now be seen to present as judicial error. 15
1998 ME 167, ¶ 5, 715 A.2d 156 (stating that “we do not consider the legality
of a sentence on direct appeal unless a jurisdictional infirmity appears on the
record so plainly as to preclude rational disagreement as to its existence.”
(quotation marks omitted)). The sentences imposed here were neither illegal
nor outside of the court’s jurisdiction.
[¶26] Beyond that, we have made clear that “[a] departure from the
sentencing process set forth in State v. Hewey, 622 A.2d 1151 (Me. 1993)[,] and
now codified at [17-A M.R.S. § 1252-C], creates no reviewable issue on direct
appeal.” Cunningham, 1998 ME 167, ¶ 5, 715 A.2d 156. Because of the nature
of any possible error, Cunneen was required to have raised it by seeking leave
with this Court’s Sentence Review Panel to allow a discretionary review of
sentence pursuant to 15 M.R.S. § 2152 and Maine Rule of Appellate Procedure
20. Because Cunneen did not apply to pursue a discretionary appeal but rather
has pursued his claim only on this direct appeal, we do not consider his claim
of error.
III. CONCLUSION
[¶27] The officer’s interaction with Cunneen before he observed a white
powdery substance in Cunneen’s nostril did not constitute a Fourth 16
Amendment seizure, and any potential challenge to his sentence is not
cognizable on direct appeal. We therefore affirm the judgment.
The entry is:
Judgment affirmed.
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
Androscoggin County Unified Criminal Docket docket number CR-2017-951 FOR CLERK REFERENCE ONLY