State v. Kremen

2000 ME 117, 754 A.2d 964, 2000 Me. 117, 2000 Me. LEXIS 117
CourtSupreme Judicial Court of Maine
DecidedJune 21, 2000
StatusPublished
Cited by21 cases

This text of 2000 ME 117 (State v. Kremen) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kremen, 2000 ME 117, 754 A.2d 964, 2000 Me. 117, 2000 Me. LEXIS 117 (Me. 2000).

Opinions

CLIFFORD, J.

[¶ 1] Barbara Kremen appeals from a judgment of the Superior Court (Penob-scot County, Mardew, J.) affirming a judgment entered in the District Court (Newport, MacMichael, J.) following a finding that she violated the provisions of 22 M.R.S.A. § 2383 (1992)1 by possessing a useable amount of marijuana.2 Kremen contends that the court erred in denying her motion to suppress evidence, and challenges the sufficiency of the evidence at trial. We find no error and affirm the judgment.

[¶ 2] On August 15, 1997, Kremen, while en route to a Phish concert in Aroostook County, was stopped for speeding in the Town of Newport by Officer Peter Boucher. Boucher issued a citation for speeding and asked Kremen if there was anything illegal in the vehicle. The officer also asked if she minded if he searched the car. Kremen testified that she did not give such permission, but according to the officer, Kremen readily agreed to his request to search her car. The officer discovered a small bag of marijuana in the glove compartment and a pipe containing marijuana in the vehicle’s center console. He then cited Kremen for possession of a useable amount of marijuana.

[¶ 3] Kremen’s motion to suppress the marijuana evidence was denied following a hearing.3 The court (Hjelm, J.) found that the initial stop of Kremen’s vehicle was proper and that Kremen had voluntarily consented to the subsequent search of the vehicle. The court also concluded that the scope of Kremen’s consent allowed Boucher to search the glove compartment and console, and that the marijuana that was found provided probable cause to search the rest of the vehicle.

[¶ 4] 'By the time of Kremen’s bench trial in July of 1998, the marijuana and the pipe could not be found. Boucher testified that although the marijuana that he seized had not been tested, he had been trained in the identification of marijuana, and that the substance he had taken from the glove compartment appeared to be and smelled like marijuana. Kremen was found to have possessed a useable amount of marijuana (MacMichael, J.). This appeal fol[967]*967lowed Kremen’s unsuccessful appeal to the Superior Court.

I.

[¶ 5] Kremen first contends that the suppression court abused its discretion when it allowed Officer Boucher to testify that he stopped Kremen for speeding based on his observation of his radar equipment. She contends that he was not certified to operate the radar, making the stop of Kremen’s car for speeding unjustified. Kremen did not object to Boucher’s testimony at the suppression hearing on the ground that his certification to operate radar had expired. Rather she argued to the court that the testimony should be given little weight. Thus the issue of the admissibility of that testimony has not been preserved. Moreover, because the court has to find only that the officer had an articulable suspicion that criminal conduct or a civil violation has occurred, see State v. Brown, 1997 ME 90, ¶ 5, 694 A.2d 453, 455, the expiration of the officer’s previously valid certification would likely have little impact on the court’s determination of whether that standard had been met.

[¶ 6] Kremen also contends that the court erred in its finding that she had consented to the search. First, she argues that Boucher could not ask for her consent to search the vehicle unless he had an articulable suspicion that it contained contraband. Second, she contends that the court erred when it found she had given “knowledgeable consent.” 4 The State contends that Boucher’s request to search the vehicle was proper because it came during the lawful stop for speeding.

[¶7] We review a finding that voluntary consent was given for clear error. See State v. Seamen’s Club, 1997 ME 70, ¶ 7, 691 A.2d 1248, 1251 (citing State v. Marden, 673 A.2d 1304, 1310 (Me.1996); State v. Cress, 576 A.2d 1366, 1367 (Me.1990)).

It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is per se unreasonable ... subject only to a few specifically established and well-delineated exceptions. It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.

Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (quotations and citations omitted) (emphasis added). Any consent obtained during an invalid seizure, however, is ineffective. See Dunaway v. New York, 442 U.S. 200, 217-18, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (discussing the extent of the Fourth Amendment’s exclusionary rule).

[¶ 8] The evidence before the court on the motion to suppress shows that Boucher’s request to search Kremen’s vehicle occurred while she was stopped for the speeding violation. Consent obtained during this stop is not unlawful under Dunaway unless there was no articulable suspicion to stop Kremen for the speeding violation. Here, there was articulable suspicion that Kremen was speeding.

[¶ 9] Relying on United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), Kremen also argues that Boucher’s request for permission to search the vehicle was not “ ‘reasonably related in scope to the justification for [its] initiation.’ ” Id. at 881, 95 S.Ct. 2574 (quoting Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The Court in Brignoni-Ponce, however, stated that “[t]he officer may question the driver and passengers [regarding the potential illegal activity],5 and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause.” Brignoni-[968]*968Ponce, 422 U.S. at 881-82, 95 S.Ct. 2574 (emphasis added). Thus, although Brigno-ni-Ponce holds that investigatory questions must be limited to the justification for the stop, it does not follow that a simple request for permission to search a vehicle, without more, is a Fourth Amendment violation. Moreover, the Supreme Court explicitly noted that consent allows further investigation beyond the initial justification. See id. at 882, 95 S.Ct. 2574. It follows, then, that an officer is allowed to ask for that consent.

[¶ 10] We have held that, to be valid, consent must be voluntary and given “by one ‘with an appropriate relationship to the property searched.’ ” State v. Sherburne, 571 A.2d 1181, 1185 (Me.1990) (quoting State v. McLain, 367 A.2d 213, 217 (Me.1976)). In addition, a search made pursuant to consent is limited to the bounds of that consent. See Sherburne, 571 A.2d at 1185 (citing State v. Koucoules, 343 A.2d 860, 867 (Me.1974)).

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State v. Kremen
2000 ME 117 (Supreme Judicial Court of Maine, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
2000 ME 117, 754 A.2d 964, 2000 Me. 117, 2000 Me. LEXIS 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kremen-me-2000.