MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 4
Docket: Lin-16-136
Argued: December 13, 2016
Decided: January 10, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
ALLEN J. COOPER
MEAD, J.
[¶1] Allen J. Cooper appeals from a judgment of conviction entered by
the trial court (Lincoln County, Billings, J.) following his conditional guilty plea
to a charge of unlawful possession of schedule W drugs (Class C), 17-A M.R.S.
§ 1107-A(1)(B)(4) (2015).1 The plea preserved for appeal Cooper’s contention
that the court erred in denying his motion to suppress evidence of drugs that
he was carrying in a body cavity because law enforcement officers exceeded the
authority granted them by two search warrants. We discern no error and
affirm the judgment.
1 The statute has since been repealed and replaced. P.L. 2015, ch. 496, § 6 (effective July 29, 2016)
(codified at 17-A M.R.S. § 1107-A(1)(B)(4) (2016)).
2
I. FACTS AND PROCEDURE
[¶2] The trial court made factual findings that are supported by the
record. See State v. Harriman, 467 A.2d 745, 747 (Me. 1983) (“A finding of fact
supporting a suppression order will not be disturbed on appeal unless clearly
erroneous, that is, lacking any competent evidence in the record to support it.”
(quotation marks omitted)). Furthermore, because neither party moved for
additional findings pursuant to M.R.U. Crim. P. 41A(d), we will “infer that the
court found all the facts necessary to support its judgment if those inferred
findings are supportable by evidence in the record,” and will “consider the
evidence, and reasonable inferences that may be drawn from the evidence, in
the light most favorable to the trial court’s judgment to determine if the
evidence rationally supports the trial court’s decision. In other words, we
assume that the court found facts necessary to support the denial of the
motion.” State v. Sasso, 2016 ME 95, ¶¶ 18-19, 143 A.3d 124 (quotation marks
and citation omitted).
[¶3] On December 29, 2014, a District Court judge issued a warrant
authorizing law enforcement officers to search Cooper, his motel room in
Wiscasset, and his rental car for scheduled drugs. Probable cause for the search
was based on an affidavit executed by Maine Drug Enforcement Agency Special
3
Agent Scott Quintero describing the MDEA’s lengthy investigation of Cooper to
that point. Although Cooper unsuccessfully challenged the probable cause
finding in the trial court, he has not maintained that challenge on appeal, nor
would it have been fruitful for him to do so. See State v. Kimball, 2015 ME 67,
¶ 17 n.4, 117 A.3d 585 (stating that an issue not briefed is waived, subject only
to obvious error review).
[¶4] Quintero and the officers working with him decided to execute the
search warrant at a time when Cooper was away from his motel room and
outside of his vehicle. Quintero explained at the suppression hearing that that
procedure minimized the danger to both officers performing the search, and to
other drivers because there would then be less chance of a high-speed chase.
At about 4:00 p.m. on December 29, Quintero made contact with Cooper after
Cooper and his companion stopped at a convenience store in Newcastle.
As Quintero described it in his testimony at the motion hearing, “Mr. Cooper
was removed from the vehicle by me, and he was handcuffed, and then we just
did a pat down of his clothing at that point to look for weapons, and none were
found. And then he was taken into my vehicle, he sat in the front seat, and I sat
with him.” Quintero said that because people involved in trafficking often
conceal drugs in areas “that a police officer would be uncomfortable reaching,
4
[and] cannot easily access . . . in a public place,” the store was not an appropriate
location to do the full search of Cooper’s person authorized by the warrant.
[¶5] Following an approximately twenty-minute conversation in
Quintero’s car, during which Cooper made no admissions, Cooper was taken to
the Wiscasset motel where he was staying, about twelve minutes away. He was
kept outside while a search of his second-floor room, lasting from 4:20 to
5:00 p.m., was underway; officers discovered what they described as a “piece”
of Suboxone that Cooper’s companion claimed was hers. A dog certified to
detect narcotics was requested from the Bath Police Department; the dog
alerted on Cooper’s anal area and the back seat of his car.
[¶6] Cooper was then taken to Two Bridges Regional Jail, about two miles
from the motel, for a strip search. As the search progressed, a struggle ensued
when Cooper, according to Quintero, “forcefully used his right hand and forced
it into his rectum area . . . aggressively trying to force his fingers further up his
rectum.” Quintero swore out a new affidavit and obtained a new search
warrant from a Superior Court justice authorizing imaging scans of Cooper’s
body and a cavity search for illegal drugs.2 When confronted with a CT scan
2 At oral argument, the State maintained that the original search warrant authorizing a search of
Cooper’s person—apparently routinely requested in drug trafficking cases—gave officers the
authority to conduct a medical scan and a body cavity search, and the second warrant was therefore
obtained owing to “an abundance of caution.” Because the second warrant explicitly authorized
5
showing a bag of pills in his rectum, Cooper said, “You got me,” and produced a
bag containing ninety thirty-milligram oxycodone pills.
[¶7] Cooper was indicted for unlawful trafficking in schedule W drugs
(Class B), 17-A M.R.S. § 1103(1-A)(A) (2016); unlawful possession of
schedule W drugs (Class C), 17-A M.R.S. § 1107-A(1)(B)(4); and trafficking in
prison contraband (Class C), 17-A M.R.S. § 757(1)(B) (2016). He moved to
suppress evidence of the drugs on the grounds that (1) the first search warrant
for his person and car was not supported by probable cause, (2) he was
subjected to an illegal de facto arrest, (3) the CT scan was an unreasonable
search, and (4) his production of the pills and his statement were involuntary.
The court held a testimonial hearing and denied the motion.
[¶8] Cooper entered a conditional guilty plea to the charge of unlawful
possession of schedule W drugs pursuant to M.R.U. Crim. P. 11(a)(2),
preserving his right to appeal from the denial of his motion to suppress, and the
State dismissed the remaining counts. The court entered judgment and
those steps, we need not address that question. We note, however, that if the original warrant
requested was intended to have the effect of authorizing a cavity search, it would have been
preferable to state that request in the warrant application so that the reviewing magistrate clearly
understood the scope of the authority that she was being asked to grant. It is not readily apparent,
and we do not decide today, that a general request to search a person for illegal drugs includes the
entire range of options from a cursory pat down to the most intrusive search possible.
6
sentenced him to eighteen months’ imprisonment, stayed pending appeal, and
a $400 fine. Cooper filed a timely notice of appeal.
II. DISCUSSION
[¶9] “When reviewing a trial court’s denial of a motion to suppress, we
review the findings of fact by the trial court for clear error and review its
conclusions of law de novo. We will uphold the denial of a motion to suppress
if any reasonable view of the evidence supports the trial court’s decision.”
State v. Gerry, 2016 ME 163, ¶ 11, --- A.3d --- (citation and quotation marks
omitted). Cooper asserts that when officers took him back to the motel in
Wiscasset after detaining him at the Newcastle convenience store and
finding nothing incriminating during their initial search, they effected an illegal
de facto arrest, requiring that all evidence obtained thereafter be suppressed.
We begin our review of the officers’ actions by recognizing that
“reasonableness is always the touchstone of Fourth Amendment analysis.”3
Birchfield v. North Dakota, --- U.S. ---, 136 S. Ct. 2160, 2186 (2016).
[¶10] Here, officers obtained a search warrant before initially searching
Cooper at the convenience store, and then another before subjecting him to a
more intrusive medical scan and potential cavity search. The existence of the
3 Both the United States and Maine Constitutions protect citizens from “unreasonable searches
and seizures.” U.S. Const. amend. IV; Me. Const. art. I, § 5.
7
warrants explicitly authorizing a search of Cooper’s person—the validity of
which he does not challenge on appeal—is a critical factor in assessing the
reasonableness of the officers’ conduct, and it distinguishes the decisions of the
United States Supreme Court on which Cooper principally relies.4
See Massachusetts v. Upton, 466 U.S. 727, 733 (1984) (“[O]nce a warrant has
been obtained, intrusion upon interests protected by the Fourth Amendment is
less severe than otherwise may be the case.”); State v. Bouchles, 457 A.2d 798,
802 (Me. 1983) (Carter, J., dissenting) (recognizing “the constitutionally
mandated preference for a warrant in the case of any search”).
[¶11] In an opinion that we find persuasive, the Supreme Court of
New Jersey decided a case similar to the case at bar. State v. Watts,
126 A.3d 1216 (N.J. 2015). In that case, police officers, who had a search
4 Cooper points to two decisions in particular: Bailey v. United States, --- U.S. ---, 133 S. Ct. 1031
(2013), and Rodriguez v. United States, --- U.S. ---, 135 S. Ct. 1609 (2015). In Bailey, the Court held
that “[t]he categorical authority to detain incident to the execution of a search warrant [articulated
in Michigan v. Summers, 452 U.S. 692 (1981),] must be limited to the immediate vicinity of the
premises to be searched.” 133 S. Ct. at 1041. Bailey is inapplicable here because the search warrant
in that case authorized only a search of premises, not of the defendant. Id. at 1036; see State v. Watts,
126 A.3d 1216, 1226 (N.J. 2015) (“Bailey does not apply to a case involving a search warrant for a
person.”). The Rodriguez Court, analyzing a dog sniff conducted after the completion of a routine
traffic stop, held that “[a] seizure justified only by a police-observed traffic violation . . . becomes
unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a
ticket for the violation.” 135 S. Ct. at 1612 (emphasis added) (alterations and quotation marks
omitted). As the motion court concluded, Rodriguez is distinguishable from these facts because this
is not a case involving a question of “whether police . . . may extend an otherwise-completed traffic
stop, absent reasonable suspicion,” id. at 1614 (emphasis added), but rather concerns the detention
of a person whom a judge determined should be searched based on probable cause that he was in
possession of illegal drugs.
8
warrant for both Watts and his apartment, detained him as he exited a liquor
store, patted him down for weapons, and took his keys. Id. at 1219-20. He was
then handcuffed, placed in a police car, and taken back to his apartment; when
he exited the vehicle, four bundles of heroin fell out of his pant leg. Id. Watts
moved to suppress evidence of the heroin, asserting that the police had no
authority to search him further after the initial pat down yielded nothing
incriminating. Id. The high court rejected the trial court’s “all-or-nothing
approach” that “police had one shot to conduct the search correctly,” id. at 1221,
1224, holding that
[t]he police were armed with a warrant to search defendant’s
person for drugs. The police officers were not required to conduct
a highly intrusive search of defendant on a public sidewalk in full
view of pedestrian and vehicular traffic. Such a search would have
offended defendant’s dignitary interest and would have been
contrary to the police interest in conducting a thorough search in a
safe and secure setting. Patting down defendant for weapons
before transporting him in a police vehicle was a necessary
precaution . . . . The initial search was limited in scope and did not
bar the police from moving defendant to a more controlled location
to complete the search for drugs in accordance with the warrant.
. . . .
A warrant for the search of a person carries with it implicit
authority to detain that person for a reasonable period to complete
the objective of the search. The period of the detention, however,
must directly correspond to the purpose of the search and may not
extend beyond that time.
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. . . .
[T]he . . . Constitution [does not] forbid[] the police from moving
the individual to a secure and private setting where the search can
be conducted without exposing the person to public degradation
and the police to potential dangers.
Id. at 1219, 1223-24.
[¶12] Applying these principles to the motion court’s decision, the court
did not err in concluding that Cooper’s continued detention was authorized by
the original warrant to search him for illegal drugs. The facts found by the
court, which are supported by evidence in the record reviewed in the light most
favorable to the court’s order, see Gerry, 2016 ME 163, ¶ 2, --- A.3d ---, establish
that Cooper was initially detained at the convenience store and patted down for
weapons, a search properly characterized as “an incidental search preliminary
to fulfilling the main objective of the warrant—a search of defendant for the
presence of drugs and related paraphernalia.” Watts, 126 A.3d at 1225.
[¶13] After a twenty-minute conversation with Agent Quintero, Cooper
was taken to the motel twelve minutes away, where a search of his room was
in progress. Quintero testified that there were several reasons for taking
Cooper back to the motel that were related to the effectiveness and efficiency
of the search, including that law enforcement manpower was most
concentrated there; Cooper’s car and companion were taken there; the first
10
warrant authorized a search of the motel room for drugs; it was a midpoint
between the convenience store and the location of the drug dog that was on the
way; and it is common practice for the officer executing a search warrant on a
person to be present for the search of the person’s room.
[¶14] A schedule W drug (Suboxone, which contains buprenorphine,
see 17-A M.R.S. § 1102(1)(I) (2016)), claimed by Cooper’s companion, was
found during the room search. The court found Quintero credible when he
testified that pursuant to the Attorney General’s written policy, officers
purposely proceeded incrementally toward a strip search and potentially to a
body cavity search rather than taking that extreme step immediately.5 Their
call for a drug dog, which arrived during the search of Cooper’s room, was a
reasonable part of that process—Quintero said that when a dog alerts, a person
carrying drugs will often give up and produce them, obviating the need for more
intrusive measures. Another MDEA agent involved in the room search testified
that drug dogs are a scarce resource and are not called out until they are
5 Pursuant to 5 M.R.S. § 200-G(1) (2016), the Attorney General has promulgated written rules
governing procedures that law enforcement officers are to follow when conducting strip searches
and body cavity searches. 8A C.M.R. 26 239 001 (2007). Those rules require, inter alia, that body
cavity searches be conducted pursuant to a search warrant, absent exigent circumstances or consent.
Id. § II(2). There is no suggestion that the officers who searched Cooper did not properly follow the
Attorney General’s rules in this case.
11
needed, so in this case officers did not have a dog standing by when the decision
was made to detain Cooper at the convenience store.
[¶15] The dog alerted on Cooper, further adding to the justification for
his continued detention, and he was taken to the jail, two miles away, for a strip
search. His conduct during that search, which an objective observer could only
view as a desperate attempt to hide something inside his body, led to a
magistrate’s finding of probable cause and a second warrant authorizing the
CT scan and cavity search that resulted in Cooper producing the drugs that he
was carrying.
[¶16] Contrary to Cooper’s argument, the initial pat down, the dog sniff
at the motel, and the strip search at the jail were not independent events
requiring separate justifications, but rather all part of the search authorized by
the first warrant. The CT scan, if not justified by the first warrant,6 was
authorized by the second. Because Cooper’s detention during that ongoing
process was reasonable when exercising the authority granted by the search
warrants, it did not offend the Fourth Amendment. See Watts, 126 A.3d at 1226
(concluding that when drugs were discovered “it was not a second search but
6 As discussed earlier, because the second warrant authorized the CT scan, and would have
authorized a cavity search had one occurred, we need not decide the full scope of the first warrant.
12
the reasonable continuation of a search that had not been completed” when
defendant was initially patted down and then transported).
[¶17] Having reached that conclusion, we do not address the State’s
alternative argument that even if detaining Cooper after the initial seizure at
the convenience store was not authorized by the first warrant, the detention
was nonetheless lawful as an investigative detention, and/or because probable
cause existed to arrest him.
The entry is:
Judgment affirmed.
Justin W. Andrus, Esq. (orally), and Andrei R. Maciag, Esq., Andrus Law, LLC,
Brunswick, for appellant Allen J. Cooper
Janet T. Mills, Attorney General, and Johnathan G. Nathans, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for appellee State of Maine
Lincoln County Superior Court docket number CR-2014-442
FOR CLERK REFERENCE ONLY