State v. Connor

CLIFFORD, J.,

with whom LEVY, J., joins, dissenting.

[¶ 13] I do not disagree that there was more than sufficient evidence presented by the State that would support the denial of Connor’s motion to suppress the evidence of his intoxication. The findings recited by the court, however, made in response to Connor’s specific request to the court for findings, and on which the court stated it was relying, in my view do not provide a sufficient basis to justify the stop. Accordingly, I respectfully dissent.

[¶ 14] At the suppression hearing, after listening to the officer’s testimony and the arguments of both parties, the court found that the officer was in the area to determine whether any underage drinking was occurring, and that the officer viewed Con-nor’s vehicle leaving a house that had “all the indicia of a party.” The court did not make any further factual findings. The court concluded that under these circumstances, there “would be reasonable suspicion to stop every vehicle leaving that party to determine whether the person was underage and whether they had been drinking.”

[¶ 15] Connor, however, then requested the court to clarify its conclusion, asking whether the court’s finding “is that [the stop is] reasonable because it would have been reasonable to stop any vehicle leaving the party on those facts.” (Emphasis added). Connor stated that he was making the request so that “[it] may be clear for the record.” The Court’s full response to Connor’s request was “under those circumstances of this particular case where [the vehicle] appears to have been coming right from the location of that party, that it would have been, yes.”

[¶ 16] Maine Rule of Criminal Procedure 41A(d) provides that, on ruling on a motion to suppress evidence, “the court shall make findings of fact and conclusions of law either on the record or in writing.” The appellant’s burden under Rule 41A(d) to ensure findings adequate for appellate review was expressed in State v. Izzo, 623 A.2d 1277, 1281 (Me.1993), as follows:

Even though the obligation of the court under Rule 41A to provide findings of fact and conclusions of law is absolute rather than conditional, the party responsible for an adequate record, the appellant, has the burden to request the court to make findings if none are made, or to expand on inadequate findings in *1007order for the record to be meaningful for appellate review.

(quotation marks omitted). Connor fulfilled his obligation pursuant to Rule 41A(d) to request the court to expand on inadequate findings in order for the record to be meaningful for appellate review.

[¶ 17] The parties were aware of what was at issue in this case. Connor’s attorney made a good faith request for further findings to determine on what facts the court was relying when it considered whether the stop was justified. The court made a specific finding in response to that request that made clear that it was relying on the fact that the truck was driving away from a party where underage drinking was suspected. The court made no mention of Connor’s operation of the vehicle, and did not indicate that it was placing any reliance on the operation of the vehicle as contributing to the justification for the stop. The court was not required to accept all of the evidence presented at the suppression hearing. See State v. Snow, 513 A.2d 274, 277 (Me.1986). Pursuant to Rule 41A(d), our review of the court’s ultimate determination as to whether there was reasonable articulable suspicion should therefore be based solely on the facts found by the court, if supported by competent evidence in the record.5 State v. Drown, 2007 ME 142, ¶ 6, 937 A.2d 157, 159.

[¶ 18] The Fourth Amendment to the United States Constitution “protects] individuals from unreasonable intrusions by police officers and other governmental agents.” State v. Cusack, 649 A.2d 16, 18 (Me.1994). An investigatory stop is not justified unless the officer has individualized suspicion that a person is engaged in criminal conduct. See State v. Dean, 645 A.2d 634, 635-36 (Me.1994). Although reasonable and articulable suspicion requires less proof than probable cause, “[t]he suspicion needs to be based on more than speculation or an unsubstantiated hunch.” State v. Eklund, 2000 ME 175, ¶ 6, 760 A.2d 622, 624 (quotation marks omitted); see also Dean, 645 A.2d at 636 (stating that “[i]t is well-settled that a person’s mere presence in a high crime area does not justify an investigatory stop”). That a person operates a vehicle outside of or near a bar, or late at night around the time that bars generally close, does not by itself amount to reasonable articulable suspicion, but can be considered by the officer in weighing the totality of the circumstances to determine whether reasonable articulable suspicion exists. See State v. Richford, 519 A.2d 193, 195 (Me.1986) (holding that an officer had reasonable articulable suspicion to stop the defendant who sat in a parked car outside of a bar at closing time, and whose physical movements indicated drowsiness or intoxication); see also State v. Burnham, 610 A.2d 733, 735 (Me.1992) (holding that, “[o]n the basis of the lateness of the hour, the unexplained weaving of the car, and the question of the [defendant’s] speed,” the officer’s stop of the defendant was justified).

[¶ 19] Connor complied with Rule 41A(d) by requesting findings of fact. Those facts recited by the court in response to that request do not provide a sufficient basis to support a reasonable *1008articulable suspicion to stop Connor’s vehicle. Like the situation where a person is seen leaving a bar, or driving late at night around the time when the bars generally close, a person driving a vehicle from a party where underage drinking is suspected, by itself, does not amount to reasonable articulable suspicion that would justify an investigatory stop. See Burnham, 610 A.2d at 735; Richford, 519 A.2d at 195. In my view, the court erred by denying Connor’s motion to suppress. I would vacate the conviction.

. It is the nature of suppression motion practice that facts are often found and the motion is decided from the bench, and that requests for further findings pursuant to M.R.Crim. P. 41 A(d) are also made orally and decided from the bench. To require parties to always file a written motion for further findings following the hearing on a motion to suppress will impose an unnecessary burden on the attorneys, and on the courts; will result in higher attorney fees; and will require formality where these motions have frequently been made in a more informal manner.