State v. Thurlow

GLASSMAN, Judge,

with whom Nichols, Judge, joins, dissenting.

I respectfully dissent. I believe the suppression justice erred in finding the initial stop of the defendant’s vehicle to be lawful. When a law enforcement official detains an individual to investigate suspected criminal activity, that individual has been seized in a fourth amendment sense. Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980); State v. Rand, 430 A.2d 808, 817 (Me.1981). Because the fourth amendment requires that all seizures be reasonable, a police officer is not free to detain an individual absent justifying circumstances. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1877-79 (1968). To justify the intrusion, the detaining officer must “have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. at 417-18, 101 S.Ct. at 694-95. Stated otherwise:

The Fourth Amendment to the United States Constitution and Article I, Section 5 of our Maine Constitution do require that the officer’s objective observations, coupled with any relevant information he may have, together with the rational inferences and deductions he may draw and make from the totality of the circumstances, be sufficient to “reasonably warrant suspicion of criminal conduct” on the part of the party or parties subjected to the investigatory stop or detention, criminal conduct which has taken place, is occurring, or imminently will occur.

State v. Griffin, 459 A.2d 1086, 1089 (Me. 1983). In determining whether an articula-ble suspicion exists, the court must look to the “totality of the circumstances.” A finding that the police had a particularized and objective suspicion that criminal activity was or was about to be afoot will be reversed only if clearly erroneous. State v. Fillion, 474 A.2d 187, 190 (Me.1984).

Looking as we must at the collective knowledge of the police to determine the legality of the stop of the defendant’s automobile, State v. Gervais, 394 A.2d 1183, 1189 (Me.1978), the specific question presented is whether a person of reasonable caution, aware of recent robberies of grocery markets in Bangor, would be warranted in suspecting criminal activity because during the early winter evening two people in a legally parked car on a steeply graded public street for over an hour had been “looking straight into” a market from across the street, and had then driven away.

The record discloses that from his own observations of the defendant’s vehicle, Officer Roach “found nothing peculiar or unusual” and “no reason to be suspicious of criminal conduct.” The stop of the defendant’s vehicle was entirely on the basis of the clerk’s observations which had been communicated to Officer Roach by Sergeant Guerin. The majority attributes a possible acquaintance between the com*965plaining clerk and the Bangor police which, together with their knowledge of the area, might have allowed the officers to place a heightened confidence in her report to them. This is simply speculation unsupported by the record. We assume the accuracy of her report and further grant that the defendant’s “looking straight into” the store made her “uncomfortable.” Even so, the clerk’s observation, on which the police relied, does not give rise to an articulable suspicion of criminal activity. Indeed, Terry v. Ohio, 392 U.S. at 23, 88 S.Ct. at 1881, acknowledged by the majority as the seminal decision regarding investigatory stops, places the clerk’s apprehensions and the defendant’s alleged activity in the proper perspective: “Store windows ... are made to be looked in.” We have before rejected as an articulable suspicion an informant’s hunch that something about the defendant was suspicious, and I believe we should do so here. State v. McKenzie, 440 A.2d 1072, 1076 (Me.1982).

Moreover, we are required to review the propriety of the finding below in light of the totality of the circumstances of which the police were aware at the time of the detention, including the fact that the defendant, prior to the arrival of the police, had driven away from Young’s Market. In United States v. Posey, 663 F.2d 37 (7th Cir.1981), cert. denied, 455 U.S. 959, 102 S.Ct. 1473, 71 L.Ed.2d 679 (1982), the Seventh Circuit considered the legality of an investigatory stop in an analogous fact pattern. In Posey, a police officer observed the defendant, on a weekday afternoon, drive several times past a bank in Steele, Alabama. Reacting to a radio bulletin put in by the officer, another officer stopped the vehicle in question some fifteen miles from the point of initial observation. Discussing the propriety of the District Court’s finding of an articulable suspicion, the Posey court stated:

Even assuming arguendo that Posey’s conduct in Steele constituted justification for a Terry stop, that justification had evaporated by the time of the stop. Presumably, the criminal activity of which Posey was suspected by Chief Graham was preparing to rob the Steele bank. Once Posey was fifteen miles outside of Steele traveling away from that town it cannot fairly be contended that Posey’s conduct gave rise to a reasonable suspicion that a crime had been committed or was about to be committed. Accordingly, we conclude that the stop of Posey was violative of his fourth amendment rights ....

Id. at 41; see also United States v. Roy, 568 F.Supp. 1127 (D.Conn.1983) (even if circumstances preceding detention of defendant gave rise to reasonable suspicion that robbery might ensue, justification for a Terry stop vanished after defendant, on own volition, left scene of suspected criminal activity).

In the instant case, as in Posey, “even assuming arguendo" that the defendant’s conduct constituted justification for a Terry stop, that justification evaporated once he departed from the area of Young’s Market. Because the only basis for the stop was the unsupported, vague anxieties expressed by a youthful clerk at Young’s Market, I believe the stop of the defendant’s vehicle was unlawful. The evidence obtained as a result of the stop should have been suppressed.