State of Maine v. Richard K. Ntim Jr. , 76 A.3d 370 ( 2013 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 80
Docket: Cum-12-289
Argued: January 15, 2013
Decided: September 17, 2013
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and
JABAR, JJ.
Majority: SAUFLEY, C.J., and ALEXANDER, LEVY, MEAD, and GORMAN, JJ.
Concurrence: SILVER, JJ.
Dissent: JABAR, JJ.
STATE OF MAINE
v.
RICHARD K. NTIM JR.
GORMAN, J.
[¶1] Richard K. Ntim Jr. appeals from a judgment of conviction entered by
the trial court (Lawrence, J.) upon his conditional guilty plea to one count of
unlawful trafficking in a scheduled drug (Class B), 17-A M.R.S. § 1103(1-A)(A)
(2012). Ntim contends that the court (Cole, J.) erred in denying his motion to
suppress evidence obtained from a search of his person and warrantless
administrative inspection of a bus on which he was a passenger. We affirm the
judgment.
I. BACKGROUND
[¶2] “We view the record in a light most favorable to support the court’s
order on the motion to suppress, and find that the record supports the following
2
facts.” State v. Bailey, 2012 ME 55, ¶ 3, 41 A.3d 535. On September 30, 2011,
the State Police Commercial Motor Vehicle Unit (Commercial Vehicle Unit),
under the supervision of now-Lieutenant Shawn Currie, conducted a planned
commercial vehicle inspection of a Greyhound bus, en route from New York to
Bangor, at the Greyhound station on St. John Street in Portland. The inspection
took place during a regularly scheduled, fifteen- to twenty-minute stop. Lieutenant
Currie approached the bus driver and advised him that the State Police would be
inspecting the interior and exterior of the bus. Because the inspection included
checking the onboard restrooms, Lieutenant Currie asked the driver to request that
the passengers get off the bus. The passengers complied.
[¶3] The interior inspection of the bus also included a sweep by Angel, a
State Police dog under the control of Sergeant Eric Bergquist of the Commercial
Vehicle Unit. After Angel “hit” twice on Ntim’s luggage, Lieutenant Currie
searched Ntim’s bag but found only some green plant material residue.
[¶4] In addition to troopers from the Commercial Vehicle Unit, agents from
the Maine Drug Enforcement Agency, Federal Drug Enforcement Agency, and
U.S. Immigration and Customs Enforcement were present at the Greyhound station
that morning. Federal Drug Enforcement Agents Paul Wolfe and Joey Brown
constituted one of several teams that collectively planned to speak with all of the
roughly twenty-five bus passengers during the scheduled stop to find out where
3
each passenger was coming from and going to and whether any unlawful activity
was occurring. Agents Wolfe and Brown observed that Ntim appeared very
nervous when getting off the bus. After first speaking with a couple from Texas,
Agents Wolfe and Brown approached Ntim, identified themselves,1 obtained some
basic information from Ntim, and relayed it to an officer responsible for checking a
database containing information about criminal activity. The database check
revealed that Ntim was mentioned in an active drug investigation in Bangor, and
that the name was a possible alias.
[¶5] Sometime after completing the bus inspection, Sergeant Bergquist
approached Ntim with Angel. In response to Sergeant Bergquist’s request, Ntim
agreed to be sniffed by Angel. Angel indicated twice on Ntim; Sergeant Bergquist
questioned the validity of the first indication but was confident as to the second
indication, which was up close to Ntim’s crotch. After the dog sniff, Agent Wolfe
requested permission from Ntim to search his person and advised Ntim that
probable cause existed to obtain a search warrant if he declined. Ntim agreed and
went into the restroom at the terminal with Agent Brown and another unspecified
agent who searched Ntim and, with his assistance, found about three ounces of
cocaine in his underwear.
1
The agents were dressed in plain clothes and their guns were not visible.
4
[¶6] The State charged Ntim with one count of unlawful trafficking in a
scheduled drug (Class B), 17-A M.R.S. § 1103(1-A)(A), and one count of unlawful
possession of a scheduled drug (Class B), 17-A M.R.S. § 1107-A(1)(A)(1) (2012).
After a hearing, the court denied Ntim’s motion to suppress any evidence obtained
from the search of his person after finding that there was a legitimate reason for
having passengers get off the bus during the inspection, law enforcement has the
absolute right to ensure that public safety is maintained in a public bus terminal
and had done nothing wrong, and Ntim consented to Angel coming in close
proximity to his person to check for drugs and to the agents’ search of his person in
the restroom. The court, satisfied with Angel’s training and the reliability of the
second indication on Ntim, also found that Angel’s indication created an
articulable suspicion that gave the agents probable cause to proceed further. Ntim
did not file a motion for further findings pursuant to U.C.D.R.P.–Cumberland
County 41A(d).
[¶7] Ntim conditionally pleaded guilty to one count of unlawful trafficking
in a scheduled drug and the State dismissed the count of unlawful possession of a
scheduled drug. The court sentenced Ntim to four years in prison with all but
eighteen months suspended and a $1,000 fine. Ntim timely appeals the court’s
denial of his suppression motion pursuant to 15 M.R.S. § 2115 (2012),
U.C.D.R.P.–Cumberland County 11(a)(2), and M.R. App. P. 2(b).
5
II. DISCUSSION
[¶8] Ntim argues that the Commercial Vehicle Unit’s inspection of the bus
tainted his consent to the dog sniff and search of his person because it exceeded the
Fourth Amendment’s limits on warrantless administrative inspections. The State,
on the other hand, contends that (1) law enforcement conducted both the dog sniff
and search of Ntim’s person pursuant to his consent rather than as an extension of
the bus inspection, (2) Ntim’s consent to each was voluntary, and (3) the dog sniff
generated probable cause to proceed with the search of Ntim.
[¶9] We review the suppression court’s factual findings “to determine
whether those findings are supported by the record, and will only set aside those
findings if they are clearly erroneous.” Bailey, 2012 ME 55, ¶ 12, 41 A.3d 535
(quotation marks omitted). We review de novo “a challenge to the application of
those facts to constitutional protections.” Id. (quotation marks omitted). “If the
ruling on the motion to suppress is based primarily on undisputed facts, it is
viewed as a legal conclusion that is reviewed de novo.” Id. (quotation marks
omitted).
[¶10] Despite Ntim’s argument asking that it link the troopers’ use of a dog
as part of their administrative inspection of the bus with the drug enforcement
agents’ activities in the terminal, the trial court did not find that there was a link
between these activities. The court specifically found that having the passengers
6
get off the bus was appropriate, given the type of inspection the troopers would be
conducting. The court also accurately concluded that the drug enforcement agents’
actions in the terminal—attempting to speak with each of the passengers who had
exited the bus—were lawful, and that it was the actions that took place inside the
terminal that led to the discovery of cocaine on Ntim. Because the court did not
find that what happened inside the bus was connected to what happened in the
terminal, the court did not analyze the bus inspection to determine whether it fell
within the Fourth Amendment’s exception to the warrant requirement for
administrative inspections of pervasively regulated industries, or whether using the
drug dog to sweep the bus interior rendered the inspection unlawful.2 See New
York v. Burger, 482 U.S. 691, 702-03 (1987); State v. Johnson, 2009 ME 6, ¶ 19,
962 A.2d 973. As noted above, Ntim did not ask the suppression court to make
additional findings to explain further its determination that the use of the dog on
the bus was not connected to the dog sniff and subsequent search in the terminal.
2
To be considered reasonable pursuant to the Fourth Amendment, New York v. Burger requires that a
warrantless administrative inspection of a pervasively regulated industry meet the following criteria: (1)
“there must be a substantial government interest that informs the regulatory scheme pursuant to which the
inspection is made”; (2) it “must be necessary to further [the] regulatory scheme”; and (3) “the statute’s
inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a
constitutionally adequate substitute for a warrant.” 482 U.S. 691, 702-03 (1987) (alterations in original)
(quotation marks omitted). We have analyzed and found constitutional, in the context of commercial
trucking, the statutory and regulatory scheme pursuant to which designated agents conduct warrantless
administrative inspections of commercial motor vehicles. See State v. Melvin, 2008 ME 118, ¶¶ 10-12,
955 A.2d 245. Designated agents also derive their authority to inspect buses from the same Federal
Motor Carrier Safety Regulations evaluated in Melvin but additional regulations apply. 29-A M.R.S.
§ 555 (2012); 49 C.F.R. Ch. III, Subch. B (2012); see, e.g., 49 C.F.R. § 374.313(b) (2012) (requiring
buses to have clean, functional restrooms on board).
7
Because the record is not developed in that regard, we do not analyze the bus
inspection here. Rather, we will proceed on the assumption that the administrative
inspection violated the Fourth Amendment.3
[¶11] Given that assumption, we must determine whether the evidence at
issue should be excluded as fruit of the prior police illegality or whether it need not
be excluded because it is sufficiently attenuated from the inspection. State v.
Trusiani, 2004 ME 107, ¶ 20, 854 A.2d 860. Although a consent may purge the
taint of a prior police illegality, it is not the only consideration. Bailey,
2012 ME 55, ¶¶ 15-16, 41 A.3d 535. We also assess the voluntariness of the
consent, “the temporal proximity” of the prior police illegality and the consent,4
“the presence of intervening circumstances, and, particularly, the purpose and
3
In addition to our already-stated assumption that the entire bus inspection violated the Fourth
Amendment, see City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (stating that an administrative
search without particularized suspicion of criminal conduct may be permitted, provided that the search is
appropriately limited to its administrative purpose), it does appear that Lieutenant Currie’s search of
Ntim’s bag on the bus was also not Constitutionally permissible. Although the dog’s alert at Ntim’s seat
generated the probable cause necessary to seize the bag on the seat, the Fourth Amendment does not
permit law enforcement to search the bag without a warrant. See Florida v. Harris, 133 S. Ct. 1050, 1057
(2013); United States v. Place, 462 U.S. 696, 701-02 (1983) (noting that if law enforcement has probable
cause to believe that a personal effect located in a public place contains contraband, the officers may seize
the property “pending issuance of a warrant to examine its contents”).
4
Given that Brown v. Illinois dealt with an illegal arrest and the resulting confession, it actually
describes the temporal factor as measuring the time lapsed between “the arrest and the confession.”
422 U.S. 590, 603 (1975). Here, we are evaluating the effect that an illegal bus inspection has on the
admissibility of physical evidence subsequently recovered from a passenger and therefore consider the
time lapsed between the illegal inspection and the defendant’s consent. See State v. Boyington,
1998 ME 163, ¶ 12, 714 A.2d 141.
8
flagrancy of the official misconduct.”5 Brown v. Illinois, 422 U.S. 590, 603-04
(1975) (citations omitted); see Bailey, 2012 ME 55, ¶ 15, 41 A.3d 535 (observing
that we apply the Brown factors to physical evidence as well as statements made
following an illegal arrest). These factors “serve as a means to determine whether,
in light of the initial police illegality, the subsequent evidence was obtained by
exploitation of that illegality or instead by means sufficiently distinguishable to be
purged of the primary taint.” Bailey, 2012 ME 55, ¶ 16, 41 A.3d 535 (quotation
marks omitted). Our past application of the Brown factors reveals that the weight
assigned to each factor varies with each case. Compare Trusiani, 2004 ME 107,
¶¶ 23-29, 854 A.2d 860 (focusing on the absence of flagrant police misconduct in
holding that the taint was dissipated despite the temporal proximity and the
absence of intervening circumstances), with State v. LeGassey, 456 A.2d 366, 368
(Me. 1983) (highlighting the temporal proximity and lack of intervening
circumstances in holding that the taint was not dissipated).
[¶12] Because the voluntariness of the consent is a threshold factor, see
Bailey, 2012 ME 55, ¶ 15, 41 A.3d 535, we begin there by noting that Ntim has not
raised any objections to the court’s finding that his consent to the dog sniff was
5
Brown also identifies police compliance with Miranda v. Arizona, 384 U.S. 436 (1966), as an
additional factor. Brown, 422 U.S. at 603. Here, there is no Miranda issue as Ntim consented to the dog
sniff prior to his arrest. See, e.g., State v. Trusiani, 2004 ME 107, ¶ 22, 854 A.2d 860; Boyington,
1998 ME 163, ¶ 11 & n.2, 714 A.2d 141.
9
voluntary. As such, and given that all of the court’s findings in that regard are
supported by competent record evidence, the court did not err in finding that Ntim
voluntarily consented to a dog sniff. See State v. Bailey, 2010 ME 15, ¶ 19,
989 A.2d 716.
[¶13] We next turn to the temporal proximity between the bus inspection
and Ntim’s consent. As the court found, and as the record shows, those events
happened during the fifteen to twenty minutes that the bus was scheduled to stop in
Portland. Such close temporal proximity cuts in favor of suppressing the evidence.
See Trusiani, 2004 ME 107, ¶¶ 2-4, 23, 854 A.2d 860. Nevertheless, temporal
proximity is often regarded as the least helpful of the Brown factors and may be
outweighed by the others. Id. ¶ 23; see also LeGassey, 456 A.2d at 368.
[¶14] At the heart of this case is the presence of intervening circumstances.
We have found that intervening circumstances existed when the additional lawful
activities undertaken by an officer produced further information that prompted the
officer’s request for consent. See State v. Boyington, 1998 ME 163, ¶¶ 12-13,
714 A.2d 141. If, however, despite an officer’s additional activities, the
information prompting the request for consent is solely attributable to the prior
illegality, those activities will not help dissipate the taint of that illegality. See
State v. McKenzie, 440 A.2d 1072, 1076-77 (Me. 1982).
10
[¶15] In Boyington, an officer from the sheriff’s department arrested
Boyington after illegally stopping his vehicle and recovering marijuana plants from
the trunk. 1998 ME 163, ¶ 2, 714 A.2d 141. About two hours later, the sheriff’s
department, which had advised local police of the arrest, informed local police that
Boyington was about to call home from jail. Id. ¶ 3. Based on that information, an
officer drove to the area and observed Boyington’s wife throw what he suspected
to be marijuana plants into a pond from an adjacent public road. Id. ¶¶ 3, 13. The
officer visually confirmed that the plants were marijuana, proceeded to
Boyington’s house, and asked Boyington’s wife for consent to search the premises,
which she granted. Id. ¶¶ 3-4. In finding that the officer’s actions constituted
intervening circumstances, we reasoned that although the officer went to the road
“only after receiving information” generated by a prior police illegality, “the
officer was positioned legally on that road when he observed [Mrs. Boyington]
throwing plants into the pond” and he waited until after visually confirming the
nature of the plants to ask for her consent to search. Id. ¶ 13.
[¶16] Here, the law enforcement officers in the terminal gained access to
Ntim because he entered the bus terminal while the putatively unlawful bus
inspection occurred. That notwithstanding, the court found and, contrary to the
dissent’s discussion, Ntim did not challenge, that the reason for asking the
passengers to get off the bus—to perform a “level 2” inspection, which includes
11
inspection of the onboard restrooms—was legitimate. See 49 C.F.R. § 374.313(b)
(2012) (“Each bus seating more than 14 passengers (not including the driver) shall
have a clean, regularly maintained restroom.”). In other words, Ntim would have
ended up in the terminal, exposed to law enforcement, regardless of whether or not
Angel was brought in to sweep the bus as part of the interior inspection.
Additionally, law enforcement officers may wait in a bus terminal open to the
public for the purpose of approaching members of the public, requesting
identifying information, and seeking consent-based encounters. See Kentucky v.
King, 131 S. Ct. 1849, 1858 (2011); United States v. Drayton, 536 U.S. 194,
200-01 (2002); Florida v. Bostick, 501 U.S. 429, 434-35 (1991); 1 Wayne R.
LaFave, Search and Seizure § 2.4(b) at 817 (5th ed. 2012). Similarly, the presence
of a narcotics dog does not, without more, violate the Fourth Amendment. See
Illinois v. Caballes, 543 U.S. 405, 409 (2005). Thus, neither the legitimate
presence of the officers in the terminal, nor of the narcotics dog, depended on the
bus inspection; like the officer waiting on the public road in Boyington, the law
enforcement officers here were lawfully present in the Greyhound terminal.
[¶17] What transpired after Ntim got off the bus and decided to remain in
the terminal was a function of the law enforcement officers’ right to be present in
the terminal, handle a drug-sniffing dog, engage bus passengers in consensual
conversation, and seek consent-based encounters. As the passengers got off the
12
bus, plain-clothed drug agents observed that Ntim was very nervous and, consistent
with their plans to speak with all of the passengers, engaged him in a consensual
conversation. Ntim could have declined to speak with the agents, but he did not.
Instead, he told them he was travelling to Orono to see a cousin whose last name
he could not recall, and provided them with identifying information that revealed
prior exposure to drugs and a potential alias.
[¶18] Ntim was next approached by Sergeant Bergquist, who had Angel on
a leash. Although Sergeant Bergquist and Angel were previously on the bus for
part of the inspection, contrary to the dissent’s assertions, there is no evidence in
the record that Bergquist approached Ntim because of Angel’s indication during
the bus sweep, or because of Lieutenant Currie’s discovery of marijuana residue in
Ntim’s bag. Rather, the record supports the inference that Sergeant Bergquist did
not know who owned the bag that Angel alerted on. It was Lieutenant Currie, not
Sergeant Bergquist, who searched the bag, and it was Lieutenant Currie who
testified that he asked the bus driver to identify who had been sitting in that seat,
presumably because the bag did not contain any identifying information. Sergeant
Bergquist, in contrast, testified that, once finished with the interior sweep of the
bus, he intended to walk around the terminal. He altered his plan, however,
because he was approached by an agent whose identity he could not recall. That
agent asked Sergeant Bergquist if he would take Angel to Ntim, who was already
13
engaged in a conversation with Agent Wolfe, because “we have his name in one of
our indexes.” Therefore, the testimony from the handler of the dog will only
support an inference that the request to take the dog to Ntim and ask him to
consent to a dog sniff was prompted by the information Agents Wolfe and Brown
obtained from Ntim. See State v. Connor, 2009 ME 91, ¶ 9, 977 A.2d 1003
(observing that, absent a motion for further findings after a suppression hearing,
“we will infer that the court found all the facts necessary to support its judgment if
those inferred findings are” supported by the record). Because the separate lawful
activities of Agents Wolfe and Brown yielded additional information that resulted
in Sergeant Bergquist requesting Ntim’s consent to a dog sniff, those activities
constitute an intervening factor. See Boyington, 1998 ME 163, ¶ 13, 714 A.2d 141.
[¶19] Finally, we assess the purpose and flagrancy of the police misconduct.
Although the assumed purpose of the bus inspection was to find evidence of drugs,
we cannot conclude that law enforcement’s misconduct in bringing the dog on to
the bus was “a flagrant disregard of the constitution.” Trusiani, 2004 ME 107,
¶ 26, 854 A.2d 860. There is no suggestion in the record that the Commercial
Vehicle Unit did not actually conduct an inspection of the bus, just that it may have
gone too far, and the Fourth Amendment does not prohibit law enforcement from
having a drug dog present for the inspection or otherwise at the terminal. Further,
the activities of the law enforcement officers inside the terminal, engaging in
14
consensual encounters, were lawful. As for the search of Ntim’s bag by Lieutenant
Currie, although it was not constitutionally permitted, it is unclear from the record
whether it rises to the level of flagrant misconduct.6 That the officer’s sole purpose
in searching the bag ostensibly was to follow up on the dog’s indication that the
bag contained drugs weighs in favor of characterizing the misconduct as flagrant.
See Brown, 422 U.S. at 605. Because there is no evidence in the record that
Lieutenant Currie exploited the violation in any way, however, the violation does
not undermine the attenuating effect of the intervening circumstances, even if we
assume that the misconduct was flagrant.
[¶20] Although the bus inspection and Ntim’s consent to the dog sniff were
in close temporal proximity, we conclude that Ntim’s voluntary consent to the dog
sniff was sufficiently attenuated from the bus inspection due to the intervening
activities of the law enforcement personnel present in the terminal. Additionally,
as the court found, Angel’s second alert on Ntim constituted sufficient probable
cause for the agents to proceed with the search of Ntim’s person in the restroom.
See Florida v. Harris, 133 S. Ct. 1050, 1056 n.2, 1057 (2013). Thus, even if the
police ran afoul of the Fourth Amendment while conducting the warrantless
6
Lieutenant Currie’s violation could result in a suppression of the contents of Ntim’s bag, but no
charges were brought against Ntim based on the information obtained from the bag.
15
administrative inspection of the bus, the court did not err in denying Ntim’s motion
to suppress.
The entry is:
Judgment affirmed.
SILVER, J., concurring.
[¶21] I concur in the Court’s opinion, but write separately to emphasize the
dangers of multi-agency search and interdiction projects like this one. Here, the
facts as found by the motion court support denial of Ntim’s motion to suppress.
Nevertheless, the use of drug-sniffing dogs to conduct ostensibly routine
administrative safety inspections of commercial passenger buses is a practice that
should be seriously questioned.
[¶22] The record reveals that the State Police Commercial Vehicle Unit
routinely uses a drug-sniffing dog as part of its safety inspections. The propriety of
this practice is questionable at best. Although dog sniffs are not searches per se,7
the element of deception inherent in this practice is cause for concern. As
Lieutenant Currie testified, passengers are instructed to leave their luggage behind
7
Exposing luggage found in a public place to a trained drug-sniffing dog does not constitute a search
for purposes of the Fourth Amendment. United States v. Place, 462 U.S. 696, 707 (1983). However,
when police officers bring a dog onto the front porch of a home, the physical intrusion into the
constitutionally protected curtilage is enough to establish that a search occurred. Florida v. Jardines, 133
S. Ct. 1409, 1417-18 (2013).
16
when they exit the bus for the safety inspection. This is very likely an illegal
seizure of passengers’ property. This is not a situation where passengers are free to
withhold consent to subject their personal property to an encounter with law
enforcement.8 Passengers are essentially tricked into leaving the bus. They
believe they are leaving for a routine safety inspection, most likely without the
expectation that a police dog will be given unlimited access to their personal
effects. Although there is no expectation of privacy in the odor of illegal drugs
emanating from one’s person or belongings, see Illinois v. Caballes, 543 U.S. 405,
409 (2005); United States v. Place, 462 U.S. 696, 707 (1983), the inability of
passengers to control or participate in the police encounter—or to even know that it
is taking place—is troublesome. As a result, this scenario does not fit comfortably
within existing Fourth Amendment jurisprudence relating to bus searches. See
generally Florida v. Bostick, 501 U.S. 429 (1991) (holding that the practice of
seeking bus passengers’ consent to search is not inherently coercive); United States
v. Drayton, 536 U.S. 194 (2002) (holding that the Fourth Amendment does not
require officers who request bus passengers’ consent to inform passengers of their
right to withhold consent).
8
In the context of drug interdiction efforts conducted on buses, the U.S. Supreme Court has explained
that, in determining whether police conduct is sufficiently coercive that an attempt to seek a consensual
encounter rises to the level of a seizure within the meaning of the Fourth Amendment, the proper inquiry
is “whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the
encounter.” Florida v. Bostick, 501 U.S. 429, 436 (1991).
17
[¶23] As the Court acknowledges in footnote 3 of its opinion, Lieutenant
Currie committed a Fourth Amendment violation when he searched Ntim’s bag.
The dog’s alert may have generated probable cause to believe that the bag
contained contraband, but Currie was not justified in immediately opening it. The
State hinted in its brief that exigent circumstances may have permitted Currie’s
warrantless search of the bag, but did not fully develop this argument. It is
difficult to see what exigent circumstances would have prevented Currie from
temporarily detaining the bag in order to seek either consent or a search warrant.
See Place, 462 U.S. at 702; United States v. Jacobsen, 466 U.S. 109, 121-122
(1984). The State did not argue that the “automobile exception” to the Fourth
Amendment’s general warrant requirement applies in this case. See, e.g.,
California v. Acevedo, 500 U.S. 565 (1982). That argument would likely have
been unsuccessful as well. Automobiles present a unique situation because of their
inherent mobility. Here, there is no indication that Ntim, as a passenger, could
have easily made off with the bus and the potential evidence it contained,
especially in light of the fact that he was inside the terminal when the dog alerted
and police took control of the bag.
[¶24] The State only prevails in this case because, based on the lower
court’s findings, we cannot infer a causal link between this serious violation and
Ntim’s consent to the search of his person, which ultimately revealed the drugs he
18
later sought to suppress. Agent Wolfe testified that he confronted Ntim and
“outlined some of the evidence that indicated that there was a likelihood that he
might be carrying illegal drugs.” Presumably, this would include the fact that the
dog had alerted on his luggage, and that they had already found traces of a leafy
green substance⎯presumably marijuana⎯inside his bag. If this were indeed the
case, Ntim’s consent to the search is almost certainly tainted by this exploitation of
the illegal search. However, our review must be limited to the facts as found by
the motion court. The factual basis to draw such a conclusion is simply lacking
from the motion court’s findings.
[¶25] Ironically, the various law enforcement agencies involved in this case
could have skipped the safety routine, which appears to have been nothing more
than a pretext for conducting drug interdiction, given the presence of both state and
federal drug enforcement agents. If they had simply brought the drug-sniffing dog
into the terminal, this would not even be a close case. See, e.g., Caballes, 543 U.S.
at 409 (concluding that the use of a trained drug-sniffing dog does not implicate
legitimate privacy interests); Place, 462 U.S. at 707 (holding that a dog sniff of
luggage left in a public place is not a search within the meaning of the Fourth
Amendment). Law enforcement officers are free to approach citizens to seek
consensual interactions. Florida v. Royer, 460 U.S. 491, 497 (1983). None of the
actions law enforcement took inside the terminal amounted to constitutional
19
violations. The fact that law enforcement agents could have achieved the same
result without threatening passengers’ Fourth Amendment rights counsels in favor
of a reassessment of the efficacy and utility of this practice.
[¶26] However inadvisable this tactic may be, here the motion court did not
find a connection between the illegal search that took place on the bus and Ntim’s
voluntary consent to a search in the terminal restroom. For that reason alone, I
agree that the court did not err in denying Ntim’s motion to suppress.
JABAR, J., dissenting.
[¶27] I respectfully dissent because the joint operation of the Commercial
Motor Vehicle Unit of the Maine State Police (Commercial Vehicle Unit) and the
Drug Enforcement Agency (DEA) had the primary purpose of interdicting drugs.
This joint operation exploited the Commercial Vehicle Unit’s authority to conduct
safety inspections as a pretext to detect ordinary criminal activity.
[¶28] The suspicionless sweep of buses in interstate travel is a common
police tactic in the “war on drugs” known as “working the buses.”9 Generally, the
tactic involves law enforcement officers boarding interstate buses at stopovers,
identifying themselves, announcing their purpose to locate drug traffickers, and
9
The term “working the buses” was used by the Florida Supreme Court and later by the United States
Supreme Court in Florida v. Bostick. See Florida v. Bostick, 501 U.S. 429, 433 (1991); Bostick v. State,
554 So. 2d 1153, 1156 (Fla. 1989) overruled by Bostick, 501 U.S. at 440.
20
requesting consent to search passengers’ belongings without any prior suspicion of
criminal wrongdoing. See Florida v. Bostick, 501 U.S. 429, 440-42 (1991)
(Marshall, J., dissenting). The Bostick Court held that the police are permitted to
conduct these searches without a warrant pursuant to the passengers’ consent, if the
“officers do not convey a message that compliance with their requests is required.”
Id. at 437 (majority opinion). Following the Bostick decision, there has been
substantial academic criticism of this law enforcement technique. See, e.g., Tracey
Maclin, Justice Thurgood Marshall: Taking the Fourth Amendment Seriously,
77 Cornell L. Rev. 723, 800-01 (1992); Christian J. Rowley, Florida v. Bostick:
The Fourth Amendment—Another Casualty of the War on Drugs,
1992 Utah L. Rev. 601, 626-45; Shawn V. Lewis, Fourth Amendment—Protection
Against Unreasonable Seizures of the Person: the Intrusiveness of Dragnet Styled
Drug Sweeps, 82 J. Crim. L. & Criminology 797, 797-98, 816 (1992).
[¶29] Notwithstanding the controversy surrounding the law enforcement
tactic at issue in this case, unlike the facts in Bostick, here we have the added role
of a pretextual safety inspection. Cf. Bostick, 501 U.S. at 431-32. If the DEA
agents were working independently of the Commercial Vehicle Unit and had
merely engaged Ntim in “consensual conversation[s]” in the terminal, see Court’s
Opinion ¶ 17, then Florida v. Bostick would control this case, and I would agree
with the Court’s decision to affirm. See Court’s Opinion ¶¶ 18, 20. However, we
21
cannot ignore the cooperation and coordination between the Commercial Vehicle
Unit and DEA agents in this joint operation. DEA Agent Wolf said it best when he
testified that “[it was] a planned operation to work with the Maine State Police
[Commercial Vehicle Unit]. They were conducting safety inspections on buses,
and we had an existing relationship with them through which those safety
inspections offered an opportunity for us to work on interdiction.” (Emphasis
added.) Because the investigating officers sought Ntim’s consent for a search only
after they confronted him with evidence gathered in an unlawful search of his
luggage, this case crosses the line drawn by the Bostick Court. See 501 U.S. at
437.
A. Safety Inspection
[¶30] Although the Court assumes that the bus inspection was unlawful,
believing that the record was undeveloped in that regard, Court’s Opinion ¶ 10, I
provide a full analysis of the bus inspection because it is necessary for a clear
understanding of the connection between the actions of the DEA agents and
officers of the Commercial Vehicle Unit.
1. Special Needs Requirement
[¶31] In order to conduct suspicionless and warrantless inspections, the
Fourth Amendment clearly requires the police to demonstrate that they have a
special law enforcement need, distinct from a “general interest in crime control.”
22
See City of Indianapolis v. Edmond, 531 U.S. 32, 40-41 (2000) (emphasis added
and quotation marks omitted); State v. Johnson, 2009 ME 6, ¶¶ 14-16,
962 A.2d 973. This special law enforcement need ensures that police are not
simply circumventing the Fourth Amendment requirements in ordinary criminal
investigations and “prevent[s] arbitrary and oppressive interference by
enforcement officials with the privacy and personal security of individuals.” See
United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976); see also Edmond,
531 U.S. at 41; Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665-68
(1989). For example, the Supreme Court has held that the police may conduct
special needs investigations where the public interest outweighs the degree of
intrusion on the individual’s Fourth Amendment interest—specifically for the
detection of drunk drivers, Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 455
(1990), and illegal aliens, Martinez-Fuerte, 428 U.S. at 566.
[¶32] In City of Indianapolis v. Edmond, the U.S. Supreme Court addressed
a similar inspection using a drug-sniffing dog conducted for the sole purpose of
detecting illegal narcotics. 531 U.S. at 35, 40-41. The Government argued that the
use of the drug dog was a limited intrusion on the individual’s Fourth Amendment
privacy interests as weighed against the public’s substantial interest in curbing
narcotics trafficking. Id. at 42-43. The Edmond Court rejected this argument and
held that the checkpoint was unconstitutional solely based on the program’s
23
primary purpose—detecting ordinary criminal activity. Id. at 43-44 (“We decline
to suspend the usual requirement of individualized suspicion where the police seek
to employ a checkpoint primarily for the ordinary enterprise of investigating
crimes.” (emphasis added)). In Edmond, the Court did not focus on the limited
intrusion of the drug dog, but viewed the use of a drug dog as evidence of the
primary purpose of the inspection—detecting illegal narcotics. Id.
[¶33] Similarly, an administrative safety inspection may not be conducted
primarily for detecting ordinary criminal activity. “In the law of administrative
searches, one principle emerges with unusual clarity and unanimous acceptance:
the government may not use an administrative inspection scheme to search for
criminal violations.” New York v. Burger, 482 U.S. 691, 724 (1987) (Brennan, J.,
dissenting) (citing, inter alia, Michigan v. Clifford, 464 U.S. 287, 292 (1984);
Michigan v. Tyler, 436 U.S. 499, 508 (1978); Donovan v. Dewey, 452 U.S. 594,
598 n. 6 (1981); Camara v. Mun. Ct. of San Francisco, 387 U.S. 523, 539 (1967));
see also Abel v. United States, 362 U.S. 217, 226 (1960) (“The deliberate use by
the Government of an administrative warrant for the purpose of gathering evidence
in a criminal case must meet stern resistance by the courts.”). To determine
whether the safety inspection was conducted to detect ordinary criminal activity,
we examine the intent of the investigating officers.
24
2. Intent of the Investigating Officers
[¶34] Generally, safety inspections of commercial motor vehicles in
interstate travel are permitted without a warrant or prior suspicion. See State v.
Melvin, 2008 ME 118, ¶ 7, 955 A.2d 245. However, to determine whether the
primary purpose of a purported administrative safety inspection is actually for
general criminal investigation, we examine the subjective intent of the
investigating officers. See Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080-81 (2011).
Although we have observed in some Fourth Amendment cases that the subjective
intentions of individual officers are irrelevant, see State v. Cilley, 1998 ME 34, ¶ 7,
707 A.2d 79, searches conducted for administrative purposes or pursuant to a
special law enforcement need are longstanding exceptions to that rule.
See al-Kidd, 131 S. Ct. at 2080 (“Fourth Amendment reasonableness is
predominately an objective inquiry . . . . Two limited exceptions to this rule are our
special-needs and administrative-search cases, where actual motivations do
matter.” (quotation marks and alterations omitted)).
[¶35] An inspection is pretextual when investigating officers use their legal
authority to conduct administrative inspections in order to gain access to persons or
places absent a warrant or prior suspicion in order to conduct ordinary law
enforcement investigations. See Whren v. United States, 517 U.S. 806, 811 (1996)
(quoting Burger, 482 U.S. at 716-17 & n.27); cf. Johnson, 2009 ME 6, ¶¶ 14-16,
25
962 A.2d 973. When the officers conduct a pretextual administrative inspection,
their actions are “invalid ab initio and our analysis . . . end[s] there.” See Johnson,
2009 ME 6, ¶¶ 14-16, 962 A.2d 973.
[¶36] Here, the pretext is obvious—the officers of both the Commercial
Vehicle Unit and the DEA actually intended to conduct a joint investigation to
detect the trafficking of illegal narcotics. The Commercial Vehicle Unit conducted
the safety inspection and the lead investigator of that unit clarified the intent of the
operation at the suppression hearing:
Defense: Okay. You just indicated that there was an exterior walk
around, looking at the lights—(indiscernible). And the [canine]
what—what—what is the [canine] intended to detect on the bus when
you’re doing an inspection?
Lieutenant Currie: Drugs.
Defense: For a safety inspection?
Lieutenant Currie: Yes.
Defense: Okay. So that is part of the primary objective then?
Lieutenant Currie: Well, it’s an additional portion of it. It’s part of
our job to inspect commercial vehicles and to interdict crime.
(Emphasis added.) Further, the drug dog handler in the Commercial Vehicle Unit
testified:
Sergeant Bergquist: There’s part of any commercial inspection under
the federal regulations is [sic] to check for the presence of drugs or
26
alcohol. There’s also a history of large amounts of narcotics being
transported under the disguise of commercial commerce.
Prosecution: So if you were doing any commercial motor vehicle
check, you would use your dog?
Sergeant Bergquist: Correct.
[¶37] Although the regulations prohibit drivers from possessing narcotics or
other substances “which render[] the driver incapable of safely operating a motor
vehicle,” 49 C.F.R. § 392.4(a) (2012), they contain no provision authorizing the
inspection of passengers or their personal belongings for drugs. See generally
29-A M.R.S. § 555(2) (2012) (permitting the adoption of the Federal Motor Carrier
Safety Regulations); V-1 Oil Co. v. Means, 94 F.3d 1420, 1427 (10th Cir. 1996)
(“The [motor carrier safety] regulations make it clear the inspections are limited in
scope to safety concerns. They do not authorize a general search by any law
enforcement officer.” (citation omitted)).
[¶38] When the officers of the Commercial Vehicle Unit stepped foot on the
bus under the guise of a safety inspection with the clear intention to look for drugs,
they violated the Fourth Amendment. See, e.g., al-Kidd, 131 S. Ct. at 2080-81;
Whren, 517 U.S. at 811-12. The Commercial Vehicle Unit’s use of a drug dog is
evidence of their intent not to conduct a safety inspection, but to interdict drugs.
Further, the officers clearly testified that they conducted the inspection for the
purpose of inspecting passengers’ luggage for drugs, which compels me to
27
conclude that the primary purpose was a general interest in crime control, and thus
the inspection violates the Fourth Amendment.
B. DEA Actions
[¶39] Further, the evidence in the record compels me to conclude that the
Fourth Amendment violation was not simply confined to the bus inspection but
also extends to the actions of the DEA agents for three reasons.
[¶40] First, based on Ntim’s failure to move the suppression court for
additional findings of fact or conclusions of law, the Court infers that the trial court
found that Ntim’s consent was the result of a separate lawful investigation and was
thus attenuated from the illegal bus inspection. See Court’s Opinion ¶¶ 10 & n.3,
18. “[W]e 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.”
State v. Connor, 2009 ME 91, ¶ 9, 977 A.2d 1003; see generally
U.C.D.R.P.-Cumberland County 41A(d); M.R. Crim. P. 41A(d). However, as the
Court noted, the trial court never addressed the issue of whether the bus inspection
was lawful, Court’s Opinion ¶ 10 & n.3, and thus it had no reason to determine
whether Ntim’s consent was attenuated from that illegality. See State v. Boyington,
1998 ME 163, ¶ 9, 714 A.2d 141. But see Court’s Opinion ¶ 10 & n.3 (noting that
“[t]he [trial] court also accurately concluded that the drug enforcement agents’
actions in the terminal . . . led to the discovery of cocaine on Ntim”). Thus, the
28
Court in this case infers a finding to support a conclusion that the trial court never
made—that Ntim’s consent was attenuated from the fruits of an illegal bus
inspection.
[¶41] Rather, during the suppression hearing, the trial court stated that the
police “[we]re checking to make sure as to who’s coming into the state, and they
have an absolute right to do that under these circumstances.” (Emphasis added.)
Because the trial court would have had no reason to engage in an attenuation
analysis pursuant to State v. Boyington, 1998 ME 163, ¶ 9, 714 A.2d 141, any
inference that the trial court might have considered whether Ntim’s consent was a
result of the bus inspection or of separate investigative activities by DEA agents is
wholly invented on appeal.
[¶42] Second, the evidence in the record does not support the Court’s
inference that the drug dog handler approached Ntim due to the separate, lawful
investigative activities of the DEA agents. See Connor, 2009 ME 91, ¶ 9,
977 A.2d 1003 (stating that we will infer that the trial court made findings if those
findings are “supportable by evidence in the record”). DEA Agents Wolfe and
Brown both testified that they did not request the drug dog handler to approach
Ntim with the drug dog. Agent Wolfe testified, “I did not, specifically, say ‘I’m
interviewing this person now[, c]ome examine them,’ no. It happened without my
prompting.” (Emphasis added.) Similarly, Agent Brown stated that he did not
29
know if someone requested Sergeant Bergquist to bring the dog to Ntim and that
he “did not hear anybody specifically [request it].”
[¶43] Sergeant Bergquist, the Commercial Vehicle Unit’s drug dog handler,
testified that it was “not a normal part of an inspection of a bus” to lead the dog
through the terminal, but that he led the dog into the terminal in this case as “a
follow up to the [drug dog’s] indication [on luggage] inside the bus.” However,
before he could begin his follow-up inspection in the terminal, Bergquist testified
that one of the DEA agents requested him to lead the dog to Ntim.10 The trial court
did not specifically find that the DEA agent’s request for a sniff of Ntim was
unrelated to the bus inspection. Instead, the trial court found that “[t]he state
police dog comes off the bus, after having hit twice in regard to the Defendant’s
luggage, [where] they found some green plant material residue. And he comes out
and he . . . inquired if it was [alright] if he could go ahead and bring the dog [to
sniff Ntim].”
[¶44] Regardless of whether the Commercial Vehicle Unit’s drug-dog
handler approached Ntim due to the bus inspection or the DEA agents’
investigation, it is undisputed that the DEA agents confronted Ntim with the
10
Although the drug dog handler did not indicate that he knew the agent who requested a sniff of
Ntim was from the DEA, he stated that the officer was in plain clothes—which DEA agents wore on the
morning of Ntim’s arrest—and that the officer had found Ntim’s name “in one of [their] indexes.” The
DEA agents testified that they had in fact located Ntim’s name as a person of interest in their Narcotics
and Dangerous Drugs Information System.
30
evidence produced by the drug dog before they requested his consent to a search of
his person. DEA Agent Wolfe stated to Ntim, “Look, here’s what we have. Here’s
all the things that are indicating and making me suspicious.” (Emphasis added.)
Agent Wolfe, who “requested” Ntim’s consent, testified that he informed Ntim
Here’s what’s going to happen for the next while. I’m concerned that
you have drugs right now. And in order to do my job of trying to
keep drugs out of the community, what may happen next is we may
move forward and detain you. We can seek a search warrant. We can
do a lot of things, and it might mean that you’d have to go later on.
Or if [you are] not carrying anything, and you tell me that you’re not
carrying anything, we can be done with this very quickly, if you’ll just
let us make sure that you don’t have anything on you.
Agent Brown corroborated this testimony, stating, “Special Agent Wolfe had
presented what had arisen thus far with the dog[, and t]hen he had asked him if he
would consent to a search of his person.” Although Agent Wolfe requested Ntim’s
consent for a search, he noted, “[Ntim] wasn’t free to go based on everything that I
knew.” This is not the result of an independent investigation by DEA agents
conducting a “consensual conversation.” But see Court’s Opinion ¶ 17. The
notion that DEA agents coordinating a joint operation and maintaining constant
communication with the Commercial Vehicle Unit—who had inspected the bus
and had only moments before found incriminating evidence in a bag belonging to
Ntim—approached Ntim due to a wholly separate, simultaneous investigation is
simply not supported by the evidence in this record.
31
[¶45] Third, the Court determines that the actions of the DEA agents were
separate from the Commercial Vehicle Unit because it concludes that Ntim would
have “ended up in the terminal, exposed to law enforcement, regardless of whether
or not Angel was brought in to sweep the bus.” Court’s Opinion ¶ 16. The Court
defers to the trial court’s finding that inspection of the onboard restrooms was a
legitimate reason to ask passengers to exit the bus. However, the trial court’s
factual finding is not supported by any competent evidence in the record, and it is
therefore clearly erroneous. See State v. Bartlett, 661 A.2d 1107, 1108 (Me. 1995).
[¶46] The regulation governing the inspection of onboard restrooms reads:
“Each bus (except in commuter service) seating more than 14 passengers (not
including the driver) shall have a clean, regularly maintained restroom, free of
offensive odor. A bus may be operated without a restroom if it makes reasonable
rest stops.” 49 C.F.R. § 374.313(b) (2012). Common sense dictates that it is
unnecessary to have the twenty-five passengers aboard the bus vacate the bus in
order for an officer to ensure that the restroom is clean and odor free. See id.
There is no further evidence in the record that removing passengers from the bus
was necessary to carry out this kind of inspection of the restroom.
[¶47] Rather, Sergeant Bergquist, the drug dog handler, testified that
passengers were asked to exit the bus so that he could “[take] Angel off of her lead
and let her have free reign [sic] of the bus.” Most compelling, however, is the
32
testimony of DEA Agent Paul Wolfe, who testified that the Commercial Vehicle
Unit and the DEA agents planned to target “a specific bus” traveling from
New York City to Portland for a safety inspection and that DEA agents would
approach the passengers who exited that bus. DEA Agent Wolfe further testified
that both the Commercial Vehicle Unit and the DEA jointly formed an “initial plan
in the morning . . . to examine bags”—a plan that could only be carried out if
passengers exited the bus, left their luggage on board, and gave the drug dog free
access to the bags. Further, Lieutenant Currie testified that before he conducted
the safety inspection, he told the driver to instruct the passengers to leave their
bags onboard and exit the bus. Therefore, the trial court’s finding that inspection
of the restrooms was a “legitimate reason” to ask passengers to exit the bus is
clearly erroneous. See State v. Bailey, 2012 ME 55, ¶ 12, 41 A.2d 535; Bartlett,
661 A.2d at 1108 (setting out the clearly erroneous standard of review).
[¶48] In sum, although the trial court failed to consider the relationship
between the actions of the Commercial Vehicle Unit and the actions of the DEA
agents in the terminal, the evidence in the record compels both a finding and a
conclusion that their actions were connected. I agree with the Court’s assertion
that if the DEA agents were working independently of the Commercial Vehicle
Unit, then Florida v. Bostick applies and the DEA agents are allowed to question
passengers in the terminal just as they would be on the bus. See 501 U.S. at
33
435-37. But the facts are dramatically different in this case because the actions of
the DEA agents and the Commercial Vehicle Unit in this joint operation were
planned and coordinated. Agent Wolfe testified that the safety inspections
generally “offered [the DEA agents] an opportunity . . . to work on interdiction,”
and that the “initial plan in the morning . . . was to examine bags.” Agent Wolfe
elaborated that the DEA agents and the Commercial Vehicle Unit worked “in
concert” regularly, they had “done this several times . . . [in] Portland, Lewiston,
Augusta, a variety of places.”
[¶49] Both the Commercial Vehicle Unit and the DEA planned to have all
of the passengers, including Ntim, removed from the bus, leaving their luggage
onboard, so that the Commercial Vehicle Unit’s drug dog could examine their
luggage and the DEA agents could question them in the terminal. DEA agents
requested Ntim’s consent only after the Commercial Vehicle Unit brought their
drug dog to sniff his person—which was only moments after the Commercial
Vehicle Unit located trace evidence of drugs in Ntim’s bag. They confronted Ntim
with this evidence before “requesting” his consent.
C. Conclusion
[¶50] Given this overwhelming evidence on the level of communication and
coordination between these two agencies, any implicit finding that the encounter in
the terminal was unrelated to the bus inspection is clearly erroneous. The
34
uncontroverted evidence in this case compels a conclusion that the officers of the
Commercial Vehicle Unit and the DEA agents jointly planned the encounter and
coordinated their actions to allow DEA Agents to question the passengers whom
the inspecting officers removed from the bus, and that the DEA agents confronted
Ntim with the fruits of the unlawful bus inspection. I would vacate the judgment
denying Ntim’s motion to suppress the evidence gathered in the search of his
person.
On the briefs:
Anthony J. Sineni, III, Esq., Law Offices of Anthony J. Sineni, III, LLC,
Portland, for appellant Richard Ntim
William J. Schneider, Attorney General, and William R. Savage, Asst. Atty.
Gen., Office of Attorney General, Augusta, for appellee State of Maine
At oral argument:
Caleb J. Gannon, Esq., Law Offices of Anthony J. Sineni, III, LLC, for
appellant Richard Ntim
William R. Savage, Asst. Atty. Gen., for appellee State of Maine
Cumberland County Unified Criminal Docket number CR-2011-6591
FOR CLERK REFERENCE ONLY