STATE V. TURNER – DECIDING A 4TH AMENDMENT QUESTION WITHOUT RESORT TO SUPREME COURT CASE LAW.
Posted by Edmund R. Folsom, Esq.
August 29, 2017
In my view, Maine’s cases on whether suppression of evidence is called for by a police officer’s stop of a vehicle outside the officer’s territorial jurisdiction are a nearly hopeless mess. Now, add State v. Turner to the mess.
In State v. Turner, 2017 ME 185 __ A.3d __, the Law Court has, for the first time, analyzed the facts of an OUI case involving an extraterritorial stop under the language of Maine’s fresh pursuit statute, 30-A M.R.S. §2671. In Turner, a Winslow police officer saw a driver commit a traffic infraction in Winslow. The officer attempted to stop the driver in Winslow, but the driver continued across a bridge into Waterville before pulling to the roadside. While the officer was engaged in the traffic stop, in Waterville, he heard a loud noise and saw a second vehicle “drive over a curb and proceed in an erratic manner” as it turned from Spring Street onto Front Street. The officer ended his traffic stop and pursued the second vehicle. He located it in a bank parking lot adjacent to Front Street, parked with the engine off, with damage to its front end and fluid on the ground nearby consistent with the vehicle having driven over a curb. The officer pulled up behind the vehicle, turned on his blue lights, approached and asked the driver, Turner, for his license and registration. In the course of doing this, the officer noticed that Turner appeared impaired. The Winslow officer immediately notified the Waterville Communications Center, who caused a Waterville police officer to arrive within approximately two minutes. As a result of the Waterville officer’s investigation, Turner was ultimately convicted of OUI. Before trial, Turner moved to suppress all evidence gathered as a result of his stop by the Winslow officer. After hearing, the court denied the motion to suppress. Turner appealed solely on grounds that the Winslow officer unreasonably seized him in Waterville by acting in violation of Maine’s fresh pursuit statute and local ordinance.
The Law Court began its analysis by deferring to the motion court’s factual finding that the Winslow officer “effected a brief, investigatory detention of Turner for which Turner was entitled to the protections of the Fourth Amendment,” stating, “Therefore, we must determine whether the officer’s actions constituted an unreasonable seizure.” It is important that the Law Court’s entire “unreasonable seizure” analysis involved protections afforded to Turner by the Fourth Amendment of the United States Constitution. Its analysis had nothing to do with any protections that Art. 1, Section 5, of the Maine Constitution might have afforded Turner against an unreasonable seizure. Curiously, the Law Court conducted its entire Fourth Amendment analysis virtually without reference to U.S. Supreme Court case law.
At the first stage of its analysis, the Law Court applied the principle that, “To support an investigatory detention of a motor vehicle, a law enforcement officer ‘must have an objectively reasonable, articulable suspicion that either criminal conduct, a civil violation, or a threat to public safety has occurred, is occurring, or is about to occur.’” The Court found that “the Winslow officer certainly had sufficient articulable suspicion of either the commission of a crime or the existence of a health and safety crisis to support the stop of Turner’s vehicle, had the officer been operating within his geographic authority.” With that much out of the way, the Court declared, “[T]he legal question presented is whether the extraterritorial nature of the stop rendered it ‘unreasonable’ for purposes of a Fourth Amendment analysis, requiring suppression of the evidence obtained during the Winslow officer’s stop of Turner.”
At this point, the Court applied Maine’s fresh pursuit statute to the case facts. The Court began by observing, “Maine’s fresh pursuit statute provides, in pertinent part, ‘No police officer has any authority in criminal or traffic infraction matters beyond the limits of the municipality in which the officer is appointed, except,’ as relevant here, to ‘[a]rrest a person who travels beyond the limits of the municipality in which the officer is appointed when in fresh pursuit of that person.’” The Court then observed that there is an exception to this limitation on officer authority. The exception allows a municipality to authorize officers who have completed basic officer training at the Maine Criminal Justice Academy to make extraterritorial arrests of anyone who has committed or is committing a Class D or E crime in the officer’s presence, “if, when possible, the law enforcement agency of a foreign municipality in which the arrest is to be made is notified in advance or, when not possible, the law enforcement agency of the foreign municipality in which the arrest has been made is notified immediately after the arrest.” On the date the Winslow officer encountered Turner, the Town of Winslow had issued such authority to its officers through a provision in its municipal code. However, the Law Court was unable to find that the Winslow officer’s actions complied with the fresh pursuit statute and the ordinance. The officer did not enter Waterville while in fresh pursuit of Turner for a violation committed in Winslow, so that prong of the fresh pursuit statute was not satisfied. As to the second possible ground of statutory authority, the record was not clear as to “the exact timing of the contact” with the Waterville Police Department, so the Law Court found that it could not “affirmatively conclude that the officer had statutory and municipal authority to seize Turner outside of his territorial limits.” Proceeding under the assumption that the officer violated the fresh pursuit statute, the Court framed the legal issue as follows: “[I]n the context of these facts, where (1) the officer had a reasonable and articulable suspicion that a crime had been committed in his presence, or that a person was in need of assistance, in the neighboring municipality but (2) the officer was without statutory authority to act in the municipality, was the “seizure” unreasonable for purposes of the Fourth Amendment, thereby requiring suppression of the evidence?”
To decide whether Turner’s seizure was unreasonable for purposes of the Fourth Amendment, the Court resorted to its own precedent in State v. Jolin, 639 A.2d 1062 (Me. 1994), State v. Pike, 642 A.2d 145 (Me. 1994), and State v. Rideout, 2000 ME 194, 761 A.2d 288. The Court drew from these combined cases, “the proposition that the exclusionary rule does not require the suppression of evidence if the extraterritorial exercise of the officer’s authority was (1) supported by the law and constitutional requirements that would have applied had the officer been within his lawful territory; (2) justified by the facts surrounding the stop; and (3) not made unreasonable by the presence of other factors, such as willful disregard of territorial limits, the seeking out of a crime in another territory, or a complete failure to contact the local law enforcement agency.” The Court continued, “Although we have not decided ‘the point at which a violation of the fresh pursuit statute might trigger an exclusionary rule,’ Pike, 642 A.2d at 147, and we do not do so here, we have indicated that an intentional disregard of territorial limits to ferret out crime could require suppression of the evidence.” Because the Winslow officer did not make an excursion to Waterville to ferret out crime; because he communicated his actions quickly enough for a Waterville officer to arrive almost immediately; and because the officer’s observations could have led the officer to “several reasonable conclusions justifying the officer’s further investigation,” the Law Court stated that his “request for Turner’s license and registration during the very brief period between making contact with him and the arrival of the Waterville officer was not unreasonable.” The Court upheld the denial of Turner’s suppression motion. Whether the result is correct or not, the reasoning that led to it is almost certainly wrong.
In Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the U.S. Supreme Court declared that the exclusionary rule is applicable to the states under the Fourteenth Amendment to the U.S. Constitution. If not for Mapp, there is a significant chance that the Law Court would not apply the remedy of exclusion for a violation of the Fourth Amendment or for a violation of Art. 1, Section 5, of the Maine Constitution, which provides in pertinent part, “The people shall be secure in their persons, houses, papers and possessions from all unreasonable searches and seizures.” The Law Court has refused to declare an exclusionary rule for a violation of Art. 1, Section 5, of the Maine Constitution, or to declare that Art. 1, Section 5, provides any greater protections against unreasonable searches and seizures than those provided by the Fourth Amendment to the U.S. Constitution. In Turner, it was critical for the Law Court to determine whether Turner was subject to an unreasonable seizure under the Fourteenth Amendment only because Mapp dictates that the exclusionary rule applies if he was. When the issue is whether a police officer violated the Fourth Amendment to the United States Constitution, the law that governs is U.S. Supreme Court case law. The test that the Turner Court applied to decide the issue is clearly not the test the United Supreme Court has developed to decide the issue.
The U.S. Supreme Court tells us that an officer may conduct a brief investigatory detention of a person, short of formal arrest, if the seizure is based on “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” A limited seizure justified by reasonable articulable suspicion is not “unreasonable” under the Fourth Amendment. The Law Court has held that such limited seizures may be conducted to investigate a suspected safety or health issue as well as to investigate a suspected violation of law. As discussed above, in Turner the Law Court found that Turner’s limited seizure by the Winslow officer was justified by reasonable articulable suspicion of either the commission of a crime or the existence of a health and safety crisis. Operating under the assumption that the officer’s conduct violated Maine’s fresh pursuit statute, the Court went on to decide whether the statutory violation rendered Turner’s seizure unreasonable under the Fourth Amendment. This raises the question: What does the Supreme Court say on the matter?
The Supreme Court has not spoken directly to whether a violation of a state fresh pursuit statute makes an otherwise reasonable traffic stop unreasonable under the Fourth Amendment. The Court has however dealt with the Fourth Amendment effect of a police violation of a state statute governing warrantless arrests. In Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 164 (2008), police arrested the defendant for operating with a suspended driver’s license, in violation of a Virginia statute providing that police are not to make warrantless arrests in the circumstances. Police conducted a search of Moore’s person, incident to arrest, and found 16 grams of crack cocaine and $516.00 in cash on him, leading to a charge of possession of cocaine with the intent to distribute. Moore challenged the search incident to arrest as the fruit of an unreasonable Fourth Amendment search conducted in violation of the Virginia statute. Virginia, like Maine, does not require suppression of evidence obtained in violation of a state statute. The case reached the U.S. Supreme Court after the Virginia Supreme Court ruled that the evidence should have been suppressed because police should have issued Moore a citation under state law and because the Fourth Amendment does not allow people to be arrested upon citation. The U.S. Supreme Court reversed the Virginia Supreme Court, concluding, “[I]t is not the province of the Fourth Amendment to enforce state law.”
The Supreme Court began its analysis stating, “In determining whether a search or seizure is unreasonable [under the Fourth Amendment] we begin with history. We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve.” The Court found that Moore had presented nothing to show that a violation of a state statute made an arrest an unreasonable Fourth Amendment seizure in 1791 and thereafter. Because history failed to provide a conclusive answer in Moore’s favor, the Court turned to “traditional standards of reasonableness ‘by assessing, on the one hand, the degree to which [the practice] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’” The Court found that this analysis provided no support for Moore’s position because the Court has long held that “when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable.” The Court then elaborated at length on why this Fourth Amendment calculus does not change when a state chooses to provide greater privacy protections than those required by the Fourth Amendment. The Court concluded its analysis stating, “We conclude that warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections.”
Granted, the issue in State v. Turner was not specifically whether a warrantless arrest on probable cause for a misdemeanor committed in an officer’s presence became unreasonable under the Fourth Amendment because it violated a Maine statute. However, the Fourth Amendment question in Turner should have been resolved through the same method of analysis that the U.S. Supreme Court applied in Moore – Fourth Amendment “reasonableness” analysis, not Maine Law Court “reasonableness” analysis. Just as there is a long line of Supreme Court precedent holding it reasonable for police to make warrantless probable cause arrests, there is a long line of Supreme Court precedent holding that it is reasonable for police to make a limited seizure of a person for investigative purposes based reasonable articulable suspicion. The Law Court should have turned to Moore for its analysis of the Fourth Amendment reasonableness of the limited seizure at issue in Turner. Unless it is historically clear that, in 1791 and thereafter, a police officer acting outside the municipality where he is appointed violates the Fourth Amendment by conducting a seizure based on reasonable suspicion (or probable cause), Moore appears to dictate that a violation of Maine’s fresh pursuit statute simply cannot make an otherwise valid Fourth Amendment seizure unreasonable under the Fourth Amendment.
If Moore does in fact dictate that a violation of Maine’s fresh pursuit statute could not render Turner’s seizure unreasonable under the Fourth Amendment, the only real question in Turner was whether the Law Court would choose to suppress the fruits of the seizure on state law grounds. In fact in Jolin, Pike and Rideout, the Law Court appears only actually to have considered whether the exclusionary rule should have been applied as a matter of judicial policy under Maine law. In each of those cases, the Law Court found that Fourth Amendment requirements were met by the existence of reasonable articulable suspicion or probable cause to justify the seizures at issue. The Court never purported to analyze whether, despite the existence of probable cause or reasonable articulable suspicion, violation of the fresh pursuit statute made the seizures unreasonable under the Fourth Amendment. In fact, in Jolin, the Court had this to say about the bearing that a violation of the fresh pursuit statute had on Fourth Amendment analysis: “Because officer Cunningham had probable cause to arrest, the Fourth Amendment does not require application of the exclusionary rule.” The Law Court’s suggestion, in Turner, that Jolin, Pike and Rideout set forth a test to determine whether a violation of Maine’s fresh pursuit statute turns an otherwise valid automobile stop into an unreasonable Fourth Amendment seizure is wrong, and it only adds confusion to an already confused area of Maine law.