If you take off your jacket on your front porch while a police officer is in your driveway following up on a suspected motor vehicle violation, does that mean the police can search that jacket if you’re wearing a sleeveless blouse underneath and the temperature is 34 degrees? Four SJC Justices upheld the search; three dissented. State v. Paganini, 2018 ME 129.
The defendant was driving away from the Androscoggin County Courthouse when a police officer familiar with her “extensive” criminal history saw her and thought that her driver’s license had been suspended. He waited for two hours by her residence. (Is the crime rate so low in Lewiston that police have the time to engage in such lengthy pursuit of traffic offenses? The dissent noted that the two-hour stakeout was “purportedly” to investigate the traffic violation.) When the defendant finally arrived, the officer put on his blue lights and followed her into her driveway. She got out of her vehicle, and the officer approached and told her that her license had been suspended. She said it wasn’t, handing him her license, registration and insurance documents, while trying to call the Violations Bureau on her cell phone to verify the fine had been paid. The officer ran another license check, confirming the suspension. While she and the officer were standing in the driveway next to her vehicle he asked her whether she had any drugs or weapons on her, and she answered no. He asked whether she would consent to a search of her car, and she said no again. The officer then said he was arresting her for operating under suspension.
The officer asked her to put down her phone, but she continued to speak with someone on her phone and “started to walk away from her vehicle. The officer advised Paganini not to move away from him,” but she went to her porch, removed her jacket, placed it on the seat of a chair on the porch, and sat in the chair. She was wearing a sleeveless top and the temperature, as noted, was brisk. More police arrived. She was put in handcuffs. At that point, while the police were taking her away, an officer picked up the jacket and searched it, finding cocaine base. The police then searched her car and found more drugs.
The trial court (MG Kennedy, J.) suppressed the entire search. The majority (Alexander, writing for CJ Saufley and Justices Gorman and Humphrey) affirmed suppression of the car search, but reversed as to the jacket. Justice Hjelm wrote for three dissenters, who would have affirmed tossing both searches.
The majority viewed the jacket search as properly incident to the arrest. It said that incident to a lawful arrest, police may, without a warrant, search not just what is on the arrestee, but the area within her immediate control – within the suspect’s “leaping range.” The jacket, they said, fit that description. The majority also found it relevant that the jacket was on her person at the time she was told she was under arrest, and, in its words, “remained associated with her person.”
The dissent said hold the phone. A warrantless search incident to a lawful arrest has to be confined to accomplish either officer safety or avoiding the concealing or destruction of evidence at the time of the search. At the time of this search, the jacket was no longer in the defendant’s control. She was handcuffed with her arms behind her, and two police officers were leading her down the porch stairs away from the jacket and toward the police cruiser. One officer was in front of her and one behind her, between her and the jacket on the porch, and held onto one of her secured arms. She would’ve had to have been Supergirl or Wonder Woman to leap up, run back and grab something from her jacket. (I’m paraphrasing.) That she was wearing her jacket at the time of the arrest – the point the majority found relevant – didn’t matter, because the search happened only after she had been put in restraints and under the physical control of two other officers, and she was no longer near the jacket.
In a footnote, Justice Hjelm noted some case law tolerating the absence of a close temporal relationship between an arrest and a search incident to the arrest. Such tolerance, he said, has drawn criticism in commentary, and the Supreme Court has made clear that the relevant circumstances are when the search is conducted. In another footnote, the dissent discussed the State’s alternate argument, which the majority didn’t have to reach – that the officer had probable cause to search the jacket. The dissent said the argument wasn’t preserved, but would fail in any event. So at least the dissenters found that removing your jacket when it’s nippy out is not sufficient to find probable cause.
Three observations about this decision.
- There’s no discussion about the Maine Constitution. Hence, the SJC continues to look only to federal law. Should the Court make at least a passing reference to the state constitution? Perhaps counsel did not raise that argument. But there are a few areas where the SJC has found the Maine Constitution more protective of certain rights than its federal counterpart. Why not give the argument a shot and make the Justices at least think about whether the clauses should be read in lockstep?
- The dissent also noted that the question presented was fact sensitive, supporting deference to the trial court. In response, the majority noted there was a police video and the trial court’s finding that the defendant was handcuffed “and secured in the vehicle” was clearly wrong. Whether or not the defendant was in fact in the vehicle is not dispositive under either the majority or dissent’s analysis – for the majority, the question was where the jacket was when she was arrested; for the dissent, what mattered was that she was incapable of getting to the jacket at the time of the search. So what this reference to the video tells me is that despite courts’ universal stance that live video doesn’t alter the standard of review on appeal, perhaps, at least subconsciously, it has some effect.
- This decision issued six weeks from the date of the argument. That’s pretty darn fast, particularly for a decision that splits the court 4:3.