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State v. Mark S. Brewer
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 58
Docket:	Aro-98-353
Submitted
on Briefs:	December 22, 1998
Decided:	April 16, 1999

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.
Majority:	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ.
Dissenting:	ALEXANDER and CALKINS, JJ.

STATE OF MAINE v. MARK S. BREWER
DANA, J.

	[¶1]  The State appeals pursuant to 15 M.R.S.A. § 2115-A (1983 &
Supp. 1998) from an order entered in the Superior Court (Aroostook
County, Pierson, J.) suppressing evidence that Mark S. Brewer unlawfully
furnished a schedule W drug, methamphetamine, in violation of 15 M.R.S.A.
§ 1106 (Supp. 1996).  On appeal, the State argues that the court erred when
it held that Maine Drug Enforcement Agency (MDEA) agents seized Brewer
without a reasonable suspicion of criminal conduct in violation of the Fourth
Amendment.  Because we conclude that no seizure occurred when MDEA
agents displayed their badges and approached Brewer as he sat in his
parked vehicle, we vacate the order.
	[¶2]  On August 11, 1997, at approximately 1:45 p.m., undercover
MDEA agents Peter Arno and Darrell Crandall were driving south in an
unmarked car on Route 1.  Near the town line separating Blaine and
Bridgewater, the agents approached a red pickup truck from behind. 
Brewer, the driver, and Frederick Noyes, the front seat passenger, occupied
the truck.  As they drove, both Brewer and Noyes appeared preoccupied
with something between them on the seat.  According to Crandall, the truck
swerved in the lane about twenty times without crossing over into another
lane or crossing over the fog line.  Arno testified that the amount of times
the truck swerved "was out of the ordinary."  The truck also slowed down
and accelerated in an erratic manner. 
	[¶3]  The agents followed the truck for one and a half to two miles into
downtown Bridgewater. Brewer then turned right off Route 1 into a church
parking lot.  An unattended tractor trailer with its engine running was
parked in front of the church, next to and parallel with Route 1.  Brewer
parked his truck to the right of and alongside the tractor trailer so that the
tractor trailer was parked between his truck and Route 1.  By parking
between the tractor trailer and the church, Brewer and Noyes partially
concealed the truck from the sight of persons traveling along Route 1.
	[¶4]  After Brewer turned into the church parking lot, the agents
continued along Route 1 for seventy-five to one hundred yards, where they
parked on the side of the road.  The agents sat in their parked vehicle for a
few minutes and observed that Brewer and Noyes continued to be
preoccupied with something between them on the seat.  According to
Crandall, Brewer and Noyes looked around "as if to see if there was
somebody around them."
	[¶5]  The agents decided to investigate further.  Arno drove back
toward the church, pulled into the parking lot, and parked their unmarked
car to the front and to the left of Brewer's truck.  The agents' vehicle did
not block Brewer's truck.       	
	[¶6]  The agents, both wearing civilian clothes, exited their vehicle at
the same time and approached Brewer's truck.  Crandall approached the
driver's side door and held up his MDEA badge to identify himself to
Brewer.  Arno approached the passenger's side door and -- when he was
fifteen to twenty feet away from Noyes -- pulled out and displayed his MDEA
badge from a pouch on his waist pack.  Noyes hurriedly exited the truck as
Arno approached.
	[¶7]  Crandall observed that Brewer appeared dazed and that his
pupils were constricted.  On questioning by Crandall, Brewer said he had
been drinking and that he had smoked marijuana earlier that day.  Crandall
then asked Brewer to step out of the truck, and he did.  Crandall asked if
Brewer had drugs in the truck, and he said yes.  When Crandall asked if he
could search the truck, Brewer said "okay, go ahead, but it's in my pocket,"
and pulled out a bag of marijuana. 
	[¶8]  After Brewer produced the marijuana, Arno and Crandall
searched the truck, where they found a mirror with white powder residue
on it and two marijuana pipes.  Arno then noticed a bulge in Brewer's left
front pocket, and asked him to empty his pockets.  Brewer "fidget[ed]
around with something" and produced a razor blade and straw.  Brewer's
"fidgeting" led Arno to believe Brewer was concealing something in his
pocket.  Arno reached inside Brewer's pocket and pulled out a plastic bag
containing methamphetamine.  The agents arrested Brewer.
	[¶9]  Brewer was indicted for the unlawful furnishing of a scheduled
drug, 17-A M.R.S.A. § 1106 (1983 & Supp. 1998) and criminal forfeiture,
15 M.R.S.A. §§ 5821, 5826 (Supp. 1998).  Brewer filed, and the court
granted, a motion to suppress all evidence seized by the agents.  The court
concluded that the agents seized Brewer when they displayed their badges
and approached his vehicle and that the agents did not have a reasonable
suspicion to justify the seizure.  The State appealed.
	[¶10]  We will not disturb a court's decision as to whether a seizure
implicates the Fourth Amendment unless we find errors of law or clearly
erroneous findings of fact.  See State v. Moulton, 1997 ME 228, ¶ 6, 704
A.2d 361, 363.  We review independently a legal ruling that the historical
facts found by the court constitute a seizure within the meaning of the
Fourth Amendment.  See id.; State v. Smith, 675 A.2d 93, 96 (Me. 1996). 
	[¶11]  A police officer's encounter with a citizen implicates the Fourth
Amendment only if the officer "seizes" the citizen.  See State v. Cilley, 1998
ME 34, ¶ 7, 707 A.2d 79, 82.  An officer seizes a citizen "when 'the officer,
by means of physical force or show of authority, has in some way restrained
the liberty of a citizen' such that he is not free to walk away."  Id. (quoting
State v. Preble, 430 A.2d 553, 555 (Me. 1981)).  An officer does not violate
the Fourth Amendment by merely approaching a citizen on the street or in a
parked vehicle in a public place.  See, e.g., United States v. Encarnacion-
Galvez, 964 F.2d 402, 410 (5th Cir. 1992) (no seizure when two plain
clothes agents parked behind defendant's vehicle without blocking egress,
approached vehicle on foot, told defendant that they were agents, and asked
defendant for identification); Moulton, 1997 ME 228, ¶ 9, 704 A.2d 361,
363-64 (officer did not seize a citizen when the officer drove the police
vehicle next to a car stopped on the highway, stepped out of the vehicle, and
approached the driver); State v. Laplante, 534 A.2d 959, 962 (Me. 1987)
(officer does not seize citizen when officer approached car pulled over in
breakdown lane and asked driver what was wrong); see generally
4 W. LaFave, Search & Seizure § 9.3(a) n.45 (1996 & Supp. 1999) (collecting
cases in which officer approaches individual seated in parked vehicle in
public place). 
	[¶12]  An officer's interaction with a citizen constitutes a seizure when
the officer's conduct is accompanied by actions that lead a reasonable
person to believe that he is not free to leave.  See INS v. Delgado, 466 U.S.
210, 215 (1984); Cilley, 1998 ME 34, ¶ 8, 707 A.2d 79, 82.  For example,
an officer seizes an individual when the officer positions the police car so as
to prevent any movement of the individual's vehicle, see State v. Chapman,
495 A.2d 314, 316 (Me. 1985), or asks an individual for identification,
including a license and registration, see Moulton, 1997 ME 228, ¶ 9, 704
A.2d 361, 364; State v. Garland, 482 A.2d 139, 142 (Me. 1984).  We have
also stated that a seizure could occur if an officer signaled or gestured for a
motorist to stop his or her vehicle, orally instructed a motorist to stop his or
her vehicle, displayed a weapon, or activated the vehicle's police lights.  See
Cilley, 1998 ME 34, ¶ 8, 707 A.2d 79, 82 (discussing various factors that
could constitute a stop and collecting cases).  Similarly, the United States
Supreme Court has cited circumstances that could warrant a seizure for the
purposes of the Fourth Amendment, including the threatening presence of
several officers, an officer's physical touching of a citizen, or the use of
language or tone of voice that would indicate that compliance with the
officer's request might be compelled.  See United States v. Mendenhall, 446
U.S. 544, 554 (1980).  The officer's uncommunicated subjective intent to
detain a citizen is not relevant to determining if a seizure has occurred.  See
Cilley, 1998 ME 34, ¶ 7, 707 A.2d 79, 82.    
	[¶13]  The court erred when it held that the agents "seized" Brewer
when they held out their badges and approached Brewer's truck.  Like the
officers in Moulton and Laplante, the agents merely approached the stopped
truck parked in a public place.  See Moulton, 1997 ME 228, ¶ 9, 704 A.2d
361, 363-64; Laplante, 534 A.2d at 962.  The fact that the agents
approached the vehicle because of a suspicion of criminal activity as opposed
to a safety concern for the occupants of the vehicle does not alter the
analysis.  See Cilley, 1998 ME 34, ¶ 7, 707 A.2d 79, 82 (officer's
uncommunicated subjected intent is irrelevant); cf. Moulton, 1997 ME 228,
¶ 9, 704 A.2d 361, 364; Laplante, 534 A.2d at 962.  Although the agents
displayed badges to identify themselves as law enforcement officers, this act
alone does not transform this interaction with Brewer into a seizure. 
Displaying the badges was necessary for the undercover agents' protection,
and it is not a sufficient "show of authority" to implicate the Fourth
Amendment any more than a police uniform or a badge pinned to an
undercover agent's shirt would be a "show of authority."  See Cilley, 1998
ME 34, ¶ 7, 707 A.2d 79, 82 (seizure occurs when officer uses physical
force or show of authority).  The agents did not display any weapons,
position their vehicle to prevent Brewer from leaving, give oral instructions
to Brewer or Noyes, or activate the police lights.  See id. ¶ 8, 707 A.2d at
82.  Consequently, no seizure occurred when the agents approached Brewer
and displayed their badges. 
	The entry is:
Order suppressing evidence obtained from the
search conducted on August 11, 1997 vacated
and remanded for entry of an order denying
the motion to suppress.
____________________
ALEXANDER, J., with whom CALKINS, J., joins, dissenting.

	[¶14]  We respectfully dissent.  The Court's opinion fairly and
accurately outlines the basic facts of the case and the governing principles of
law.
	[¶15]  One relevant principle, stated in ¶ 10 is that:  "We will not
disturb a court's decision as to whether a seizure implicates the Fourth
Amendment unless we find errors of law or clearly erroneous findings of
fact." (citing State v. Moulton, 1997 ME 228, ¶ 6, 704 A.2d 361, 363).
	[¶16]  The second relevant principle of law, stated in ¶ 11 is that: 
"An officer seizes a citizen 'when "the officer, by means of physical force or
show of authority, has in some way restrained the liberty of a citizen" such
that he is not free to walk away.'"  (quoting State v. Cilley, 1998 ME 34, ¶ 7,
707 A.2d 79, 82).  At ¶ 12, the Court correctly clarifies what constitutes a
seizure, "An officer's interaction with a citizen constitutes a seizure when
the officer's conduct is accompanied by actions that lead a reasonable
person to believe that he is not free to leave." (citing I.N.S. v. Delgado, 466
U.S. 210, 215 (1984)).
	[¶17]  Here, taking the evidence most favorably to the trial court's
findings, two officers in civilian clothes appear to have aggressively
approached defendant's vehicle, one from the driver's side, one from the
passenger side, drawing and flashing their badges as they came.  One  officer
testified "probably my firearm was visible, but I couldn't say that to be sure." 
The Court could infer that the officers' attitudes and bearing clearly
indicated intention to confront and search the vehicle or its occupants. 
While reasonable views may differ, that is not our standard for review.
	[¶18]  Notably, in Cilley, in which we also overturned a trial court's
factual findings, the event involved the officers being in one place and the
defendant coming to them.  Cilley, 1998 ME 34, ¶¶ 3-4, 707 A.2d 79,
80-81.  Here, the evidence reasonably supports the trial court's conclusion
that the officers, aggressively heading towards the defendant, drawing and
flashing their badges, and perhaps with a visible firearm, had a purpose in
mind to stop and search the vehicle and its occupants.  We cannot say, as a
matter of law, that Brewer or any reasonable person, confronted with this
show of authority, could have believed that he was free to leave.
	[¶19]  The trial court also found that there was no reasonable
articulable suspicion to warrant a stop or seizure.  "We have no weaving
beyond the lane in question.  We have an out-of-state plate, and we have
parking beside the truck in daytime.  So, therefore, the court finds that
those facts do not warrant a stop."
	[¶20]  There may be other evidence that might justify a seizure, but it
is for the trial court, not this Court, to assess the credibility and sufficiency
of that evidence.  Even the MDEA agents did not think they had sufficient
cause to stop the vehicle based on its operation, because they did not do so. 
They testified they saw no violation of law.  The officers kept going when the
vehicle pulled into a parking lot.  Then they observed it, noting only activity
that could have many innocent explanations, and then they confronted it.
	[¶21]  These events occurred in the middle of the town, early on a
bright summer afternoon, but the officers testified that their actions were
justified in part by concern that the occupants of the truck, while in the
truck, might be preparing to commit theft from the trailer truck or burglary
of the adjacent church.  In the circumstances the trial court could have
concluded that the facts may have been embellished and pretext used to
justify what was an insupportable search and seizure.  Because the motion to
suppress was granted, findings on these supplemental believability points
were not necessary.{1}  The trial court made sufficient, supportable findings
that the seizure was not justified.
	[¶22]  We should not disregard the superior position of the trial court
to assess believability of witnesses and significance of evidence.  See Crowley
v. Dubuc, 430 A.2d 549, 552 (Me. 1981).  We have repeatedly stated that
"the function of an appellate court is not to review a cold transcript and
draw its own factual inferences . . . ."  Lewisohn v. State, 433 A.2d 351, 354
(Me. 1981).  The Court's function is to review the record to determine
whether there is any evidence to support the trial court's findings.  See 
VanVoorhees v. Dodge, 679 A.2d 1077, 1080 (Me. 1996).  Such findings are
conclusive on this Court, even if there is evidence in the record that could
have supported a contrary determination.  See Crowley, 430 A.2d at 551.
	[¶23]  Because the trial court's findings are not clearly erroneous and
do not constitute an error of law, they should be given proper deference. 
We would affirm the order of the trial court.

Attorneys for the State: Neale T. Adams, Esq. District Attorney Suzanne Lilley, Esq. Assistant District Attorney 25 School St. Houlton, Maine 04730 Attorney for the Defendant: Alan Harding, Esq. Hardings Law Office 427- 429 Main St. Presque Isle, Maine 04769
FOOTNOTES******************************** {1} . Some trial courts are appropriately cautious about making believability findings regarding law enforcement officers and others who regularly appear before them as witnesses. This caution avoids bias concerns in future cases involving the same witness. Lack of a believability finding does not permit the inference that the court found a witness believable.