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State v. Kremen, dissenting opinion.

ALEXANDER, J., dissenting.

	[¶20] I respectfully dissent.  This case presents a fact pattern that
suggests an involuntary, compelled "consent" search of an individual who
had been seized for a traffic stop and from whom a verbal consent to search
may have been extracted as the price of her freedom to leave.  As such, the
circumstances surrounding the individual's seizure and subsequent verbal
consent must be subject to careful Fourth and Fifth Amendment analysis and
concurrent analysis under Article 1, sections 5{8} and 6{9} of the Maine
Constitution.  The trial court did not make factual findings critical to proper
analysis of the issues incident to application of each of these important
constitutional rights.
	[¶21]  This case involves no casual roadside encounter over a minor
traffic stop followed by a relaxed consent to search with the unanticipated
discovery of marijuana secreted in the vehicle.  Instead, the record suggests
what has come to be recognized as a widespread practice of using apparently
legitimate traffic stops to extract "consent" to vehicle searches from
individuals who fit profiles of persons whom police believe might possess
drugs, but who engage in no conduct to give any legal basis to search the
individual or the vehicle.  This practice has been subject to widespread
scholarly comment and criticism.  See Angela J. Davis, Race, Cops, and
Traffic Stops, 51 U. Miami L. Rev. 425 (1997); Chris K. Visser, Without A
Warrant, Probable Cause or Reasonable Suspicion:  Is There Any Meaning to
the Fourth Amendment While Driving a Car?, 35 Hous. L. Rev. 1683 (1999);
Comment, Pretextual Traffic Stops:  Protecting Our Streets or Racist Police
Tactics? 23 U. Dayton L. Rev. 313 (1998); David Rudovsky, The Impact of
the War on Drugs on Procedural Fairness and Racial Equality, 1994 U. Chi.
Legal F. 237.  
	[¶22] In the principal United States Supreme Court case addressing a
consent extracted after a traffic stop, the searching officer had requested
consent to search in 786 traffic stops in just the year of the defendant's
arrest.  See Ohio v. Robinette, 519 U.S. 33, 40 (1996) (Ginsburg, J.,
concurring).  The concurring opinion noted that Ohio courts "observed that
traffic stops in the State were regularly giving way to contraband searches,
characterized as consensual, even when officers had no reason to suspect
illegal activity."  Id.  Similarly, one of the nation's primary authorities on
search and seizure has observed that "[i]n an incredible number of drug
cases, the encounter with the police commenced with a seemingly
innocuous traffic violation."  See Wayne R. LaFave, The Present and Future
Fourth Amendment, 1995 U. Ill. L. Rev. 111, 118.
	[¶23]  While this law enforcement practice has been most frequently
analyzed in connection with racially motivated traffic stops and compelled
consents to search,{10} the legal principles apply equally here where a young
woman was on her way to a concert where widespread drug use was
anticipated.  The facts of this case and the proper approach for the Court in
reviewing the motion to suppress must be analyzed from this perspective, as
reflective of a common tactic to force and then justify a search without
reasonable articulable suspicion, exigent circumstances, or safety concerns
that are the usual bases for a warrantless seizure and search.  
I. THE FACTS OF THE STOP
	[¶24]  Barbara Kremen was stopped for speeding shortly after noon on
August 15, 1997.  The stop was only for speeding.  The officer saw no erratic
operation or other suspicious activity in the vehicle.  The record indicates
no issue that would have given the officer any reason to require the vehicle's
occupants to leave the vehicle due to concerns regarding the officer's safety
or the occupants' safety.  However, the officer did not engage in the
common practice of leaving the driver in the vehicle while he returned to
his vehicle to check license status and write a ticket.  Instead, he ordered
Ms. Kremen to exit her vehicle and accompany him back to the front seat of
his vehicle.  The officer then finished all of the paperwork incident to the
traffic stop and issued the speeding ticket to Ms. Kremen.  The transaction
regarding the traffic stop was completed.  However, the officer did not
release Ms. Kremen from his vehicle and tell her she was free to go. 
Instead, he began questioning her as to whether there might be anything
illegal in her vehicle.  At this point, the testimony presented by Ms. Kremen
and the officer diverge.  Ms. Kremen testified that the officer threatened to
jail her if she did not give consent to search.  The officer testified that
Ms. Kremen's consent to search was entirely voluntary.  Ms. Kremen also
testified that she specifically objected to a search of the front compartment
of her vehicle, although the officer testified that the search of the front
compartment was consented to.  To challenge the officer's credibility, the
defense presented evidence that the officer had plead guilty to four counts
of crimes involving dishonesty-illegally tagging deer-in 1992.  The search
of the front compartment of the vehicle yielded the marijuana and marijuana
pipe which led to the possession of marijuana charge.  	 
	[¶25]  In its order denying the motion to suppress, the District Court
indicated that it believed the officer's testimony over Ms. Kremen's
testimony on the question of whether the officer had threatened to jail
Ms. Kremen in order to extract her consent to search.  The court did not
proceed to examine the other circumstances of the stop and detention of
Ms. Kremen to determine if, in the totality of those circumstances, her
continued detention was justified and her consent to search was voluntary.   
Likewise, it does not appear that the trial court analyzed whether the
statement authorizing the search of the vehicle should have been subject to
Miranda{11} warnings.  The court's findings on the consent issue consisted of:
(1) a finding that the officer asked if he could search the "front
compartment area"; (2) a conclusion that "the Defendant consented to
this"; (3) a footnote rejecting Ms. Kremen's contention that her consent was
not voluntary because she was threatened with jail if she did not consent;
and (4) a discussion of the appropriate scope of the search. 
II. DISCUSSION
	[¶26]  Three issues important to determination of the validity of the
search of Ms. Kremen's vehicle require that her conviction be vacated and
that the evidence be suppressed, or the matter be remanded for further
factfinding.  Those issues are:
1.  	Whether Ms. Kremen was subject to an illegal seizure at
	the time of her consent;

2.  	Whether Ms. Kremen's statement should have been subject
	to Miranda warnings; and

3.  	Whether Ms. Kremen's consent was voluntary.

A.  Seizure

	[¶27]  When a police officer stops a car, a seizure occurs for purposes
of Fourth and Fourteenth Amendment analysis.  See Delaware v. Prouse,
440 U.S. 648, 653 (1979).  Once the traffic stop is accomplished, the
seizure of the individual continues until such time as the individual is told
she is free to leave.  As the United States Supreme Court has noted,
"certainly few motorists would feel free to disobey a directive to pull over or
to leave the scene of a traffic stop without being told they might do so." 
Berkemer v. McCarty, 468 U.S. 420, 436 (1984).  Although the United
States Supreme Court has held that an officer attempting to extract a
consent to search after a traffic stop need not affirmatively advise an
individual that they are free to leave and need not consent to a search, see
Ohio v. Robinette, 519 U.S. at 39-40,{12} its opinion did not analyze the affects
of a continuing seizure of the individual on other constitutional limitations
on seizures and statements made in the course of a seizure.{13} 
	[¶28]  Key facts in Robinette are close to the facts here.  In both, the
effort to obtain consent for a vehicle search began after the entire
transaction relevant to the traffic stop had been completed.  The Ohio
Supreme Court had ruled that continued detention, unrelated to the original
purpose of the stop, and without separate reasonable articulable suspicion,
constituted an illegal seizure.  See State v. Robinette, 653 N.E.2d 695,
697­p;98 (Ohio 1995).  The United States Supreme Court did not directly
address this issue.   Instead, it shifted the analysis to a discussion of the
irrelevance of the subjective intent of the officer.  See Ohio v. Robinette,
519 U.S. at 38.  This may have occurred because the Ohio ruling addressed
"the motivation behind a police officer's continued detention."  State v.
Robinette, 653 N.E.2d at 697.{14}  There is also an important distinction in
Robinette that the defendant was outside of the vehicles when the consent
questions were asked, while here Ms. Kremen was subject to continued
detention in the police car when the consent questions were asked of her.
	[¶29]  Robinette does not stand for the proposition that a valid traffic
stop serves as a general warrant to detain and question on issues unrelated
to the stop after the transaction based on the stop has been completed. 
Article 1, sections 5 and 6 of the Maine Constitution do not permit a valid
traffic stop to become authority for continued detention and questioning on
other issues, once the transaction based on the stop has been completed.{15} 
Under the Maine Constitution a lawful detention pursuant to a traffic stop
ends when the transaction based on the traffic stop is completed, unless
further issues relating to personal safety or reasonable articulable suspicion
of other illegal activity are generated during the course of the traffic stop
transaction.
	[¶30] If consent to search is given during the course of an unlawful
seizure of an individual, the results of the search must be suppressed as
"tainted fruit."  See Dunaway v. New York, 442 U.S. 200, 218-19 (1979); see
also Florida v. Bostick, 501 U.S. 429, 433-34 (1991); Florida v. Royer,
460 U.S. 491, 501, 507-08 (1983) (plurality opinion).  In determining if a
seizure has occurred, "the crucial test is whether, taking into account all of
the circumstances surrounding the encounter, the police conduct would
have communicated to a reasonable person that [she] was not at liberty to
ignore the police presence and go about [her] business."  Florida v. Bostick,
501 U.S. at 437 (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)). 
	[¶31]  The District Court made no finding as to whether Ms. Kremen
was subject to an illegal detention at the time of her "consent."  However,
the facts surrounding Ms. Kremen's continued detention do not appear to be
disputed in the record.  She had been removed from her vehicle and
ordered to sit in the police cruiser.  She had not been told she was free to
leave at the time the "consent" was extracted from her.  Thus, as a matter of
law, her seizure or detention continued,{16} although any justification for her
seizure had ended.  Accordingly, at the time her "consent" was extracted,
Ms. Kremen was subject to an unlawful seizure, requiring that the results of
the search be suppressed.

B.  Miranda

	[¶32]  In this case, the facts suggest that when Ms. Kremen made
whatever statement she made indicating that the officer could search her
vehicle, she was still in custody because a reasonable person in her situation
would not believe that she was free to leave.  See State v. Martin, 580 A.2d
678, 681 (Me. 1990).{17}  Let us remember, Ms. Kremen was in the front seat
of the police car where she had been told to sit by the officer.  Also, she was
under interrogation.  "A custodial interrogation occurs whenever a
defendant has been taken into custody or otherwise deprived of [her]
freedom by the authorities in any significant way and is subject to
questioning."  State v. McLain, 367 A.2d 213, 220 (Me. 1976).
	[¶33]  Unless we are, at this point, to develop an "automobile
exception" to traditional Miranda requirements, Ms. Kremen, being both in
custody and under interrogation, would have had the right, under the Fifth
Amendment of the United States Constitution and Article 1, section 6 of the
Maine Constitution, to be advised that she had the right to remain silent,
that any statement she might make could be used against her, and that she
had a right to consult with counsel prior to making any statements.  See
Miranda v. Arizona, 384 U.S. at 444; State v. Preston, 411 A.2d 402, 405-06
(Me. 1980).  No such cautions were given here.  It is undisputed that the
only basis for search of the vehicle was whatever statement Ms. Kremen
made regarding giving of consent.  Absent that statement there was no
reasonable articulable suspicion, safety concern, observation of anything in
plain view, or any other basis for a warrantless search.  If the search was the
result of an uncautioned statement while Ms. Kremen was in custody and
under interrogation, the results of the search must be suppressed.  See
Miranda, 384 U.S. at 476; Preston, 411 A.2d at 405.{18}

C.  Voluntariness

	[¶34]  Separately, the suppression court did not sufficiently analyze
the issue of the voluntariness of Ms. Kremen's statement of consent.  The
court stated that it did not believe Ms. Kremen's statement that the officer
had threatened to jail her if she did not consent to the search.  But with that
finding made, the court did not go on to further analyze, based on the
totality of the circumstances, the issue of whether her statements to the
officer were voluntary.  Voluntariness of a "consent" to search must be
analyzed under the Fourth Amendment and Article 1, section 5, "by
examining the totality of the circumstances."  Ohio v. Robinette, 519 U.S. at
39; State v. Sherburne, 571 A.2d 1181, 1185 (Me. 1990).  Relevant but not
dispositive factors in determining if consent to a search is voluntary include 
"[k]nowledge of the right to refuse consent; presence of coercive
surroundings, including the location of the request; and the number of
police officers present . . . ."  Visser, Without a Warrant, 35 Hous. L. Rev. at
1696. 
	[¶35]  While voluntariness is not examined with the Fifth Amendment,
beyond a reasonable doubt burden of proof, see State v. Koucoules, 343 A.2d
at 872-76, the State must prove voluntariness of a consent by a
preponderance of the evidence.  See id. at 866, 872-73; see also State v.
Fredette, 411 A.2d 65, 68 (Me. 1979).  Accordingly, when voluntariness of a
consent is challenged, the totality of the circumstances must be examined.
The State must prove and the court must find that the consent was "free
and voluntary and not the product of coercion, whether express or implied." 
Fredette, 411 A.2d at 68 (citing Schneckloth v. Bustamonte, 412 U.S. 218,
248-49 (1973)).
	[¶36]  Here, once the court rejected the credibility of Ms. Kremen's
statement that she was threatened with arrest if she did not consent, it
appears to have assumed the voluntariness of the consent and proceeded to
the issue of the scope of the consent, which it also resolved against
Ms. Kremen. 
	[¶37] The totality and the circumstances in this case-for search and
seizure and self-incrimination analysis-includes the reality that there is a
common and widespread law enforcement practice of using traffic stops to
attempt to extract consent searches of vehicles where, but for the consent,
no other legal basis for the search exists.  This practice relies on compulsion
and the compromise of freedom resulting from the traffic stop and the
implicit, sometimes explicit, threat of further impediment or delay to obtain
a consent to search.{19}  The circumstances here also include interrogation in
the arguably coercive surroundings of the police car in which Ms. Kremen
had been ordered to sit.  See Preston, 411 A.2d at 405 (observing that
police "increased the coercive nature of the interrogation by conducting it
in the police car"); see also State v. Thibodeau, 496 A.2d 635, 639-40
(Me. 1985). 
	[¶38]  A person acts voluntarily to provide testimonial self-
condemnation of a crime or, here, a consent to search, only if that person
chooses "freely and knowingly, to provide criminal self-condemnation by
utterances from [her] own lips."  State v. Collins, 297 A.2d 620, 626
(Me. 1972).  Notably, Koucoules, while refusing to apply Collins's beyond a
reasonable doubt burden of proof to the voluntariness of consent analysis,
did appear to accept a similar definitional analysis of voluntariness, using
terms requiring consent to be "knowledgeable" and "intelligent" and not a
product of "duress" or "coercion," "express or implied."  Koucoules,
343 A.2d at 872-76.{20}
	[¶39]  The consent here was obtained by using the common tactic of
holding an individual after a traffic stop to utilize the pressures resulting
from that continued holding to compromise an individual's freedom and
their free will in order to obtain a consent.  Without trial court findings on
the point, it is difficult to conclude that Ms. Kremen's consent, given in the
totality of those circumstances, was, by a preponderance of the evidence, a
statement made as the result of the exercise of her own free will and not the
product of duress or coercion, express or implied.
III. CONCLUSION
	[¶40]  I would vacate the conviction and order the evidence resulting
from the search suppressed because "consent" was extracted during an
improper detention of Ms. Kremen.  Alternatively, I would vacate the
conviction and remand for factfinding on the voluntariness issue.

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