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STATE V. GEORGE 1997 ME 2
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MAINE SUPREME JUDICIAL COURT
Reporter of Decisions
Decision: 1997 ME 2
Docket: CUM-95-803
Argued November 6, 1996
Decided January 3, 1997

PANEL: WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ,
JJ.


STATE OF MAINE

v.

CHRISTOPHER GEORGE


WATHEN, C.J.

[¶1] Defendant, Christopher George, appeals from the judgments
entered in the Superior Court (Cumberland County, Brodrick, A.R.J.)
pursuant to his conditional guilty plea to three counts of trafficking in
cocaine within 1,000 feet of a school while in possession of a firearm, 17-A
M.R.S.A. § 1105(1)(C) & (E) (Supp. 1996). Defendant contends that the
court erred: (1) in denying his motion to suppress evidence allegedly
obtained in violation of the Fourth Amendment; (2) in denying his motion to
dismiss the indictment on the grounds of double jeopardy (Fritzsche, J.);
and (3) in failing to apply the "escape clause" set forth in 17-A M.R.S.A.
§1252(5-A)(B) (Supp. 1996) to reduce the unsuspended term of the
sentences mandated by 17-A M.R.S.A. § 1252(5-A). Finding no error, we
affirm the judgments.
[¶2] The relevant facts may be summarized as follows: In March of
1994, an individual informed the Portland Police Department that cocaine
was being used and sold at a residence on Brackett Street. The informant
also stated that someone at the residence had displayed to him an unloaded
.22 caliber handgun. After identifying the individual at the residence as
defendant, Christopher George, the police discovered that three months
earlier, defendant had been stopped on the Maine Turnpike and found in
possession of 14.5 grams of cocaine with a street value of approximately
$1,400. Defendant had no prior criminal history.
[¶3] Armed with knowledge of defendant's activity, the police
arranged for the informant to purchase cocaine from him at his home which
is within 1,000 feet of a public elementary school. The informant, wearing a
transmitting device, purchased cocaine from defendant on two separate
occasions. In addition, defendant was arrested on April 4, 1994 in Portland
for operating a motor vehicle while under the influence of intoxicating
liquor and possessing cocaine.
[¶4] On April 14, 1994, the police obtained a search warrant and
arranged for the informant to set up another buy with defendant at his
residence. Before that buy, nine members of the Portland Police Special
Reaction Team arrived at defendant's home and announced that they were
police officers and had a search warrant. Immediately after the
announcement, they hit the door with a battering ram. An officer entered
the residence, carrying a ballistic shield to protect the team from potential
gunfire. Another officer threw a "distraction device," a low-level explosive
that produces a bright light and a loud noise, into the kitchen. The officers
restrained the occupants of the residence, arrested defendant, and searched
the premises pursuant to the warrant. Twenty grams of cocaine, $4,400 in
cash, and three firearms, two of which were loaded, were found in the
search. Defendant forfeited the money and the firearms in a civil forfeiture
action prior to the entry of his conditional guilty plea. By this appeal, he
challenges the court's rulings on double jeopardy, his suppression motion,
and his sentence.
I.
[¶5] Defendant first argues that double jeopardy occurred when he
was subjected to a criminal prosecution after the civil forfeiture proceeding.
It is a question of law whether a criminal prosecution violates the double
jeopardy provision of the state or federal constitution. State v. O'Connor,
681 A.2d 475, 476 (Me. 1996) citing State v. Millett, 669 A.2d 754, 755
(Me. 1996).
[¶6] The Supreme Court of the United States recently held in U.S. v.
Ursery, U.S. , 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), that a civil
forfeiture proceeding is remedial, not punitive, and, therefore, jeopardy
does not attach during such a proceeding. We have held that the double
jeopardy clauses of the Maine and United States Constitutions are
coextensive, State v. O'Connor, 681 A.2d 475, 476 (Me. 1996) (citing State
v. Wilson, 671 A.2d 958, 960 (Me. 1996)), and thus, the trial court properly
denied defendant's motion to dismiss.
II.
[¶7] Defendant next argues that the police violated the Fourth
Amendment by forcibly entering his residence and that all evidence
obtained as a result of that entry should be suppressed. Even though the
police made a brief announcement before entering, the State admits that the
entry was forced and the court found "that for all realistic purposes it [was]
in fact an unannounced entry." The court ruled, however, that the potential
for the destruction of the evidence, the risk of harm to the police officers,
and the characteristics of the neighborhood justified the forced entry.
[¶8] We previously rejected a "knock and announce" requirement in
Maine and held that police may enter a residence forcibly during a search "if
the circumstances warrant it." State v. Hider, 649 A.2d 14, 15 (Me. 1994).
Since our decision in Hider, however, the United States Supreme Court has
ruled that the principle of "knock and announce" now "forms a part of the
reasonableness inquiry under the Fourth Amendment." Wilson v. Arkansas,
U.S. , 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). In fashioning the
"knock and announce" requirement, the Court explained that "[a]t the time
of the framing [of the Constitution], the common law of search and seizure
recognized a law enforcement officer's authority to break open the doors of
a dwelling, but generally indicated that he first ought to announce his
presence and authority." Id. at 1915. Opting for a balanced consideration of
the competing interests, the Court stated that "[t]he Fourth Amendment's
flexible requirement of reasonableness should not be read to mandate a rigid
rule of announcement that ignores countervailing law enforcement
interests." Id. at 1918. "For now, we leave to the lower courts the task of
determining the circumstances under which an unannounced entry is
reasonable under the Fourth Amendment." Id. at 1919.{1}
[¶9] In the present case, the police were confronted with a person
who had recently been arrested for possession of cocaine and had sold
cocaine to an informant on two occasions. At the time of the unannounced
search, the officers anticipated defendant would be in possession of a small
amount of cocaine that could easily be disposed of. The police also knew
that defendant lived and sold drugs near a public school and that, two weeks
prior to the entry, he possessed a firearm. Considering these circumstances
in their totality, the forced entry by the police was reasonable. Even though
there was no specific evidence that defendant had a history of destroying
evidence, using firearms, or resorting to violence, the court did not err in
finding that it was objectively reasonable for the police to enter
unannounced in order to prevent the destruction of the evidence and to
ensure their safety and the safety of the public.
III.
[¶10] Finally, defendant was granted leave to appeal his sentence
pursuant to 15 M.R.S.A. §§ 2151, 2157 (Supp. 1996), and he argues that the
court erred in failing to deviate from the mandatory sentence. The sale of
cocaine while in possession of a firearm or within 1,000 feet of a public or
private school constitutes aggravated drug trafficking, 17-A M.R.S.A. § 1105,
and carries a mandatory sentence of four years of unsuspended
imprisonment. Relying on the escape clause set forth in 17-A M.R.S.A. §
1252(5-A)(B),{2} defendant argues that the court was required to shorten the
minimum unsuspended term of imprisonment because he has no prior
criminal history. Defendant ignores the fact that the relief afforded by
section 1252(5-A)(B) is discretionary and in this case would require
additional findings to the effect that the imposition of the minimum
unsuspended term of imprisonment would result in a substantial injustice to
him and would frustrate the general purposes of sentencing. The court
acted well within its discretion when it declined to sentence defendant to
anything less than four years of unsuspended imprisonment.
The entry is:
Judgments affirmed.
_____
Attorney for defendant:

Robert A. Levine,Esq.(orally)
17 South Street
Portland, ME 04101

Attorneys for the State:

Andrew Ketterer, Attorney General
Lea-Anne Jameson, Asst. Attorney General (orally)
6 State House Station
Augusts, ME 04333


FOOTNOTES********************************

{1} The Wilson decision forms the basis for the following language that now appears in
the Maine Rules of Criminal Procedure:

Unannounced Execution of Search Warrant. The warrant may direct that it be
served by an officer without providing notice of the officer's purpose and office if the
judge or justice of the peace so directs by appropriate provision in the warrant. The
judge or justice of the peace may so direct in the warrant upon a finding of reasonable
cause shown that:
(1) the property sought may be quickly or easily altered, destroyed, concealed,
removed or disposed of if prior notice is given;

(2) the escape of the person sought may be facilitated if prior notice is given;

(3)the person sought, the person from whom or from whose premises
the property is sought, or an occupant thereof, may use deadly or
nondeadly force in resistance to the execution of the warrant, and
dispensing with prior notice is more likely to ensure the safety of
officers, occupants or others; or

(4) such facts and circumstances exist as would render reasonable the warrant's
execution without notice.

M.R. Crim. P. 41(1).

{2} The relevant portion of the statute provides as follows:

B. The court may impose a sentence other than a minimum unsuspended term of
imprisonment set forth in paragraph A, if:
(1) The court finds by substantial evidence that:
(a) Imposition of a minimum unsuspended term of imprisonment
under paragraph A will result in substantial injustice to the
defendant.
. . .
(b) Failure to impose a minimum unsuspended term of
imprisonment under paragraph A will not have an adverse effect
on public safety; and
(c) Failure to impose a minimum unsuspended term of
imprisonment under paragraph A. will not appreciably impair
the effect of paragraph A in deterring others from violating
section 1105; and

(2) The court finds that:
(a) The defendant has no prior criminal history; and
. . .
(c)The defendant's background, attitude and prospects for
rehabilitation and the nature of the victim and the offense
indicate that imposition of a sentence under paragraph A. would
frustrate the general purposes of sentencing set forth in section
1151.