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State v. Barbara Kremen
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 117
Docket:	Pen-99-513
Submitted
on briefs:	February 25, 2000
Decided:	June 21, 2000	

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

STATE OF MAINE

v.

BARBARA M. KREMEN

CLIFFORD, J.

	[¶1]  Barbara Kremen appeals from a judgment of the Superior Court
(Penobscot County, Marden, J.) affirming a judgment entered in the District
Court (Newport, MacMichael, J.) following a finding that she violated the
provisions of 22 M.R.S.A. § 2383 (1992){1} by possessing a useable amount of
marijuana.{2}  Kremen contends that the court erred in denying her motion to
suppress evidence, and challenges the sufficiency of the evidence at trial. 
We find no error and affirm the judgment.
	[¶2]  On August 15, 1997, Kremen, while en route to a Phish concert
in Aroostook County, was stopped for speeding in the Town of Newport by
Officer Peter Boucher.  Boucher issued a citation for speeding and asked
Kremen if there was anything illegal in the vehicle.  The officer also asked if
she minded if he searched the car.  Kremen testified that she did not give
such permission, but according to the officer, Kremen readily agreed to his
request to search her car.  The officer discovered a small bag of marijuana in
the glove compartment and a pipe containing marijuana in the vehicle's
center console.  He then cited Kremen for possession of a useable amount of
marijuana.
	[¶3]  Kremen's motion to suppress the marijuana evidence was denied
following a hearing.{3}  The court (Hjelm, J.) found that the initial stop of
Kremen's vehicle was proper and that Kremen had voluntarily consented to
the subsequent search of the vehicle.  The court also concluded that the
scope of Kremen's consent allowed Boucher to search the glove
compartment and console, and that the marijuana that was found provided
probable cause to search the rest of the vehicle.
	[¶4]  By the time of Kremen's bench trial in July of 1998, the
marijuana and the pipe could not be found.  Boucher testified that although
the marijuana that he seized had not been tested, he had been trained in the
identification of marijuana, and that the substance he had taken from the
glove compartment appeared to be and smelled like marijuana.  Kremen was
found guilty (MacMichael, J.).  This appeal followed Kremen's unsuccessful
appeal to the Superior Court.

I.

	[¶5]  Kremen first contends that the suppression court abused its
discretion when it allowed Officer Boucher to testify that he stopped
Kremen for speeding based on his observation of his radar equipment.  She
contends that he was not certified to operate the radar, making the stop of
Kremen's car for speeding unjustified.  Kremen did not object to Boucher's
testimony at the suppression hearing on the ground that his certification to
operate radar had expired.  Rather she argued to the court that the
testimony should be given little weight.  Thus the issue of the admissibility
of that testimony has not been preserved.  Moreover, because the court has
to find only that the officer had an articulable suspicion that criminal
conduct or a civil violation has occurred, see State v. Brown, 1997 ME 90,
¶ 5, 694 A.2d 453, 455, the expiration of the officer's previously valid
certification would likely have little impact on the court's determination of
whether that standard had been met.
	[¶6]  Kremen also contends that the court erred in its finding that she
had consented to the search.  First, she argues that Boucher could not ask
for her consent to search the vehicle unless he had an articulable suspicion
that it contained contraband.  Second, she contends that the court erred
when it found she had given "knowledgeable consent."{4}  The State contends
that Boucher's request to search the vehicle was proper because it came
during the lawful stop for speeding.
	[¶7]  We review a finding that voluntary consent was given for clear
error.  See State v. Seamen's Club, 1997 ME 70, ¶ 7, 691 A.2d 1248, 1251
(citing State v. Marden, 673 A.2d 1304, 1310 (Me. 1996); State v. Cress, 
576 A.2d 1366, 1367 (Me. 1990)).

It is well settled under the Fourth and Fourteenth Amendments
that a search conducted without a warrant issued upon probable
cause is per se unreasonable . . . subject only to a few specifically
established and well-delineated exceptions.  It is equally well
settled that one of the specifically established exceptions to the
requirements of both a warrant and probable cause is a search
that is conducted pursuant to consent.

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (quotations and
citations omitted) (emphasis added).  Any consent obtained during an invalid
seizure, however, is ineffective.  See Dunaway v. New York, 442 U.S. 200,
217-18 (1979) (discussing the extent of the Fourth Amendment's
exclusionary rule).
	[¶8]  The evidence before the court on the motion to suppress shows
that Boucher's request to search Kremen's vehicle occurred while she was
stopped for the speeding violation.  Consent obtained during this stop is not
unlawful under Dunaway unless there was no articulable suspicion to stop
Kremen for the speeding violation.  Here, there was articulable suspicion
that Kremen was speeding.
	[¶9]  Relying on United States v. Brignoni-Ponce, 422 U.S. 873
(1975), Kremen also argues that Boucher's request for permission to search
the vehicle was not "'reasonably related in scope to the justification for [its]
initiation.'"  Id. at 881 (quoting Terry v. Ohio, 392 U.S. 1, 29 (1968)).  The
Court in Brignoni-Ponce, however, stated that "[t]he officer may question
the driver and passengers [regarding the potential illegal activity],{5} and he
may ask them to explain suspicious circumstances, but any further detention
or search must be based on consent or probable cause."  Brignoni-Ponce,
422 U.S. at 881-82 (emphasis added).  Thus, although Brignoni-Ponce holds
that investigatory questions must be limited to the justification for the stop,
it does not follow that a simple request for permission to search a vehicle,
without more, is a Fourth Amendment violation.  Moreover, the Supreme
Court explicitly noted that consent allows further investigation beyond the
initial justification.  See id. at 882.  It follows, then, that an officer is allowed
to ask for that consent.
	[¶10]  We have held that, to be valid, consent must be voluntary and
given "by one 'with an appropriate relationship to the property searched.'" 
State v. Sherburne, 571 A.2d 1181, 1185 (Me. 1990) (quoting State v.
McLain, 367 A.2d 213, 217 (Me. 1976)).  In addition, a search made
pursuant to consent is limited to the bounds of that consent.  See
Sherburne, 571 A.2d at 1185 (citing State v. Koucoules, 343 A.2d 860, 867
(Me. 1974)).
	[¶11]  Boucher's testimony at the suppression hearing is sufficient to
support findings that his request for permission was made during a valid
stop for speeding, and that Kremen voluntarily consented to the search of
her vehicle.  The District Court, on the motion to suppress, found each of
these elements.  Accordingly, the court did not err when it denied
Kremen's motion to suppress.

II.

	[¶12]  Kremen contends that there was insufficient evidence to
support a finding that she was in possession of the alleged marijuana taken
from her vehicle.  She also argues that the substance destroyed was
potentially exculpatory evidence, and that the evidence was insufficient to
support a finding that the substance taken was, in fact, marijuana
	[¶13]  In a review of an adjudication of a civil violation, we view the
evidence in a light most favorable to the State, to determine whether
evidence supports a finding, by a preponderance of the evidence, that the
State has established every element of the violation.  See M.R. Civ. P. 80H(h). 
"When the Superior Court acts as an intermediate appellate court, we review
the decision of the trial court directly."  Emerson, 675 A.2d at 979 (citing
Noyes v. Noyes, 617 A.2d 1036, 1037 (Me. 1992)).
	[¶14]  Possession may be either actual or constructive.  Here, the State
concedes that Kremen was not in actual possession of the marijuana.  We
have discussed what is required to prove constructive possession.  See State
v. Ketchum, 1997 ME 93, ¶ 13, 694 A.2d 916, 918-19.  "Constructive
possession means that although one does not have actual physical control of
the goods, he has dominion, authority or control over them," (State v.
DePhilippo, 628 A.2d 1057, 1060 (Me. 1993) (quoting State v. Durgan,
467 A.2d 165, 167 (Me. 1993)).  We have upheld a finding of constructive
possession when stolen goods were found in a vehicle that defendant "both
owned and occupied," see DePhilippo, 628 A.2d at 1060, when stolen goods
were found in a vehicle the defendant used as his home and was driving at
the time of the stop, see State v. Mower, 407 A.2d 729, 733 (Me. 1979), and
when stolen goods were found on premises where the defendant resided,
see State v. Robinson, 561 A.2d 492, 495 (Me. 1989).
	[¶15]  As to the destruction of the marijuana, we have described the
consequences of a failure to preserve evidence as follows:

The State's failure to preserve evidence does not violate a
criminal defendant's right to a fair trial unless (1) the evidence
possesses an exculpatory value that was apparent before the
evidence was destroyed, (2) the defendant would be unable to
obtain evidence of comparable value by other reasonably available
means, and (3) the State acted in bad faith in failing to preserve
potentially useful evidence.

State v. Cyr, 588 A.2d 753, 755 n.4 (1991) (citing State v. Lewis, 584 A.2d
622, 625 (Me. 1990)).  All three elements must be present in order for
Kremen's right to a fair trial to be found to have been violated.
	[¶16]  Here, the testimony supports a finding that Kremen was driving
a vehicle in which marijuana was found both in the glove compartment and
in the center console.  That Kremen was in constructive possession of
marijuana may be inferred under our prior holdings.  Also, contrary to
Kremen's contentions, it was not "apparent before the evidence was
destroyed" that the alleged marijuana possessed exculpatory value, nor does
it appear that the evidence was destroyed in bad faith.  Accordingly, her
right to a fair trial was not violated.  Finally, Boucher testified that he had
been trained to identify marijuana, and that he had identified the substance
as marijuana.  The court was entitled to rely on this testimony to find that it
was in fact marijuana.  Thus, the court did not err when it determined that
the elements of the violation had been proven by a preponderance of the
evidence.
	The entry is:
			Judgment affirmed.
CALKINS, J., with whom SAUFLEY, J., joins, concurring.

	[¶17]  I write separately to indicate that I concur in the portion of the
decision concerning the consent to search because our prior decisions hold
that we assume that the suppression judge found all facts necessary to the
grant or denial of a suppression motion in the absence of a request for
findings.  See State v. Izzo, 623 A.2d 1277, 1280-81 (Me. 1993) (upholding
denial of suppression motion and stating that appellant has the burden to
request that court expand on findings; in the absence of such a request, we
assume the suppression court found all facts necessary to support its ruling);
State v. Powell, 591 A.2d 1306, 1308 n.4 (Me. 1991) (upholding
suppression order and noting that because State failed to request findings,
we assume that suppression court found all necessary facts to support grant
of motion).  Given that Kremen did not request additional findings, pursuant
to M.R. Crim. P. 41A(d), we assume that the court found the historical facts
necessary for its denial of the motion.
	[¶18]  I agree with the dissent that if Kremen was unlawfully detained
at the time she was asked for permission to search, her consent would be
invalid.  I cannot conclude from the facts contained in the court's written
findings that Kremen's detention at that time was illegal as a matter of law.{6} 
See State v. Rizzo, 1997 ME 215, ¶ 11, 704 A.2d 339, 342-43 (stating that
we review independently legal conclusions based on the historical facts
found by the trial court).  Likewise, if the court had found facts indicating
that Kremen was in custody to a degree associated with arrest, her consent
would be invalid if she had not been given Miranda warnings and waived the
Miranda rights, and if the court had found her consent was not voluntarily
given, the search results would have to be suppressed.
	[¶19]  The suppression court did not explicitly make findings
concerning the legality of the detention once the speeding ticket was given;
it did not make findings concerning custody; nor did it find that Kremen's
consent was voluntary.{7}  Because no further findings were requested by
Kremen, and because we have repeatedly held that we assume that the court
found all facts necessary to its decision when there is no request for
findings, I concur that the trial court did not err in denying the motion to
suppress.