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State v. Storey
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:		1998 ME 161
Docket:		Was-97-542
Submitted
on briefs:		April 16, 1998
Decided:		June 26, l998

Panel:	WATHEN, C.J., and  CLIFFORD, RUDMAN, and SAUFLEY, JJ.

STATE OF MAINE

v.

 JAMES STOREY

CLIFFORD, J.

	[¶1]  James Storey appeals from a judgment entered in the Superior
Court (Washington County, Alexander, J.) following the entry, pursuant to
M. Crim. R. 11(a)(2), of his conditional guilty plea to unlawful possession of
schedule X drugs (Class D), in violation of 17-A M.R.S.A. § 1107 (Supp.
1997).{1}  Storey contends that the District Court (Calais, Romei, J.) erred in
denying his motion to suppress evidence seized incident to and subsequent
to his arrest.  We find no error and affirm the judgment.
	[¶2]  The following facts were elicited at the hearing on Storey's
motion to suppress.  At the time of Storey's arrest, on December 20, 1995,
the Maine Drug Enforcement Agency (MDEA) had been working with a
cooperating defendant/confidential informant who was to deliver money to
Storey for a prior sale of drugs, and possibly make a new purchase of drugs
from Storey.  It was known to Darrell Crandell, an agent of MDEA, that
Storey previously had provided marijuana to the informant.  On December
20, the informant was fitted with a transmitter, given money, and he and his
vehicle were searched in anticipation of a meeting between the informant
and Storey.
	[¶3]  Crandell{2} followed the informant to Storey's residence in Waite. 
The informant had been given explicit instructions that he was not to go
anywhere in a vehicle with Storey.{3}  Over the transmitter Crandell heard
Storey tell the informant to get into the informant's car, to which the
informant protested and attempted to avoid getting in the vehicle.  Storey
was very insistent, however, that the informant go with him in the vehicle,
and the informant did in fact finally comply with Storey's continuing
requests.
	[¶4] Storey drove the vehicle, and Crandell followed it over
snow-covered roads in an area Crandell was not familiar with.  Crandell had
not intended to terminate the operation at this stage because he had hoped
to continue gathering evidence supporting a drug trafficking charge. 
Another agent who was to be involved in the operation, however, had not
caught up with Crandell, and Crandell decided that he needed to terminate
the operation for the safety of the informant.{4}
	[¶5]  Crandell turned on the blue cruiser lights, and pulled over the
informant's vehicle.  Storey did not shut off the engine of the vehicle until
Crandell's third request to do so.  Crandell pointed his weapon at Storey,
had him walk to the rear of the vehicle, and "patted him down" to look for
weapons because he "didn't want to get hurt, and he didn't want anybody
else to get hurt."  Crandell thought that some kind of injury was a "distinct
possibility" because of Storey's previous arrest in which he was in
possession of a weapon and his insistence that the informant get in the
vehicle.
	[¶6]  During his pat-down of Storey, Crandell felt a hard object,
"cylindrical in nature" in Storey's winter vest pocket,{5} and he reached in
and pulled out two prescription bottles, one of which he noticed had no
label and in which he could see "black tarry scrape marks or oily marks."  At
that point, he "knew that . . . they were not weapons."  On other occasions
Crandell had found that bottles with similar markings contain hashish. 
Unscrewing the safety cap of one of the vials Crandell found a smaller vial
that he immediately recognized as hash oil, and believed that a crime was
being committed in his presence.  When Crandell held up the bottle, Storey
said, "Oh, that's pot oil," or "That's just pot oil."  Convinced that he had
found hashish oil on Storey's person, Crandell placed him under arrest for
possession of the hash oil and read him his Miranda rights.  He then
obtained a warrant to search Storey's residence.  Incident to the arrest and
during a later search, the police obtained incriminating evidence.
	[¶7]  Following the denial of his motion to suppress, and after the
case was transferred to the Superior Court, Storey entered a conditional
plea of guilty.  He challenges the District Court's denial of his motion to
suppress.  See M.R. Crim. P. 11(a)(2).
	[¶8]  Our review of a motion justice's findings of the historical facts is
deferential, but when the challenge is to the legal conclusion drawn from
the historical facts our review is de novo.  See State v. Rizzo,
1997 ME 215, ¶ 11, 704 A.2d 339, 343, n.6 (citing Ornelas v. U.S.,
517 U.S. 690, ___, 116 S. Ct. 1657, 1662 (1996) ("ultimate
determinations" of reasonable suspicion and probable cause should be
reviewed de novo, but findings of historical fact for clear error)).  See
generally, Michael R. Bosse, Standards of Review:  The Meaning of Words, 49
Me. L. Rev. 367 (1997).

I.

	[¶9]  Pursuant to the Fourth Amendment of the U.S. Constitution,
"[i]n order to make a valid traffic stop an officer must have a reasonable
articulable suspicion that a criminal offense is being or has been committed
or that legitimate safety reasons warrant the stop."  State v. Izzo, 623 A.2d
1277, 1280 (Me. 1993) (quoting State v. Mehuren, 594 A.2d 1073, 1075
(Me. 1991)).
	[¶10]  Storey argues that the only reason for the stop was "Crandell's
misguided notion that his informant was in some sort of fictitious danger,
and that notion is not sufficient legal reason to stop Storey's vehicle."  We
disagree.  The court found:

I believe they had honest concern for the safety of the
informant.  The informant had specific instructions not to
leave Mr. Storey's residence.  They . . . had information that
Mr. Storey had previously been convicted of possessing cocaine
and that there was a firearm present with the cocaine when
that circumstance occurred . . . .  [T]he evidence concerning
Mr. Storey's insistence that the informant leave and get in a
motor vehicle with him, after the informant indicated that he
did not wish to do that, I think the totality of those
circumstances justify stopping the vehicle to . . . make sure
that [the informant] was safe.

The evidence fully supported the court's conclusion that Crandell had
justifiable concerns about the informant's safety.  The court did not err by
concluding that Crandell had the necessary reasonable, articulable suspicion
to stop Storey's vehicle.

II.

	[¶11]  Storey also contends that, even if the stop of the vehicle is
legitimate, officer Crandell exceeded the limits of a Terry search in two
respects:  first by unnecessarily ordering Storey out of the car at gunpoint,
and second, by removing and examining the containers in Storey's vest
pocket without a reasonable belief that he was grasping an object that could
be used to assault him.
	[¶12]  The legitimacy of an investigatory search or seizure requires a
two-step analysis.  See State v. Hill, 606 A.2d 793, 795 (Me. 1992) ("[T]he
court must first consider whether the officer's action was justified at its
inception; and, second, whether the action taken was reasonably related in
scope to the circumstances which justified the interference in the first
place.") (quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879
(1968)).{6}
	[¶13]  Like the permissible seizure of the men in Terry whose
suspicious behavior was consistent with those "contemplating a daylight
robbery--which, it is reasonable to assume, would be likely to involve the use
of weapons," Crandell's knowledge and observations at the scene made it
"quite reasonable to fear that [Storey was] armed."  Terry, 392 U.S. at 28, 88
S. Ct. at 1883.  The court could reasonably have concluded that approaching
Storey with his gun drawn was merely "the tempered act of a policeman
who in the course of an investigation had to make a quick decision as to how
to protect himself and others from possible danger, and took limited steps
to do so."  Id.  Further, between the time he became justifiably concerned
with the informant's safety and when he stopped Storey, nothing in Storey's
conduct "gave him a sufficient reason to negate that hypothesis."  Id.
	[¶14]  Crandell's knowledge of Storey's prior arrest in which he was
in possession of a firearm, Storey's insistence that the informant get in the
car under protest, and the fact that Crandell was essentially alone on the
roadside and lacking the assistance of another officer who was in a position
to help him, support the court's conclusion that it was reasonable to
approach the car with a drawn weapon to implement the investigatory stop
and pat-down for weapons.
	[¶15]  Storey further argues that seizure of the "non-weapons
oriented object" from his pocket violated the Fourth Amendment, because
such a search must "be confined in scope to an intrusion reasonably
designed to discover guns, knives, clubs, or other hidden instruments for
the assault of the police officer."  Terry, 392 U.S. at 29, 88 S. Ct. at 1884. 
"If the protective search goes beyond what is necessary to determine if the
suspect is armed, it is no longer valid under Terry and its fruits will be
suppressed."  Minnesota v. Dickerson, 508 U.S. 366, 374, 113 S. Ct. 2130,
2136 (1993).
	[¶16]  Storey relies on Dickerson, in which the Supreme Court
concluded that the state court "was correct in holding that the police
officer . . . overstepped the bounds of the strictly circumscribed search for
weapons allowed under Terry when after feeling a small, hard object
wrapped in plastic in the defendant's pocket he formed the opinion that the
object was crack cocaine.  Dickerson, 508 U.S. 379, 113 S. Ct. 2138 ("Here,
the officer's continued exploration of respondent's pocket after having
concluded that it contained no weapon was unrelated to the sole justification
of the search under Terry:  the protection of the police officer and others
nearby.").
	[¶17]  Unlike in Dickerson, the court in this case found that agent
Crandell felt through outer garments a hard object readily accessible to
Storey that he believed could be dangerous.  Although the District Court did
not explicitly state that agent Crandell had probable cause to believe that the
object in Storey's pocket was a weapon, he did conclude that it was
legitimate for him to examine the contents of the pocket to ensure his
safety.  The court stated:  "You have to allow the police a little bit more
leeway when the object is hard, as this object was, and it is being felt
through outer garments, and also it being . . . readily accessible to the
defendant, just right in the vest pocket."  Crandell's removal of the objects
was a legitimate safety measure.  
	[¶18]  The court's finding that once it was apparent to Crandell that
one of the bottles did not have a prescription label and had residue on it
consistent with hash oil, it was reasonable to open the bottle, is supported
by the evidence.  Moreover, when Crandell opened the inner vial and
immediately recognized the smell of hashish oil, that recognition made its
seizure as contraband permissible under the plain-view doctrine, and gave
Crandell probable cause to arrest Storey for possession of hashish.  See
Horton v California, 496 U.S. 128, 136, 110 S. Ct. 2301, 2307 (1990). 
(Under the plain-view doctrine, if police are lawfully in a position from
which they can view an object, its incriminating character is immediately
apparent, and the officers have a lawful right of access to the object, they
may seize it without a warrant.). 
	The entry is:
			Judgment affirmed.
                                                                                                                        
Attorneys for the State:

Andrew Ketterer,Attorney General 
Matthew S. Erickson, Assistant Attorney General 
Office of Attorney General
P.O. Box 2460
Bangor, Maine 04402

Attorney for the Defendant:

Jeffrey C. Toothaker, Esq.
Toothaker & Chong 
277 High St.
Ellsworth, Maine 04605