State of Maine v. Gomez

STATE OF MAINE KENNEBEC CR-20-1794

STATE OF MAINE

V. ORDER AFTER SECOND HEARING
AND SUPPLEMENTAL ARGUMENT

MARIA GOMEZ

On October 4, 2021 the Com1 issued an Order partially granting the Defendant's Motion to
Suppress. That Order permitted the pa11ies to present evidence on the issue of consent which had not been
previously addressed or argued, and it also provided for supplemental briefing. The Cou11 has reviewed
the previous Order, the testimony at both hearings, and the written arguments from the attorneys, the last
of which was received on December 20, 2014.

At the second hearing on December 14, 2020 the Court heard testimony from Officer Sarah
Rogers of the Augusta Police Department. She was called to the police station in Augusta by the Maine
Drug Enforcement Agency to conduct the body cavity search of the Defendant.

Officer Rogers never asked the Defendant any questions about the allegations against her, but
was informed by Special Agent Walker that she had admitted "packing" drugs, which the parties agree
means to carry drugs in her vagina. Officer Rogers accompanied the Defendant into the bathroom where
she searched her and directed her to remove a package of drugs from her vagina. Officer Rogers admitted
she did not read the Defendant her rights even though the Defendant was in handcuffs when Officer
Rogers arrived. She simply directed her into the bathroom and told her to remove the drugs from her
body.

Entered on the docket. 1 I~~ (~~
The Defendant also testified. She stated that she was not read her rights by Officer Rogers, and
that no law enforcement officer ever asked for her consent, either orally or by way of a consent form. In
addition, she stated that no police officer ever told her that they needed a search warrant to conduct a
body cavity search in the absence of consent.

The State reminds the Cou11 that n search conducted with consent is a well-accepted exception to
the need for a warrant to conduct a search of a person. State v. Nadeau, 20 l O ME 71, par. 17. It also
points out that a person can constitutionally consent to a search without doing so verbally, and that a court
can consider gestures and actions. Id. par. 18. The State further notes that the Defendant nodded her head
when told that a female officer would assist her in the bathroom, and asserts that after Officer Rogers
arrived the Defendant "required no prompting" to remove the drugs from her vagina. [State's Memo re
Consent, pg. 4]. The State does note that when Officer Rogers arrived and put on surgical gloves, she tells
the Defendant, "We're going to go into the bathroom." At that point, the Defendant asks permission to
stand, and when is permitted to do so, follows Officer Rogers into the bathroom.

The Court finds that the State has failed to prove by a preponderance of evidence that the
Defendant consented to this body-cavity search. As the Defense notes, the Court should look to the
totality of the circumstances in determining if this burden is met. Unlike the Defendant in Nadeau, the
Defendant here was in custody. She was handcuffed during much of her detention, up until the arrival of
Officer Rogers. She was never administered Miranda warnings at any time during her detention, and
never had the opportunity to have advice of counsel before making the decisions whether to answer
questions or to consent to a search of her vagina. While in custody, she was given directions to follow,
rather than choices to make. And in terms of the issue presented at this stage of the proceedings, the Court
agrees with the Defense that she was never told "io any way that she had the legal option" to decline to
have her vagina searched, or to await the issuance of a warrant. Under the test of "objective
reasonableness", the Court concludes that a typical reasonable person would have understood these
exchanges with law enforcement to mean that she had no real choices available to her other than to follow
the directives of Jaw enforcement and submit to the search.

With respect to the State's argument regarding inevitable discovery, the Coutt has reviewed the
parties' arguments ma.de before and after the December 14, 2021 hearing, as well as Nadeau and State v.
Prinkerton, 2018 ME 16. In Nadeau, the Court adopted the First Circuit standard in State v. Silvestri, 787
F.2d 736, 744 (1st Cir. 2001) which added a third requirement for the State to establish in order to make
out the inevitable discovery exception. Those three elements are: first, that the evidence would have been
gained lawfully from information that is truly independent from the warrantless search; second, that the
evidence inevitably would have been discovered by such lawful means; and third, that the application of
the exception neither provides an incentive for police misconduct nor significantly weakens fourth
amendment protections. Id par. 38. Prior to Nadeau, the Law Court had required the establishment of
only the first two. State v. Cormier, 2007 ME 112. In Prinkleton, the Law Court also stated that it is the
State's burden to establish "inevitable discovery" by a preponderance of the evidence. Id par. 18.'

In this case) assuming for the sake of argument that the State could, as it claims, establish that the
evidence ofthe drugs could have lawfully been obtained from information truly independent of the
warrantless search; and that the evidence would inevitably have been discovered by such lawful means,
the Court finds that the State has not established by the requisite standard that application of this standard
"neither provides an incentive for police misconduct nor significantly weakens Fourth Amendment
protections." Id. par. 19.

The Law Court in both Nadeau and Prinkleton was presented with very different facts that
presented here. In Nadeau, the police "sought and obtained a search warrant within days of coming into
possession of the computer" and even though they "mistakenly believed Nadeau had consented to the
seizure ... they viewed a warrant as a necessary predicate to the forensic examination in recognition of the
fact that a person's consent can be withdrawn.'' Nadeau, par. 41. In addition, there was no incentive for
police misconduct as they actually did obtain a warrant which "demonstrated an absence of overreaching
and an intention to comply with the fundamental protections of the Fourth Amendment." Id par. 44.

Similarly, in Prinkleton, a warrant was obtained within hours of the search, and the Law Coutt
noted the "good faith belief they had probable cause that there was criminal ongoing criminal
activity ... and that there were exigent circumstances justifying their entry to secure the apartment." And
impo1tantly) the search of the apartment was actually not done until the warrant was actually obtained. Id.
par. 39. In this case) no warrant was sought or obtained, and no claim of good faith or exigent
circumstances has been made.

More fundamentally) in this case there were multiple constitutional violations. The Defendant
was clearly in custody but the MDEA made the inexplicable decision not to provide Miranda warnings.
She was directed her to comply with a search of her vagina, but never officers never came close to

1
The Law Court in Prinkleton recognized the importance of distinguishing between situations involving
"warrantless searches that are never followed by a warrant and warrantless searches that are followed by a
warranted search." Citing Silvestri, 787 F.2 736, 744 (P1 Cir. 1986). In this case there Is no evidence the State
obtained, or really ever began, the process tor obtaining a search warrant. As the First Circuit noted in Silvestri, the
fact that a warrant has been obtained removes speculation as to whether a magistrate would in fact have issued a
warrant on the facts and also ensures .....that the fourth amendments has not been totally circumvented." Id. at
74S.
offering her the option of declining consent, or holding her until a search warrant application was
approved by a neutral magistrate.

The Court concludes applying this exception to this warrantless, non-consensual, custodial search
of the Defendant - in addition to the clear failure to administer Miranda warnings - would create
negative incentives for law enforcement to comply with Fourth Amendment protections. Those important
protection would therefore be weakened. Finally, it is not lost on the Court that what is at issue here is
not the search of an electronic device ( Nadeau) or even a residence ( Prinkleton). This search involved a
body cavity of the Defendant.

The Court therefore concludes that the inevitable discovery doctrine should not be applied in this
case.

The Defendant's motion to suppress the search of the Defendant's person is therefore GRANTED
in full.

DATE SUPERIOR COURT JUSTICE