MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2018	ME 129 Docket: And

- 17

- 534 Argued: July	19,	2018 Decided: August	30,	2018 Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY	JJ. Majority:								SAUFLEY, C.J.,	and	ALEXANDER,	GORMAN,	HUMPHREY,	JJ. Concurrence/ Dissent: HJELM, MEAD, and JABAR,	JJ. STATE	OF	MAINE

v. DONNA	PAGNANI

ALEXANDER,	J. [¶1]		 The	State	 appeals	 from an	 order	 of	 the	 trial	court (Androscoggin County, MG Kennedy,	J. ) suppressing	evidence	se ized	pursuant	to	a	warrantless search	of Donna	Pagnani’s	jacket	and	vehicle after finding that	the	search es	of those	 items and the	 seizure	 of	 the evidence	 was	 not	 supported	 by	 probable cause	and	was	in	violation	of	Pagn ani’s	Fourth	A mendment	rights. 1 The	State contends that	the	search	of	Pagnani’s	jacket	was	a	lawful	search	incident	to her

arrest and that the drug evidence	 discovered	 in	 the	 jacket	 su pported	 the subsequent	 search	 for the illegal	 drugs that	 were discovered	 in Pagnani’s

1 The	Fourth	Amendment	of	the	United	States	Constitution	provides,	“The	right	of	the	people	to be	secure	in	their persons,	houses,	papers,	and	effects,	against	unreasonable	searches	and	seizures, shall	not	be	violated.” U.S.	Const.	amend.	IV

.2 vehicle. We vacate	the	suppression	order as	to	the evidence	found	in	Pagnani’s jacket

. 2 We	affirm	the suppression	order	as	to the evidence	found	in Pagnani’s vehicle.
I. PROCEDURAL	HISTORY	AND FACTS [¶2 ]		In	March 201 7 , Donna Pagnani	was	indicted	by	the Androscoggin County grand	jury	and	charged	with	unlawful	 furnishing	 of	 scheduled	drugs, Class	C, 17

- A	M.R.S.	§ 1106(1

- A)(A)	(2017) ,	unlawful	possession	of	scheduled drugs,	Class	C, 17

- A	M.R.S.	§	1107

- A(1)(B)(1)	(2017) ,	unlawful possession	of scheduled	drugs,	Class	D,	17

- A	M.R.S.	§	1107

- A(1)(C) (2017) ,	operating	after suspension,	 Class	 E, 29

- A	 M.R.S.	 §	 2412

- A(1

- A)(D) (2017) ,	 and	 one	 count	 of criminal	forfeiture, 15	M.R.S.	§	5826	(2017)

. [¶3 ] Pagnani moved to	suppress	the	evide n ce	found	during a search	of her	jacket	and her vehicle,	arguing	that	both	searches	were illegal and that all evidence	discovered	during	those	searches	should	be	suppressed. [¶4 ]		A	suppression	hearing	was	held	on	November	7,	2017. The	State presented the	testimony	of	one	witness : the	arresting	officer.		Additionally,	the State	entered	in to evidence the video	captured	by	the camera	mounted	in	the

2 Because	we	conclude	that	the	search	of	Pagnani’s	jacket	was	a	lawful	search	incident	to an ar rest, we	do not	reach	the	State’s	alternative	argument	that	the	officer	had	probable	cause	to	search	the jacket

.3 officer’s	cruiser

. On	November 17,	2017,	the	court	issued	an	order containing the	following	findings,	all	o f	which	are	supported	by	the	record except	where specifically	noted

. [¶ 5 ]	 	 Around	 noon	 on	 January	 17,	 2017,	 an	 Auburn	 police	 officer observed	 Donna	 Pagnani	 driving	 her	 vehicle	 away	 from	 the	 Androscoggin County	 Courthouse.	 	 The	 officer	 was	 familiar	 with Pagnani’s	 “extensive” criminal	 history	 and	 believed	 that	 her	 driver’s	 license	 had	 recently	 been suspended.	 	 The	 officer	 ran	 a	 license	 check	 on	 Pagnani	 but,	 by	 the	 time	 he received	 the	 results	 of	 that	 check

— which	 revealed	 that	 Pagnani’s	 driver’s license	was under	suspension	and	that	she	had	a	prior	conviction	for	ope rating after	suspension	(OAS)

— Pagnani	had	driven	away. [¶6 ]		The	officer	decided	to	wait	for	Pagnani	near	the	residence	where	he believed	she	lived. After	waiting	for	about	two	hours	in	his	un marked	police car,	 the	officer	observed	Pagnani	driving	 toward	her	home.		He	activated	his blue	lights	and	initiated	a	 traffic	 stop	by	 following	Pagnani’s	 vehicle	into	 the driveway	 of	 her	 residence.	 	 As	 Pagnani	 got	 out	 of	 her	 vehicle,	 the	 officer approache d	her	and	informed	her	that	her	license	was	suspended	for	failing	to pay	a	 fine,	 to	which	she	replied	 that	it	was	not.		Pagnani	provided	 the	officer4 with	her	license,	regist ration	and	insurance	documents while	trying	to	contact the	Violations	Bureau	to	ver ify	that	she	had	paid	the	fine. [¶ 7 ]	 	 The	 officer	 then	 ran	 another	 license	 check	 and	 confirmed	 that Pagnani’s	license	was	currently	suspended.		While	the	officer	and	Pagnani	were standing	in	her	driveway	next	to	her	vehicle,	the	officer,	who	knew that Pa gnani had	 a	 pending	 drug	 trafficking	 case	 in	 New	Hampshire,	 asked	 her	 about	 the status	 of	 that	 case.	 	 Pagnani	 told	 him	 that	 the	 case	 had	 been	 dropped.	 	 The officer	 asked	 Pagnani	if	 she	 had	 any	 drugs	 or	weapons	 on	 her,	 to	which	 she responded	that	she	did	no t.		The	officer	then	asked	Pagnani	if	she	would	consent to	a	search	of	her	vehicle,	and	she	said	no.		The	officer	then	told	Pagnani	that she	was	under	arrest	f or	operating	after	suspension. [¶8 ]		Pagnani	did	not	willingly	submit	to	arrest.		She	continued to	tell	the officer	 that	 she	 had	 “done	 nothing	 wrong”	 and	 continued	 to	 ask	 for	 time	 to speak	with	 someone	 at	 the	 Violations	 Bureau.		Several	 times	 the	 officer	 told Pagnani	to	put	the	phone	down,	but	she	continued	to	speak	with	someone	on her	 phone	 and	 sta rted	 to	 walk	 away	 from	 her	 vehicle.	 	 The	 officer	 advised Pagnani	not	to	move	away	from	him,	but	she	walked	away	from	the	officer	and toward	the	porch	of	her	home.		Once	on	the	porch,	Pagnani	removed	her	jacket,5 placed	it	on	the	seat	of	a	chair	on	the	porch ,	and	sat	in	the	chair.		Pagnani	was wearing	a	sleeveless	top.		The	temperature	was	34	degrees. [¶ 9 ]		The	officer	called	for	backup.		When	the	responding	officers	arrived, they	 helped	 place	 Pagnani	 in	 handcuffs	 and	 put	 her	 into	 the	 back	 of	 the arresting officer’s	vehicle.		Pagnani	asked	what	she	was	being	arrested	for	and was	told	that	s he	was	being	arrested	for	OAS. [¶1 0 ] After	Pagnani	was	placed	in	handcuffs	by	the	responding	officers, the	arresting	officer	picked	up	Pagnani’s	jacket	from	the	chair	a nd	searched	it. Specifically,	 the	 officer	 testified	 that , as	 another	 officer	 “was	 walking	 Ms. Pagnani	to	my	vehicle,	I	then	searched	the	jacket that	she	had	taken	off	.	.	. .” The	video	of	the	incident	shows	the	officer	searching	Pagnani’s	jacket	almost immediately	 after	 she	was	handcuffed	and	 removed	 from	 the	porch. 3 In	 the jacket	 the	 officer	 found	 a	 small	 loose	 rock,	 which,	 based	 on	 his	 experience, training,	and	education, he	believed	was	cocaine	base.

3 In	ruling	on	the	motion	to	suppress,	the	trial	court	found	that	once	Pagnani	“was	handcuffed and secured	in	the	vehicle ,	[the	officer]	conducted	a	war rantless	search	of	the	jacket	she	had	removed	and left	on the	porch.”		(Emphasis	added.) This	finding,	suggesting	a	much	longer	gap	betwee n	Pagnani’s being removed	from	the	porch	and	the	search	of	the	jacket,	is	not	supported	by	the	evidence	in	the record or	by	any	reasonable	inference	drawn	from	the	record. See State	v.	Sasso, 2016 ME	95,	¶19, 143	A.3d	124 (“We	consider	the	evidence,	and	reasonable	inferences	that	may	be	drawn	 from	the evidence,	 in	 the	 light	 most	 favorable	 to	 the	 trial	 court’s	 judgment	 t o	 determine	 if	 the	 evidence rationally	supports	the	trial	court’s	decision.”); see	also State	v.	Cooper ,	2017	ME	4,	¶	2,	153 A.3d	759 (“A	 finding	 of	 fact	 supporting	a	suppression	 order	will	not	 be	disturbed	 on	appeal	 unless	 clearly erroneous,	that	is,	lacking	any	competent	evidence	in	the	record	to	support	it.”).6 [¶1 1 ]		The	officer	then	attempted	to	open	Pagnani’s	car,	but	it	was	locked. The	officer	asked	one	of	the	responding	officers	if	Pagnani	had	the	keys	to	her car	in	her	hand,	which	she	did.		He	advised	the	responding	officers	that	he	had found	cocaine	base	in	h er	jacket	and	was	going	to	“toss	the	car.”		The	responding officers	physically	removed the	keys	from	Pagnani’s	hands. [¶1 2 ]		The	officer	 then	searched	 the	 vehicle	and	 found	a	sandwich	bag containing	five	smaller	bags	of	a	brown	powder.		The	officer	belie ved	that	the substance	in	the	bags	was	heroin. [¶1 3 ]	 	 Based	 on	 these	 findings,	 the	 court	 granted	 Pagnani’s	 motion	 to suppress	the	evidence	found	during	the	search	of	her	jacket	and	vehicle. The
State , with	the	approval	of	the	Attorney	General, filed	a	t imely	noti ce	of	appeal

. See 15	M.R.S.	§	2115

- A(1),	(5)	(2017) ;	M.R.	App.	P.	21(b).
II.		LEGAL	ANALYSIS
A. Search	of	the	Jacket	Incident	to	Arrest [¶1 4 ] The	State	argues	 that ,	contrary	 to	 the	court’s	determination, the officer’s search	 of	 Pagnani’s	 jacket	 was	 a	 lawful	 search	 incident	 to	 arrest because	she	was	wearing	 the	jacket	at	 the	 time	she	was placed under arrest. When	 reviewing	 a	 ruling	 on	 a	 motion	 to	 suppress,	 we	 review th e	 factual findings	made	by	the	court	for	clear	error and we	review	issues	of	law	and the7 court’s ultimate	determination	of	whether	the evidence should	be	suppressed de	novo

. State v. Prinkleton ,	2018	ME	16,	¶	17,	178	A.3d	474 ; State v.	Lockhart , 2003	ME	108,	¶	15,	830	A.2d	433

. [¶1 5 ] The	Fourth	Amendment	requires	that	all	searches	be	reasonable. U.S.	 Const.	 amend.	 IV .	 	 “Reasonableness	 is	 measured	 in	 objective	 terms	 by examining	 the	 totality	 of	 the	circumstances.” State	v.	Sargent ,	2009	ME	125, ¶ 10,	984	A.2d	831

. Reasonableness gene rally	requires	a	warrant	and	probable cause,	but	there	ar e	exceptions	to	that requirement ,	including	when a search	is conducted	incident	to	a	lawful	arrest

. Riley	v.	California ,	134	S. Ct.	2473,	2482 (2014) ; see	also United	States	v.	Robinson ,	414	U.	S. 218 ,	235

- 36	(1973) ; State	v. Foy ,	 662	 A.2d	 238,	 24 1 (Me.	 1995)

. The	 first	 question	 we	 must	 address, therefore,	 is	 whether	 the	 search	 of	 Pagnani’s	 jacket	 was	 proper	 as	 a	 search “incident”	 to	her	arrest. As	 the	Supreme	Court	stated	in Riley , “the	extent	 to which	 officers may	 search	 property	 found	 on	 or	 near	 the	arrestee”	has	been debated	 for	 nearly	 as	 long	 as	 the	 exception	 has	 been	 recognized. Riley , 134 S. Ct. at 2482

- 83. [¶1 6 ] The	 facts	 in	 this	 case	 are	 particularly	 analogous	 to those	 in Robinson .		There , an	officer	on	patrol	spotted	an	individual,	Robinson,	dri ving	a vehicle;	the	officer	had	reason	to	believe that	Robinson’ s	license to	drive	was8 suspended	and	confirmed	that his	license	to	drive	was	suspended;	the	officer conducted	a	traff ic	stop	and	arrested	Robinson	for	driving	while	suspended; a post
- arrest	search	of	Robinson’s	coat	led	to	discovery	of	a	package	containing illegal	drugs. 414	U.S. at	22 0

- 23.		The	Supreme	Court	approved	the	search	and seizure	of	the	illegal	drugs	as	a	pro per	search	and	seizure	incident	to	an	arrest. Id .	at	235

- 36. [¶1 7 ] In Robinson ,	the	Court	held	that “ [i] t	is	the	fact	of	the	lawful	arrest which	 establishes	 the	 authority	 to	 search,	 and	 we	 hold	 that	 in	 the	 case	 of	 a lawful	custodial	arrest	a	full search	of	the	person	is	not	only	an	exception	to	the warrant	 requirement	 of	 the	 Fourth	 Amendment , b ut	 is	 also	 a	 ‘reasonable’
search	under	 that	Amendment. ” Id .	at 235 .		The	Court	 further	observed	 that

“ [h] aving	in	the	course	of	a	lawful	search	come	upon the	cr umpled	package	of cigarettes,	 [the	 officer] was	 entitled	 to	 inspect	 it;	 and	 when	 his	 inspection revealed	 the	 heroin	 capsules,	 he	 was	 entit led	 to	 seize	 them	 as fruits,
i nstrumentalities,	or	contraband probative	of	criminal	conduct.” Id .	at 236

. [¶1 8 ]		 If	Pagnani	 had	been	wearing	 her	jacket	at	 the	moment	 she	was handcuffed,	there	would	be	no	question	that	the	search	of	her	jacket	would	have been	 proper	as	a	 search	incident	 to	arrest	 for	which	no	warrant	is	 required. Here,	 however,	 Pagnani	 was	 wearing her	 jacket	 when	 advised	 that	 she	 was9 under	arrest, but she removed her	ja cket	and	sa t	on	it	before	she	was	taken	into physical	custody. Pagnani	argues	that,	because	she	was	no	longer	wearing	the jacket	at	the	time	she	was	handcuffed,	the	warrantless	sear ch	of	her	jacket	was improper. [¶1 9 ] The	 holding	in Robinson that,	incident	 to	 a	lawful	 arrest,	 police
may ,	 without	 a	 warrant, search	 an	 arrestee’s	 person	 and	 items	 immediately associated	 with	 the	 person, 4 and	 seize	 weapons,	 items	 of	 contraband,	 or evidence	of	a	crime	 found	in	 the	search , was reaffirmed	in Riley ,	134	S. Ct

. at 2482

- 85

. In Riley ,	 the	Court	was	called	upon	 to	apply	 the	 search	inc ident	 to arrest	 doctrine	 to	 cell	 phones.	 	 The	 Court held	 that cell	 phones 5 believed	 to contain	evidence	of	criminal	activity	could	be	seized	incident	to	a	lawful	arrest, but	qualified Robinson to	hold	that	a	subsequent	search	of	the	digital	memory of	the	cell	phones	after	the	arrest	could	not	be	conducted	without	a	w arrant,	or without	exigent	circumstances	 or	application	 of	 some	 other	exception	 to	 the warrant	requirement. Id

.

4 In United	States	v.	Chadwick ,	433	U.S.	1 ,	15 (1977) ,	the	Court	clarifie d	that	such	searches	must be	limited	to	“personal	property	.	.	.	immediately	associated	with	the	person	of	the	arrestee.”

5 Riley , 134	 S. Ct.	 at	 2480, involved	 consolidated	 appeals	 in	 two	 cases	 involving	 subse quent searches	of	the	digital	memory of cel l	phones	following	seizure	of	the	cell	phones	incident	to	lawful arrests.10 [¶20 ] In	 explaining	 its	 decision in Riley , 134	 S. Ct.	 at	 2483

- 88, the Supreme C ourt referred	 to	 its	 decision	 in Chimel	 v.	 California ,	 395	 U.S.	 752,
762

- 63 (1969) ,	where	it held	that	once the	police	arrest,	or	have	probable	cause
to	 arrest, a	 suspect they	 do	 not	 need	 a	 warrant	 to	 search	 for weapons	 or evidence	of	criminal	activity that	might	be r eadily	concealed	or	destroyed.		The Chimel court	 further	held	 that	 a	search	incident	 to	an	arrest	could	extend	 to items	in	the	immediate	area	and	associated	with	an	arrestee. Id. at	763. “ There is	ample	justification,	 therefore,	 for	a	search	of	 the	arrestee’s	person	and	 the area	‘within	hi s	immediate	control’

— construing	that	phrase	to	mean	the	area from	 within	 which	 he	 might	 gain	 possession	 of	 a	 weapon	 or	 destructible evidence.” Id

. [¶ 2 1]		 In	considering	 the	effect	of Chimel on the	case	presented	 to	it in Riley ,	the C ourt	stated : We	first	consider	each Chimel concern	in	turn. In	doing	so,	we	do not	 overlook Robinson ’s	 admonition	 that	 searches	 of	 a	 person incident	 to	 arrest,	 “while	 based	 upon	 the	 need	 to	 disarm	 and	 to discover	evidence,”	are	reasonable	regardless	of	“the	probabilit y	in a	particular	arrest	situation	that	weapons	or	evidence	would	in	fact be	 found.” R ather	 than	requiring	 the	“case

- by

- case	adjudication” that Robinson rejected , we	ask	instead	whether	application	of	the search incident	 to	 arrest	 doctrine	 to this particular	 category	 of effects	would	“untether	the	rule	from	the	justifications	underlying the Chimel exception [.] ”11 Riley , 134	S. Ct.	at	24 85 (internal	citations	omitted).		Following	this	directive, we	conclude	that	applying	the	search	incident	to	arrest	doctrine	to the	search of Pagnini’s	 jacket	 would	 not	 “untether	 the	 rule	 from	 the	 justifications underlying the Chimel exception.” Id .		Althou gh	there	was	no	“evidence”	of	the charged	OAS	that	might	have	been	concealed	within	Pagnini’s	jacket, Robinson does	not	require	such	evidence: The	 authority	 to	search the	person	incident	 to	a	lawful custodial arrest,	 while	 based	 upon	 the	 need	 to	 disarm and	 to	 discover evidence,	does	not	depend	on	what	a	court	may	later	decide	was the	 probability	 in	 a	 particular	 arrest	 situation	 that	 weapons	 or evidence	would	in	fact	be	found	upon	the	person	of	the	suspect. A custodial	 arrest	 of	 a	 suspect	 based	 on	 probab le	 cause	 is	 a reasonable	intrusion	under	the Fourth	Amendment;	that	intrusion being	lawful,	a	search	incident	to	the	arrest	requires	no	additional justification. It	is	the	fact	of	the	lawful	arrest	which	establishes	the authority	 to	 search,	 and	 we	 hold	 th at	 in	 the	 case	 of	 a	 lawful custodial	arrest	a	full	search	of	the	person	is	not	only	an	exception to	the	warrant	requirement	of	the Fourth	Amendment,	bu t	is	also	a

“ reasonable ” search	under	that	Amendment.
Robinson ,	414	U.S. at 235. [¶22 ] Two	years	after Robinson was	decided,	we	observed	that	o nce	the issue	is	search	of an	area,	not	the	person, “[t] his	area	within	which	a	search	is permitted	 depends	 upon	 the	 circumstances	 of	 each	 case	 and	 does	 not, therefore,	admit	of	precise	delineation. It	has	been	variously	described	as	t he suspect’s	 ‘leaping	 range’	 .	 .	 . or	 the	 area	 reasonably	 within	 the	 defendant’s12 ‘lunge,	reach	or	grasp.’ ” State	v.	LeBlanc, 347	A.2d	590,	595	(Me. 1975)

. A	coat in	a	chair	in which	a	person	is	seated	is	well	within	“leaping	range.” [¶23 ] T he police	had	probable	cau se	to	arrest	Pagnani	for	OAS. Pagnani was	wearing	 the	jacket	when	she	was	advised	 that	she	was under	arrest	and throughout	her	interaction s with	the	officer as	she	resisted	arrest

. See State	v. Moulton ,	 1997	 ME	 228,	 ¶	 7 ,	 704	 A.2d	 361 (stating	 that	 for	 purposes	 of	 the Fourth	Amendment,	“seizure	of	the	person	occurs	when	the	officer , by	means of	physical	force	or	show	of	authority,	has	in	some	way	restrained	t he	liberty	of the	citizen	such	that	he	is	not	free	to	walk	away” ). [¶24 ] The officer	continued	to	tell	Pagnani that she	was	under	arrest	and not	to	walk	away,	but	she	did	not	cooperate. Although	Pagnani	removed	her jacket before	being	handcuffed , she had been told	she	was under	arrest	before she	removed	 the	jacket ,	and the	jacket ,	 though	she	was	no	longer	wearing	it, remained associated	 with her	 person. Because	 the	 jacket	 was	 on	 Pagnani’s person	at	the	time that she	was advised	that	she	was under ar rest	and	remained associated with her	person,	even as	she	sat	on	the	jacket, see	Chimel ,	395	U.S. at
7 55

- 56 , 763, the	officer’s	search	of	 the	jacket was a lawful search	incident	 to

arrest.13 B. Search	of	the	Vehicle [¶ 25 ] The	 State further argues	 that	 the	 drug	 evidence	 discovered	 in Pagnani’s	 jacket	 supplied	 a	 reasonable	 basis	 for	 the	 officer	 to	 search	 the passenger	 compartment	 of Pagnani’s	 locked	 car

. S ee Arizona	 v.	 Gant , 556 U.S. 332,	 3 51 (2009) (“Police	 may	 search	 a	 vehicle	 incident	 to a	 recent occupant’s	 arrest	 only	 if	 the	 arrestee	 is	 within	 reaching	 distance	 of	 the passenger	compartment	at	the	time	of	the	search	or	it	is	reasonable	to	believe the	 vehicle	 contains	 evidence	 of	 the	 offense	 of	 arrest.”)

. Based	 on the trial

court ’s	 finding s that	 the	 search	 of	 Pagnani’s	 vehicle	 was	 not	 supported	 by probable	cause	and	was	outside	the	scope	of	a vehicle search i ncident	to	arrest , the	warrantless	 search	 of	 the	 vehicle	was not	justified	 by	 the	 evidence. W e affirm	the	court’s suppression	order	a s	to	the	evidence	found	in	the	vehicle

. The	entry	is: The	 portion	 of	 the	 suppression	 order suppressing	 the	 evi dence	 found	 in	 Pagnani’s jacket is vacated

. The	 suppression	 order	 is affirmed	 in	 all	 other	 respects.	 	 The	 case	 is remanded	 for	 further proceedings consistent with	this	opinion

.14 HJELM,	 J.,	 with	 whom	 MEAD	 and	 JABAR,	 JJ.,	 join,	 concurring	 in	 part	 and dissenting	in	part. [¶26]	 	 I	 concur	 with	 the	 portion	 of	 the	 Court’s	 opinion	 affirming	 the suppression	 of	 evidence	 seized	 during	 the	 warrantless	 search	 of	 Donna Pagnani’s	vehicle.		The	warrantless	search	of	Pagnani’s	jacket,	however,	cannot be	justified	as	a	search	incident	to her	arrest.		I	therefore	respectfully dissent from	the Court’s	conclusion	to	the	contrary	and	would	affirm	the	suppression order	in	its	entirety. [¶27]	 	 It	 is	 an	 elemental	 principle	 that	 all	 searches	 conducted	 by	 law enforcement	officials	must	be	reason able.		U.S.	Const.	amend.	IV.		Warrantless searches	are	per	se	unreasonable	absent	one	of	“a	few	specifically	established and	well

- delineated	exceptions”	to	the	warrant	requirement. Arizona	v.	Gant , 556	U.S.	332 ,	338	(2009)	(quotation	marks	omitted); accord State	v.	Michael	M. , 2001	ME	92 ,	¶	6,	772	A.2d	1179.		Courts	may	not	“lightly	dispense[]	with”	the “requirement	that	a	search	warrant	be	obtained.” Chimel	v.	California , 395	U.S. 752 ,	762	(1969). [¶28]	 	 A	 search	 conducted	 as	 an	 incident	 to	 a	 lawfu l	 arrest	 is	 one exception	to	the	warrant	requirement. Id .	at	762

- 63 .		For	such	a	search	to	be lawful,	 however,	 it	 must	 be	 confined	 to	 accomplish	 at	 least	 one	 of	 two specifically	delineated	purposes	underlying	that	doctrine:	officer	safety

— that15 is,	searchi ng	for	weapons	or	instruments	that	the	arrestee	might	use	against	the officer	 or	 that	 would	 allow	 the	 arrestee	 to	 escape

— and	 preventing	 the destruction	 or	 concealment	 of	 evidence. Id .	 	 These	 justifications	 define	 the physical	 scope	 of	 a	 permissible	 search incident	 to	 an	 arrest.	 	 As	 we	 have explained, The	proper	scope	of	a	search	incident	to	arrest	extends	to	the	area within	 the	 suspect’s	 immediate	 physical	 control,	 the	 area	 from which	he	or	she	might	gain	possession	of	a	weapon	or	disposable evidence.		Thi s	 area	within	which	a	 search	is	permitted	 depends upon	the	circumstances	of	each	case	and	does	not,	therefore,	admit of	 precise	 delineation.	 	 It	 has	 been	 variously	 described	 as	 the suspect’s	 leaping	 range,	 or	 the	 area	 reasonably	 within	 the defendant’s	 lung e,	 reach	 or	 grasp.	 	 This	 Court	 has	 held	 a	 search valid	under	 the Chimel doctrine	if	it	encompasses	an	area	within the	conceivable	control	of	the	suspect. State	v.	LeBlanc , 347	A.2d	590 ,	595	(Me.	1975)	(citations	omitted)	(quotation marks	omitted). [¶29 ]		The	Supreme	Court	has	stated	that	“it	is	the	fact	of	custodial	arrest which	gives	rise	to	the	authority	to	search.” United	States	v.	Robinson , 414	U.S.
218 ,	236	(1973).		Consequently,	when	a	person	is	subject	to	a	custodial	arrest, the	 law	 enforcement officer	 may	 search	 the	 area	 within	 the	 arrestee’s “conceivable	 control,”	 an	 area	 identified	 at	 the	 time	 the search itself occurs. LeBlanc , 347	 A.2d	 at	 595

- 96 ; United	 States	 v.	 Lyons , 706	 F.2d	 321 ,	 330	 (D.C.
Cir. 1983)	 (“[A]	 court	 must	 ask:	 was	 the	 area	 in question, at	 the	 time	 it	 was16 searched ,	 conceivably	 accessible	 to	 the	 arrestee	 .	 .	 .	 .”	 (emphasis	 added)); cf

. Gant , 556	 U.S.	 at	 351	 (“ Police	 may	 search	 a	 vehicle	 incident	 to	 a	 recent occupant’s	 arrest	 only	 if	 the	 arrestee	 is	 within	 reaching	 distance	 of	 th e passenger	compartment at	 the	 time	 of	 the	 search

. . . .”	 (emphasis	added) ) .		A search	beyond that	area	exceeds	the	purposes	of	a	proper	search	incident	to	an arrest	 and	 cannot	 be	 justified	 on	 that	 basis.	 	 As	 the	 Supreme	 Court	 has explained,	“If	there	is no	possibility	that	an	arrestee	could	reach	into	the	area that	 law	 enforcement	 officers	 seek	 to	 search,	 both	 justifications	 for	 the search

- incident

- to
- arrest	exception	are	absent	.	.	.	.” Gant ,	556	U.S.	at	339 ; see State	v.	York ,	324	A.2d	758,	762

- 63	(Me. 1974)	([“T]he	rationale	underlying	the validity	 of	 searches	 incident	 to,	 and	 contemporaneous	 with,	 lawful	 arrests stems	from	the	need	to	seize	weapons	and	other	things	on	the	accused’s	person or	under	his	immediate	control	which	might	be	used	 to	assault	a n	 officer	 or effect	an	escape	or	to	prevent	the	destruction	of	evidence	of	the	crime.”). [¶30]		The	State	bears	the	burden	of	demonstrating	that	the	warrantless search	is	justified, see	Chimel , 395	U.S.	at	762 ,	and,	on	this	appeal,	must	establish that	 the “court	was	compelled	 to	make	 findings	in	its	 favor.” State	v.	Collier , 2013	ME	44 ,	¶	6,	66	A.3d	563.		Further,	because	neither	party	requested	that the	court	issue	findings	of	fact	and	conclusions	of	law	beyond	those	contained17 in	its	order,	“we	‘infer	th at	the	court	found	all	the	facts	necessary	to	support	its judgment

. . . .’” State	v.	Sasso , 2016	ME	95 ,	¶	19,	143	A.3d	124	(quoting State	v.
Connor ,	2009	ME	91,	¶	9,	977	A.2d	1003); see	also	State	v.	Diana , 2014	ME	45 , ¶ 11,	89	A.3d	132	(explaining	that we	“will	uphold	the	court’s	denial	of	a	motion to	 suppress	if	any	 reasonable	 view	 of	 the	evidence	 supports	 the	 trial	court’s decision”	(quotation	marks	omitted)). [¶31]	 	 The	 record	 fully	 supports	 the	 court’s	 conclusion	 that,	when	 the officer	seized	and	t hen	searched	Pagnani’s	jacket	on	the	porch,	the	jacket	was not	within	her	conceivable	control. Pagnani	had	been	wearing	the	jacket	but tossed	it	on	a	porch	chair	while	she	was	on	her	cell	phone	with	the Violations
Bureau to	try	to	get	information	about	th e	matter	being	investigated.		A	bit	later, she	sat	down	on	the	chair	where	she	had	put	the	jacket.		She	was	then	placed under	custodial	arrest. Even	before	the	officer	initiated	the	search,	however, Pagnani	 was	 handcuffed	 with	 her	 arms	 secured	 behind	 her, and	 two	 other officers	 were	 leading	 her	 down	 the	 porch	 stairs away from	 the	 jacket	 and toward	a	police	cruiser.		One	of	those	officers	walked	in	front	of	Pagnani	and another	 officer	 walked	 behind	 her

— in	 other	 words,	 between	 her	 and	 the jacket

— and	held	ont o	one	of	her	secured	arms	as	she	was	taken	to	and	placed inside	a	waiting	cruiser.18 [¶32]		In	short,	before	the	search	occurred,	Pagnani	was	restrained,	she was	outnumbered	by	police	officers,	and	she	was	being	led	away	from	the	porch where	she	had	left	h er	jacket.		Given	these	circumstances,	it	would	have	been impossible	for	Pagnani	to	reach	into	her	jacket	to	obtain	a	weapon	or	an	escape instrumentality,	or	 to	destroy	or	conceal	evidence. See Gant , 556	U.S.	at	344 (concluding	 that	 the	 search	 was	 not	 aut horized	 as	 an	 incident	 to	 the	 arrest where	“five	officers	.	.	.	outnumbered	the	three	arrestees,	all	of	whom	had	been handcuffed	and	secured	in	separate	patrol	cars	before	the	officers	searched	[the arrestee’s]	 car”); LeBlanc , 347	 A.2d	 at	 595

- 96 (concludin g	 that	 the	 area searched	was	within	the	arrestee’s	“conceivable	control”	where	he	was	eight	to ten	feet	from	the	area,	he	was	not	handcuffed,	and	“the	presence	of	the	police officers	 [was	 not]	 a	 sufficiently	 effective	 restraint	 to	 render	 the	 immediate

surr ounding	area	beyond	his	control”). [¶33]		The	Court	observes	that	“[i]f	Pagnani	had	been	wearing	her	jacket at	the	moment	she	was	handcuffed,	there	would	be	no	question	that	the	search of	her	jacket	would	have	been	proper	as	a	search	incident	to	arrest,	f or	which no	 warrant	 is	 required.”	 	 Court’s	 Opinion	 ¶	 18.	 	 That	 point	 persuasively demonstrates	why	the	search	that	was actually conducted	was	illegal.		Pagnani was	 not	 wearing	 her	 jacket

— and	 did	 not	 have	 access	 it

— when	 the	 search19 occurred.		Rather,	the	off icer	searched	through	Pagnani’s	jacket	only	after	she had	 been	 put	 in	 restraints	 and	 was	 under	 the	 physical	 control	 of	 two	 other officers.		Neither	of	the	essential	justifications	for	a	search	incident	to	an	arrest remained	at	that	point,	rendering	such	a search	unconstitutional. 6 [¶34]	 	 The	 record	 evidence	 supports

— if	 it	 does	 not	 compel

— the conclusion	that	when	a	police	officer	searched	the	jacket	that	Pagnani	had	left behind	on	a	porch	chair,	she	was	not	in	a	position	to	do	anything	with	it.		Rather, the	jacket	remained	part	of	th is	encounter	only	because	the	same	officer	who had	 staked	 out	 her	 residence	 for	 two	 hours,	 purportedly	 to	 investigate	 a suspected	motor	vehicle	violation,	searched	that	article	of	clothing	without	any

6 I	 recognize	 that	 some	 post

- Chimel jurisprudence	 has	 provided	 a	 degree	 of	 tolerance	 in	 the absence	of	a	close	temporal	relationship	between	an	arrest	and	a	search	incident	to	that arrest

— an approach	that	has	drawn	criticism	from	a	leading	Fourth	Amendment	commentator,	who	refers	to those	 courts’	 “questionable	 assumption	 that	 persons	 arrested	 and	 restrained	 by	 police	 are nonetheless	 possessed	 of	 considerable	 freedom	 of	 movement”	 tha t	 would	 allow	 the	 arrestees, despite	being	restrained,	to	gain	access	to	places	where	weapons	and	disposable	evidence	might	be present. See Wayne	R.	LaFave,	3 Search	&	Seizure:	A	Treatise	on	the	Fourth	Amendment §	5.5(a)	at 286,	293	n.33	(5th	ed.	2012).		The	Supreme	Court,	however,	has	continued	to	 ratify	and	 reaffirm Chimel ’s	articulation	 of	 the	limited	circumstances	where	a	search	incident	 to	arrest	is	proper, see supra Dissenting	Opinion ¶¶	28

- 29. Arizona	v. Gant , 556	U.S.	332 ,	343	(2009); New	York	v.	Belton , 453	U.S.	454 ,	460	n.3	(1981).		As	part	of	 that	construct, Gant has	made	clear	that	 the	existence	of those	circumstances	is	measured	at	the	time	the	search	is	conducted, 556	U.S.	at	351 ,	which	tightens the more	casual	temporal	connection	in	which	some	courts	indulged.		Therefore,	I	do	not	hesitate	to invoke	the	established	principles	originating	in Chimel and	ratified	in	later	Supreme	Court	opinions. Further,	in	this	context,	as	stated	above, see	supra Dis senting	Opinion	¶	30,	it	is	important	to bear	in	mind	that,	in	our	appellate	role,	we	are	obligated	to	examine	the	record	and	the	state	of	the law	to	determine	whether	there	is	“any	reasonable	view	of	the	evidence”	that	supports	the	court’s order	on	the	mo tion	to	suppress. State	v.	Diana ,	2014	ME	45,	¶	11,	89	A.3d	132	(quotation	marks omitted).		Given	the	ongoing	vitality	of	the	analysis	set	out	in Chimel ,	this	standard	of	review	can	only lead	 to	 the	 conclusion	 that	 the	 court’s	 order	 suppressing	 evidence	 o btained	 from	 the	 search	 of Pagnani’s	jacket	is	supported	by	a	reasonable	assessment	of	the	evidence.20 legal	 basis.	 	 The	 court	 committed	 no	 error	 by	 suppressi ng	 the	 evidence obtained	through	that	illegal	search,	just	as	the	court	correctly	determined	that the	officers’	search	of	her	vehicle	was	illegal.		I	would	affirm	the	entirety	of	the suppression	 order,	 and	 therefore	 I	 dissent	 from	 the	 portion	 of	 the	 Court’ s opinion	vacating	part	of	that	order. 7

7 On	this	appeal,	the	State	also	argues	that	there	was	probable	cause	to	search	Pagnani’s	jacket. This	 argument	 was	 not	 meaningfully	 presented	 below	 bec ause	 the	 clear	 focus	 of	 the	 State’s contention	was	that	the	search	was	properly	incident	to	an	arrest,	which	makes	it	understandable that	the	court	did	not	mention	any	claimed	independent	probable	cause	justification	for	the	search. See	 State	 v.	Wheeler , 252	 A.2d	 455 ,	 458	 (Me.	 1969)	 (“ It	 is	 a	 well	 established	 principle	 of	 Maine appellate	procedure	i n	criminal	proceedings	that questions	not	properly	raised	so	as	to	have	been considered	and	ruled	upon	by	the	trial	judge	will	not	be	considered	and	passed	upon for	the	first	time on	appe al.”). Even	if	the	State	preserved	the	argument	for	appellate	consideration,	it	would	be	unavailing	for two	reasons.		First,	the	court	was	not	compelled	to	find	facts	necessary	to	support	the	conclusion	that there	was	probable cause	to	believe	that	the	jacket	constituted	or	contained	evidence	of	a	crime. See State	v.	Bilynsky , 2007	ME	107 ,	¶¶	16,	18

- 25,	932	A.2d	1169	(describing	the	standard	of	review	of	a probable	cause	determination).		As	noted	in	the	text, see	supra Dissent ing	Opinion	¶	30,	the	Court must	infer	that	the	motion	court	made	the	findings	necessary	to	support	its	ultimate	determination, which,	as	to	this	aspect	of	the	issue,	was	that	probable	cause	did	not	exist.		The	record	did	not	compel the	 court	 to	 accept	 the State’s	 evidence	 about	 out

- of

- state	 drug

- related	 criminal	 history,	 because there	was	evidence	that	the	only	such	charge	was	dismissed,	and	the	court	was	fully	entitled	to	reject the	officer’s	unsupported	testimony	that	he	believed	the	charge	was	still	pen ding.		That	would	leave the	State	to	argue	that	Pagnani’s	handling	of	the	jacket	created	probable	cause

— something	that,	in my	view,	was	not	sufficient	to	support	such	a	determination. See	State	v

. Michael	M. , 2001	ME	92 ,	¶ 6, 772	A.2d	1179	(“Probable	caus e	to	search	exists	when	there	is	a	fair	probability	that	contraband	or evidence	 of	 a	 crime	 will	 be	 found	 in	 a	 particular	 place.” (alteration	 omitted) (quotation	 marks omitted)). Second,	even	the	existence	of	probable	cause

— which	I	submit	is	absent

— would be	insufficient to	make	the	evidence	admissible,	because	the	State	would	also	need	to	establish	some	justification for	the	warrantless	seizure	and	search	of	the	jacket. See id .		The	State	has	not	even	attempted	to	argue any	exception	to	 the	warrant	 requirement	 that	would	 rest	solely	on	a	predicate	determination	of probable	cause.21 Janet T. Mills, Attorney General , and Johanna L. Gauvreau, Asst. Atty. Gen

. (orally) , Office of the Attorney General, Augusta, for appellant State of Maine Jason R. Ranger, Esq. (orally) , Lewiston, for appellee Donna Pagnani

Androscoggin County Unified Criminal Docket docket number CR

- 2017

- 141 F OR C LERK R EFERENCE O NLY