MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 ME	52

Docket: Pen-16-214

Argued: February	7,	2017

Decided: March	16,	2017

Corrected: July	27,	2017

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

STATE	OF	MAINE

v.

DANIEL	A.	FOX

ALEXANDER,	J.

[¶1]		Daniel A.	Fox	appeals	from	a	judgment	of	conviction	entered	by	the	

trial	 court (Penobscot	 County,	A.	 Murray, J.)	 after	 a	 jury	 found	 him	 guilty	 of	

unlawful	trafficking	of	scheduled	drugs	(Class	B),	17-A	M.R.S.	§ 1103(1-A)(A)	

(2014),	 and	 unlawful	 possession	 of	 scheduled	 drugs	 (Class	 C),	 17-A M.R.S.	

§ 1107-A(1)(B)(1)	 (2014).

1	 	 He	 also	 appeals	 a criminal	 forfeiture in	 the	

amount	of	$543.		See 15 M.R.S. § 5826	(2014).

 1	 	 Several	 statutes	 cited	 in	 this	 opinion	 have	 been	 amended,	 or	 repealed	 and	 replaced,	 since	

February	11,	2015,	the	date	of	the	events involved	in	this	appeal.		For	purposes	of	this	opinion,	the	

amendments	and	replacements	do	not	affect	our	analysis,	and	all	statutory	citations	herein	are	 to	

the	versions	that	were	current	on	the	date	that	the	crimes	occurred.		For	example, title	17-A	M.R.S.	

§ 1107-A(1)(B)(1)	 (2014)	 was	 amended	 (effective	 Oct.	 15,	 2015),	 then	 repealed	 and	 replaced	 by	

P.L.	 2015,	 ch.	 308,	 §	 2	 and	 ch. 496,	 §	 6	 (effective	 July	 29,	 2016)	 (codified	 at	 17-A M.R.S.	

§ 1107-A(1)(B)(1)	(2016)).
2

[¶2]		Fox	contends	that	the	motion	court	(Lucy,	J.)	erred	in	denying	his	

motion	 to	 suppress	 evidence seized	 during	 a	 vehicle inventory	 search.	 	 He	

further	contends	that	the	trial	court	erred when	it	excluded	testimony	based	

on hearsay,	 denied	 his	 motion	 to	 reopen evidence,	 concluded that	 the	

evidence	was	sufficient	to	support	forfeiture,	and	made	no	express	findings	on	

forfeiture.		We	affirm the	judgments.		

I.		CASE	HISTORY

[¶3]	 	 This	 case	 arose	 out	 of	 events	 in	 Bangor on	 February	 11,	 2015,	

when	Fox	was	observed	to	be	the	sole	occupant	of	a	vehicle	that	was	found	to	

contain	a	large	quantity of	cash	and	ninety-nine	packets of	heroin.	 Viewed	in	

the	light	most	 favorable	to	the	State,	the	jury	could	rationally	have	 found	the	

following	facts	beyond	a	reasonable	doubt.		See	State	v.	Morrison,	2016	ME	47,	

¶	2,	135	A.3d	343.

[¶4]		On February	11,	2015,	at	approximately	4:00	p.m., a Bangor	police

officer was	dispatched	to	conduct	a	welfare	check	on	the	single	occupant	of	a	

vehicle	 parked	 at	 a convenience	 store.	 	 Upon	 arrival, the officer found	 Fox,

apparently	 unconscious,	 in	 the	 driver’s	 seat	 of	 the	 vehicle. The	 vehicle	 was	

running, and	 the	 driver’s	 window	 was	 partially	 open.	 	 Fox was	 wearing	 a	

baseball	cap.
3

[¶5]	 	The	officer unsuccessfully	 tried	 to	wake	 Fox	 by	 speaking	 to	 him,	

knocking	 on	 the	 window,	 and	 poking	 him	 with	 his	 baton	 through	 the	 open	

window.		The	officer then	unlocked	the	door,	opened	it,	and	gave	Fox	four	to	

five	good	shakes.		At	that	time,	the	officer	observed	money	on	Fox’s	lap	and	in	

the	center	console,	and	a	pharmacy	bag	on	the	front	passenger	seat.			

[¶6]	 	 After	 being	 awakened,	 Fox	 appeared	 dazed and	 was	 generally	

evasive	in	response	to	the	officer’s	initial	questions.		He	removed	his baseball	

cap and	 placed	 it over	 something	 on	 the front passenger	 seat.	 	 Fox	 initially	

refused	 to	identify	himself	and	 then	provided	his	brother’s	name as	his	own.		

After	the	officer	confronted	Fox	with	photographs	of	both	Fox	and	his	brother,	

Fox	 correctly	 identified	 himself.	 	 The	 officer	 then	 determined	 that	 Fox’s	

vehicle	operating	 privileges	were	 suspended.	 	The	 vehicle	in	which	Fox was	

found was	a	rental	car,	rented	by	another	person who	Fox refused	to	identify.

The	officer arrested	Fox	 for	operating	after	suspension	and	providing	a	 false	

name.	

[¶7]		After	arranging to	have	the	vehicle	towed	from	the	store’s	parking	

lot,	 the	 officer conducted	 an	 inventory	 search	 of	 the	 vehicle.	 	 The	 officer	

testified	 that	 he always	 conducts	 an	 inventory	 search	 for	 valuables	 before	
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having	a vehicle	towed,	and	that	he	usually	waits	until	after	the	search	to	call	

for	the	tow.

[¶8]	 	During	 the	 inventory	 search,	 the	 officer collected	 $543	 that	 had	

been	on	the	defendant’s	lap	and	in	the	console, drug	paraphernalia	that	was	in	

the	pharmacy	bag, and	ninety-nine	packets	of	heroin	in	a cigarette	pack	on	the	

passenger	seat	under	Fox’s	cap.

[¶9]	 Fox	 was	 charged	 by	 complaint	 with	 unlawful	 trafficking	 of	

scheduled	 drugs	 (heroin)	 (Class	 B),	 17-A	 M.R.S.	 § 1103(1-A)(A),	 unlawful	

possession	 of	 scheduled	 drugs	 (heroin)	 (Class	 C),	 17-A M.R.S.	

§ 1107-A(1)(B)(1),	 unlawful	 possession	 of	 scheduled	 drugs	 (clonazepam)	

(Class	 E),	 17-A M.R.S.	 § 1107-A(1)(F)	 (2014),	 and	 operating	 while	 license	

suspended	 (Class	 E),	 29-A M.R.S.	 § 2412-A(1-A)(A)	 (2014).	 	 The	 State	 also

filed	a	count	for	criminal	forfeiture,	15 M.R.S. § 5826.		He	was	indicted	on	the	

same	charges	in May	2015.2		Fox	pleaded	not	guilty.

[¶10]	 	 Fox	 moved	 to	 suppress	 the	 evidence	 obtained	 during	 the

inventory search	of	the	vehicle,	arguing	that	there	was	no	lawful	basis	for	the	

search because	the	officer	had	failed	to	follow	the	Bangor	Police	Department’s	

 2	 	 The	 indictment	 was	 supplemented	 with	 a	 sixth	 charge	 alleging	 unlawful	 possession	 of	 a	

scheduled	drug	(Class	C),	17-A	M.R.S	§	1107-A(1)(B)(1), but the	State	dismissed	that	charge	prior	to	

trial.
5

vehicle	 inventory	 search	 policy.

3	 	 On	 January	 15,	 2016,	 the	 motion	 court	

(Lucy, J.)	held	a	testimonial	hearing	on	Fox’s	motion.		The	evidence	consisted	

of	 testimony	 from the	Bangor	officer,	an	excerpt	of	a	video	 from	 the	officer’s	

cruiser	 camera,	 and a	 copy	 of the	 Bangor	 Police	 Department’s	 vehicle	

inventory search policy.

[¶11]	 The	 motion	 court	 denied	 Fox’s	 motion	 to	 suppress,	 concluding

that	 the	impoundment	 and	inventory	 search	 of	 the	 vehicle	 were	 reasonable	

and	justified	in	the	exercise	of	legitimate	community	caretaking	functions,	and	

that	 Maine	 law	 authorizes	 impoundment	 under	 such	 circumstances.		

See 29-A M.R.S.	§	105(3)	(2014);	29-A M.R.S.	§	2069(3)	(2014).		To	support	its	

conclusion,	the	court	identified specific	facts	including	that	Fox	did	not	own	or	

rent	the	vehicle,	could	not	lawfully	operate	it,	and	presented the	officer	at	the	

scene with	no	evidence	of	any	authority	to control	or operate	it.

[¶12]	 The	court	 further	 found that	 the	inventory	 search	was	initiated	

according	 to	 standard	 protocol	 and	 was	 not	 a	 pretext	 for	 concealing	 an	

investigatory	motive.		Specifically,	the	court	found	that	the	officer	followed	the	

vehicle	inventory	policy	because,	first,	it	would	have	been	unreasonable	under	

the	 circumstances	 for	 the	 officer	 to	 grant	 Fox	 the	 authority	 to	 release	 the	

 3		The	State	argued	that	the	search	was	a	valid	inventory	search	and	conceded	that	there	was	no	

other	lawful	basis	for	it.
6

vehicle	to	a	licensed	driver	pursuant	to	subparagraph	(a)	of	the	Bangor	Police	

Department’s vehicle	inventory	 search	 policy	 when	 Fox	 had	 no	 apparent	 or	

demonstrated	capacity	or	authority	 to	release	 the	vehicle, and,	second,	there	

was	no	basis	for	the	officer	to	advise	Fox	that	he	could	secure	the	vehicle	and	

allow	 it	 to	 remain	 at	 the	 scene	 pursuant	 to	 subparagraph	 (b)	 of	 the	 policy	

when	Fox	had	not	demonstrated	authority	to	be	in	possession	of	the	vehicle	in	

the	 first	 place	 and	 the	 vehicle	 was	 not	 located	 “in	 an	 unrestricted	 parking	

area.”	 	 Fox	 did	 not	 file	 a	 motion	 for	 findings	 of	 fact	 and	 conclusions	 of	 law.		

See M.R.U.	 Crim.	 P.	 23(c); State	 v.	 Dodd, 503	 A.2d	 1302,	 1307	 (Me.	 1986)	

(holding	 that	 when	 there	 is	 no	 request	 for	 findings	 and	 findings	 are	 not	

required	by	law,	we will	infer	that	the	trial	court	found	all	the	facts	necessary	

to	 support	 its	 judgment,	 if	 those	 inferred	 findings	 are	 supportable	 by	 the	

evidence	in	the	record).		

[¶13]	 	The	 court	 (Anderson,	J.)	 held	 a	 one-day	 jury	 trial	 on	 March	 18,	

2016.		The	jury	 found	Fox	guilty	of	operating	after	suspension	and	not	guilty	

of	unlawful	possession	of	a	scheduled	drug	(clonazepam),	but	deadlocked	on	

the	 remaining	 charges.	 	 The	 court declared	 a	 mistrial	 as	 to	 the remaining	

charges.		
7

[¶14]		The	court	(A.	Murray,	J.)	held	a	two-day	jury	trial	on	April	14-15,	

2016,	 on	 the	 charges	 of	 unlawful	 trafficking	 in	 scheduled	 drugs (heroin),	

unlawful	 possession	 of	 scheduled	 drugs	 (heroin),	 and	 criminal	 forfeiture.4		

During	Fox’s	opening	statement,	the	State	requested	two	sidebars.		During	the	

first	 sidebar,	 the	 State	 raised	 a	 hearsay	 objection to	 Fox	 referring	 to	 an	

unidentified	 customer	 who	 allegedly	 told	 the	 convenience	 store employee,

who	 later	 informed	 the	 Bangor	 officer, that	 a	 person	 had	 exited	 the	 vehicle	

driven	by	Fox	at	some	point	prior	to	the	employee	checking	on	Fox.		The	court	

ordered that	Fox	not	refer	to	the	unidentified	customer’s	statement during	his	

opening	statement	and	deferred	ruling	on	the	admissibility	of	the	evidence.

[¶15]		One	of	the	State’s	potential	witnesses,	identified	in	jury	selection,	

was	 Benjamin	 Lam.	 	 The	 police	 investigation	 had	 identified	 Lam	 as	 the	

individual	who	had	rented	the	car.		In	an	interview	with	an	investigator,	Lam	

had	stated	that	he	was	not	with	Fox	on	the	day	that	Fox	was	arrested.		During	

the	second	sidebar,	after	Fox	had	mentioned	anticipated	testimony	of	Lam	to	

the	 jury	 numerous	 times,	 the	 State	 warned	 that	 it	 might	 not	 call	 Lam	 as	 a	

witness	 and	 that	 “it’s	 fairly	 dangerous	 territory	 that	 [Fox]	 talk	 about	

someone’s	 testimony	 if	 they	 haven’t	 testified	 yet,	 nor if	 they	 know	 they	 are	

 4	 	 Prior	 to	 both	 trials,	 Fox	 requested	 that	 the	 judge	 decide	 the	 criminal	 forfeiture	 charge.		

See 15 M.R.S.	§	5826(4)(B).
8

going	 to	be	coming	in.”		The	court	warned	Fox	 that	“if	 [he	made]	claims	 that	

end[ed]	 up	 not	 being	 true,	 [he’d	 be	 at	 his]	 own	 peril.”	 	 When	 the	 court	

inquired	 if	 Fox	 was	 planning	 to	 call	 Lam,	 Fox	 replied,	 “I	 won’t—I	 probably	

wouldn’t	call	him.”

[¶16]	 	 The	 State’s	 evidence	 consisted	 of	 testimony	 from the	 arresting	

officer,	another	Bangor	officer,	and	the	convenience	store employee	who	had

observed	 Fox	 in	 the	 car; photographs	 of	 the	 evidence	 seized	 during	 the	

inventory	 search; and	 a	 portion	 of	 the cruiser	 video.	 	 The	 arresting	 officer

testified	that,	during	the	inventory	search,	he	collected	$543	that	had	been	on	

the	defendant’s	lap	and	in	the	console	and	that	he	found	drug	paraphernalia	in	

the	pharmacy	bag	and	ninety-nine	packets	of	heroin	in	 the	cigarette	pack	on	

the	passenger	seat	under	Fox’s	cap.

[¶17]	 	 Prior	 to	 the	 arresting	 officer’s	 testimony,	 the	 parties	 argued	

about	 the	 admissibility, through	 the	 officer, of	 the	 statement of	 the

convenience	 store employee	 about observation	 of	 and	 a	 statement	 by	 the	

unidentified	 customer.

5	 	 The	 court concluded that	 the officer’s testimony	

would	be	hearsay,	and,	even	if	it	was	not	hearsay,	the	danger	of	confusion	of	

 5		Fox	noted	 that	 the	information	came	in	during	 the	 first	 trial	with	a	limiting	instruction.		The	

court	stated	that	it	was	not	bound	by	decisions	made	during	the	first	trial	and	that	judges	exercise	

discretion	differently.
9

the	issues	and	unfair	prejudice	outweighed	its probative	value,	see	M.R.	Evid.	

403.

6

[¶18]	 	 Fox	 was	 the	 only	 witness	 for	 the	 defense.	 	 He testified	 to	 the	

following:	at	the	time	of	his arrest,	he	was	employed	and	made	approximately	

$600	to	$700	per	pay	period;	he	cashed	his	paycheck	the	day	before	his	arrest;	

he	has	 taken	prescription	medication	 for	a	year	and	a	half—including	on	 the	

day	 of	 his	 arrest—that	 causes	 him	 to	 feel	 sedated;	 he	 and	 Lam	 went	 to	 the	

convenience	store to	get	food;	the	car	was	rented	to	Lam, but	Fox	drove	it	to	

the	 store;	 he	 gave	 Lam	 money	 for	 food	 and	 fell asleep	 while	 counting	 his	

money;	he lied	to	the	officer about	his	identity	because	he	knew	that	he	had	a	

suspended	driver’s	license; and	he	did	not	know	that	there	were	drugs	in	the	

car,	and	the	drugs	did	not	belong	to	him.

[¶19]	 	 After	 Fox	 rested	 and	 the State	 presented	 its	 rebuttal	 case,	 the	

State	informed	the	court	that	it	would finally	rest	upon	the	return	of	the	jury

after	a	recess.		Fox	then sought leave	to	reopen	the	evidence	to	call	Lam	as	a	

witness	because	the	State	did	not	call	him.		See M.R.U.	Crim.	P.	26(c).		The	State	

objected.	 	 The	 court	 inquired	 about	 the	 purpose	 of	 calling	 Lam	 and	 his	

 6	 	After the	 court’s	 ruling,	 Fox	 added	 that	 he	 thought	that	the	 statement	 would	 be	 admissible	

under	 the	rule	of	completeness.		The	court	denied	Fox’s	motion	 for	 the	same	reasons	and	 further	

found	that	there	was	no	completeness	issue	resulting	from the	officer’s	testimony.
10

expected	testimony.		Fox	provided	an	offer	of	proof indicating	that	Lam	might	

make	 statements	implicating	 himself	in	 the	 drug	 crimes,	admit he	may	 have	

lied	 to	 an	 investigator	 when	 he	 stated	 he	 was	 not	 present	 with	 Fox	 on	

February	11,	“and	I	would	like	to	kind	of	explore	what	he	was	doing	then	on	

February	 11th	 if	 he	 says	 he	 wasn’t	 with	 Mr.	 Fox.”	 	 The	 court denied Fox’s	

motion	 to	reopen	 the	evidence	citing	the	delay	in	seeking	 to	call	 the	witness	

until	after	 the	evidence	was	closed	and	 the	professed	uncertainty	as	 to	what	

Lam	might	actually	say.

[¶20]	 	 The	 jury	 found	 Fox	 guilty	 of	 both	 criminal	 charges.	 	 The	 court	

entered	a	judgment	on	 the	verdict	and	ordered	 the criminal	 forfeiture	of	 the	

$543	 found	in	 Fox’s	 possession	 at	 the	 time	 of	 his	 arrest.	 	The	 court	 did	 not	

make	any	findings	on	the	criminal	forfeiture	charge,	and	Fox	did	not	move	for	

findings	of	fact	and	conclusions	of	law.		Fox	was	sentenced	to	four	and	a	half	

years	 in	 prison	 with	 all	 but	 two	 and	 a	 half	 years	 suspended,	 two	 years’	

probation,	and	fines	totaling	$800.		Fox	timely appealed pursuant	to	15	M.R.S.	

§	2115	(2014) and	M.R.	App.	P.	2.
11

II.		LEGAL	ANALYSIS

A. The	Inventory	Search

[¶21]	 	Because	 Fox	 was	 unable	 to continue	 operating	 the	 vehicle	 and	

had	 no	 apparent	 authority	 to	 control	 the	 vehicle, the	 Bangor	 Police	

Department’s	 vehicle	 inventory	 policy	 was	 triggered.	 	 The policy	 states that	

when	 the	 owner/operator	 of	 a	 vehicle	is	 arrested	 or	is	 physically	 unable	 to	

continue	 to	 operate	 the	 vehicle, the	 “investigating	 officer	 will	 adhere	 to	 the	

following	 procedure,”	 with	 the	 “following	 procedure”	 consisting	 of	 three	

alternative	 courses	 of action.	 	The	 first	 two	 alternative	 courses	 of	 action do	

not	result	in	a	vehicle	search	and require	the	officer	to	advise	the	operator	of	

the	 option	 to	 either	 (a)	 release	 the	 vehicle	 to	 a	 licensed	 driver	 who	 will	

assume	full	responsibility	for	the	vehicle, or	(b) secure	the	vehicle	and	allow	it	

to	 remain	 at	 the	 scene	 on	 the	 conditions	 that	 it	 will	 be	 parked	 in	 an	

unrestricted	 parking	 area	 and	 that	 the	 operator	 agrees	 to	 assume	 full	

responsibility	 for	 the	 vehicle.	 	The	 third	 course	 of	 action,	 option (c), applies	

when	the	 operator	is	 unwilling	 or	 unable	 to	 choose	 option	 (a)	 or	 (b),	is	 not	

competent,	 or	 is	 otherwise	 unable	 to	 make	 a	 disposition	 of	 the	 vehicle,	 and

results	 in	 a	 vehicle	 search	 and	 towing.	 	 Under	 those	 circumstances,	 “the	
12

vehicle	 shall	 be	 removed	 by	a	 department	 contracted	 tow	 vehicle.”	 	Prior	 to	

towing	the	vehicle, an	inventory	search	of	the	vehicle	is	“standard	protocol.”

[¶22]		Fox	contends	 that	 the	inventory	search	was	invalid	because	 the	

Bangor	officer	failed	to	follow	the	Department’s	inventory	search	and	towing	

policy	 by	 deciding	 to	 search	 and	 tow	 the	 vehicle	 “without	 having	 first	

attempted	the	less	invasive	measures	required	by	the	policy.”

[¶23]		“[A] standardized	inventory	of	a	lawfully	impounded	vehicle	.	.	.	

[is]	 constitutionally	 permissible	 if	 conducted	 for	 ‘community	 caretaking	

functions’ and	 not	 as	 a	 ‘pretext	 concealing	 an	 investigatory	 police	 motive.’”		

State	 v.	 Bickford,	 582	 A.2d	 250,	 251	 (Me.	 1990) (quoting	 South	 Dakota	 v.	

Opperman,	428	U.S.	364,	368-376 (1975)).		“The	requirement	of	conformity	

to	a	standard	practice,	or	policy,	is	essential	.	.	.	.”		State	v.	Hudson,	390	A.2d	

509,	 511	 (Me.	 1978).	 Police	 may	 exercise	 discretion,	 however,	“so	 long	 as	

that	discretion	is	exercised	according	to	standard	criteria	and	on	the	basis	of	

something	other	than	suspicion	of	evidence	of	criminal	activity.”		Colorado	v.	

Bertine,	479	U.S.	367,	375-76	&	n.7	 (1987) (finding	 no	Fourth	Amendment	

violation	 when	 police	 exercised	 discretion	 based	 on	 standardized	 criteria	

related to	the	feasibility	and	appropriateness	of	parking	and	locking	a	vehicle	

rather	than	impounding	it).
13

[¶24]	 	 The	 officer’s	 testimony	 indicates	 that	 his	 practice	 of always	

inventorying and	towing vehicles	of	persons	who	are	arrested	does	not	follow

Department	 policy	 requiring	 consideration	 of	 alternatives (a)	 or	 (b) before	

deciding	 to	inventory and	 tow	 the	 vehicle.	 	However,	 because	 neither	of	 the	

first	 two	 alternatives (a)	 or	 (b) applied	 to	 the	 circumstances	 at	 hand,	 the	

officer’s	 failure	 to	comply	with	his	department’s	protocol does not	 require a	

suppression	of	evidence.

[¶25]	 The	motion	 court	 found that	 there	was	 no	 reasonable	 basis	 for	

the	 officer	 to	 pursue options	 (a)	 or	 (b) when	 Fox	 had	 no	 apparent	 or	

demonstrated	capacity	 to operate	 the	 vehicle,	 release	 the	 vehicle, or assume	

full	responsibility	for	the	vehicle,	which	was	located	on	the	private	property	of	

another.	 	 Because	 Fox	 was	 “not	 competent”	 and	 was “otherwise	 unable	 to	

make	 disposition	 of	 [the]	 vehicle,”	 and,	 by	 statute, 29-A	 M.R.S.	 § 105(3);7

29-A M.R.S.	 §	 2069(3),

8 the	 vehicle	 required	 removal	 to	 a	 suitable	 parking	

 7		Title	29-A	M.R.S.	§	105(3)	(2014)	provided,	“When	a	motor	vehicle	is	operated	by	a	person	not	

able	to	produce	a	certificate	of	registration,	or	by	a	person	other	than	the	person	in	whose	name	the	

vehicle	 is	 registered	 and	 the	 operator	 is	 unable to	 present	 reasonable	 evidence	 of	 authority	 to	

operate	that	vehicle,	an	officer	may	impound	and	hold	that	vehicle	until	that	vehicle	is	claimed	by	

the	registered	owner	or	until	the	registered	owner	verifies	the	authority	of	the	operator.”

8	 	 Title	 29-A	 M.R.S.	 §	 2069(3)	 (2014)	 provided,	 “A	 law	 enforcement	 officer	 may	 cause	 the	

removal	to	a	suitable	parking	place	of	a	vehicle	connected	with	the	arrest	of	the	operator	or	owner	

of	 a	 vehicle	 or	 with	 the	 issuance	 of	 a	 summons	 for	 a	 traffic	 infraction	 as	 described	 in	 section	

2412-A,	subsection	8	or	used	in	connection	with	the	commission	of	a	crime.”
14

place, Fox	was not	prejudiced by	the	officer’s	 failure to	consider alternatives

(a)	and	(b) of	the	inventory	and	towing	policy.		

[¶26]	 	 Under	 the	 circumstances,	 the	 officer	 was	 required	 to	 apply	

alternative (c) in	the	Bangor	Police	Department	policy	and	inventory	and	tow	

the	 vehicle.	 	 See	 Bickford,	 582	 A.2d	 at	 251	 (holding	 that	 an	 officer	 was	 not	

required	 to	 give	 a	 defendant	 the	 opportunity	 to	 make	 alternative	

arrangements	 for	 his	 vehicle	 when	 the	 defendant	 was	 arrested	 for	 driving	

with	a	suspended	license	and	he	was	alone	at	the	time	of	his	arrest);	State	v.	

White,	387	A.2d	230, 232-33	(Me. 1978) (concluding	 that	it	was	reasonable	

for	 an	 officer	 to	 deny	 the	 defendant	 an	 opportunity	 to	 make	 alternative	

arrangements	 for	 the	 custody	 of	 his	 car	 when	 the	 officer	 had	 statutory	

authority	 to	remove	 the	car	 from	 the	roadway	and	 the	officer	and	defendant	

had	engaged	in	a	physical	“scuffle”).

[¶27]	 	 Despite	 the	 officer’s	 failure	 to	 consciously	 apply	 the	 inventory	

and	towing	policy,	the court	properly	denied	the	motion	to	suppress.	

B. Double	Hearsay

[¶28]	 	 Fox contends	 that	 the	 trial	 court	 abused	 its	 discretion	 when	 it	

excluded—on	 the	 basis	 that	 it	 was	 hearsay—testimony	 by	 the	 arresting	

officer	 regarding	 what	 the convenience	 store employee	 had told the	 officer	
15

about	a	 statement	made	 to	the	employee by an	unidentified	customer	about	

an	unknown person who had	exited	the	vehicle	driven	by	Fox.		Fox	argues	that	

the	testimony	was	not	hearsay	because	it	was	not	offered	for	the	truth	of	the	

matter	asserted,	but	rather	was	offered	to	demonstrate	that	the investigation	

was	inadequate	because	the	officer	did	not	follow	up	on	the	statement.

[¶29]	 	“We	 review a	 trial	 court’s	 decision	 to	 admit	 or	 exclude	 alleged	

hearsay evidence	 for	an	abuse	 of	discretion.”	 	State v.	Vaughan,	2009 ME	63,	

¶ 5,	 974	 A.2d	 930.	 	 “The	 trial	 court	 has	 broad	 discretion	in	 determining	 the	

admissibility	 of	 evidence;	 however,	 we will	 find	 an	 abuse	 of	 discretion if	 a	

party	 can	 demonstrate	 that	 the	 trial	 court	 exceeded	 the	 bounds	 of	 the	

reasonable	choices	available	to	it.” Id. (citations	omitted).	

[¶30]		Here,	the	court	provided	two	independent	reasons	for	excluding	

the	 evidence.	 First,	 the	 court	 concluded—despite	 Fox’s	 “creative	 argument”	

that	 the	 statement	 was	 offered	 to	 probe	 the	 thoroughness	 of	 the	 officer’s	

investigation—that	 the	 statement	 was	 hearsay.	 	 Fox’s	 offer	 of	 proof	 had	

indicated	 a	 statement	 by	 the	 unidentified	 person to	 the	 convenience	 store

employee,	 which,	 relayed	 through	 the	 officer,	 if	 offered	 for	 its	 truth,	 would	

have	been	double	hearsay.		
16

[¶31]	 	 The	 court	 also	 concluded	 that, even	 if	 the	 statement	 was	 not	

hearsay,	 the	 evidence	 should	 be	 excluded	 pursuant	 to	 Rule	 403.	 	 The	 court	

reasoned	that,	even	with	a	limiting	instruction,	the	dangers	listed	in	Rule	403	

substantially	outweighed	the	low	probative	value	of	the	statement.		The court	

clarified	 that	 it	 was	 not	 limiting	 Fox	 from	 questioning	 the	 officer	 about	 his	

investigation,	 but	 was	 only	 prohibiting	 Fox	 from	 asking	 about	 the	 alleged	

statement	by	 the	unidentified	customer.		In	 the	circumstances,	 the	court	did	

not	 abuse	 its	 discretion	 in	 excluding	 the	 statement	 either	 as	 hearsay	 or	

pursuant	to	Rule	403.		

C. Reopening	the	Evidence

[¶32]	 	 Fox	 argues that	 the	 trial	 court	 abused	 its	 discretion	 when	 it	

denied	his	motion	to	reopen	evidence	to	call	Lam	as	a	witness.		“A	party	who	

has	 rested	 a	 case	 cannot	 thereafter	 produce	 further	 evidence	 except	 in	

rebuttal	unless	by	leave	of	court.”		M.R.U.	Crim.	P.	26(c).		We	“review rulings	

on	 motions	 to	 reopen	 evidence	 for	 an	 abuse	 of	 discretion.”	 	 State	 v.	 Chasse,	

2000	ME	90,	¶	10,	750	A.2d	586.	 Here,	in	light	of	the	uncertainty	as	to	what	

Lam	might	actually	have	 testified to,	 the	 potential	 that	 the	 court	might	 have	

had	to	allow	Lam	to	consult	with	counsel	before	offering	testimony	that	might	

implicate	him	in	several	crimes,	and	the	delay	that	the	request	to	reopen	the	
17

evidence	would	have	entailed,	the	trial	court	did	not	abuse	its	discretion	when	

it	denied	Fox’s	motion	to	reopen	the	evidence.

D. Evidence	Supporting	Forfeiture

[¶33]		Fox	contends	that	the	trial	court	erred	in	ordering	the	forfeiture	

of	$543 found	in	Fox’s	possession	at	 the	 time	of	his	arrest because the	court	

did	 not	 make	 any	 findings, the	 State	 offered	 insufficient	 evidence	 that	 Fox	

engaged	 in	 or	 intended	 to	 engage	 in	 a	 drug	 transaction, and there	 was no	

evidence	that	the	money	was	related	to	a	drug	transaction.

[¶34]		When	a	defendant	does	not request	 findings	 of	 fact on	an	issue	

decided	 by the	 trial	 court, we	 will	 infer that	 the	 trial	 court	 found	 all	 facts	

necessary	to	support	its	conclusion,	if	support	for	those inferred	findings can	

be	identified	in	the	record.		State	v.	Connor, 2009	ME	91,	¶	9,	977	A.2d	1003;	

Dodd,	503	A.2d	at 1307;	see M.R.U.	Crim.	P.	23(c).	

[¶35]		The	criminal	forfeiture	statute	states	that	“a	person	convicted	of	a	

violation	 of	 Title	 17-A,	 chapter	 45 [addressing	 drug	 crimes] forfeits	 to	 the	

State	all	rights	.	.	.	to	property	that	is	subject	to	forfeiture	pursuant	to	section	

5821.”	 	 15	 M.R.S.	 §	 5826(1).	 	 Section	 5821	 provides	 that	 “all	 money	 .	 .	 .	

furnished	 or	 intended	 to	 be	 furnished	 by	 any	 person	 in	 exchange	 for	 a	

scheduled	drug	in	violation	of	Title	17-A,	chapter	45;	all	proceeds	traceable	to	
18

such	an	exchange;	and	all	money	.	.	.	used	or	intended	to	be	used	to	facilitate	

any	 violation	 of	 Title	 17-A,	 chapter	 45,”	 are	 subject	 to	 forfeiture.	 	 15	 M.R.S.

§ 5821(6) (2014).

[¶36]	 	 Contrary to	 Fox’s	 contentions,	 the	 court	 was	 not	 required	 to	

“make	 findings	 as	 to	 which	 of	 the[]	 three	 independent	 theories	 [under	 the	

statute]	it	found	to	be	persuasive.”		See M.R.U.	Crim.	P.	23(c);	State	v.	Gatcomb,	

389	 A.2d	 22,	 24	 (Me.	 1978).	 	 The court	 made	 a	 general	 finding	 supporting

forfeiture of	 the	 recovered	 cash	 pursuant	 to	Rule	 23(c); Fox	 did	 not	 request	

findings	 of	 fact.	 	 Thus,	 the	 court	 did	 not	 err	 when	 it	 did	 not	 make further	

factual	findings.		

[¶37]		There	is competent	evidence	in	 the	record	 to	support	a	 finding,	

by	 a	 preponderance	 of	 the	 evidence,	 that	 the	 cash	 was	 subject	 to	 forfeiture.		

See 15	M.R.S.	§ 5826(4)(A).		The	court could	have	found	that	the	cash	was	the	

result	 of	 illegal	 activity based	 on	 evidence, including	 the	 officer’s	 initial	

observation	of	Fox’s	apparently	drug-induced	unconsciousness; Fox’s removal	

of	his	baseball	cap to	conceal	the	drugs	and	drug	paraphernalia; Fox’s	refusal	

to	 identify	 himself	 or	 the	 renter	 of	 the	 vehicle; the	 amount	 of	 heroin; the	

amount	 of	 cash; Fox’s	 reaction	 to	 the	officer’s	 search	 of	 the	 vehicle; and	 the	

proximity	 of	 the	heroin and	 the cash to Fox.		The	officer’s	 testimony	 that	he
19

did	 not	 observe	 Fox	 selling	 any	drugs	did	 not	 require	 the	 court	 to	 deny	 the	

State’s	request	 for	 forfeiture.		Cf.	State	v.	Pierce,	2006	ME	75,	¶	23,	899	A.2d	

801	(finding	that	the	plain	language	of	the	statute	does	not	limit	forfeiture	to	

money	 that	is	 traceable	 to	 the	 particular	 drug	 transaction	 or	 the	 possession	

that	 led	 to	 the	 conviction).	 	The	 trial	 court	 did	 not	 err	 when	 it	 ordered	 the	

forfeiture	of	Fox’s	money.

The	entry	is:

Judgments affirmed.	

James	M.	Mason,	Esq.	(orally),	Brunswick,	for	appellant	Daniel	A.	Fox

R.	 Christopher	 Almy,	 District	 Attorney,	 Susan	 J.	 Pope,	 Asst.	 Dist.	 Atty.,	 and	

Tracy	 Collins, Asst.	 Dist.	 Atty.	 (orally),	 Prosecutorial	 District	 V,	 Bangor,	 for	

appellee	State	of	Maine

Penobscot	County	Unified	Criminal	Docket	docket	number	CR-2015-557

FOR	CLERK	REFERENCE	ONLY