How do you determine if a seizure occurs? Not all interaction between law enforcement officers and citizens is a seizure. The test to determine if a seizure occurs is an objective test involving a reasonable person standard. A court must look to all of the circumstances surrounding the interaction to determine whether a reasonable person would have believed that he was not free to leave the encounter with the police officer. To determine whether a seizure has occurred, a court will consider a nonexhaustive list of factors, including:
• the threatening presence of several officers;
• the display of a weapon by an officer;
• some physical touching of the person of the citizen;
• the use of language or tone of voice indicating that compliance with the officer’s
request might be compelled;
• whether the officer was blocking the defendant’s path to leave;
• the use of sirens, lights, or a loudspeaker;
• the display of a badge or wearing of a uniform;
• the location of the encounter;
• whether there was a chase; and
• whether the officer approaches on foot or in a vehicle.
 
I would caution a court’s definition of a reasonable person and most likely your definition of a reasonable person are not the same. For example in State v. Ciomei, 2015 ME 147 the Maine Law Court found a reasonable person would feel free to leave under the following fact pattern: It was a dark November night. It was after midnight. A game warden was on patrol seeking individuals engaged in night hunting. The Defendant was parked parked partially in the road with its headlights on. The warden believed the lights were pointing toward a field directly across from the intersection causing the warden to believe night hunting was occurring. As the warden approached the vehicle it became obvious two people were urinating on the side of the road. The warden parked behind the truck but did not block the trucks ability to pull forward. The warden exited his vehicle and said “Hi, Game Warden” and asked what was going on. The Defendant argued that at this point he was seized because he did not feel like he could get in his truck and leave. The Law Court disagreed and said a reasonable person in these circumstances would feel free to leave. The Law Court found a seizure occurred in this case when the warden observed signs of intoxication which happened after the above.

What does it mean to possess drugs? There is active and constructive possession of drugs. Active possession mean actual physical control of the drugs. Constructive Possession means the drugs are subject to your dominion and control even if not physically on you.

“Possession of Drugs: possession of drugs occurs when the drugs are “‘subject to [the defendant’s] dominion and control.’” State v. Deering, 1998 ME 23, ¶ 12, 706 A.2d 582 (quoting State v. Ellis, 502 A.2d 1037, 1040(Me. 1985) (alteration in original)); see also State v. Erving, 558 A.2d 703, 704 (Me. 1989) (“Possession of a physical object may be proved by showing that the accused . . . either had immediate physical control . . . of the object or knew where it was and had the intention and ability to gain physical control . . . of it.” (quotation marks omitted)).” State v. Wilson, 2015 ME 148, ¶ 15

I moved my blog.

February 1, 2015

    Please go to Facebook.com/mainecrimes to read my blog.

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Does the Grand Jury have a certain amount of time to indict you following your first appearance in court?

October 6, 2014

Yes. The Maine Constitution requires all felonies to be presented to the Grand Jury. If you make an initial appearance in court on a complaint charging you with a felony the prosecution will have six months or three meetings of the Grand Jury, whichever occurs first, to indict you. If the the Grand Jury does […]

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OUI Lifetime look back!

April 17, 2014

Currently, there is legislation pending and waiting for the governor’s signature to alter the operating under the influence law. Currently, to determine if an operating under the influence charge is a first, second, third, or more offense the prosecutor looks at the individuals driving record for the past 10 years. The classification and mandatory minimums […]

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Jury Selection Unsuccessful in Murder Trial

March 11, 2014

It was a very long day that taught the participants about jury voir dire questions that need to be reworded, deleted, and added. Hopefully a much larger pool will be available the next time we attempt to pick a jury. Click here to learn more.

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Shoot first, justify later

February 21, 2014

So if someone is unarmed and trying to escape from prison you should kill them? Just shoot them in the back, right? Sound appropriate, right?   Read the following article:   Maine DoC wants ‘shoot-to-kill’ rule for Windham prison Scott Thistle, State Politics Editor Maine | Thursday, February 20, 2014 at 8:30 pm AUGUSTA — Officials […]

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First Offense OUI suspension increase but decrease at the same time

July 22, 2013

An Act To Allow Ignition Interlock Devices on Vehicles Operated by First-time Offenders of Operating Under the Influence.  License suspensions for a first offense Operating Under the Influence increase in length while decreasing in length at the same time. The suspension period goes from 90 days to 150 days back down to 30 days with […]

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An Act To Amend the Motor Vehicle Ignition Interlock Device Requirements in the Laws Regarding Operating Under the Influence

July 20, 2013

An Act To Amend the Motor Vehicle Ignition Interlock Device Requirements in the Laws Regarding Operating Under the Influence This act changes the period of suspension and reinstatement for 3 or more Operating Under the Influence offenses. The court ordered suspension of a drivers license increases from 6 years to 8 years. This means if […]

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Did the Bangor, Maine police chief commit a crime? Is the getting away with it?

June 30, 2013

Did the Bangor Police Chief commit a crime? Reckless conduct is defined by statute as the actor recklessly creates a substantial risk of serious bodily injury to another person. The Chief is cleaning his new service weapon. To disassemble the weapon the trigger mechanism needs to be depressed. Depressing a trigger on a gun will […]

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