MAINE	SUPREME	JUDICIAL	COURT	                                        Reporter	of	Decisions	
Decision:	     2016	ME	163	
Docket:	       Wal-16-17	
Submitted	
			On	Briefs:	 October	13,	2016	
Decided:	      November	8,	2016	
	
Panel:	        ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                   STATE	OF	MAINE	
                                          	
                                         v.	
                                          	
                                    ADAM	D.	GERRY	
	
	
ALEXANDER,	J.	

	      [¶1]	 	 Adam	 D.	 Gerry	 appeals	 from	 the	 judgment	 of	 the	 trial	 court	

(Waldo	County,	Worth,	J.)	finding	him	guilty	of	operating	under	the	influence	

(Class	 D),	 29-A	 M.R.S.	 §	 2411(1-A)(A),	 (5)	 (2015),	 following	 a	 conditional	

guilty	 plea,	 see	 M.R.U.	 Crim.	 P.	 11(a)(2).	 	 On	 appeal,	 Gerry	 contends	 that	 the	

motion	court	(R.	Murray,	J.)	erred	in	denying	his	motion	to	suppress	because	

his	 detention	 by	 law	 enforcement,	 which	 ultimately	 led	 to	 the	 charge	 of	

operating	 under	 the	 influence,	 was	 not	 based	 on	 a	 reasonable,	 articulable	

suspicion.		We	affirm	the	judgment.	

                                   I.		CASE	HISTORY	

       [¶2]	 	 In	 its	 order	 denying	 the	 motion	 to	 suppress,	 the	 court	 found	 the	

following	facts,	which	are	supported	by	the	record	reviewed	in	the	light	most	
2	

favorable	 to	 the	 court’s	 order.	 	 See	 State	 v.	 Kierstead,	 2015	 ME	 45,	 ¶	2,	

114	A.3d	984.	

      [¶3]		On	April	18,	2015,	an	officer	of	the	Belfast	Police	Department	was	

on	patrol	in	Belfast.		At	approximately	1:00	a.m.,	the	officer	observed	a	vehicle	

turn	off	of	Main	Street	and	into	the	parking	lot	of	a	drug	store,	which	had	been	

closed	for	several	hours.		The	vehicle	came	to	a	stop	and	its	lights	were	turned	

off.		The	officer	thought	it	was	unusual,	at	that	hour,	for	a	vehicle	to	pull	into	

that	parking	lot,	park,	and	have	its	lights	turned	off.		Thinking	that	there	may	

be	 a	 burglary	 in	 progress,	 and	 wanting	 to	 investigate	 further,	 the	 officer	

proceeded	up	the	street	a	short	distance,	turned	around,	and	returned	to	the	

parking	lot.	

      [¶4]	 	 Upon	 returning	 to	 the	 parking	 lot,	 the	 officer	 drove	 around	 the	

back	 side	 of	 the	 drug	 store	 looking	 for	 anything	 unusual.	 	 When	 he	 did	 not	

observe	anything	unusual	behind	the	store,	he	continued	around	the	building	

to	 where	 the	 vehicle	 he	 had	 seen	 was	 parked.	 	 The	 officer	 could	 not	 see	

anyone	 inside	 the	 vehicle,	 so	 he	 used	 his	 spotlight	 to	 illuminate	 the	 car,	 at	

which	time	Gerry,	who	apparently	had	been	reclined	in	his	seat,	sat	up	so	that	

he	was	visible.	
                                                                                            3	

       [¶5]		At	that	point,	the	officer	approached	Gerry	and	asked	him	if	he	was	

“all	right	and	what	he	was	doing.”		Once	the	officer	communicated	with	Gerry,	

he	 could	 smell	 alcohol	 coming	 from	 him.	 	 Due	 to	 the	 smell	 of	 alcohol,	 the	

officer’s	 inquiry	 and	 investigation	 shifted	 to	 an	 investigation	 of	 possible	

operation	of	a	motor	vehicle	while	under	the	influence	of	intoxicants.	

       [¶6]		Gerry	was	charged	with	operating	under	the	influence	pursuant	to	

29-A	M.R.S.	 §	 2411(1-A)(A).	 	 On	 July	 15,	 2015,	 Gerry	 moved	 to	 suppress	

evidence	 obtained	 during	 the	 detention	 and	 arrest,	 arguing	 that	 the	 police	

interaction	 with	 him	 constituted	 an	 unlawful	 detention	 that	 was	 not	

supported	by	a	reasonable	articulable	suspicion.	

       [¶7]	 	 A	 testimonial	 hearing	 on	 the	 motion	 was	 held	 on	

September	2,	2015.	 	 For	 purposes	 of	 the	 motion	 to	 suppress,	 the	 State	

conceded	that	the	officer’s	interaction	with	Gerry	constituted	a	seizure.	

       [¶8]	 	 In	 a	 written	 order,	 the	 court	 denied	 Gerry’s	 motion.	 	 The	 court	

found	 that	 the	 officer	 had	 a	 reasonable	 articulable	 suspicion	 of	 criminal	

conduct	from	his	observation	of	Gerry	pulling	into	the	parking	lot	of	a	closed	

business	 in	 the	 middle	 of	 the	 night,	 parking,	 and	 shutting	 off	 his	 vehicle’s	

lights.	 	 The	 court	 further	 found	 that	 the	 officer’s	 investigation	 of	 the	 back	 of	

the	 drug	 store	 and	 observation	 of	 the	 vehicle	 with	 no	 sign	 of	 an	 occupant	
4	

substantiated	his	stated	concern.		Lastly,	the	court	found	that	the	subsequent	

observation	of	Gerry	in	the	vehicle	justified	a	brief	inquiry	with	Gerry.	

          [¶9]		On	January	12,	2016,	Gerry	entered	a	conditional	plea	of	guilty	to	

the	charge	of	operating	under	the	influence.		See	M.R.U.	Crim.	P.	11(a)(2).		The	

court	 accepted	 the	 conditional	 guilty	 plea,	 and	 Gerry	 filed	 a	 timely	 notice	 of	

appeal.	

                                            II.		LEGAL	ANALYSIS	

          [¶10]	 	 Gerry	 argues	 that	 his	 detention	 was	 not	 supported	 by	 a	

reasonable	 articulable	 suspicion,	 and	 therefore	 constituted	 an	 unreasonable	

seizure	 under	 the	 Fourth	 Amendment.1	 	 He	 argues	 that	 the	 officer	 could	 not	

have	 harbored	 a	 reasonable	 articulable	 suspicion	 once	 he	 realized	 that	 no	

burglary	 had	 occurred,	 and	 that	 the	 trial	 court	 relied	 on	 precedent	 that	 was	

inapplicable	to	the	facts	in	the	present	case.	

          [¶11]		When	reviewing	a	trial	court’s	denial	of	a	motion	to	suppress,	we	

review	 the	 findings	 of	 fact	 by	 the	 trial	 court	 for	 clear	 error	 and	 review	 its	

conclusions	 of	 law	 de	 novo.	 	 Kierstead,	 2015	 ME	 45,	 ¶	 14,	 114	 A.3d	 94.	 	 We	




     1	 	 Gerry	 contends	 that	 he	 was	 seized	 when	 the	 officer	 “flew	 out	 of	 [his]	 car	 to	 confront	 [him],	

pinning	[his]	car	in	its	parking	spot.”		Although	it	does	not	appear	that	the	officer	activated	his	blue	
lights,	 or	 that	 Gerry’s	 car	 would	 not	 have	 been	 restricted	 from	 being	 driven	 forward,	 the	 State	
concedes	that	Gerry	was	detained	for	Fourth	Amendment	purposes.		
                                                                                                5	

“will	uphold	the	denial	of	a	motion	to	suppress	if	any	reasonable	view	of	the	

evidence	supports	the	trial	court’s	decision.”		Id.		

       [¶12]	 	 The	 protections	 of	 the	 Fourth	 Amendment	 are	 implicated	 when	

“[a]n	 encounter	 between	 a	 member	 of	 law	 enforcement	 and	 a	 citizen	 .	 .	 .	

constitutes	 a	 seizure	 of	 .	 .	 .	 the	 citizen.”	 	 State	 v.	 Gulick,	 2000	 ME	 170,	 ¶	 10,	

759	A.2d	1085.	 	 A	 law	 enforcement	 officer	 can	 permissibly	 detain	 a	 citizen	

when	 “specific	 and	 articulable	 facts	 which,	 taken	 together	 with	 rational	

inferences	from	those	facts,	reasonably	warrant	that	intrusion.”		State	v.	Dulac,	

600	A.2d	1121,	1122	(Me.	1992)	(quoting	Terry	v.	Ohio,	392	U.S.	1,	21	(1968));	

see	 also	 State	 v.	 LaPlante,	 2011	 ME	 85,	 ¶	 8,	 26	 A.3d	 337	 (“In	 almost	 all	

circumstances,	 a	 warrantless	 seizure	 is	 unreasonable	 in	 the	 absence	 of	 an	

objectively	 reasonable,	 articulable	 suspicion	 that	 criminal	 conduct	 has	 taken	

place,	is	occurring,	or	will	imminently	occur.”).		When	the	initial	justification	

for	 a	 stop	 has	 evaporated,	 a	 law	 enforcement	 officer	 is	 not	 precluded	 from	

making	further	investigation	based	on	facts	obtained	though	the	initial	lawful	

contact.		See	State	v.	Huether,	2000	ME	59,	¶¶	6-8,	748	A.2d	993.	

	      [¶13]	 	 Gerry	 argues	 that	 the	 officer	 could	 not	 have	 harbored	 a	

reasonable	articulable	suspicion	that	a	burglary	was	taking	place	or	about	to	

take	place	once	he	found	Gerry	asleep	in	his	car.		The	officer,	however,	never	
6	

stated	that	he	found	Gerry	sleeping,	only	that	he	did	not	see	anyone	in	the	car	

until	he	used	his	spotlight	to	illuminate	the	vehicle	and	then	saw	Gerry’s	head	

pop	 up	 from	 a	 reclined	 seat.	 	 As	 this	 occurred	 in	 the	 course	 of	 legitimately	

investigating	 whether	 a	 burglary	 may	 be	 occurring	 or	 was	 about	 to	 occur,	

asking	 Gerry	 what	 he	 was	 doing	 and	 if	 he	 was	 “all	 right”	 was	 a	 minimal	

intrusion	on	his	Fourth	Amendment	rights.		See	State	v.	Hill,	606	A.2d	793,	795	

(Me.	 1992)	 (noting	 that	 a	 request	 to	 see	 a	 drivers	 license	 was	 a	 “minimal	

further	 intrusion”	 and	 did	 not	 require	 a	 reasonable	 articulable	 suspicion,	 so	

long	as	the	initial	stop	was	supported	by	a	reasonable	articulable	suspicion).			

	      [¶14]	 	 In	 the	 circumstances	 of	 this	 case,	 the	 officer’s	 questions	 were	

appropriate,	even	if	the	officer	no	longer	suspected	a	burglary	might	be	taking	

place.	 	 Hill,	 606	 A.2d	 at	 794-95	 (observing	 that	 although	 the	 justification	 for	

the	 initial	 detention	 had	 evaporated,	 an	 officer	 was	 justified	 in	 prolonging	 a	

detention	 in	 a	 way	 that	 created	 only	 a	 “minimal	 further	 intrusion”	 into	 the	

detained	 person’s	 liberty	 interests,	 because	 there	 was	 a	 “significant	 State	

interest”;	 see	 also	 State	 v.	 Gulick,	 2000	 ME	 170,	 ¶¶	 19-20,	 759	 A.2d	 1085;	

cf.	Rodriguez	 v.	 United	 States,	 575	 U.S.	 ---,	 135	 S.	 Ct.	 1609,	 1614-15	 (2015)	

(stating	that	“a	traffic	stop	can	become	unlawful	if	it	is	prolonged	beyond	the	

time	 reasonably	 required	 to	 complete	 th[e]	 mission	 of	 issuing	 a	 warning	
                                                                                                                  7	

ticket,”	 but	 that	 the	 “mission”	 of	 a	 traffic	 stop	 includes	 making	 “ordinary	

inquiries	incident	to	[the	traffic]	stop”).		

        [¶15]		Thinking	that	a	burglary	may	be	occurring	or	was	about	to	occur,	

the	 officer	 investigated	 the	 back	 of	 the	 store,	 and	 proceeded	 around	 to	 the	

parked	 car,	 which	 appeared	 empty	 until	 illuminated.2	 	 Once	 the	 officer	

illuminated	the	car,	Gerry	popped	up	in	his	seat,	and	the	officer	engaged	him.		

At	 that	 point	 the	 officer	 noticed	 the	 scent	 of	 alcohol	 on	 Gerry—a	 fact	

discovered	 as	 a	 result	 of	 the	 initial	 lawful	 contact—and	 he	 was	 justified	 in	

investigating	and	detaining	Gerry	further.		

        [¶16]		The	trial	court	found	that	the	facts	from	State	v.	Gulick,	2000	ME	

170,	759	A.2d	1085,	were	“very	similar”	to	the	facts	of	this	case,	and	relied	on	

that	opinion	in	denying	Gerry’s	motion	to	suppress.		Gerry	argues	that	unlike	

Gulick,	 the	 officer	 here	 had	 no	 concern	 for	 safety,	 and	 further	 contends	 that	

the	 opinion	 says	 nothing	 about	 a	 suspicion	 of	 wrongdoing	 being	 sufficient	

grounds	for	a	reasonable	articulable	suspicion.	


   2		Although	Gerry	asserts	that	the	officer’s	suspicion	was	nothing	more	than	a	“hunch,”	the	trial	

court	 did	 not	 clearly	 err	 in	 finding	 that	 the	 officer	 had	 a	 reasonable	 articulable	 suspicion	 that	 a	
burglary	may	be	occurring	or	was	about	to	occur,	because	the	officer	testified	to	knowledge	of	other	
burglaries	in	the	area,	the	time	of	night,	the	location	of	the	vehicle,	and	the	manner	in	which	it	was	
parked.	 	 See	 State	 v.	 Sylvain,	 2003	 ME	 5,	 ¶	 8,	 814	 A.2d	 984	 (“Since	 the	 motion	 court	 has	 had	 the	
opportunity	 to	 hear	 the	 witnesses	 and	 assess	 their	 credibility,	 we	 afford	 the	 court’s	 findings	
concerning	 historical	 facts	 considerable	 deference.	 .	 .	 .	 [O]nly	 if	 the	 findings	 are	 clearly	 erroneous	
will	they	be	set	aside.”).	
8	

       [¶17]	 	 Although	 there	 may	 have	 been	 no	 safety	 concern	 here,	 the	

assertion	about	wrongdoing	ignores	what	may	have	been	the	officer’s	duty	to	

at	 least	 check	 on	 any	 vehicle	 found	 in	 similar	 circumstances	 in	 the	 early	

morning	hours.		As	we	stated	in	Gulick,	“[h]aving	observed	the	car	pull	into	the	

parking	lot	of	a	closed	emergency	medical	care	facility	at	almost	three	o’clock	

in	the	morning,	any	prudent	officer	would	have	been	justified	in	assuring	that	

the	 occupants	 did	 not	 have	 a	 medical	 or	 other	 emergency	 or	 that	 illegal	

activity	was	not	afoot.”		Gulick,	2000	ME	170,	¶	18,	759	A.2d	1085	(emphasis	

added)	(citation	omitted).		We	further	stated	that	under	those	circumstances,	

an	 officer’s	 failure	 to	 “investigate	 .	 .	 .	 [the	 defendant’s]	 presence	 there,	 and	

obtain	identification,	would	have	constituted	a	serious	error	in	judgment.”		Id.		

We	 ultimately	 held	 that	 “a	 detention	 related	 to	 a	 request	 .	 .	 .	 that	 the	 motor	

vehicle	 operator	 demonstrate	 that	 the	 operator	 is	 licensed	 is	 not	 an	

unreasonable	 intrusion	 when	 the	 officer’s	 initial	 contact	 with	 the	 operator	 is	

based	 on	 reasonable	 and	 articulable	 facts	 of	 a	 concern	 for	 safety	 or	

wrongdoing,	 whether	 or	 not	 the	 initial	 contact	 itself	 constituted	 a	 seizure.”	

Id.	¶	21	(emphasis	in	original).			

       [¶18]		Given	that	the	drug	store	had	been	closed	for	several	hours,	and	

suspecting	 that	 a	 burglary	 may	 be	 afoot,	 the	 officer	 was	 justified	 in	 briefly	
                                                                                                                       9	

detaining	 Gerry	 to	 ask	 if	 he	 was	 all	 right	 and	 to	 inquire	 as	 to	 his	 purpose	 in	

being	there.3		The	court	was	correct	in	determining	that	Gulick	controlled.4	

         [¶19]		Viewing	the	findings	of	fact	in	the	light	most	favorable	to	the	trial	

court’s	 order,	 there	 is	 sufficient	 evidence	 to	 conclude	 that	 the	 officer	 had	 a	

reasonable,	articulable	suspicion	of	wrongdoing	to	warrant	the	brief	detention	

of	 Gerry.	 The	 officer’s	 subsequent	 observation	 and	 discovery	 of	 Gerry’s	

intoxication	 therefore	 resulted	 from	 a	 reasonable,	 articulable	 suspicion	 of	

other	criminal	conduct.		The court’s factual findings are not clearly erroneous,

and its legal conclusions are consistent with our law. 	

         The	entry	is:	

         	        	         Judgment	affirmed.	

	        	        	         	        	        	

	
	
	
	
	

    3		In	Gulick,	we	noted	that	the	officer	did	not	choose	to	engage	in	a	seizure	or	stop,	but	having	

observed	 the	 lone	 vehicle	 at	 a	 closed	 medical	 facility	 at	 three	 in	 the	 morning	 “would	 have	 been	
justified	 in	 engaging	 in	 a	 seizure,	 or	 a	 ‘stop’	 on	 these	 facts.”	 	 State	 v.	 Gulick,	 2000	 ME	 170,	 ¶	 17,	
759	A.2d	1085.	
    4		Applying	Gulick	in	this	manner	does	not,	as	Gerry	contends,	“swallow	the	rule,	allowing	police	

to	 seize	 and	 search	 anyone	 parked	 in	 a	 public	 place	 .	 .	 .	 	 at	 nighttime,”	 because	 law	 enforcement	
officers	must	still	harbor	a	reasonable,	articulable	suspicion	to	justify	a	detention.	

    	
10	

On	the	briefs:	
	
     Rory	A.	McNamara,	Esq.,	Drake	Law,	LLC,	Lebanon,	for	appellant	Adam	
     D.	Gerry	
     	
     William	 B.	 Entwisle,	 Asst.	 Dist.	 Atty.,	 Prosecutorial	 District	 VI,	 Belfast,	
     for	appellee	State	of	Maine	
	
	
	
Waldo	County	Unified	Criminal	Docket	docket	number	CR-2015-77	
FOR	CLERK	REFERENCE	ONLY
