MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 2015 ME 147
Docket:   Han-14-494
Argued:   October 6, 2015
Decided:  November 17, 2015

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



                                STATE OF MAINE

                                         v.

                              BRYANT A. CIOMEI

HUMPHREY, J.

         [¶1] Bryant A. Ciomei appeals from a judgment of conviction entered by

the trial court (Ellsworth, R. Murray, J.) following his conditional guilty plea to a

charge of criminal operating under the influence. Ciomei contends that the court

(Ellsworth, Mallonee, J.) erred in denying his motion to suppress evidence of his

roadside interactions with a game warden, on a dark November night, from the

moment that the game warden parked his marked patrol vehicle behind Ciomei’s

truck, exited the vehicle, and announced his presence by saying, “Hi. Game

warden.” Ciomei contends that the court erred because he was seized at that

moment, within the meaning of the Fourth Amendment, and that the seizure was

not supported by reasonable, articulable suspicion of criminal conduct.            We
2

conclude that Ciomei was not seized as he alleges, and therefore affirm the

judgment.

                                           I. BACKGROUND

        [¶2] Bryant Ciomei was arrested and charged with criminal operating under

the influence (Class D), 29-A M.R.S. § 2411 (2014).1 Ciomei moved to suppress

all evidence from his interaction with the game warden leading to his arrest,

including the results of any field sobriety tests, arguing that evidence was obtained

illegally because he was subjected to an unconstitutional seizure when the warden

first encountered him.

        [¶3]    The District Court found that the game warden was on an early

morning patrol for night hunting. While driving, he saw a vehicle parked with its

headlights on in a manner consistent with night hunting. As the warden drew

nearer, he saw two people outside of the vehicle, urinating. The warden pulled up

behind the vehicle in a way that did not prevent it from being driven away. The

warden exited his cruiser and engaged with Ciomei, the driver and owner of the

vehicle. At that point, the warden observed signs of intoxication and initiated a

Terry stop. See Terry v. Ohio, 392 U.S. 1 (1968).



    1
     Ciomei was initially charged with violating 29-A M.R.S. § 2411(1-A)(B)(1) (2014), but entered a
conditional plea of guilty to the offense defined by 29-A M.R.S. § 2411(1-A)(A) (2014), pursuant to M.R.
Crim. P. 11(a)(2).
                                                                                                             3

         [¶4] Viewing the record in a light most favorable to the court’s decision,

the court’s findings are supported by competent evidence in the record. See State

v. Bryant, 2014 ME 94, ¶ 2, 97 A.3d 595. Only the game warden and Ciomei

testified at the suppression hearing. The game warden testified to the following:

After midnight on November 20, 2013, the warden and two other officers were on

patrol for night hunting. The game warden was in uniform and in a marked patrol

vehicle.2 As he drove north along Route 15 in the Sedgwick/Brooksville area, he

saw a small truck stopped at the stop sign where Haracorda Road meets Route 15.3

The truck was partially in the roadway with its headlights on. The warden believed

that the lights were pointing toward a field directly across from the intersection in a

manner that caused the warden to suspect night hunting activity. As the warden

drew nearer to the vehicle, he saw two people standing on either side of the truck

with the front doors open. Although the scene was “very dark,” the warden soon

“had a pretty good idea” that the people were urinating.




   2
     Under Maine law, a game warden in uniform has the authority to stop a person based on suspicion of
criminal activity. See 12 M.R.S. § 10353(2)(D) (2014).
   3
      It is possible that “Haracorda” is not the correct name of the road. However, this is the name used in
the hearing transcript and by the parties in their briefs on appeal. The warden described the intersection
as follows: “[T]raveling north on Route 15, the intersection would be to your left and . . . it’s not a
complicated intersection, but . . . it’s not a straightforward T-intersection. There’s a small sort of triangle
or island, if you will, with an entrance onto the Haracorda exit on the Haracorda also—or off the
Haracorda onto Route 15.”
4

         [¶5] The warden testified that he turned his vehicle onto Haracorda Road

and parked behind the truck.4 He did not turn on his vehicle’s flashing lights or

siren and there was nothing impeding the small truck from traveling forward onto

Route 15. The warden exited his vehicle and said, “Hi. Game warden.” He

testified that he made this statement because it was dark and he wanted to identify

himself as a law enforcement officer.5 The person on the driver’s side of the truck

then approached the game warden. The warden recognized him as Bryant Ciomei

from prior dealings—they had a “friendly relationship.” The two men met near the

back of Ciomei’s truck and the front of the game warden’s vehicle. The warden

asked “what was going on.” Ciomei replied that he was giving his friends a ride

home. At that point, the warden testified, he smelled alcohol on Ciomei’s breath

and observed that Ciomei’s eyes were bloodshot and his balance unsteady. After

Ciomei admitted to consuming alcohol, the warden administered field sobriety

tests.

         [¶6]   In his brief testimony at the suppression hearing, Ciomei did not

challenge the warden’s account. The court concluded, based on the evidence

    4
      The warden testified that he pulled up behind Ciomei’s vehicle “[t]o investigate whatever was going
on in the intersection; it was sort of odd that two subjects would be standing out in the middle of an
intersection during November at night. And then as I went by it appeared that they were urinating in the
intersection.” It is unclear to what extent the warden’s belief that the persons were urinating heightened
or lessened his generalized suspicion.
    5
     The warden testified he was in a marked cruiser with reflective markings, but Ciomei’s testimony
suggests that he first became aware of the warden’s identity as a law enforcement officer when the
warden said, “Hi. Game warden.”
                                                                                  5

presented, that the warden did not effect a Terry stop, and therefore Ciomei was

not seized within the meaning of the Fourth Amendment, prior to the moment the

warden observed signs of Ciomei’s intoxication. Ciomei entered a conditional

guilty plea and filed a timely appeal to us.

                                     II. DISCUSSION

      [¶7] “We review rulings on motions to suppress for errors of law or clearly

erroneous findings of fact.” State v. Forsyth, 2002 ME 75, ¶ 9, 795 A.2d 66.

Because the court’s factual findings are uncontroverted, we review independently

the court’s denial of the motion to suppress, and we will uphold that determination

“if any reasonable view of the evidence supports the trial court’s decision.” State

v. Kierstead, 2015 ME 45, ¶ 14, 114 A.3d 984 (quotation marks omitted).

      [¶8] The Fourth Amendment to the United States Constitution, applied to

the states through the Fourteenth Amendment, protects “against unreasonable

searches and seizures.” U.S. Const. amend. IV. “An encounter between a police

officer and a citizen implicates the Fourth Amendment only if the officer ‘seizes’

the citizen.”   State v. Moulton, 1997 ME 228, ¶ 7, 704 A.2d 361.             “It is

well-established that a police officer lawfully may stop, that is ‘seize,’ a person

only when the officer has an objectively reasonable, articulable suspicion that

criminal conduct has taken place, is occurring, or imminently will occur,” or that a

concern for safety has arisen. State v. Collier, 2013 ME 44, ¶ 6, 66 A.3d 563
6

(quotation marks omitted); State v. Pinkham, 565 A.2d 318, 319-20 (Me. 1989).

However, it is also well established that “not all personal intercourse between

policemen and citizens involves ‘seizures’ of persons.” Terry, 392 U.S. at 19 n.16.

The Fourth Amendment is not implicated where an officer merely approaches a

person on the street or in another public place to ask questions or engage in

consensual conversation. State v. Gulick, 2000 ME 170, ¶¶ 11, 17 n.7, 759 A.2d

1085; Moulton, 1997 ME 228, ¶ 8, 704 A.2d 361. It is “[o]nly when the officer, by

means of physical force or show of authority, has in some way restrained the

liberty of a citizen [that a court may] conclude that a ‘seizure’ has occurred.”

Terry, 392 U.S. at 19 n.16; see also United States v. Mendenhall, 446 U.S. 544,

553 (1980). The inquiry is objective: a court must look to “all of the circumstances

surrounding the incident”6 to determine whether “a reasonable person would have




    6
     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.

See State v. Collier, 2013 ME 44, ¶ 8, 66 A.3d 563.
                                                                                  7

believed that he was not free to leave” the encounter with the police officer.

Mendenhall, 446 U.S. at 554.

      [¶9] Ciomei argues that he was seized within the meaning of the Fourth

Amendment “the moment the officer announced he was a ‘Game Warden.’” We

disagree, and because this is an objective inquiry focusing on a reasonable person,

Ciomei’s contention that he felt unable to leave when the warden identified

himself, and the warden’s testimony that he would have found a reason to stop

Ciomei if he had driven away, are both irrelevant. See State v. Cilley, 1998 ME 34,

¶ 7, 707 A.2d 79 (“[A] law enforcement officer’s uncommunicated, subjective

intent to detain a citizen is not relevant to determining whether a seizure has

occurred.”). The court did not find, and there is no evidence indicating, that the

warden displayed his weapon, turned on his siren, flashing lights or loudspeaker, or

touched Ciomei in any way. The warden did not physically block Ciomei’s path to

leave the encounter by car or on foot, and the encounter did not occur in a place

where Ciomei’s movements were constrained. Although there may have been

additional officers in the warden’s vehicle, as the warden testified, there is no

evidence that Ciomei was aware of them. Finally, there is no evidence that the

warden made any request of, or issued any order to, Ciomei—he simply identified

himself as a game warden and asked “what was going on.” The evidence in this

case is similar to the evidence in those cases in which we have determined that
8

there was no seizure because an officer merely approached a person in a public

place to make an inquiry and did not indicate in any way that the person was not

free to leave. See, e.g., Collier, 2013 ME 44, ¶¶ 2-3, 9-10, 66 A.3d 563; Cilley,

1998 ME 34, ¶¶ 2-4, 8, 707 A.2d 79; Moulton, 1997 ME 228, ¶¶ 2-3, 9, 704 A.2d

361.7

        [¶10] Although the warden testified that he arrived in a marked police

vehicle, in uniform, and announced that he was a game warden, this is not

sufficient to constitute a seizure. The fact that an officer is in uniform cannot be

dispositive, otherwise all encounters between uniformed law enforcement officers

and citizens would automatically be “seizures.” Nor does an officer’s approach

while driving a police vehicle constitute a seizure. See Collier, 2013 ME 44, ¶ 9,

66 A.3d 563 (“As a matter of law, the mere fact that a trooper was driving behind

Collier, even as Collier turned into an empty parking lot, cannot support the

finding of a seizure.”). In the particular circumstances of this case, the warden’s

announcement that he was a game warden was the functional equivalent of

wearing a uniform or driving a marked patrol car.

        [¶11] Because we conclude that Ciomei was not seized at any time before

the warden observed signs of Ciomei’s intoxication, we need not consider whether

    7
      State v. Garland, 482 A.2d 139 (Me. 1984), which is cited by Ciomei, is distinguishable because, in
that case, the officer effected a seizure by asking the driver for his identification, whereas in the present
case, the warden merely announced his presence to Ciomei. See id. at 142.
                                                                             9

the warden had an objectively reasonable, articulable suspicion that criminal

conduct had occurred, was occurring, or was about to occur before that moment.

The court did not err in denying Ciomei’s motion to suppress.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Jeffrey C. Toothaker, Esq., Ellsworth, for appellant Bryant A.
        Ciomei

        Matthew J. Foster, District Attorney, and Delwyn E. Webster,
        Asst. Dist. Atty., Prosecutorial District VII, Ellsworth, for
        appellee State of Maine


At oral argument:

        Jeffrey C. Toothaker, Esq., for appellant Bryant A. Ciomei

        Delwyn E. Webster, Asst. Dist. Atty., for appellee State of
        Maine



Ellsworth District Court docket number CR-2013-359
FOR CLERK REFERENCE ONLY
