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STATE v. IZZO

4/26/1993

Joseph Izzo appeals from the Superior Court (Somerset County, Chandler, J.) judgments, entered on conditional guilty pleas, convicting him of the crimes of unlawful furnishing and possession of scheduled drugs. See 17-A M.R.S.A. § 1106, 1107 (1983 & Supp. 1992). Izzo contends that the trial court erred in denying his motion to suppress all evidence obtained pursuant to various law enforcement searches. We affirm the judgments of the Superior Court.


Factual Background


Pittsfield police officer Peter Boucher was on routine patrol during the early morning hours of October 3, 1991 when he observed a vehicle, driven by Izzo and carrying one passenger, Timothy Stutz, pull into a closed gasoline station. Officer Boucher pulled into the station, beside Izzo's vehicle, to offer assistance. Izzo was somewhat slow, however, in rolling down the vehicle's window. This delay made Boucher suspicious. Boucher told Izzo where he could find an open gasoline station. As Izzo's vehicle left the station, Boucher noticed that the vehicle had a broken tail lens and an inoperable plate light. Consequently, in accord with his normal practice, Boucher stopped Izzo's vehicle. In the process of stopping Izzo's vehicle, Boucher observed Izzo make an "extra movement" with his arm in the front seat.


On Boucher's request, Izzo produced a New York driver's license and registration.
At this time, Boucher noticed approximately three or four empty beer bottles in the back seat. As a result, Boucher asked Izzo to get out of the car and go sit in the police cruiser. There was an odor of alcohol coming from the vehicle, odor on Izzo's breath, and Izzo's eyes were "watery and bloodshot."


Boucher went over to the passenger in Izzo's car and asked him for personal identification. The passenger, Stutz, had none. Boucher noticed that Stutz was wearing a waist bag and asked if there was anything in the bag to identify him. Stutz took some business cards out of the front compartment of the waist bag. Boucher asked what was in another zippered compartment. Stutz took off the waist bag, handed it to Boucher, and stated that it contained about an ounce of marijuana.


Boucher brought Stutz back to the police cruiser and informed Izzo that he was going to search through the compartment area of his car because he "located some marijuana on his passenger." In the course of that search, Boucher found a pipe on the car seat containing marijuana residue, four bags of marijuana in Izzo's jacket pocket, roaches in the ashtray, and another baggie containing marijuana in the front compartment area of the car.


Boucher went back to the cruiser and asked Izzo if he had marijuana on his person and if he would empty his pockets. Izzo pulled out "a small brown container that had some marijuana in it, along with a pipe, and he pulled out a large wad of cash." Boucher asked Izzo if he would sign a consent form permitting a search of the trunk. Boucher told Izzo that if Izzo did not consent to the search, Boucher would impound the car and get a search warrant. Before consenting to the search of his trunk, Izzo was permitted to speak privately with the passenger, Stutz. Izzo told Boucher that "some acid" might be in the trunk because, as Izzo stated, "I was coming up to Crystal and we have some friends up there and [my girlfriend] might have put it in for me to give to them." Izzo signed the consent form, which was witnessed by Boucher and Newport Officer Raymond at 3:00 a.m., approximately fifty minutes after the initial stop.


State Police Trooper Robert Williams then arrived on the scene and, while his dog was sniffing the interior compartment of the car, Boucher searched the trun

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